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HomeMy WebLinkAbout128-23 Southern Section Oregon Inlet MODIFICATION 5302024ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Director NORTH CAROLINA Environmental Quality May 30, 2024 DWR # 20190264 v3 Dare County Dare County Attn: Robert Outten PO Box 1000 Manteo, North Carolina 27954 Subject: Approval of Individual 401 Water Quality Certification (MODIFICATION) Dare County Channel Maintenance and Dredge Project -Southern Section USACE Action ID. No. SAW-2019-00175 Dear Mr. Outten: Attached hereto is a copy of Certification No. WQC005509 issued to Robert Outten and Dare County, dated May 30, 2024. This certification replaces the one issued January 9, 2023. The modification removes conditions 2.b. and 3 from the original certification due to House Bill 600. 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. North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA _ op,emem or Environ­ Ul au,i' o ` 919.707.9000 Dare County DWR# 20190264 V3 Individual Certification #WQC005509 Page 2 of 8 This Water Quality Certification shall expire on the same day as the expiration date of the corresponding Section 404 Permit. 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 Washington 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]. Please be aware that impacting waters without first applying for and securing the issuance of a 401 Water Quality Certification violates Title 15A of the North Carolina Administrative Code (NCAC) 2H .0500. Title 15A NCAC 2H .0500 requires certifications pursuant to Section 401 of the Clean Water Act whenever construction or operation of facilities will result in a discharge into navigable waters, including wetlands, as described in 33 Code of Federal Regulations (CFR) Part 323. It also states any person desiring issuance of the State certification or coverage under a general certification required by Section 401 of the Federal Water Pollution Control Act shall file with the Director of the North Carolina Division of Water Quality. Pursuant to G.S. 143-215.6A, these violations and any future violations are subject to a civil penalty assessment of up to a maximum of $25,000.00 per day for each violation. 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 (919) 431-3000. A party filing a Petition must serve a copy of the Petition on: William F. Lane, General Counsel Department of Environmental Quality 1601 Mail Service Center Raleigh, NC 27699-1601 If the party filing the Petition is not the permittee, then the party must also serve the recipient of the Certification in accordance with N.C.G.S 15013-23(a). D E Q�JJ North Carolina Department of Environmental Quality I Division of Water Resources !/ 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA 919.707.9000 De dmenf of Fnvlm—Ul Oual� Dare County DWR# 20190264 V3 Individual Certification #WQC005509 Page 3 of 8 This letter completes the Division's review under section 401 of the Clean Water Act and 15A NCAC 02H .0500. Please contact Robert Tankard at 252-948-3921 or robert.tankard@ncdenr.gov if you have any questions or concerns. Sincerely, Pow T"." Robert Tankard, Assistant Regional Supervisor Water Quality Regional Operation Section Division of Water Resources, NCDEQ Washington Regional Office Electronic cc: Brad Rosov, broosv@coastalprotectioneng.com Josh Pelletier, josh.r.pelletierthompson@usace.army.mil Gregg Bodnar, gregg.bodnar@ncdenr.gov laserfiche D E Q�JJ North Carolina Department of Environmental Quality I Division of Water Resources !/ 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA 919.707.9000 De dmenf of Fnvlm—Ul Oual� Dare County DWR# 20190264 V3 Individual Certification #WQC005509 Page 4 of 8 NORTH CAROLINA 401 WATER QUALITY CERTIFICATION CERTIFICATION #WQC005509 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 Robert Outten and Dare County, who have authorization for the impacts listed below, as described within your application received by the N.C. Division of Water Resources (Division) on October 17, 2022. 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 impacts 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 Stream Site 1 0 (linear feet) 0 (linear feet) 404/401 Wetlands W1 - 0 (acres) 0 (acres) Open Waters 01 (dredged) 60.6 (acres) 0 (acres) 02 (fill) 2415.5 (acres) 0 (acres) This approval requires you to follow the conditions listed in the certification below. CONDITIONS OF CERTIFICATION [15A NCAC 02H .0507(c)]: Due to the potential for impacts from sedimentation and/or turbidity on SAV beds and other marine habitat, when practical, the applicant shall use a hopper dredge plant with a minimum 100-foot buffer between the historically mapped SAV beds and the proposed dredge channel, utilizing the previously authorized nearshore disposal areas by the old Bonner Bridge, the West of Oregon Inlet Open Water Disposal Area, and the Nearshore Disposal Area off Pea Island. If the 100-foot buffer cannot be maintained, the DWR Washington Regional Office (252-946-6481) must be notified. [15A NCAC 02B .0221] 2. If a sidecast dredge is utilized, when practical, a minimum 100-foot buffer shall be maintained between the historically mapped SAV beds and the proposed dredge channel. D E Q�JJ North Carolina Department of Environmental Quality I Division of Water Resources !/ 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA 919.707.9000 De dmenf of Fnvlm—Ul Oual� Dare County DWR# 20190264 V3 Individual Certification #WQC005509 Page 5 of 8 3. Prior to initial construction of the proposed bird island, Dare County and NC WRC shall sign a Memorandum of Understanding (MOU) which develops management protocols and responsibilities for the future maintenance of the proposed bird island per the County's additional information response dated December 9, 2022. This MOU shall be submitted to the DWR Washington Regional Office, 943 Washington Square Mall, Washington, North Carolina 27889. [15A NCAC 02B .0507(c)] 4. 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) Justification: Timely reporting of non-compliance is important in identifying and minimizing detrimental impacts to water quality and avoiding impacts due to water pollution that precludes any best use on a short-term or long-term basis. 5. 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) Justification: Surface water quality standards require that conditions of waters be suitable for all best uses provided for in state rule (including, at minimum: aquatic life propagation, survival, and maintenance of biological integrity; wildlife; secondary contact recreation; agriculture); and that activities must not cause water pollution that precludes any best use on a short-term or long-term basis. 6. 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 D E Q�JJ North Carolina Department of Environmental Quality I Division of Water Resources !/ 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA 919.707.9000 De dmenf of Fnvlm—Ul Oual� Dare County DWR# 20190264 V3 Individual Certification #WQC005509 Page 6 of 8 materials required for stabilization and/or repair of erosion control measures and stormwater routing and treatment shall be on site at all times. Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCACO28 .0200; 15A NCAC 028 .0231 Justification: A project that affects waters shall not be permitted unless the existing uses, and the water quality to protect such uses, are protected. Activities must not cause water pollution that precludes any best use on a short-term or long-term basis. As cited in Stream Standards: (12) Oils, deleterious substances, or colored or other wastes: only such amounts as shall not render the waters injurious to public health, secondary recreation, or to aquatic life and wildlife, or adversely affect the palatability offish, aesthetic quality, or impair the waters for any designated uses; and (21) turbidity in the receiving water shall not exceed 50 Nephelometric Turbidity Units (NTU) in streams not designated as trout waters and 10 NTU in streams, lakes, or reservoirs designated as trout waters; for lakes and reservoirs not designated as trout waters, the turbidity shall not exceed 25 NTU; if turbidity exceeds these levels due to natural background conditions, the existing turbidity level shall not be increased. As cited in Wetland Standards: (c)(1) Liquids, fill or other solids, or dissolved gases shall not be present in amounts that may cause adverse impacts on existing wetland uses; and (3) Materials producing color or odor shall not be present in amounts that may cause adverse impacts on existing wetland uses. 7. 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 028.0200; 15A NCAC 028 .0231 Justification: A project that affects waters shall not be permitted unless the existing uses, and the water quality to protect such uses, are protected. Activities must not cause water pollution that precludes any best use on a short-term or long-term basis. As cited in Stream Standards: (12) Oils, deleterious substances, or colored or other wastes: only such amounts as shall not render the waters injurious to public health, secondary recreation, or to aquatic life and wildlife, or adversely affect the palatability offish, aesthetic quality, or impair the waters for any designated uses, and (21) turbidity in the receiving water shall not exceed 50 Nephelometric Turbidity Units (NTU) in streams not designated as trout waters and 10 NTU in streams, lakes, or reservoirs designated as trout waters, for lakes and reservoirs not designated as trout waters, the turbidity shall not exceed 25 NTU; if turbidity exceeds these levels due to natural background conditions, the existing turbidity level shall not be increased. As cited in Wetland Standards: (c)(1) Liquids, fill or other solids, or dissolved gases shall not be present in amounts that may cause adverse impacts on existing wetland uses; and (3) Materials producing color or odor shall not be present in amounts that may cause adverse impacts on existing wetland uses. D E Q�JJ North Carolina Department of Environmental Quality I Division of Water Resources !/ 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA 919.707.9000 De dmenf of FnvlroemeMal Oual� Dare County DWR# 20190264 V3 Individual Certification #WQC005509 Page 7 of 8 8. 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 028.0200, 15A NCAC 028 .0231 Justification: A project that affects waters shall not be permitted unless the existing uses, and the water quality to protect such uses, are protected. Activities must not cause water pollution that precludes any best use on a short-term or long-term basis. As cited in Stream Standards: (12) Oils, deleterious substances, or colored or other wastes: only such amounts as shall not render the waters injurious to public health, secondary recreation, or to aquatic life and wildlife, or adversely affect the palatability offish, aesthetic quality, or impair the waters for any designated uses. As cited in Wetland Standards: (c)(1) Liquids, fill or other solids, or dissolved gases shall not be present in amounts that may cause adverse impacts on existing wetland uses; and (3) Materials producing color or odor shall not be present in amounts that may cause adverse impacts on existing wetland uses. 9. 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 028 .0231 Justification: Wetland standards require maintenance or enhancement of existing uses of wetlands such that hydrologic conditions necessary to support natural biological and physical characteristics are protected, populations of wetland flora and fauna are maintained to protect biological integrity of the wetland; and materials or substances are not present in amounts that may cause adverse impact on existing wetland uses. 10. 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) Justification: Person(s) owning or having control over oil or other substances upon notice of discharge must immediately notify the Department, or any of its agents or employees, of the nature, location, and time of the discharge and of the measures which are being taken or are proposed to be taken to contain and remove the discharge. This action is required in order to contain or divert the substances to prevent entry into the surface waters. Surface water quality standards require that conditions of waters be suitable for all best uses provided for in state rule (including, at minimum: aquatic life propagation, survival, and maintenance of biological D E Q�JJ North Carolina Department of Environmental Quality I Division of Water Resources !/ 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA 919.707.9000 De dmenf of Fnvlm—Ul Oual� Dare County DWR# 20190264 V3 Individual Certification #WQC005509 Page 8 of 8 integrity, wildlife, secondary contact recreation, agriculture); and that activities must not cause water pollution that precludes any best use on a short-term or long-term basis. 11. 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) Justification: Surface water quality standards require that conditions of waters be suitable for all best uses provided for in state rule, and that activities must not cause water pollution that precludes any best use on a short-term or long-term basis. The Division must evaluate if the activity has avoided and minimized impacts to waters, would cause or contribute to a violation of standards, or would result in secondary or cumulative impacts. 12. The permittee shall require its contractors and/or agents to comply with the terms and conditions of this certification 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) Justification: Those actually performing the work should be aware of the requirements of this 401 Water Quality Certification to minimize water quality impacts. 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. 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I !a V I o N N = I 1 I U • I I I I I I I I I of I +I O +I ul nI I ^ I 31 I 3i I � U ui 1 (1333-MIIW) NOLLVA333 M ry ut O O N U333-MIIW) NOI-LVA313 U z U fli 0 ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Director DWR Project No: Applicant: Project Name: NORTH CAROLINA Environmental Quality 401 Water Quality Certification Issued Date: County: Certificate of Completion Upon completion of all work approved within the 401 Water Quality Certification or applicable Buffer Rules, and any subsequent modifications, the applicant is required to return this certificate to the DWR Central Office — Wetlands and Buffer Permitting Unit, NC DWR, 1650 Mail Service Center, Raleigh, NC, 27699-1650. This form may be returned to DWR by the applicant, the applicant's authorized agent, or the project engineer. It is not necessary to send certificates from all of these. Applicant's Certification I, , hereby state that, to the best of my abilities, due care and diligence was used in the observation of the construction such that the construction was observed to be built within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the approved plans and specifications, and other supporting materials. Signature: Date: Agent's Certification I, , hereby state that, to the best of my abilities, due care and diligence was used in the observation of the construction such that the construction was observed to be built within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the approved plans and specifications, and other supporting materials. Signature: Date: If this project was designed by a Certified Professional I, , as a duly registered Professional (i.e., Engineer, Landscape Architect, Surveyor, etc.) in the State of North Carolina, having been authorized to observe (periodically, weekly, full time) the construction of the project, for the Permitee hereby state that, to the best of my abilities, due care and diligence was used in the observation of the construction such that the construction was observed to be built within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the approved plans and specifications, and other supporting materials. Signature: Date: North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTH CAROLINA _ op,emem or Environ—Ul aua o ` 919.707.9000 For the best experience, open this PDF portfolio in Acrobat X or Adobe Reader X, or later. 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