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HomeMy WebLinkAboutR-2707D and E Shelby Bypass ModificationDocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Dfrector Jeffery Wyatt, Environmental Supervisor NCDOT, Division 12 P.O. Box 47 Shelby, NC 28151-0047 NORTH CAROLINA Environmental Quality January 23, 2023 Subject: Modification to the Section 401 Water Quality Certification for Section D and E of the proposed US 74 Shelby Bypass in Cleveland County from just east of the NC 150 Interchange to west of SR 1001. WBS Number 34497.1156; TIP Nos. R-2707D and R-2707E. DWR Project No. 20120673v4; WQC No. 003941. Reference: Original 401 WQC 003941 issued on September 18, 2012; subsequent modifications issued on April 9, 2013, and April 4, 2017. Dear Mr. Wyatt: Attached hereto is a copy of Certification No. 003941 issued to The North Carolina Department of Transportation (NCDOT) dated January 23, 2023. This approval is for the purpose and design described in your reissuance application received on October 19, 2022. 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 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 letter completes the review of the Division under section 401 of the Clean Water Act and 15A NCAC 02H .0500. Please contact Dave Wanucha at 336-403-5655 or dave.wanucha(&ncdenr.gov if you have any questions or concerns. Sln�e�uSigiied by: irector Division of Water Resources Electronic copy only distribution: Crystal Amschler, US Army Corps of Engineers, Asheville Field Office Amanetta Somerville, US EPA Rebekah Reid, US Fish and Wildlife Service David McHenry, NC Wildlife Resources Commission Beth Harmon, Division of Mitigation Services Jason Elliott, NCDOT File Copy North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 Individual 401 Water Quality Certification Pursuant to Section 401 of the Federal Clean Water Act with ADDITIONAL CONDITIONS THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public Laws 92-500 and 95-217 of the United States and subject to the North Carolina Division of Water Resources (NCDWR) Regulations in 15 NCAC 2H .0500. This certification authorizes the NC Department of Transportation (NCDOT) the following impacts at the D Section: 10,062 permanent and 493 temporary linear feet of jurisdictional streams; 1.28 acres of wetlands; and, 0.87 acres of open water (pond). At the E Section, NCDOT is authorized 1,464 permanent and 92 temporary linear feet of jurisdictional stream impacts; 0.30 acres of wetland impacts; and, 0.89 acres of open water (pond) impacts. The project shall be constructed pursuant to the modification application dated October 19, 2022. The authorized impacts are as described below: Table 1. R-2707 Section D. Wetland Impacts in the Broad River Basin (Riverine). Site Fill (ac) Excavation (ac) Mechanized Clearing (ac) Hand Clearing (ac) Wetland Impacts Requiring Mitigation (linear ft) 2 0.045 -- -- -- 0.045 7 0.017 -- 0.005 -- 0.022 8 0.005 -- -- -- 0.005 10 0.049 0.004 0.021 -- 0.074 11 A 0.223 -- -- -- 0.223 12A 0.121 -- 0.012 -- 0.133 12B 0.646 -- 0.130 -- 0.776 Totals 1.106 0.004 0.168 -- 1.278 Total wetland impact for this Section: 1.280 acres (rounded) Table 2. R-2707 Section E. Wetland Impacts in the Broad River Basin (Riverine). Site Fill (ac) Excavation (ac) Mechanized Clearing (ac) Hand Clearing (ac) Wetland Impacts Requiring Mitigation (linear ft) 113 -- 0.015 -- -- 0.015 2 0.009 -- -- -- 0.009 3A 0.022 -- -- -- 0.022 313 0.083 0.117 -- -- 0.200 3E 0.013 0.005 0.022 0.033 0.040 4A -- 0.002 0.010 -- 0.012 Totals 0.127 0.139 0.032 0.033 0.300 Total wetland impact for this Section: 0.300 acres (rounded) Table 3. R-2707 Sections D and E. Open Water (Ponds) Impacts in the Broad River Basin Site Permanent Fill in Open Waters (ac) Temporary Fill in Open Waters (ac) Total Fill in Open Waters (ac) 11 A 0.923 0.003 0.926 5 0.062 0.866 0.928 Totals 0.985 0.869 1.854 Notes: Site 11A is on D Section; Site 5 is on E Section. Total Open Water Impact for Project: 1.854 acres. North Carolina Department of Environmental Quality I Division of Water Resources jgAE-_3 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 Table 4. R-2707D Stream impacts in the Broad River Basin Site Permanent Impacts in Perennial Stream (linear ft) Temporary Impacts in Perennial Stream linear ft Permanent Impacts in Intermittent Stream (linear ft) Temporary Impacts in Intermittent Stream (linear ft) Stream Impacts Requiring Mitigation Fill Culvert Bank Stabilization Fill Fill (linear ft) 1 47 572 -- 20 -- -- 619 2 -- 308 -- 10 262 10 308 3 -- 646 -- 52 37 -- 646 4A 806 -- -- 20 -- -- --** 4B 109 -- -- 15 -- -- --** 5A 664 -- -- 40 -- -- --** 5B -- -- -- -- 186 15 -- 6A 1178 -- -- 56 -- -- --** 6B 468 -- -- -- -- --** 6C -- 597 50 40 -- -- 597 7 20 268 20 20 -- -- 288 8 32 483 20 20 -- -- 515 9 -- 323 100 85 -- -- 323 11A -- 438 20 29 -- -- 438 11B 25 134 -- 17 -- -- 159 12A -- -- -- -- 682 14 -- 13 534 308 -- -- -- -- 842 14A -- -- 35 -- -- -- -- North Carolina Department of Environmental Quality I Division of Water Resources jgAR-) 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 Table 4. R-2707D Stream impacts in the Broad River Basin Temporary Permanent Temporary Permanent Impacts in Perennial Impacts in Impacts in Impacts in Stream Stream Perennial Intermittent Intermittent Impacts Site (linear ft) Stream Stream Stream Requiring linear ft (linear ft) (linear ft) Mitigation Fill Culvert Bank Fill Fill (linear ft) Stabilization 14B -- -- 250 653* 250 -- -- 14C -- -- 15 -- -- -- 15 -- -- -- 15 -- -- -- 16 -- -- -- -- 425 15 -- Total 3,883 4,077 510 1,092 1,842 54 + 4,735 * Temporary Workpad estimated in linear feet. **Mitigation offset by natural channel design. 'Stream Mitigation required by DWR. Total Stream Impacts (Permanent and Temporary) for this Section: 11,458 linear ft. Table 5. R-2707E Stream impacts in the Broad River Basin. Permanent Temporary Temporary Impacts in Impacts in Permanent Impacts in Intermittent Impacts in Stream Perennial Perennial Stream Stream Intermittent Impacts Site Stream (linear ft) (linear ft) Stream Requiring (linear ft) (linear ft) Mitigation Fill Culvert Fill Bank Fill Culvert Fill (linear ft) Stabilization lA -- -- -- -- 336 28 -- 2 -- -- -- -- 253 10 -- 3A -- -- 20 -- 193 14 -- 3B -- -- -- 7 191 19 -- 3C -- -- 43 -- -- -- 3D -- -- -- 159 -- -- -- 3E 24 9 10 -- -- -- -- -- 4A -- -- -- 21 192 11 -- North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 Table 5. R-2707E Stream impacts in the Broad River Basin. Permanent Temporary Temporary Impacts in Impacts in Permanent Impacts in Intermittent Impacts in Stream Perennial Perennial Stream Stream Intermittent Impacts Site Stream (linear ft) (linear ft) Stream Requiring (linear ft) (linear ft) Mitigation Fill Culvert Fill Bank Fill Culvert Fill (linear ft) Stabilization 4B -- -- -- -- 16 -- Total 24 9 10 20 230 1,181 82 -- Total Stream Impacts (Permanent and Temporary) for this Section: 1,556 linear ft. The application provides adequate assurance that the discharge of fill material into the waters of the Broad River Basin in conjunction with the proposed development will not result in a violation of applicable Water Quality Standards and discharge guidelines. Therefore, the State of North Carolina certifies that this activity will not violate the applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if conducted in accordance with the application and conditions hereinafter set forth. This approval is valid solely for the purpose and design described in your application (unless modified below). Should your project change, you must notify the NCDWR and submit a new application. If the property is sold, the new owner must be given a copy of this Certification and approval letter and is thereby responsible for complying with all the conditions. If total wetland fills for this project (now or in the future) exceed one acre, or of total impacts to streams (now or in the future) exceed 300 linear feet, compensatory mitigation may be required as described in 15A NCAC 21-1.0506 (h) (6) and (7). For this approval to remain valid, you must adhere to the conditions listed in the attached certification(s) and any additional conditions listed below. 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 regardless of the quantity of the withdrawal or the date on which the withdrawal was initiated or expanded. Upon the presentation of proper credentials, the Division may inspect the property. Condition(s) of Certification: Project Specific Conditions 1. This modification is applicable only to the additional proposed activities and design that you submitted in your request for modification dated October 19, 2022. [15A NCAC 02H.0506(b) (1, 2)] 2. All authorized activities and conditions associated with the original Water Quality Certification dated September 18, 2012, and subsequently modified on April 9, 2013, and on April 4, 2017, still apply except where superseded by this certification. [15A NCAC 02H.0506(b) (1, 2)] 3. All work in or adjacent to stream waters shall be conducted per approved BMP measures from the most current version of NCDOT Construction and Maintenance Activities manual. [15A NCAC 02H.0506(b)(3) and (c)(3)] North Carolina Department of Environmental Quality I Division of Water Resources jgAR-3 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 At locations where ponds will be drained, proper measures will be taken to drain the pond with limited impact to upstream and downstream channel stability as well as to native aquatic species. Proper measures will be taken to avoid sediment release and/or sediment accumulation downstream because of pond draining. If typical pond draining techniques will create significant disturbance to native aquatic species, additional measures such as collection and relocation may be necessary to prevent a significant fish kill. NCDOT shall consult with NC Wildlife Resources staff to determine if there are any sensitive species, and the most appropriate measures to limit impacts to these species. The permittee shall observe any natural channel re-establishment, or utilize natural channel construction techniques, to ensure that the jurisdictional stream channel above and below the drained pond remain stable, and that no additional impacts occur within the natural stream channel because of draining the pond. [ 15A NCAC 2H. 05 06(b)(3) 5. The Permittee shall ensure that the final design drawings adhere to the permit and to the permit drawings submitted for approval, including those provided in the Relocation Plan dated September 20, 2022. [15A NCAC 02H .0507(c) and 15A NCAC 02H .0506 (b)(2) and (c)(2)] Compensatory mitigation for impacts to riverine wetlands is required (1.28 acres on D-Section; 0.30 acres on E- Section). We understand that you have chosen to perform compensatory mitigation for impacts to wetlands through the North Carolina Division of Mitigation Services (DMS) (formerly NCEEP), and that the DMS has agreed to implement the mitigation for the project. DMS has indicated in a letter dated October 18, 2022, that they will assume responsibility for satisfying the federal Clean Water Act compensatory mitigation requirements for the above -referenced project, in accordance with DMS's Mitigation Banking Instrument signed July 28, 2010. Compensatory mitigation for impact to streams is required (4,735 linear feet on D-Section). We understand that you have chosen to perform compensatory mitigation for impacts to streams through DMS (formerly NCEEP), and that the DMS has agreed to implement the mitigation for the project. The DMS has indicated in a letter dated October 18, 2022 that they will assume responsibility for satisfying the federal Clean Water Act compensatory mitigation requirements for the above -referenced project, in accordance with the DMS Mitigation Banking Instrument signed July 28, 2010. General Conditions Placement of culverts and other structures in open waters and streams, shall be placed below the elevation of the streambed by one foot for all culverts with a diameter greater than 48 inches, and 20 percent of the culvert diameter for culverts having a diameter less than 48 inches, to allow low flow passage of water and aquatic life. Design and placement of culverts and other structures including temporary erosion control measures shall not be conducted in a manner that may result in dis-equilibrium of wetlands or streambeds or banks, adjacent to or upstream and downstream of the above structures. The applicant is required to provide evidence that the equilibrium is being maintained if requested in writing by the NCDWR. If this condition is unable to be met due to bedrock or other limiting features encountered during construction, please contact the NCDWR for guidance on how to proceed and to determine whether a permit modification will be required. [ 15A NCAC 02H.0506(b)(2)] 2. The use of rip -rap above the Normal High Water Mark shall be minimized. Any rip -rap placed for stream stabilization shall be placed in stream channels in such a manner that it does not impede aquatic life passage. [I5ANCAC 02H.0506(b)(2)] 3. No rock, sand or other materials shall be dredged from the stream channel except where authorized by this certification. [I5ANCAC 02H.0506(b)(3)] 4. Discharging hydroseed mixtures and washing out hydroseeders and other equipment in or adjacent to surface waters is prohibited. [15A NCAC 02H.0506(b)(3)] 5. The permittee and its authorized agents shall conduct its 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. If the NCDWR determines that such standards or laws North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 are not being met (including the failure to sustain a designated or achieved use) or that State or federal law is being violated, or that further conditions are necessary to assure compliance, the NCDWR may reevaluate and modify this certification. [ 15A NCAC 02B.0200] 6. All fill slopes located in jurisdictional wetlands shall be placed at slopes no flatter than 3:1, unless otherwise authorized by this certification. [ 15A NCAC 02H.0506(b)(2)] 7. A copy of this Water Quality Certification shall be maintained on the construction site at all times. In addition, the Water Quality Certification and all subsequent modifications, if any, shall be maintained with the Division Engineer and the on -site project manager. [15A NCAC 02H .0507(c) and 15A NCAC 02H .0506 (b)(2) and (c)(2)] 8. The outside buffer, wetland or water boundary located within the construction corridor approved by this authorization shall be clearly marked by highly visible fencing or flagging prior to any land disturbing activities. Impacts to areas within the fencing are prohibited unless otherwise authorized by this certification. [I 5A NCAC 02H.0501 and .0502] 9. The issuance of this certification does not exempt the Permittee from complying with any and all statutes, rules, regulations, or ordinances that may be imposed by other government agencies (i.e. local, state, and federal) having jurisdiction, including but not limited to applicable buffer rules, stormwater management rules, soil erosion and sedimentation control requirements, etc. 10. The Permittee shall report any violations of this certification to the Division of Water Resources within 24 hours of discovery. [I 5A NCAC 02B.0506(b)(2)] 11. Upon completion of the project (including any impacts at associated borrow or waste sites), the NCDOT Division Engineer (or appointee) shall complete and return the enclosed "Certification of Completion Form" to notify the NCDWR when all work included in the 401 Certification has been completed. [15A NCAC 02H.0502(f)] 12. Native riparian vegetation must be reestablished in the riparian areas within the construction limits of the project by the end of the growing season following completion of construction. [15A NCAC 02H.0506(b)(3) and (c)(3)] 13. There shall be no excavation from, or waste disposal into, jurisdictional wetlands or waters associated with this permit without appropriate modification. Should waste or borrow sites, or access roads to waste or borrow sites, be located in wetlands or streams, compensatory mitigation will be required since that is a direct impact from road construction activities. [15A NCAC 02H.0506(b)(3) and (c)(3)] 14. Erosion and sediment control practices must be in full compliance with all specifications governing the proper design, installation and operation and maintenance of such Best Management Practices in order to protect surface waters standards [15A NCAC 02H.0506(b)(3) and (c)(3]): a. The erosion and sediment control measures for the project must be designed, installed, operated, and maintained in accordance with the most recent version of the North Carolina Sediment and Erosion Control Planning and Design Manual. b. The design, installation, operation, and maintenance of the sediment and erosion control measures must be such that they equal, or exceed, the requirements specified in the most recent version of the North Carolina Sediment and Erosion Control Manual. The devices shall be maintained on all construction sites, borrow sites, and waste pile (spoil) projects, including contractor -owned or leased borrow pits associated with the project. c. For borrow pit sites, the erosion and sediment control measures must be designed, installed, operated, and maintained in accordance with the most recent version of the North Carolina Surface Mining Manual. d. The reclamation measures and implementation must comply with the reclamation in accordance with the requirements of the Sedimentation Pollution Control Act. North Carolina Department of Environmental Quality I Division of Water Resources jgAR-3 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 15. Where placement of sediment and erosion control devices in wetlands and/or waters is unavoidable, they shall be removed, and the natural grade restored upon completion of the project. [15A NCAC 02H.0506(b)(3) and (c)(3)] This Certification shall become null and void unless the above conditions are made conditions of the Federal 404 and/or Coastal Area Management Act Permit. This Certification shall expire upon the expiration of the 404 or CAMA permit. 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. Violations of any condition herein set forth may result in revocation of this Certification and may result in criminal and/or civil penalties. 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 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). This the 23d of January 2023 DIVIS�O�Oed WATER RESOURCES Ric �86€�J�r:, Director WQC No. 003941 North Carolina Department of Environmental Quality I Division of Water Resources jgAR-3 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: BD2E7DE8-7E13-432C-98DA-C4379DC101B6 ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Dfrector NCDWR Project No.: Applicant: Project Name: NORTH CAROLINA Environmental Quality Date of Issuance of 401 Water Quality Certification: 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 401 Transportation Permitting Unit, North Carolina Division of Water Resources, 1617 Mail Service Center, Raleigh, NC, 27699-1617. This form may be returned to NCDWR 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: Agent's Certification Date: 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: Engineer's Certification Partial Final Date: I, , as a duly registered Professional Engineer in the State of North Carolina, having been authorized to observe (periodically, weekly, full time) the construction of the project for the Permiee 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 Registration No. Completed hard copies can be emailed to kristil. n�rpenterkticderingov or mailed to: NCDEQ Transportation Permitting 1617 Mail Service Center Raleigh NC 27699-1617 DENorth Carolina Department of Environmental Quality I Division of Water Resources ..�+' 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000