20191577 Ver 1_Correspondence to USACE_20200203

ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
S. DANIEL SMITH
Director
NORTH CAROLINA
Environmental Quality
February 3, 2020
Corps Action ID# SAW-2019-01867
DWR # 20191577
Buncombe County
Scott McLendon, Chief
Regulatory Division, Wilmington District
US Army Corps of Engineers
69 Darlington Avenue
Wilmington NC 28403-1343
Subject: REQUEST FOR ADDITIONAL REVIEW TIME
Project Ranger
Dear Chief McLendon,
On November 12, 2019, the Division of Water Resources ("DWR") received an application from
Biltmore Farms, LLC ("applicant') for a 401 Water Quality Certification for Project Ranger (DWR
# 20191577). On December 13, 2019 the Division requested more information from the
applicant, and received a response on January 6, 2020.
On August 7, 2019, Scott A. Spellman, Deputy Commanding General for Civil and Emergency
Operations issued a Regulatory Guidance Letter ("RGL") with the subject line: "Timeframes for
Clean Water Act Section 401 Water Quality Certifications and Clarification of Waiver
Responsibility." The RGL indicates that, under Army Corps of Engineers ("Corps") regulations,
the Corps may consider a 401 Certification waived if the certifying agency fails or refuses to act
on a request for certification within 60 days after receipt of such request unless the district
engineer determines that a shorter or longer period of time is reasonable for the certifying
agency to act. The RGL states that the district engineer will "advise the certifying agency when
it determines that the circumstances reasonably require more than 60 days."
DWR hereby requests your written concurrence that a reasonable period of time for DWR to
act on the Project Ranger 401 Application is 8 months.
North Carolina Department of Environmental Quality I Division of Water Resources
512 North Salisbury Street 1 1611 Mail Service Center I Raleigh, North Carolina 27699-1611
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919.707.9000

Corps Action ID# SAW-2019-01867
DWR # 20191577
Page 2 of 3
In support of this request we direct your attention to the following considerations:
• DWR public hearing requirements. Section 401 of the Clean Water Act provides DWR
the authority to establish procedures for public hearings on applications to the extent it
deems appropriate. 33 U.S.C. § 1341(a)(1). Pursuant to 15A NCAC 2H.0503, DWR may
hold a public hearing in connection with a 401 application where the Director
determines that there is significant public interest. Notice of the hearing must be
published at least 30 calendar days prior to the date of the hearing. The hearing may be
held up to 90 calendar days following the notification to the applicant that a hearing will
be held. The record for the hearing must remain open for a period of 30 calendar days
after the public hearing to receive comments. DWR is in the process of scheduling the
public hearing in connection with the Project Ranger 401 Application and that public
hearing process will significantly extend the time otherwise necessary for the review of
the Project Ranger 401 Application.
Unique Site Conditions. The Project Ranger 401 Application indicates the possible
presence of numerous aquatic species of concern in the project area, including
Appalachian Elktoe (Alosmidonta raveneliana, NC Endangered species), Creeper
(Strophitus undulates, NC Threatened species), and Eastern Hellbender (Cryptobranchus
alleganiensis, NC species of Special Concern). Further, Bog Turtle (Glyptemys
muhlenbergii, NC Threatened species) and Mudpuppy (Necturus moculosus, NC species
of Special Concern) may be found in the project area. Coordinating minimization of
potential impacts to species of concern with the applicant and N.C. Wildlife Resource
Commission will extend the time otherwise necessary for the review of the Project
Ranger 401 Application.
DWR believes these criteria justify a determination by the Corps that 8 months is a reasonable
period of time for the DWR to act upon the application.
By making this request, DWR does not waive its right to determine upon further review of the
Project Ranger 401 Application that additional information and/or additional time is necessary
to process the application. DWR further does not waive its right to object to or contest the
legality of any of the provisions set forth in the RGL or any actions taken by the Corps pursuant
to the RGL, whether related to the Project Ranger or any other projects over which the State
has jurisdiction pursuant to Section 401 of the Clean Water Act.

Corps Action ID# SAW-2019-01867
DWR # 20191577
Page 3 of 3
Thank you for your consideration of this time -sensitive matter. Please contact Sue Homewood
at 336-776-9693 or Sue.Homewood(@ncdenr.eov with any questions.
Sincerely,
P
Jeffrey
Pou art, Section Chief
Water Quality Permitting Section
Division of Water Resources
cc: Amanda Fuemmeler, USACE Asheville Regulatory Field Office (via email)
Todd Bowers, EPA (via email)
DWR ARO401 Files
DWR 401 & Buffer Permitting Unit