2021-0599_v1_-_Town_of_Duck_(Dare)_IC_Reissue.docx

November 23, 2021

DWR Project # 2021-0599 v1
Dare County
Town of Duck
ATTN: Joe Heard
1200 Duck Road
Duck, North Carolina 27949

(Delivered via email to [e-mail])

Subject: Approval of Individual 401 Water Quality Certification
Town of Duck Shoreline Protection Project
USACE Action ID. No. SAW-2021-00566

Dear Mr. Heard:

Attached hereto is Certification No. WQC004548 issued to Mr. Joe Heard and the Town of Duck, dated
November 23, 2021. This Certification replaces the Certification issued on October 26, 2021. This
Certification is being re-issued to address any confusion regarding the 401 Certification issued October 26,
2021 and to expedite the U.S. Army Corps of Engineers’s review of the project.

This approval is for the purpose and design described in your application. The plans and specifications for
this project are incorporated by reference as part of this Water Quality Certification. If you change your
project, you must notify the Division and you may be required to submit a new application package with
the appropriate fee. If the property is sold, the new owner must be given a copy of this Certification and is
responsible for complying with all conditions. [15A NCAC 02H .0507(d)(2)].
This Water Quality Certification does not relieve the permittee of the responsibility to obtain all other
required Federal, State, or Local approvals before proceeding with the project, including those required
by, but not limited to, Sediment and Erosion Control, Non-Discharge, Water Supply Watershed, and
Trout Buffer regulations.
This Water Quality Certification neither grants nor affirms any property right, license, or privilege in any
lands or waters, or any right of use in any waters. This Water Quality Certification does not authorize
any person to interfere with the riparian rights, littoral rights, or water use rights of any other person
and does not create any prescriptive right or any right of priority regarding any usage of water. This
Water Quality Certification shall not be interposed as a defense in any action respecting the
determination of riparian or littoral rights or other rights to water use. No consumptive user is deemed
by virtue of this Water Quality Certification to possess any prescriptive or other right of priority with
respect to any other consumptive user.
Upon the presentation of proper credentials, the Division may inspect the property.
DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 2 of 10

This Water Quality Certification shall expire on the same day as the expiration date of the corresponding
Section 404 Permit or Federal authorization. The conditions shall remain in effect for the life of the
project, regardless of the expiration date of this Water Quality Certification.
Non-compliance with or violation of the conditions herein set forth may result in revocation of this
Water Quality Certification for the project and may also result in criminal and/or civil penalties.
If you are unable to comply with any of the conditions of this Water Quality Certification you must notify
the Asheville Regional Office within 24 hours (or the next business day if a weekend or holiday) from the
time the permittee becomes aware of the circumstances.
The permittee shall report to the Washington Regional Office any noncompliance with, and/or any
violation of, stream or wetland standards [15A NCAC 02B .0200] including but not limited to sediment
impacts to streams or wetlands. Information shall be provided orally within 24 hours (or the next
business day if a weekend or holiday) from the time the permittee became aware of the non-compliance
circumstances.

This approval and its conditions are final and binding unless contested [G.S. 143-215.5].
This Certification can be contested as provided in Chapter 150B of the North Carolina General Statutes by
filing a Petition for a Contested Case Hearing (Petition) with the North Carolina Office of Administrative
Hearings (OAH) within sixty (60) calendar days. Requirements for filing a Petition are set forth in Chapter
150B of the North Carolina General Statutes and Title 26 of the North Carolina Administrative Code.
Additional information regarding requirements for filing a Petition and Petition forms may be accessed at
http://www.ncoah.com/ or by calling the OAH Clerk’s Office at [phone].
One (1) copy of the Petition must also be served to the North Carolina Department of Environmental
Quality:
William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601

DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 3 of 10

This letter completes the Division’s review under section 401 of the Clean Water Act and 15A NCAC
02H .0500. Please contact Chris Pullinger at 252-948-3918 or [e-mail] if you have any
questions or concerns.

Sincerely,

Paul Wojoski, Supervisor
401 & Buffer Permitting Branch

cc: Kenneth T. Wilson, Coastal Protection Engineering of North Carolina (via e-mail)
Brad Rosov, Coastal Protection Engineering of North Carolina (via e-mail)
Josh Pelletier, USACE Washington Field Office (via e-mail)
Gregg Bodnar, DCM Morehead City (via e-mail)
Laserfiche/DWR file copy

DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 4 of 10

NORTH CAROLINA 401 WATER QUALITY CERTIFICATION

CERTIFICATION # WQC004548 is issued in conformity with the requirements of Section 401, Public Laws
92-500 and 95-217 of the United States and subject to North Carolina’s Regulations in 15 NCAC 02H .0500
and 15A NCAC 02B .0200, to Mr. Joe Heard and the Town of Duck, who have authorization for the impacts
listed below, as described within your application dated March 19, 2021 subsequent information received
by the Division of Water Resources (Division) on August 06, 2021 and by Public Notice issued by the U. S.
Army Corps of Engineers and received by the Division on March 31, 2021.

The State of North Carolina certifies that this activity will comply with water quality requirements and
the applicable portions of Sections 301, 302, 303, 306, 307 of the Public Laws 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, and conditions
hereinafter set forth.

The following additional impacts associated with the Asheville Regional Airport Area 1 Structural Fill are
hereby approved. No other impacts are approved, including incidental impacts. [15A NCAC
02H .0506(b)]
Type of Impact

Amount Approved
(units)
Permanent
Amount Approved
(units)
Temporary
Plan location/
Reference Attached
Open Waters
OW1 (fill) 69.4 (acres) 0 (acres) DCM Plan Sheets –
Appendix A

This approval requires you to follow the conditions listed in the certification below.

CONDITIONS OF CERTIFICATION [15A NCAC 02H .0507(c)]:
1. Any final construction plans for this project must include or reference the application and plans
approved by the Division under this authorization letter and certification. The applicant will also be
required to evaluate all acquired permits to assure that they are consistent, and all relative impacts
are accounted for and shown on the construction plans.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC 02B
.0231
2. The Permittee shall adhere specially to 15A NCAC 02b .0221 Tidal Salt Water Quality for Class SB
Waters (3)(g) pH: shall be normal for waters in the area, which generally shall range between 6.8
and 8.5 except that swamp waters may have a pH as low as 4.3 if it is the result of natural
conditions; (I) Turbidity: the turbidity in the receiving water shall not exceed 25 NTU; if turbidity
exceeds this level due to natural background conditions, the existing turbidity level shall not be
increased.

Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0221
3. Construction Moratoriums and Coordination

DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 5 of 10

If activities must occur during periods of high biological activity (i.e., sea turtle nesting, fish
spawning, or bird nesting), then biological monitoring may be required at the request of other state
or federal agencies and coordinated with these activities.

All moratoriums on construction activities established by the NC Wildlife Resources Commission
(WRC), US Fish and Wildlife Service (USFWS), NC Division of Marine Fisheries (DMF), or National
Marine Fisheries Service (NMFS) to less impacts on trout, anadromous fish, larval/post-larval fishes
and crustaceans, or other aquatic species of concern shall be implemented. Exceptions to this
condition require written approval by the resource agency responsible for the given moratorium.

Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200

4. Dredging shall not cause Shellfish Closures

The effluent water from the dredge spoil shall not be released into open shellfish waters unless
Shellfish Sanitation and the DWR Washington (252-946-6481) is notified and provide approval prior
to the release.

Citation: 15A NCAC 02H .0506(b); 15A NCAC 02B .0221; 15A NCAC 02B .0200

5. For living shorelines, the sills shall have at least one five-foot opening every 100 feet and may
staggered or overlapped or left open as long as the five-foot separation between sections is
maintained. Overlapping sections shall not overlap more than 10 feet.

Citation: 15A NCAC 02H .0506(b)

6. For living shorelines, the permittee shall employ all sedimentation and erosion control measures
necessary to prevent an increase in sedimentation and turbidity within waters and wetlands outside
the permitted area. This shall include, but is not limited to, the immediate installation of silt fencing,
turbidity curtains or similar appropriate devices around all areas subject to soil disturbance.
Additionally, the project must remain in full compliance with all aspects of the Sedimentation
Pollution Control Act and the Mining Act of 1971.

Citation: 15A NCAC 02H .0506(b); 15A NCAC 02B .0221; 15A NCAC 02B .0200

7. The Permittee shall replant the vegetation within temporarily disturbed areas associated with this
project in an “in kind” manner immediately following construction. (Example: Disturbed areas with
pre-existing grassed lawns must be replanted with grass. Disturbed areas with pre-existing trees or
woody vegetation must be replanted with trees and woody vegetation. Disturbed areas with pre-
existing forest vegetation must be replanted with forest vegetation including at least two different
native hardwood tree species at a density sufficient to provide 260 trees per acre at maturity. This
density can usually be achieved by planting approximately 360 (11 x 11 spacing) to 538 (9 x 9
spacing) trees per acre.) Restoration of trees/shrubs/forest must be completed by the first
subsequent planting season (November 1 through March 30). Note, if the tree plantings do not
survive, they will need to be replaced such that the density is sufficient to provide 320 trees per acre
at maturity.
DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 6 of 10

For this project, you have submitted a plan for restoration of the buffer, and that plan (attached) is
herein approved, and has been determined to meet the expectation of “in-kind” restoration, based on
pre-construction site conditions.

Citation: 15A NCAC 02H .0507 (c), 15A NCAC 02H .0506 (b)(3), and 15A NCAC 02B .0734
8. Stormwater runoff from impervious surfaces shall be addressed by one or more of the regulated
programs: an approved Sediment and Erosion Control Plan, a NPDES stormwater permit, a NPDES
wastewater permit, a permit issued by the Division of Solid Waste. Any applicable approvals for
long term stormwater treatment shall be secured by the Permittee prior to conducting any impacts
approved in this modified Certification.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
9. The permittee shall report to the DWR Washington Regional Office any noncompliance with, and/or
any violation of, stream or wetland standards [15A NCAC 02B .0200], including but not limited to
sediment impacts to streams or wetlands. Information shall be provided orally within 24 hours (or the
next business day if a weekend or holiday) from the time the permittee became aware of the non-
compliance circumstances.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
10. No waste, spoil, solids, or fill of any kind shall occur in wetlands or waters beyond the footprint of
the approved impacts (including temporary impacts).
Citation: 15A NCAC 02H .0506; 15A NCAC 02H .0507(c)
11. All activities shall be in compliance with any applicable State Regulated Riparian Buffer Rules in
Chapter 2B of Title 15A in the North Carolina Administrative Code.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
12. When applicable, all construction activities shall be performed and maintained in full compliance
with G.S. Chapter 113A Article 4 (Sediment and Pollution Control Act of 1973). Regardless of
applicability of the Sediment and Pollution Control Act, all projects shall incorporate appropriate
Best Management Practices for the control of sediment and erosion so that no violations of state
water quality standards, statutes, or rules occur.
Design, installation, operation, and maintenance of all sediment and erosion control measures shall
be equal to or exceed the requirements specified in the most recent version of the North Carolina
Sediment and Erosion Control Manual, or for linear transportation projects, the North Caroline
Department of Transportation Sediment and Erosion Control Manual.
All devices shall be maintained on all construction sites, borrow sites, and waste pile (spoil) sites,
including contractor-owned or leased borrow pits associated with the project. Sufficient materials
required for stabilization and/or repair of erosion control measures and stormwater routing and
treatment shall be on site at all times.
DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 7 of 10

For borrow pit sites, the erosion and sediment control measures shall be designed, installed,
operated, and maintained in accordance with the most recent version of the North Carolina Surface
Mining Manual. Reclamation measures and implementation shall comply with the reclamation in
accordance with the requirements of the Sedimentation Pollution Control Act and the Mining Act of
1971.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC
02B .0231
13. Sediment and erosion control measures shall not be installed in wetland or waters except within the
footprint of temporary or permanent impacts otherwise authorized by this Certification. If placed
within authorized impact areas, then placement of such measures shall not be conducted in a
manner that results in dis-equilibrium of any wetlands, streambeds, or streambanks. Any silt fence
installed within wetlands shall be removed from wetlands and the natural grade restored within two
(2) months of the date that DEMLR or locally delegated program has released the specific area
within the project to ensure wetland standards are maintained upon completion of the project.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC 02B
.0231
14. Erosion control matting that incorporates plastic mesh and/or plastic twine shall not be used along
streambanks or within wetlands.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
15. If the project is covered by NPDES Construction Stormwater Permit Number NCG010000 or NPDES
Construction Stormwater Permit Number NCG250000, full compliance with permit conditions
including the erosion & sedimentation control plan, inspections and maintenance, self-monitoring,
record keeping and reporting requirements is required.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC
02B .0231
16. All work in or adjacent to streams shall be conducted so that the flowing stream does not come in
contact with the disturbed area. Approved best management practices from the most current
version of the NC Sediment and Erosion Control Manual, or the NC Department of Transportation
Construction and Maintenance Activities Manual, such as sandbags, rock berms, cofferdams, and
other diversion structures shall be used to minimize excavation in flowing water.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200
17. Application of fertilizer to establish planted/seeded vegetation within disturbed riparian areas
and/or wetlands shall be conducted at agronomic rates and shall comply with all other Federal,
State and Local regulations. Fertilizer application shall be accomplished in a manner that minimizes
the risk of contact between the fertilizer and surface waters.
Citation: 15A 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC 02B .0231
DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 8 of 10

18. If concrete is used during construction, then all necessary measures shall be taken to prevent direct
contact between uncured or curing concrete and waters of the state. Water that inadvertently
contacts uncured concrete shall not be discharged to waters of the state.
Citation: 15A 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC 02B .0231
19. All proposed and approved temporary fill and culverts shall be removed and the impacted area shall
be returned to natural conditions within 60 calendar days after the temporary impact is no longer
necessary. The impacted areas shall be restored to original grade, including each stream’s original
cross-sectional dimensions, planform pattern, and longitudinal bed profile. All temporarily impacted
sites shall be restored and stabilized with native vegetation.
Citation: 15A NCAC 02H.0506(b); 15A NCAC 02H .0507(c)
20. All proposed and approved temporary pipes/culverts/rip-rap pads etc. in streams or wetlands shall
be installed as outlined in the most recent edition of the North Carolina Sediment and Erosion
Control Planning and Design Manual or the North Carolina Surface Mining Manual or the North
Carolina Department of Transportation Best Management Practices for Construction and
Maintenance Activities so as not to restrict stream flow or cause dis-equilibrium during use of this
Certification.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
21. Any rip-rap required for proper culvert placement, stream stabilization, or restoration of temporarily
disturbed areas shall be restricted to the area directly impacted by the approved construction
activity. All rip-rap shall be placed such that the original streambed elevation and streambank
contours are restored and maintained and shall consist of clean rock or masonry material free of
debris or toxic pollutants. Placement of rip-rap or other approved materials shall not result in de-
stabilization of the stream bed or banks upstream or downstream of the area or be installed in a
manner that precludes aquatic life passage.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
22. Any rip-rap used for stream or shoreline stabilization shall be of a size and density to prevent
movement by wave, current action, or stream flows, and shall consist of clean rock or masonry
material free of debris or toxic pollutants. Rip-rap shall not be installed in the streambed except in
specific areas required for velocity control and to ensure structural integrity of bank stabilization
measures.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0201
23. Rip-rap groins proposed in accordance with 15A NCAC 07H .1401 (NC Division of Coastal
Management General Permit for construction of Wooden and Rip-rap Groins in Estuarine and Public
Trust Waters) shall meet all the specific conditions for design and construction specified in 15A
NCAC 07H .1405.
Citation: 15A NCAC 02H .0507(c); 15A NCAC 07H .1400 et seq.
DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 9 of 10

24. All mechanized equipment operated near surface waters shall be inspected and maintained
regularly to prevent contamination of surface waters from fuels, lubricants, hydraulic fluids, or other
toxic materials. Construction shall be staged in order to minimize the exposure of equipment to
surface waters to the maximum extent practicable. Fueling, lubrication, and general equipment
maintenance shall be performed in a manner to prevent, to the maximum extent practicable,
contamination of surface waters by fuels and oils.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC 02B
.0231
25. Heavy equipment working in wetlands shall be placed on mats or other measures shall be taken to
minimize soil disturbance and compaction.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0231
26. In accordance with 143-215.85(b), the permittee shall report any petroleum spill of 25 gallons or
more; any spill regardless of amount that causes a sheen on surface waters; any petroleum spill
regardless of amount occurring within 100 feet of surface waters; and any petroleum spill less than
25 gallons that cannot be cleaned up within 24 hours.
Citation: 15A NCAC 02H .0507(c); N.C.G.S 143-215.85(b)
27. The permittee and their authorized agents shall conduct all activities in a manner consistent with
State water quality standards (including any requirements resulting from compliance with §303(d)
of the Clean Water Act), and any other appropriate requirements of State and Federal Law.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
28. The permittee shall require its contractors and/or agents to comply with the terms and conditions of
this permit in the construction and maintenance of this project, and shall provide each of its
contractors and/or agents associated with the construction or maintenance of this project with a
copy of this Water Quality Certification. A copy of this Water Quality Certification shall be available
at the project site during the construction and maintenance of this project.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)

DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21

Town of Duck
Shoreline Protection Project
DWR# 20210599 v1
Individual Certification WQC004548
Page 10 of 10

This approval to proceed with your proposed impacts or to conduct impacts to waters as depicted in
your application shall expire upon expiration of the 404 or CAMA Permit. The conditions in effect on the
date of issuance shall remain in effect for the life of the project, regardless of the expiration date of this
Certification. [15A NCAC 02H .0507(c)]

This, the 23rd day of November 2021

Paul Wojoski, Supervisor
401 & Buffer Permitting Branch

PAW
WQC004548
DocuSign Envelope ID: 41E0BA37-D245-4031-B618-4204721E4E21