20081849 Ver 1_General Correspondence_20100301 (2)

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NCDENR
North Carolina Department of Environment and Natural Resources
Beverly Eaves Perdue
Governor
Rep. Timothy K. Moore
North Carolina House of Representatives
Room 604 Legislative Office Building
300 N. Salisbury Street
Raleigh, NC, 27603-5925
Division of Water Quality
Coleen H. Sullins
Director
March 1, 2010
Re: Cleveland County Water District, Raw Water Reservoir
Dear Rep. Moore:
Dee Freeman
Secretary
DWQ Project # 2008-1849
Cleveland County
Reference is made to your correspondence dated January 11, 2010, in which you requested that the
Division of Water Quality (DWQ) work with the Cleveland County Water District (CCWD) to modify
the 401 Water Quality Certification for its off-stream raw water reservoir. Specifically, you noted that
you had been advised of project design changes, which might in turn affect the stream mitigation
requirements in terms of scale and methodology.
Condition No. 4 of the 401 Certification issued on February 17, 2009 required that the Cleveland County
Water District, represented by Mr. Clyde E. Smith, provide compensatory mitigation for 565 linear feet of
permanent impacts to perennial streams. Additionally, impacts to 955 linear feet of intermittent streams
were also permitted, but mitigation was not required for those impacts since the application pre-dated the
intermittent stream mitigation policy. The mitigation condition in the 401 Certification was consistent
with stream mitigation requirements applied to all applicants for loss of Waters of the State, whether
public or private. In this case, CCWD had proposed within their application to make a payment to the
Ecosystem Enhancement Program to provide stream mitigation. This method was determined to be
acceptable and was granted to the applicant. The condition required that the CCWD make the payment to
the EEP within 60 days of issuance of the Certification. Also, the 401 Certification included a statement
advising of the applicant's appeal rights within 60 days if any of the conditions were unacceptable; along
with instructions for the appeal process. The conditions are final and binding unless a hearing is
requested within the given timeframe.
Technical staff of DWQ's Mooresville Regional Office have been working with Cleveland County Water
District and their consultants to ensure that the project is conducted in compliance with the existing 401
Certification, and to discuss protocols necessary to modify the 401 Certification if appropriate. The
following is a timeline of recent events:
• December 16, 2009 - Mr. Alan Johnson of the DWQ Mooresville Regional Office discussed
progress at the project site with Mr. Keith Webb of McGill and Associates. Subsequently, Mr.
Webb properly advised his client that site work should not be started unit the mitigation fee was
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd., Raleigh, North Carolina 27604
Phone: [phone] FAX: [phone]
Internet: http://h2o.enr.state.nc.us/ncwetlands/
NorthCarohna
Natulrall'ff
An Equal Opportunity 1 Affirmative Action Employer
Rep. Moore
Cleveland County Water District
March 1, 2010
Page 2 of 3
paid, as it should have been by April 18, 2009, in order to remain in compliance. Mr. Johnson
also discussed the difficulties associated with revising the mitigation plan to involve preservation
at this stage in the process. (The mitigation payment to EEP would be for stream restoration at a
1:1 ratio to compensate for the loss of impacted resources, per the requirements applied to all
applicants. Stream preservation typically does not compensate for the loss of functions or values
of streams, and thus rarely serves as a viable option for mitigation. When it is used, preservation
is typically required at a 10: 1 ratio, so this project would require 5,650 feet of preservation.
Furthermore, stringent criteria are associated with stream preservation, such as demonstrating a
threat to the streams proposed for preservation, inclusion of 50-foot buffers on both sides of the
streams, or documenting the presence of resources of exceptional value, such as Critical Habitat
for Endangered Species. These requirements are delineated in the Stream Mitigation Guidelines
published since 2003 by the U.S. Army Corps of Engineers (Wilmington District), U.S.
Environmental Protection Agency, NC Wildlife Resources Commission, and NC Division of
Water Quality.)
• February 10, 2010 - Mr. Johnson and Mr. Michael Burkhard of the DWQ Mooresville Regional
Office participated in a site visit with Ms. Pam Boaze of Fish and Wildlife Associates, Inc.,
another of Mr. Smith's consultants. At that time, Ms. Boaze escorted the MRO staff to streams
where preservation was under consideration in concept. Neither a comprehensive plan consistent
with the Stream Mitigation Guidelines, nor any specific information about a reduction of stream
impacts, was provided at that meeting. To further complicate matters, Ms. Boaze noted that
CCWD had not been able to find a third party willing to take over the conservation easements for
the streams desired for preservation credit. Messrs. Johnson and Burkhard advised Ms. Boaze not
to make any assumptions that preservation would be acceptable, especially considering the lack
of details provided. Construction had already commenced within the approved impact area, in
violation of the 401 mitigation condition.
• February 12, 2010 - DWQ's Mooresville Regional Office issued a Notice of Violation (NOV) to
Cleveland County Water District to cease construction onsite until the mitigation issue was
resolved. The NOV made an exception to allow for keeping the site in compliance with sediment
and erosion control requirements.
• February 18, 2010 - Mr. Johnson contacted Mr. Smith to further discuss the mitigation options
under consideration for this project. He advised Mr. Smith that the alternatives presented thus far
did not meet the criteria required of stream preservation sites.
• February 22, 2010 - Mr. Johnson was advised that CC" had just mailed a check for payment to
the EEP for the full amount required for 565 feet of stream restoration, in accordance with
Condition No. 4 of the 401 Certification issued February 17, 2009.
It appears that the stream mitigation issue at the Cleveland County raw water reservoir has been resolved
at this time. The Mooresville Regional Office will continuL. to work with the Cleveland County Water
District to ensure that the project remains in full compliance with the 401 Certification.
Thank you for your attention. I would be happy to discuss this project further at your convenience. I can be
reached at [phone].
Sincerely,
Cyndi Karoly
Manager, Wetlands and Stormwater Branch
Rep. Moore
Cleveland County Water District
March 1, 2010
Page 3 of 3
CBK/cbk
cc: Rep. Pearl-Burris Floyd, NC House of Representatives
Coleen Sullins
Matt Matthews, DWQ, Surface Water Protection Section
Clyde E. Smith, Jr., CC", 439 Casar-Lawndale Road, Lawndale, NC, 28090
Michael Dowd, McGill Associates, P.A., P.O. Box 2259, Asheville, NC, 28802
Pam Boaze, Fish and Wildlife Associates, P.O. Box 241, Whittier, NC, 28789
Rob Krebs, DWQ, Mooresville Regional Office
File Copy
Filename: 20081849CC WD(Cleveland)RepMoore