20010902 Ver 1_Complete File_20050407

Stream Piping (Culverting), Compensatory Mitigation and the Riparian
Buffer Rules
NC Division of Water Quality
Version 2.0
June 3, 2005
Background:
Recently the issue of whether DWQ should require buffer mitigation for the loss
of buffers associated with stream piping (culverting) has been raised by several parties.
The purpose of this position paper is to describe why and when piping of a stream .
necessitates buffer mitigation in accordance with the Riparian Buffer Protection Rules
adopted by the NC Environmental Management Commission (EMC) (Neuse Basin
buffer rules 15A NCAC 2B .0233; Tar-Pamlico Basin buffer rules 15A NCAC 2B .0259,
and Catawba Basin buffer rules 15A NCAC 213.0243). The Randleman Lake Buffer
rules (15A NCAC 2B .250) are similar but do not have an explicit provision of buffer
mitigation and are therefore not discussed below.
Background of the Buffer Rules:
The Neuse River riparian buffer rules were adopted by the EMC to "protect and
preserve existing riparian buffers in the Neuse River Basin to maintain their nutrient
removal functions" (15A NCAC 2B.0233 (1)). The rules provide a detailed process for
DWQ staff to use when reviewing proposed impacts to these buffers. These riparian
buffer rules generally require the protection of a 50 foot wide, undisturbed buffer along
certain waterbodies in these basins. The abovementioned rules require this protection
along all intermittent and perennial streams, lakes, ponds and estuaries in these
watershed except that the Catawba rules are limited to the shorelines of the Catawba
River and its lakes from Lake James to the NC/SC border. Riparian buffers act like a
filter (not unlike an air filter in a house) to remove nutrients that are dissolved in
stormwater or attached to soil that erodes during rainfall events. Protection of these
buffers has been shown by many scientific research studies (including many projects
done in NC) to be crucial to maintaining the health of a stream and keeping non-point
source pollution from entering the stream.
Crossings of these buffers and the associated stream, lake or pond are an
"Allowable Use" under these rules for activities such as roads, utility lines, airport
facilities, and railroads. However if the impacts to the stream and/or buffer exceed
certain thresholds, then the activity is classified as "Allowable with Mitigation". For
instance in the Neuse River buffer rules, "Airport facilities that impact equal to or less
than 150 linear feet or one-third of an acre of riparian buffer" (15A NCAC 2B .0233(6))
are "Allowable" while airport facilities that exceed these thresholds are "Allowable with
Mitigation". The "Allowable with Mitigation" category is defined as requiring written
authorization from DWQ or local delegated authority if 1) there is no practical alternative
to the requested use and 2) "an appropriate mitigation strategy has been approved
pursuant to Item (10) of this Rule." (15A NCAC 2B. 0233(7)(c)). The Neuse Rule
contains an explicit provision for buffer mitigation (15A NCAC 2B. 0242) that is
referenced under 15A NCAC 2B .0233(10). This rule discusses the need for mitigation
for activities approved as "Allowable with Mitigation" and states that the area of impact is
defined as "the area of the footprint of the use causing the impact to the riparian buffer
as well as the area of the boundary of any clearing and grading activities within the
riparian buffer necessary to accommodate the use" (15A NCAC 2B .0242(3)(a)). Ratios
for mitigation are specified in 15A NCAC 2B.0242(3)(b). Finally, Section 401 of the
Federal Clean Water Act, requires the Division of Water Quality to issue a 401 Water
Quality Certification for all federal permits and licenses (such as a Section 404 Permit
issued by the US Army Corps of Engineers) for fill of waters of the US (such as stream
channels). Section 401 (d) states that the States may condition these Certifications to
conform with water quality standards and "any other appropriate requirement of State
law". The Riparian Buffer rules are such a requirement.
The need for buffer mitigation
The overall purpose of the buffer rules is to preserve existing riparian buffers for
their nutrient removal functions. In the mid-1990's, the Neuse River experienced
extensive algae blooms and related fish kills in a scale unprecedented in N.C. In
response, the NC Legislature passed legislation directing the EMC to adopt rules to
reduce by 30% the amount of nutrients entering the Neuse River in order to clean up the
river. After extensive public involvement, the EMC adopted a variety of rules directed at
wastewater treatment plants, agricultural runoff, urban runoff, forestry activities, and
development in order to reduce the amount of nitrogen in the Neuse River by 30%. A
key element of this strategy was to not have increases in nutrients from new
development while other sources were reducing nutrients in the Neuse River. When the
original buffer rules were adopted in 1997, the overall goal was to maintain the existing
amount of riparian buffers in the river basin in order to prevent an increase in nutrients
from new development and to also replace those buffers that were unavoidably lost
through a process of compensatory mitigation. Since buffers closer to the stream or lake
are most valuable for removing nutrients, a higher mitigation ratio was required for buffer
impacts closer to streams. For instance, when the US Army Corps of Engineers and
DWQ require stream mitigation anywhere in the state, applicants are required to restore
a 50 foot wide wooded buffer adjacent to the restored stream in order to have an
approvable stream mitigation project. This long-standing requirement recognizes the
importance of wooded buffers to stream health.
The rules specify ratios for mitigation - a 1.5:1 (square feet of mitigation to
square feet of impact) ratio for impacts in areas 30 to 50 feet from the stream and a 3:1
ratio for impacts in areas from 0 to 30 feet from a stream. The purpose of these ratios is
that it takes time for a restored buffer to become fully functional in removing nutrients.
This is primarily due to the fact that the ability of a buffer to remove nutrients is due to its
deep-rooted, woody vegetation and the ability of water to soak into the soil through soil
pores. Once the soil is compacted (for instance, by agricultural plowing or construction
equipment), it takes many years for the soil to recover to the point where it can readily
absorb stormwater. Similarly, it takes many years for woody vegetation to grow deep
roots which can most efficiently remove nutrients. During this time, the restored buffer
does not fully function to remove nutrients. For instance, nutrient removal is highest in
an undisturbed, woody buffer and lower in a compacted, disturbed buffer. These factors
and the fact that the buffer closest to the stream is the most valuable in removing
nutrients, led the EMC to adopting the abovementioned mitigation ratios for unavoidable
impacts to buffers (The "Allowable with Mitigation" category in the rules).
Projects which propose to pipe (culvert) streams:
2
If an applicant wants to install a pipe (culvert) in a stream, a Section 404 Permit
issued by the US Army Corps of Engineers is required as is a 401 Certification issued by
the Division of Water Quality. A person cannot install a pipe in a stream without
impacting the riparian area adjacent to the stream since access will be needed for
equipment to temporarily relocate the channel, excavate the channel to the dimensions
of the pipe, place the pipe into the excavated hole and then re-direct the stream to flow
into the newly installed pipe. This activity requires a 404 Permit and 401 Certification
and then application of the Riparian Buffer rules since these are an appropriate
requirement of State law. Therefore, if the impact to the stream or riparian buffer is
"Allowable with Mitigation" since it exceeds the thresholds noted above, then buffer
mitigation is required for that impact. DWQ has been administering the Neuse River
Riparian Buffer rules in this manner since their adoption in their present form in 1999.
Projects which propose to only impact stream buffers:
Some projects only propose to impact stream buffers rather than the stream
itself. For instance, sewer lines are usually installed to follow streams since most sewer
lines are designed to flow downhill rather than be pumped. If a sewer line or roadway
has to be installed parallel to a stream in the Neuse River basin within 30 feet of the
stream, then the applicant is required to conduct compensatory buffer mitigation to .
replace the nutrient removal function of that buffer. The rules (15A NCAC 2B .0233 (6))
specify this mitigation even if the stream itself is not piped or bridged.
buffer mitigation projects
Subject: buffer mitigation projects
From: Cyndi Karoly <[e-mail]>
Date: Tue, 31 May 2005 14:08:23 -0400
To: Tom Reeder <[e-mail]>
?IZ
CC: John Dorney <[e-mail]>, John Hennessy <[e-mail]>, Laurie J
Dennison <[e-mail]>, Rob Ridings <[e-mail]>
Tom - Reference your request for a sample of projects for which buffer mitigation was
required because a stream had been culverted, as in the RDU case.
In their search for buffer authorizations which were conditioned upon mitigation for
buffer impacts, Laurie and Rob found 186 projects on the Filemaker Pro database. The
projects date back to 1999. Filemaker's records are not detailed enough to describe
the type of impact for which mitigation is required. For example, we cannot use
Filemaker to discern whether an impact is associated with a utility crossing, a
parallel impact from a transportation corridor, or residential lot encroachment on
the buffer, versus the specific scenario of stream culverting. Furthermore, note
that there are allowances within the buffer rules for perpendicular impacts from road
crossings that impact less than 1/3 acre and less than 150 feet of the affected
stream, where no mitigation is required. So basically we're looking for a small
subset of all projects where
1) the impact is a culvert, typically (but not always) transportation-related since
culverts are otherwise highly restricted under the buffer rules, and
2) said impact exceeds the allowances within the buffer rules, therefore requiring
mitigation for the buffer impacts.
As we discussed when you visited the Parkview last Tuesday May 24, location of all
186 projects would require an extensive search of our paper archives, some of which
are located at the lab. We decided that a sample drawn from the readily accessible
files from 2004 and 2005 would be sufficient to demonstrate the point. Of the 13
files from 2004 and 2005 (so far) requiring mitigation for buffer impacts:
A) 5 were for public and private utility corridors (couldn't make the parallel
crossing, therefore needing mitigation)
1 was for a home expansion impacting a buffer
1 had buffer impacts resulting from stormwater facilities
B) Understandably, most of those germaine to the RDU case were NCDOT projects.
Without doing an exhaustive breakdown of the types of impact (crossings versus other
buffer encroachments) at each roadway station, below are listed the NCDOT projects
from 2004/2005. Note that there may have been additional buffer impacts associated
with these projects that did not require buffer mitigation.
04-1055, US1/64 in Wake Co., 280,662 ft2 impacts, 681,726 ft2 mitigation required
05-0354, SR1424 in Guilford Co., 15,544 ft2 impacts, 37,745 ft2 mitigation
required
04-1999, SR1323 ext site 2 in Pitt Co., 21,062 ft2 impacts, 50,733 ft2 mitigation
required
04-1998, SR 1323 ext site 1 in Pitt Co., 21,403 ft2 impacts, 52,256 ft2 mitigation
required
04-1464, Bridge 246 in Wake Co., 1,742ft2 impacts, 3,593 ft2 mitigation required
C) Private projects
04-1677, Watauga St. Townhomes. This project received a Major Variance for
impacts to 29,621 square feet of buffers, with 69,819 square feet of buffer
mitigation required. Culverts were related to transportation and other
infrastructure on the property due to site configuration constraints. Note that this
project is being completely re-designed and we anticipate a much revised application
sometime this year. Not a great example to use due to complexity and local
controversy. 04-1262, Plantation Point Phase V in Johnston Co., 14,644 ft2 of
impacts for road crossings with 35,481 ft2 of mitigation. They couldn't stay under
the mitigation radar due to site constraints.
This gives us seven recent examples to use for the RDU comparison. Please advise of
1 of 2 5/31/2005 2:29 F
buffer mitigation projects
specific details you'd like to have prepared for your larger report. Thanks.
2 of 2 5/31/2005 2:29 PM
[Fwd: RDU Airport Authority]
Subject: [Fwd: RDU Airport Authority]
From: Tom Reeder <[e-mail]>
Date: Mon, 23 May 2005 10:37:41 -0400
To: John Dorney <[e-mail]>, Cyndi Karoly <[e-mail]>, Jonathan
Diggs <[e-mail]>, Bradley Bennett <[e-mail]>
well, it looks like we are back to "battle stations" with this case. All or you are
working on a separate aspect of our argument of why we should not have to pay Craig
Bromby his $218K of attorney's fees. John- You are working on the affidavit. Cyndi
- You are researching the cases where we have successfully required previous
mitigation for the culverting of streams, and Jonathan - You are investigating the
disturbed buffer "compaction" issue. Hopefully, I think we should shoot for having
all the individual parts of this done by one week from today. Is that acceptable to
everyone? If that is doable maybe we can set up a briefing with Alan early next week
where you all can go over your part of the case. I really appreciate your efforts on
this because I know you all have a lot of other things going on right now, MQPs
etc... Thanks, again.
Subject: RDU Airport Authority
From: Alan Klimek <[e-mail]>
Date: Mon, 23 May 2005 10:18:40 -0400
To: jim gulick <[e-mail]>, John Payne <[e-mail]>, Kathy Cooper
<[e-mail]>, Frank Crawley <[e-mail]>, Mary Penny Thompson
<[e-mail]>, Coleen Sullins <[e-mail]>, Tom Reeder
<[e-mail]>
I called Cal Edmondson of the RDU Airport Authority last week and left him a
voicemail. John Brantley called me back and was polite but hostile. They believe they
won on the merits of the case, that the EMC reversed the OAH decision w/o any
explanation, that we've been dragging this issue out and they intend to keep fighting
us. I assume we'll continue as planned and not call a special session of the EMC.
Tom, I'd like to briefed on the main arguments we'll use when we're ready.
.........
RDU Airport Authority Content-Type: message/rfc822'
'...'..
Content-Encoding: 7bit
1 of 1 5/23/2005 10:42 AM
RDU Buffer Meeting
Subject: RDU Buffer Meeting
From: Tom Reeder <[e-mail]>
Date: Wed, 27 Apr 2005 08:17:21 -0400
To: Cyndi Karoly <[e-mail]>, John Dorney <[e-mail]>, John
Hennessy <[e-mail]>
Just wanted to provide you all with this update on what happened at yesterday's
meeting on the RDU Buffer Case.
Based on the advice of the AG's Office, the decision was made by Alan not to appeal
the current decision. The decision not to appeal was agreed to by all at the
meeting, for a variety of reasons that I would be glad to go over with you, if you
are interested. The bottom line is that the current decision is not precedent
setting but the appeal would be. For various legal technical reasons, our attorneys
did not think we would have a very good chance of winning the appeal, even though the
rules were on our side.
Additionally, Alan said that in the future we will provide credit for the 1:1 buffer
mitigation already included in the $205/linear foot stream mitigation fee. This is
the "DOT-model" (as Alan refers to it), as John H is already providing this credit in
the DOT-related mitigation costs. If you have any questions about what I am talking
about, just let me know and we can draw maps on a white board.
For John Dorney: Our attorneys are convinced that we will be soon facing similar
legal challenges to our buffer mitigation policies in the very near future. In order
to prepare ourselves for these upcoming legal battles Coleen requested that you
prepare an affidavit that can be used in the proceedings. The affidavit should
explain our justification for requiring greater than 1:1 mitigation for the removal
of buffers and should also explain our rationale for why an applicant still needs to
provide buffer mitigation (why there is still a loss of buffers) if the stream is
going to be piped.
For Cyndi: If someone is going to create an oyster sanctuary and part of that plan
is to put marl or some other form of fill in the sound for the sanctuary, will that
project need a 401 Certification? I assume the answer is yes, but I wanted to make
sure.
Thanks.
1 of 1 5/2/2005 10:02 AM

STATE OF NORTH CAROLINA
COUNTY OF WAKE
RALEIGH-DURHAM AIRPORT
AUTHORITY,
Petitioner,
V.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES, DIVISION OF WATER
QUALITY, and ENVIRONMENTAL
MANAGEMENT COMMISSION,
Respondents.
JUDGMENT

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This matter came before the Honorable A. Leon Stanback, Jr., Judge Presiding, for
hearing on November 15, 2004, on petition by Raleigh-Durham Airport Authority (the
"Authority") for judicial review of the Final Agency Decision by the North Carolina
Environmental Management Commission ("EMC") on the Authority's contested case No. 02
EHR 1648 (the "Final Agency Decision").
PROCEDURAL HISTORY
OF THE CASE
On August 9, 2002, pursuant to Section 401 of the of the Clean Water Act ("CWA"), 33
U.S.C. § 1341, Respondent North Carolina Department of Environment and Natural Resources
("DENR") issued Certification No. 3386 (the "401 Certification"), related to the Authority's
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
04 CVS 08969
planned construction project to extend part of a runway safety area at the Raleigh-Durham
International Airport (the "Project"). The Authority obtained a permit from the United States
Army Corps of Engineers (the "Carps"), pursuant to CWA Section 404, 33 U.S.C. § 1344, to fill
certain wetlands and streams as part of the Project. The 401 Certification contains compensatory
mitigation requirements for filling or removing those wetlands and streams. The 401
Certification also contains compensatory mitigation requirements for alleged impacts to
approximately 251,000 square feet of riparian buffer area located within the Neuse River Basin
(the `Buffer Mitigation"), in which certain activities are restricted in accordance with 15A
NCAC 2B .0233 (the "Riparian Buffer Rule").
In October, 2002, the Authority filed a Petition for Contested Case Hearing in the Office
of Administrative Hearings to challenge the issuance of the 401 Certification and Buffer
Mitigation. In May, 2003, the Authority filed a Motion for Summary Judgment with respect to
two issues: (1) whether there is a riparian buffer within the meaning of the Riparian Buffer Rule
after removal of the stream to which the regulated area would have been riparian, and (2)
whether Respondent waived the 401 certification requirement. The presiding Administrative
Law Judge ("ALJ") held a hearing on the summary judgment motion on November 24, 2003,
and issued his Decision on December 18, 2003 (the "ALJ Decision"). In the ALJ Decision, the
ALJ granted the Authority's motion, finding that DENR waived the 401 certification
requirements pursuant to 15A NCAC 2H. 0507, and finding further that the buffer area at issue
was not a riparian area subject to the restrictions and mitigation requirements of the Riparian
Buffer Rule. Relevant to the second finding, the ALJ expressly concluded that upon lawful
removal of the stream by pipe or fill, there remains no surface water adjacent to a buffer area that
must be maintained pursuant to the Riparian Buffer Rule. Therefore, there is no riparian area,
2
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the impact to which would require mitigation. The parties each timely filed exceptions to the
ALJ Decision pursuant to N.C. Gen. Stat. § 150B-36(a).
The ALJ Decision came before the EMC on May 13, 2004, for a final agency decision
pursuant to N.C. Gen. Stat. § 150B-36. The EMC rendered its Final Agency Decision, which
was served on June 7, 2004. A corrected page 2 of the Final Agency Decision was served on
June 9, 2004. The Final Agency Decision did not adopt the ALJ Decision, instead holding (1)
that there exists "an issue of material fact with respect to whether necessary, additional
information was unavailable to the Director and when it was made available by the applicant,"
making summary judgment on the issue of waiver inappropriate, and (2) that the ALJ
"misinterpreted and misapplied" the buffer rules in holding that, after the removal of a stream, no
riparian buffer exists within the meaning of the Riparian Buffer Rule. The EMC granted
summary judgment in favor of Respondent on the issue of the applicability of the regulations to
the Project. On June 29, 2004, Petitioner filed a Petition for Judicial Review of the second part
of the Final Agency Decision.
JURISDICTION
Upon review of the official record, the Court finds that it has jurisdiction over the parties
and the subject matter of this action. Pursuant to N.C. Gen. Stat. § 150B-51, the Court finds that
the EMC did not hear any new evidence in this matter, and the Final Agency Decision is
properly before this Court for review.
SCOPE AND STANDARD OF REVIEW
Where the agency does not accept the ALFs decision, the standard and scope of review is
specifically defined by Sections 150B-51(c) and 150B-36(b3) of the Administrative Procedure
Act ("APA"), respectively.
Scope of Review
3
Under § 150B-36(b3), the agency has a substantial burden to justify its decision in
instances where the agency does not accept the decision of the ALJ. Section 150B-36(b3) was
amended in 2000 in order to elevate the importance of the ALJ's decision. Under the amended
statute, the agency is required to adopt the ALJ's decision unless the agency "demonstrates that
the decision of the administrative law judge is clearly contrary to the preponderance of the
admissible evidence in the record." § 150B-36(b3). This language creates a presumption that
the ALJ's decision should be adopted unless the agency affirmatively demonstrates otherwise
through its own findings of fact and conclusions of law in the Final Agency Decision.
This burden is underscored by the requirements of § 15013-36(b), which provide that the
agency shall adopt each finding of fact unless it is clearly contrary to the preponderance of the
admissible evidence. Section 150B-36(bl)(l)-(2) requires that the agency provide reasons for
not adopting the findings of fact and setting forth the evidence in the record that the agency
relied on in not adopting the findings of fact. Section 150B-36(bl) further provides that any
findings of fact that are not specifically rejected by the agency are deemed accepted for the
purpose of judicial review of the Final Agency Decision.
Standard o Review
In reviewing a Final Agency Decision where the agency did not adopt the ALJ's
decision, the court "shall review the official record, de novo, and shall make findings of fact and
conclusions of law." § 150B-51(c). The court shall not give deference to any prior decision
made in the case, and is not bound by the findings of fact or the conclusions of law in the
agency's Final Agency Decision. Id. The court shall determine whether the petitioner is entitled
to the relief sought from the official record. Id. Section 150B-5I(c) further provides that the
court may, in rendering its decision: adopt the ALJ's decision; adopt, reverse, or modify the
4
agency's decision; may remand the case to the agency for further explanations under § 150B-
36(b l)-(b3), or reverse or modify the Final Agency Decision for the agency's failure to provide
the explanations; and may take any other action allowed by law.
Section § 150B-51(d) provides authority for the court to enter an order granting or
denying summary judgment when reviewing a final agency decision involving summary
judgment. The section further provides that if such an order does not fully adjudicate the case,
the case shall be remanded to the ALJ for further proceedings. This enabling statute authorizes
the trial court to enter or deny summary judgment on review of summary judgment cases, but
does not provide as.standard of review for the court. The standard of review that specifically
applies to the situation in this case, where the agency did not adopt the ALJ's decision, is the
standard set forth in § 150B-51(c).
Pursuant to § 150B-51(c), this Court reviewed the official record in this case de novo, and
makes the following findings of fact and conclusions of taw:
FINDINGS OF FACT
This case involves the issuance of 401 Water Quality Certification No. 3386 to the
Authority on July 19, 2002, and reissued on August 9, 2002 (collectively, the "401
Certification"), with respect to the Authority's planned project to construct a runway safety area
for the southern end of runway 5R-23L.
The 401 Certification contained a condition to provide compensatory mitigation for 251,
005.5 square feet of buffers in addition to mitigation requirements for 2.1 acres of riparian
wetlands and 2,124 linear feet of perennial streams (the July 19, 2002, 401 Certification imposed
mitigation for 2.6 acres of riparian wetlands and 2,706 linear feet of perennial stream. The
5
August 9, 2002, 401 Certification purported to "replace the one issued to the RDU Authority on
July 19, 2002")
3. Under the terms of the permit issued to the Authority by the Corps pursuant to Section
404 of the CWA, the stream channel associated with the buffer area for which the Buffer
Mitigation is sought will be completely removed by fill or pipe.
4. Respondent's testimony in the record states that to the extent that a perennial or
intermittent stream channel is completely removed by fill or pipe, then a buffer no longer needs
to be maintained along the former footprint.
The ALJ Decision granted the Authority's motion for summary judgtnent. The ALJ
Decision concluded that the buffer area at issue was not a riparian area subject to the restrictions
and mitigation requirements of the Riparian Buffer Rule. The ALJ Decision concluded that upon
lawful removal of the stream by pipe or fill, there remains no surface water adjacent to a buffer
area that must be maintained pursuant to the Riparian Buffer Rule.
6. The Final Agency Decision did not set forth separately and in detail any reasons for not
adopting the findings of fact set forth in the ALJ Decision.
7. The Final Agency Decision did not set forth separately and in detail any evidence in the
record relied upon by the agency in not adopting the findings of fact contained in the ALJ
Decision.
8. The Final Agency Decision made no new findings of fact that were not contained in the
ALJ Decision, nor did it set forth separately and in detail the evidence in the record relied upon
by the agency in making any new finding of fact.
6

CONCLUSIONS OF LAW
1. 15A NCAC 2B .0233(a) states that the purpose of the Neuse River riparian buffer
protection rules is "to protect and preserve existing riparian buffers in the Neuse River Basin to
maintain their nutrient removal function."
2. 15A NCAC 2B. 0202(56) defines "riparian area" as an area adjacent to a water body.
3. 15A NCAC 2B .0233 imposes restrictions on "50-foot riparian buffers directly adjacent
to surface waters in the Neuse River Basin,"
4. Upon lawful removal of the stream by pipe or fill, there remains no surface water
adjacent to a buffer area that must be maintained pursuant to 15A NCAC 2B .0233, therefore
there is no riparian area the impact to which would require mitigation.
5. Section § 1, 50B-51(d) grants the court authority to enter an order granting or denying
summary judgment when reviewing a final agency decision involving summary judgment. This
order reflects full adjudication of the issues in this case.
6. The standard of review that specifically applies to the situation in this case, where the
agency did not adopt the ALYs decision, is the standard set forth in § 150B-51(c).
7. Respondents have argued that § 150B-5l(d) defines the standard of review applicable to
this case in lieu of the provisions of § 150B-51(c). However, § 150B-5 l(d) does not set forth a
standard of review. Rather, it is an enabling statute providing the court specific and additional
remedial powers
7

I
8. No genuine issues of material fact remain in the matter before this Court which would
prevent the granting of summary judgment in favor of the Authority.
9. Respondent failed to meet its burden for not adopting the ALJ's Decision.
10. Respondent neither accepted nor specifically rejected the ALJ's undisputed findings of
fact, thereby rendering them accepted for the purpose of this Court's review.
11. Respondent failed to demonstrate that the ALJ Decision was clearly contrary to the
preponderance of the admissible evidence in the record.
ORDER
WHEREFORE, the Court reverses the Final Agency Decision and adopts the ALJ
Decision granting summary judgment to Petitioner.
A--
This the day of April, 2005.
U,
A. Leon Stanback, Jr.
Superior Court Judge
48638.000031 RALEIGH 2604790
8
k
04
Airport projects that have been reviewed by DWQ for riparian buffer impacts
Division of Water Quality
June 3, 2005
A total of six projects (in addition to the RDU project) have applied to
DWQ for approval under the Neuse or Tar-Pamlico buffer rules from 1999 to
present as found in DWQ's File Maker Pro database. Of the six, one is still on
hold (Warren Field Airport in Beaufort County), one needed approval for wetland
fill rather than stream fill (Pitt-Greenville Airport in Pitt County) while two others
needed approval for stormwater management only (Rocky Mount- Wilson Airport
in Wilson County and Johnston County Airport in Johnston County). The two
projects that actually impacted protected buffers are described below.
1. Halifax-Northhampton Airport Project, DWQ # 04-0639, Halifax County
This project proposed to construct a new airport in Halifax County. The
project requested to impact 0.36 acres of wetlands, 280 feet of perennial stream,
1642 feet of intermittent stream and 3.22 acres of stream buffers along streams
that are located in the Tar-Pamlico basin. The streams would be piped
(culverted) and fill placed upon them in order to construct the runway and
associated facilities for the airport. The application was received by DWQ on
April 21, 2004. The approval was issued by DWQ on June 18, 2004 with
requirements for on-site stormwater management (approved on September 22,
2004) as well as stream and buffer mitigation. The stream and buffer mitigation
was done on-site adjacent to the new airport in an agricultural field. A total of
1,485 feet of stream mitigation was done along with 7.25 acres of buffer
mitigation and 1.5 acres of wetland mitigation (required by the US Army Corps of
Engineers). Presently, the airport and mitigation areas are under construction.
2. Franklin County Airport Project, DWQ # 04-1577, Franklin County
This project proposed to construct a new safety area for the existing
airport. The project proposed to clear and grub trees from the end of the existing
runway for safety reasons. The original application was received by DWQ on
September 24, 2004. During the review process, the amount of proposed buffer
impacts were reduced from 3.5 acres of buffer impact to 1.3 acres of buffer
impact. The amount of impact to Zone 1 was reduced from 2.12 acres to less
than one-third acre. Therefore, DWQ did not require buffer mitigation for this
project although diffuse flow of stormwater was required for the project.
i
Stream Piping (Culverting), Compensatory Mitigation and the Riparian
Buffer Rules
NC Division of Water Quality
Version 2.0
June 3, 2005
Background:
Recently the issue of whether DWQ should require buffer mitigation for the loss
of buffers associated with stream piping (culverting) has been raised by several parties.
The purpose of this position paper is to describe why and when piping of a stream
necessitates buffer mitigation in accordance with the Riparian Buffer Protection Rules
adopted by the NC Environmental Management Commission (EMC) (Neuse Basin
buffer rules 15A NCAC 213.0233; Tar-Pamlico Basin buffer rules 15A NCAC 2B .0259,
and Catawba Basin buffer rules 15A NCAC 2B .0243). The Randleman Lake Buffer
rules (15A NCAC 2B .250) are similar but do not have an explicit provision of buffer
mitigation and are therefore not discussed below.
Background of the Buffer Rules:
The Neuse River riparian buffer rules were adopted by the EMC to "protect and
preserve existing riparian buffers in the Neuse River Basin to maintain their nutrient
removal functions" (15A NCAC 2B .0233 (1)). The rules provide a detailed process for
DWQ staff to use when reviewing proposed impacts to these buffers. These riparian
buffer rules generally require the protection of a 50 foot wide, undisturbed buffer along
certain waterbodies in these basins. The abovementioned rules require this protection
along all intermittent and perennial streams, lakes, ponds and estuaries in these
watershed except that the Catawba rules are limited to the shorelines of the Catawba
River and its lakes from Lake James to the NC/SC border. Riparian buffers act like a
filter (similar to an air filter in a house) to remove nutrients that are dissolved in
stormwater or attached to soil that erodes during rainfall events. Protection of these
buffers has been shown by many scientific research studies (including research done in
NC) to be crucial to maintaining the health of a stream and keeping non-point source
pollution from entering the stream.
Crossings of these buffers and the associated stream, lake or pond are an
"Allowable Use" under these rules for activities such as roads, utility lines, airport
facilities, and railroads. However if the impacts to the stream and/or buffer exceed
certain thresholds, then the activity is classified as "Allowable with Mitigation". For
instance in the Neuse River buffer rules, "Airport facilities that impact equal to or less
than 150 linear feet or one-third of an acre of riparian buffer" (15A NCAC 2B .0233(6))
are "Allowable" while airport facilities that exceed these thresholds are "Allowable with
Mitigation". The "Allowable with Mitigation" category is defined as requiring written
authorization from DWQ or local delegated authority if 1) there is no practical alternative
to the requested use and 2) "an appropriate mitigation strategy has been approved
pursuant to Item (10) of this Rule." (15A NCAC 2B. 0233(7)(c)). The Neuse Rule
contains an explicit provision for buffer mitigation (15A NCAC 2B. 0242) that is
referenced under 15A NCAC 2B .0233(10). This rule discusses the need for mitigation
for activities approved as "Allowable with Mitigation" and states that the area of impact is
defined as "the area of the footprint of the use causing the impact to the riparian buffer
44
as well as the area of the boundary of any clearing and grading activities within the
riparian buffer necessary to accommodate the use" (15A NCAC 2B.0242(3)(a)). Ratios
for mitigation are specified in 15A NCAC 2B .0242(3)(b). Finally, Section 401 of the
Federal Clean Water Act, requires the Division of Water Quality to issue a 401 Water
Quality Certification for all federal permits and licenses (such as a Section 404 Permit
issued by the US Army Corps of Engineers) for fill of waters of the US (such as stream
channels). Section 401 (d) states that the States may condition these Certifications to
conform with water quality standards and "any other appropriate requirement of State
law". The Riparian Buffer rules are such a requirement.
The need for buffer mitigation
The overall purpose of the buffer rules is to preserve existing riparian buffers for
their nutrient removal functions. In the mid- 1990's, the Neuse River experienced
extensive algae blooms and related fish kills in a scale unprecedented in N.C. In
response, the NC Legislature passed legislation directing the EMC to adopt rules to
reduce by 30% the amount of nutrients entering the Neuse River in order to clean up the
river. After extensive public involvement, the EMC adopted a variety of rules directed at
wastewater treatment plants, agricultural runoff, urban runoff, forestry activities, and
development in order to reduce the amount of nitrogen in the Neuse River by 30%. A
key element of this strategy was to not have increases in nutrients from new
development while other sources were reducing nutrients in the Neuse River. When the
original buffer rules were adopted in 1997, the overall goal was to maintain the existing
amount of riparian buffers in the river basin in order to prevent an increase in nutrients
from new development and to also replace those buffers that were unavoidably lost
through a process of compensatory mitigation. Since buffers closer to the stream or lake
are most valuable for removing nutrients, a higher mitigation ratio was required for buffer
impacts closer to streams. For instance, when the US Army Corps of Engineers and
DWQ require stream mitigation anywhere in the state, applicants are required to restore
a 50 foot wide wooded buffer adjacent to the restored stream in order to have an
approvable stream mitigation project. This long-standing requirement recognizes the
importance of wooded buffers to stream health.
The rules specify ratios for mitigation - a 1.5:1 (square feet of mitigation to
square feet of impact) ratio for impacts in areas 30 to 50 feet from the stream and a 3:1
ratio for impacts in areas from 0 to 30 feet from a stream. The purpose of these ratios is
that it takes time for a restored buffer to become fully functional in removing nutrients.
This is primarily due to the fact that the ability of a buffer to remove nutrients is due to its
deep-rooted, woody vegetation and the ability of water to soak into the soil through soil
pores. Once the soil is compacted (for instance, by agricultural plowing or construction
equipment), it takes many years for the soil to recover to the point where it can readily
absorb stormwater. Similarly, it takes many years for woody vegetation to grow deep
roots which can most efficiently remove nutrients. During this time, the restored buffer
does not fully function to remove nutrients. For instance, nutrient removal is highest in
an undisturbed, woody buffer and lower in a compacted, disturbed buffer. These factors
and the fact that the buffer closest to the stream is the most valuable in removing
nutrients, led the EMC to adopting the abovementioned mitigation ratios for unavoidable
impacts to buffers (The "Allowable with Mitigation" category in the rules).
Projects which propose to pipe (culvert) streams:
2

If an applicant wants to install a pipe (culvert) in a stream, a Section 404 Permit
issued by the US Army Corps of Engineers is required as is a 401 Certification issued by
the Division of Water Quality. A person cannot install a pipe in a stream without
impacting the riparian area adjacent to the stream since access will be needed for
equipment to temporarily relocate the channel, excavate the channel to the dimensions
of the pipe, place the pipe into the excavated hole and then re-direct the stream to flow
into the newly installed pipe. This activity requires a 404 Permit and 401 Certification
and then application of the Riparian Buffer rules since these are an appropriate
requirement of State law. Therefore, if the impact to the stream or riparian buffer is
"Allowable with Mitigation" since it exceeds the thresholds noted above, then buffer
mitigation is required for that impact. DWQ has been administering the Neuse River
Riparian Buffer rules in this manner since their adoption in their present form in 1999.
Projects which propose to only impact stream buffers:
Some projects only propose to impact stream buffers rather than the stream
itself. For instance, sewer lines are usually installed to follow streams since most sewer
lines are designed to flow downhill rather than be pumped. If a sewer line or roadway
has to be installed parallel to a stream in the Neuse River basin within 30 feet of the
stream, then the applicant is required to conduct compensatory buffer mitigation to
replace the nutrient removal function of that buffer. The rules (15A NCAC 2B .0233 (6))
specify this mitigation even if the stream itself is not piped or bridged.
3
Re: RDU Attorney Client Privileged Communication
Subject: Re: RDU Attorney Client Privileged Communication
From: John Dorney <[e-mail]>
Date: Fri, 03 Jun 2005 13:29:13 -0400
To: James Gulick <[e-mail]>
CC: Cyndi Karoly <[e-mail]>
sounds good.
cyndi and i met this morning to brainstorm and i'll send this on to her for her
document. we did find another example of an airport (Halifax-Northhampton Airport)
that did fill streams, buffers and wetlands and did mitigation (on site). it will
all be in our writeups. thankx
James Gulick wrote:
I was just working on the Assignments of Error as part of our effort to preserve
the appeal option. In one I have summarized my understanding of some of the 404
application that it seems to me also is useful in showing our position was
reasonable. I share it with you DENR folks because I'd like your comments,
corrections and suggestions and also because it might help Cyndi Karoly with her
summary. I don't have her e-mail, Alan, and John, could you send it on. Here is
that segment: "The court erred in holding in conclusion of law number 4 that
"[u]pon lawful removal of the stream by pipe or fill, there remains no surface
water adjacent to a buffer area that must be maintained pursuant to 15A NCAC 2B
.0233, therefore, there is no riparian area that the impact to which would require
mitigation," where the Petitioner's own application for a permit from the Army
Corps of Engineers admitted that its proposed plan would impact at the South End
of Runway 5R-23L 59,471 square feet of "DWQ Neuse Buffer" in Zone 1 and 48,895
square feet of DWQ Neuse Buffer in Zone II; where Petitioner represented to the
Corps of Engineers that "To satisfy the mitigation requirements for the proposed
project, the Authority proposes to purchase required stream, Neuse buffer, and
wetland mitigation credits . . among other reasons because "No feasible buffer
mitigation sites were found" on airport property;"
Mary Penny: Also, don't forget to get wtih John about doing an affidavit relating
to the settlemetn issue and who kept the litigation alive."
JIM
1 of 1 6/7/2005 2:52 PM
Re: RDU Attorney Client Privileged Communication
t . .
Subject: Re: RDU Attorney Client Privileged Communication
From: Alan Klimek <[e-mail]>
Date: Fri, 03 Jun 2005 16:05:01 -0400
To: James Gulick <[e-mail]>
CC: Frank Crawley <[e-mail]>, John Payne <[e-mail]>,
[e-mail], [e-mail], Cyndi Karoly <[e-mail]>
I believe I have made a successful transition from the engineer's more mathematical perspective on life
(i.e. my two exquisite graphs with supporting numbers and equations) to the attorney's preference for
rhetorical clarity (the verbal skill sets so important in communication) for the purposes of our next
encounter in court. .
In that vein, I would suggest that we might consider strengthening (dumbing down) your statement to
somehow make it abundantly clear that the stream is not lawfully removed by pipe or fill without
replacing (mitigating for) the buffer. Hence the issue is not the spurious argument that there is no longer
a need for a buffer because the stream has been put into a pipe, but that the stream cannot be put into a
pipe w/o compensating for both the stream and the buffer that are removed. While this is certainly
implied in your statement below, I was trying to think at about a fourth grade level for these purposes
(not too hard for an engineer - although in my transitional zeal I utilized a couple of words w/ perhaps
too many syllables). Just a suggestion.
Alan
James Gulick wrote:
I was just working on the Assignments of Error as part of our effort to preserve
the appeal option. In one I have summarized my understanding of some of the 404
application that it seems to me also is useful in showing our position was
reasonable. I share it with you DENR folks because I'd like your comments,
corrections and suggestions and also because it might help Cyndi Karoly with her
summary. I don't have her e-mail, Alan, and John, could you send it on. Here is
that segment: "The court erred in holding in conclusion of law number 4 that
"[u]pon lawful removal of the stream by pipe or fill, there remains no surface
water adjacent to a buffer area that must be maintained pursuant to 15A NCAC 2B
.0233, therefore, there is no riparian area that the impact to which would require
mitigation," where the Petitioner's own application for a permit from the Army
Corps of Engineers admitted that its proposed plan would impact at the South End
of Runway 5R-23L
59,471 square feet of "DWQ Neuse Buffer" in Zone 1 and 48,895 square feet of DWQ
Neuse Buffer in Zone II; where Petitioner represented to the Corps of Engineers
that "To satisfy the mitigation requirements for the proposed project, the
Authority proposes to purchase required stream, Neuse buffer, and wetland
mitigation credits . . among other reasons because "No feasible buffer
mitigation sites were found" on airport property;"
Mary Penny: Also, don't forget to get wtih John about doing an affidavit relating
to the settlemetn issue and who kept the litigation alive."
JIM
1 of 1 6/7/2005 2:52 PM
Re: RDU Attorney Client Privileged Communication
r , .
Subject: Re: RDU Attorney Client Privileged Communication
From: "James Gulick" <[e-mail]>
Date: Mon, 06 Jun 2005 09:10:23 -0400
To: <[e-mail]>
CC: "Frank Crawley" <[e-mail]>, "John Payne" <[e-mail]>,
<[e-mail]>, <[e-mail]>, <[e-mail]>
I agree with you, especially with the notion that the stream cannot be lawfully
filled or piped without mitigating both its loss (through restoration are mitigation
payments and for mitigation for the lost buffer, which goes with the stream. I'd go
on to say that when the restoration or mitigation is accomplished, it will have to
have an appropriate buffer to make up for that which protected the original stream
segment.
What I was including in the statement was quoted from the proposed assignments of
error only to emphasize the evidence in RDU's own document that there were clearly
anticipated impacts to the buffer as well as the stream and that RDU proposed to pay
mitigation for them as they could not replace them on site.
Alan Klimek <[e-mail]> 06/03/05 04:05PM >>>
I believe I have made a successful transition from the engineer's more
mathematical perspective on life (i.e. my two exquisite graphs with
supporting numbers and equations) to the attorney's preference for
rhetorical clarity (the verbal skill sets so important in communication)
for the purposes of our next encounter in court.
In that vein, I would suggest that we might consider strengthening
(dumbing down) your statement to somehow make it abundantly clear that
the stream is not lawfully removed by pipe or fill without replacing
(mitigating for) the buffer. Hence the issue is not the spurious
argument that there is no longer a need for a buffer because the stream
has been put into a pipe, but that the stream cannot be put into a pipe
w/o compensating for both the stream and the buffer that are removed.
While this is certainly implied in your statement below, I was trying to
think at about a fourth grade level for these purposes (not too hard for
an engineer - although in my transitional zeal I utilized a couple of
words w/ perhaps too many syllables). Just a suggestion.
Alan
James Gulick wrote:
I was just working on the Assignments of Error as part of our effort to preserve
the appeal option. In one I have summarized my understanding of some of the 404
application that it seems to me also is useful in showing our position was
reasonable. I share it with you DENR folks because I'd like your comments,
corrections and suggestions and also because it might help Cyndi Karoly with her
summary. I don't have her e-mail, Alan, and John, could you send it on. Here is
that segment: "The court erred in holding in conclusion of law number 4 that
"[u]pon lawful removal of the stream by pipe or fill, there remains no surface
water adjacent to a buffer area that must be maintained pursuant to 15A NCAC 2B
.0233, therefore, there is no riparian area that the impact to which would require
mitigation," where the Petitioner's own application for a permit from the Army
Corps of Engineers admitted that its proposed plan would impact at the South End
of Runway 5R-23L 59,471 square feet of "DWQ Neuse Buffer" in Zone 1 and 48,895
square feet of DWQ Neuse Buffer in Zone II; where Petitioner represented to the
Corps of Engineers that "To satisfy the mitigation requirements for the proposed
project, the Authority proposes to purchase required stream, Neuse buffer, and
wetland mitigation credits . " among other reasons because "No feasible buffer
mitigation sites were found" on airport property;"
Mary Penny: Also, don't forget to get wtih John.about doing an affidavit relating
1 of 2 6/7/2005 2:53 PM
Re: RDU Attorney Client Privileged Communication
to the settlemetn issue and who kept the litigation alive."
JIM
2 of 2 6/7/2005 2:53 PM
AGENDA ITEM
0427. j>
State of North Carolina tie,
Office of Administrative Hearings
Certification
I hereby certify the attached (182 sheets) to be a true copy of
the Official Record as required by G.S.150B-37 of the proceedings in the Office
of Administrative Hearings, in case 02 EHR 1648, "Raleigh Durham Airport
Authority, Petitioner v. North Carolina Department of Environment and
Natural Resources, Division of Water Quality, Respondent."
The original of which is filed in this office in conformance with Chapter 150B
of the General Statutes of the State of North Carolina.
In witness whereof, I authorize this certification
and affix the official seal of the North Carolina
Office of Administrative Hearings at Raleigh,
This 20`h day of February 2004.
Julian Mann, III
Chief Administraltiivve Law Judge, Director
By: J:?M
DELIVERED BY.•
RECEIVED BY.•
PEMY L
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
02 EHR 1648
Raleigh-Durham Airport Authority )
Petitioner, )

V. ) OFFICIAL RECORD INDEX SHEET

Department of Environment and )
Natural Resources and its Division of )
Water Quality; William Ross, Secretary, )
in his official capacity; and Alan Klimek, )
Director of the Division in his official )
capacity )
Respondent. )
RECOMMENDED DECISION
DOCUMENTS
Section I
. -"Petition (Article 3 Agencies only)
Request for Designation of ALJ (Article 3A Boards
---Notice of Contested Case and Assignment
Order(s) of Reassignment
Order for Prehearing Statements
Scheduling Orders
'Notice(s) of Representation
Document Constituting Agency Action
Hearing Assistant/Court Reporter Request Form
Motion and Order of Consolidation
Commissions only)
Section II
--Prehearing Statements
Notice of Prehearing Conference
i Motions/Responses/Briefs/ Rulings
Report of Mediator
Report of Settlement Conference
Section III
Notices of Hearings
i Return of Service on Subpoenas and Notices
Motions and Orders of Continuance
Prehearing Order
Section IV
Parties' Proposed Decisions
i Other Post Hearing Submissions
Section V
Exhibits
Offers of Proof
Section VI
/Miscellaneous Documents
Request for Transcript
Transcript
Hearing tapes (when necessary)
2
-r_
STATE OF NORTH CAROLINA IN THE OFFICE OF
"ADMINISTRATIVE HEARINGS
COUNTY OF WAKE "'' 02 EHR 1648
Raleigh-Durham Airport Authority,
Petitioner,
V.
N.C. Dept. of Environment and
Natural Resources, Division of
Water Quality,
Respondent.
ORDER AND DECISION
This matter came for hearing before the undersigned Administrative Law Judge on November
24, 2003, upon Petitioner's motion for summary judgment. Petitioner Raleigh-Durham Airport
Authority (the "RDU Authority") was represented by Craig A. Bromby. Respondent Division of
Water Quality ("DWQ") was represented by Mary Penny Thompson. Petitioner's Motion was
granted.
ISSUE
The RDU Authority raised two issues in its motion for summary judgment:
1. Whether Respondent waived the requirement for Water Quality Certification (401
Certification) by failing to issue the 401 Certification within 60 days after receipt of the RDU
Authority's application; and
2. Whether there is a riparian area within the meaning of 15A NCAC 2B .0233 to which
buffer mitigation requirements apply after the removal of the stream to which the regulated area
would have been riparian.
UNDISPUTED FACTS
Based on the entire record in this matter, including the filed pleadings, briefs submitted by the
RDU Authority and Respondent, and discovery exchanged by the parties, this Court finds the
following facts are undisputed:
1. This contested case involves the issuance of 401 Water Quality Certification No. 3386 to
the RDU Authority on July 19, 2002, and reissued on August 9, 2002 (collectively, the "401
Certification") with respect to the RDU Authority's planned project to construct a runway safety
area for the southern end of runway 5R-23L.
2. The RDU Authority submitted a request for a 401 certification by letter dated April 25,
2002 (the "401 Application").
3
3. Respondent date stamped the RDU Authority's April 25, 2002, letter as received on
April 29, 2002.
4. Respondent issued the original 401 Certification to the RDU Authority on July 19, 2002.
5. Respondent issued a second 401 Certification to the RDU Authority on August 9, 2002.
6. The 401 Certification contained a condition to provide compensatory mitigation for 251,
005.5 square feet of buffers in addition to mitigation requirements for 2.1 acres riparian wetlands
and 2, 124 linear feet of perennial streams. (the July 19, 2002, 401 Certification imposed
mitigation for 2.6 acres of riparian wetlands and 2,706 linear feet of perennial stream. The
August 9, 2002, 401 Certification purported to "replace the one issued to the RDU Authority on
July 19, 2002").
7. The 401 Application submitted by the RDU Authority stated that the RDU Authority
intended to purchase mitigation credits from the North Carolina Wetlands Restoration Program
(WRP), that several meetings had been held with WRP staff, the U.S. Army Corps of Engineers,
and DWQ, and that these participants had agreed that payment into the WRP would be
acceptable.
8. The 401 Application states that "[o]ne of the options you have available to satisfy the
compensatory mitigation requirements is through the payment of a fee to the Wetlands
Restoration Fund per NCAC 2R .0503."
9. Respondent received a copy of the WRP letter confirming the program's acceptance of
the RDU Authority's mitigation on June 21, 2002.
10. Under the terms of a permit issued to the RDU Authority by the U.S. Army Corps of
Engineers, pursuant to Section 404 of the Clean Water Act, the stream channel to which the
buffer area for which mitigation is sought will be completely removed by pipe or fill.
11. Respondent's testimony and discovery responses state that to the extent that a perennial
or intermittent stream channel is completely removed by fill or pipe, then a buffer no longer
needs to be maintained along the former footprint.
CONCLUSIONS
1. 15A NCAC 2B .0507 states that the Director must grant or deny an application for 401
Certification within 60 days, and that failure to take final action within 60 days shall result in
waiver of the certification requirements unless any of the exceptions listed in 15A NCAC 2B
.0507(x)(1) through (5) apply.
2. 15A NCAC 2H .0503(a) states that public notice of a pending 401 certification must be
published "at least 15 days prior to proposed final action by the Director upon application and
not more than 20 days after acceptance of a completed application." Thus, confirmation of the
4
public notice requirement pursuant to 15A NCAC 2H .0503(c) is not "information necessary to
the Director's decision" under 15A NCAC 2B .0507(a)(5) or (a)(3) such that an exception to the
60 day requirement is applicable.
3. Confirmation of acceptance by the WRP of payment by the RDU Authority for
compensatory mitigation was not "information necessary to the Director's decision" under 15A
NCAC 2B .0507(a)(5) or (a)(3) such that an exception to the 60 day requirement was applicable.
4. Nothing in the record supports a conclusion that any information necessary to the
Director's decision was unavailable on April 29, 2002, pursuant to 15A NCAC 2B .0507(a)(5).
5. Nothing in the record supports a conclusion that the RDU Authority failed to furnish on
April 29, 2002, any information necessary to the Director's decision pursi}ant to 15A NCAC 2B
.0507(a)(3).
6. Nothing in the record supports a conclusion that the exceptions of 15A NCAC 2B
.0507(1),(2), or (4), apply to the Director's issuance of the 401 Certification.
7. Respondent waived the certification requirements when it issued the 401 Certification
more than 60 days after it received the completed 401 application on April 29, 2002.
8. 15A NCAC 2B .0233(1) states that the purpose of the Neuse River riparian buffer
protection rules is "to protect and preserve existing riparian buffers in the Neuse River Basin to
maintain their nutrient removal function."
8. 15A NCAC 2B .0202 (56) defines "riparian area" as an area adjacent to a body of water.
9. 15A NCAC 2B .0233 imposes restrictions on "50-foot wide riparian buffers directly
adjacent to surface waters in the Neuse River Basin."
10. Upon lawful removal of the stream by pipe or fill, there remains no surface water
adjacent to a buffer area that must be maintained pursuant to 15A NCAC 2B .02 therefore,
there is no riparian area the impact to which would require mitigation.
11. No genuine issues of material fact remain in the matter before this Court which would
prevent the granting of summaryjudgment in favor of the RDU Authority.
BASED UPON the foregoing UNDISPUTED FACTS and CONCLUSIONS, the undersigned
makes the following:
DECISION
Summary judgment, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, and
Rule .0105 of the Rules of the Office of Administrative Hearings should be granted in favor of
the RDU Authority because there is no genuine issue of material fact that, as a matter of law,
Respondent waived the 401 Certification requirements pursuant to 15A NCAC 0507, and that the
5
buffer area at issue is not a riparian area subject to the restrictions and mitigation requirements of
15A NCAC 2B.0233.
NOTICE
Before making its FINAL DECISION, the agency making the final decision in this contested
case is required to give each party an opportunity to file exceptions to this DECISION and to
present written arguments to those in the agency who will make the final. decision. N.C. Gen.
Stat. § 150B-36(a).
The agency is required by N.C. Gen. Stat. § 150B-36(b3) to serve a copy of the final decision on
all parties and to furnish a copy to the parties' attorneys of record and to the Office of
Administrative Hearings. The agency that will make the final decision in this contested case is
the Environmental Management Commission.
This the /eday of bBl'?l RY , 2003.
The Honorable Beecher R. ay
Administrative Law Judge Presiding.
A copy of the foregoing was mailed to:
Charles D. Case
Hunton & Williams
Attorneys at Law
PO Box 109
Raleigh, NC 27602
ATTORNEY FOR PETITIONER
Mary Penny Thompson
Assistant Attorney General
NC Department of Justice
PO Box 629
Raleigh, NC 27602-0629
ATTORNEY FOR RESPONDENT
This the 19th day of December, 2003.
Offi of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
[phone]
Fax: [phone]
7
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Order and Decision was mailed via
U.S. Postal Service, Certified Mail, addressed as follows:
Mary Penny Thompson
Assistant Attorney General
N. C. Department of Justice
P. 0. Box 629
Raleigh, NC 27602-0629
Charles D. Case
Hunton & Williams
P. 0. Box 109
Raleigh, NC 27602
This the 31" day of December, 2003.
04,Lk
Christi ord
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone: [phone]
Facsimile: [phone]
SECTION I
PLEASE PRINT CLEARLY OR TYPE
01
STATE OF NORTH CAROLINA IN THE OFFICE OF
COUNTY OF (1) WAKE FILED ADMINISTRATIVE HEARINGS
(2) RALEIGH-DURHAM AIRPORT AUTHORITY 202 OCT -)s P fit: 43
)
Petitioner. Q I Q
(Your Name) PETITION
ADMINI?TRATIN E FORA
V. • HEARINGS CONTESTED CASE HEARING
(3) DEPARTMENT OF ENVIRONMENT AND NATURAL )
RESOURCES and its DIVISION OF WATER QUALITY; )
WILLIAM ROSS, SECRETARY, IN HIS OFFICIAL CAPACITY; )
AND ALAN KLIMEK, DIRECTOR OF THE DIVISION OF )
WATER QUALITY IN HIS OFFI CIAL CAPACITY )
I hereby ask for a contested case hearing as provided for by G.S. 150B-23 because the:
(41 Department of Environment and Natural Resources. through the Director of Division of Water Ouality has:
(name of agency)
(Briefly state facts showing how you believe you have been harmed by the state agency or board.)
issued a 401 certification pertaining to Petitioner's Runway Safety Ara project Project No. 02-0662, which improperly incorporated
requirements under the Neuse River Riparian Buffer Rule (15A NCAC 2B. 0233) requiting mitigation of over 250,000 square feet of riparian
buffer, which is greater than should be required under the applicable standards. A copy oif the 401 Certification is attached.
(if more space is needed, use additional sheets and attach)
(5) (Check all that apply) Because of these facts, the agency has:
® deprived me of property, ® acted erroneously;
? ordered me to pay a fine or civil penalty; ® failed to use proper procedure;
® otherwise substantially prejudiced my rights; and ® acted arbitrarily or capriciously; or
based on these facts the agency has exceeded its ® failed to act as required by law or rule.
authority or jurisdiction;
##itiif###!itit#iiliff#t#ff#tgiiffif###it#tiiti###!###!#i##ii##f#!!tt#if###iiilt###i##iliiliiiti#i###i#####!t!
(6) Date October 8 2002 (7) Your telephone number 919-899-3045
(8) Print your address: Hunton & Williams, P. O. Box 109, Raleigh, NC 27602
(9) Print your
(10) Your
it!!#iftf#ititititititttlififitiititfiifliii!!it#!#ti!#tlit!!i##!!##!#!#f##!ii!•!t#!ti!!ft#!!####!!##!f!###!###
You must mail or deliver a COPY to the State Agency named on line (3) of this form Please indicate below.
CERTIFICATE OF SERVICE
I certify that this Petition has been served on the State Agency named below by depositing a copy of it with the United States Postal Service with
sufficient postage OR by delivering it to the named agency.
Served on:
(11) Daniel C. Oakley (12) Department of Environment and Natural Resources
(name) (agency)
(13) Mail to: 1601 Mail Service Center. Raleigh. NC 27699 Deliver to: 512 N. Salisbury Street. Raleigh. NC 27604-1148
(address)
(14) This is the t$h day of October 2002.
(15)
(your signature)
When you have completed this form you MUST mail or deliver the ORIGINAL and one COPY to the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447.
10
H-06 (11191)
48638.000031 RALEIGH 191352v2
TO : 98765823
C WgrF9 P:2,5
0'a Q Michael F. Easley, Governor
WiIlem G. Ras; .1r., Secretary
North Caroline DePartrttent of Environment and Natural Resources
0 l Alan W. Klimek, P.E. Director
r Division of Water Quality
August 9, 2002 RECEIVED
Mr. John Brantley
Airport Director
Raleigh Durham Airport Authority
P.O. Box 80001
RDU Airport, North Carolina, 27623
Dear Mr. Brantley.
AUG 1 2 2002
RALEIGH REGULATORY FIELD OPPICE
Re: Raleigh Durham Airport, Runway 5R-23L Safety Area and Access Roads, Wake County, North Carolina
DWO Project No. 02-0662; DOA Action ID No. 200021506
Attached hereto is a copy of Certification No. 3386 issued to Mr. John Brantley, dated August 9, 2002. This approval
is also valid for the Neuse River Buffer Rules (15A NCAC 2B .0233). This Certification replaces the one issued to you on
July 19, 2002, yo
If we can be of further assistance, do not hesitate to contact us.
Sincerely,
A ?4
J-j) Alan W. Klimek, P.B.
WKlcbk
ttachments
20662mod
11
U.S. Army Corps of Engineers, Raleigh Regulatory Field Office
DWO. Raleigh Regional Office - Steve Mitchell
File Copy
Central Files
Beth Reed, Kimley Home, P.O. Box 33066, Raleigh, NC. 27636-3x68
C. Otviolon of Water Quatityr 1617 Mall Service Center
Ra1eigh. NC 27699-1617 [phone] ASA
r&WENR
Customer Service
-- TC:98765823 P:3/5
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
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 Quality (DWQ) Regulations in 15 NCAC 2H,
Section :0500 to the Mr. John Brantley, resulting in the discharge of fill into 1.8 acre of jurisdictional wetlands and 1,353
linear feet of unnamed intermittent and perennial tributaries to Brier Creek and Sycamore Creek and to impact 114,283
square feet of Neuse Buffers associated with the construction of runway safety areas on the northern and southern ends
of an existing runway (Runway 5R-23L), and the construction of access roads around the proposed safety areas at the
Raleigh Durham Airport in Wake County, North Carolina, pursuant to an application filed on 7th day of May of 2002. This
approval is also valid for the Neuse River Buffer Rules (15A NCAC 213 .0233).
The application provides adequate assurance that the proposed work 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 only valid for the purpose and design that you submitted in your application and as described in the
Public Notice. If you change your project, you must notify us and send us a new application for a new certification. If the
property is sold, the new owner must be given a copy of the Certification and approval letter and is thereby responsible for
complying with all conditions, Should wetland or stream fill be requested in the future, additional compensatory mitigation
may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to be valid, you must follow the
conditions listed below. In addition, you should get any other federal, state or local permits before you go ahead with your
project including (but not limited to) Solid Waste, Sediment and Erosion control, Coastal Stormwater, Non-discharge and
Water Supply Watershed regulations.
Conditions of certification:
1. Appropriate sediment and erosion control practices which equal or exceed those outlined in the most recent
version of the "North Carolina Sediment and Erosion Control Planning and Design Manual" or the "North Carolina
Surface Mining Manual" whichever is more appropriate (available from the Division of Land Resources (OLR) in
the DENR Regional or Central Offices) shall be in full compliance with all specifications g o ve n
rni pe
g the pror
design, installation and operation and maintenance of such Best Management Practices in order to assure
compliance with the appropriate turbidity water quality standard;
2. We understand that you have chosen to contribute to the Wetland Restoration Program in order to compensate for
the impacts to wetlands and. streams. In accordance with 15A NCAC 2R.0402 and 15A NGAC 2B .0242(7), this
contribution will satisfy our compensatory mitigation requirements under 15A NCAC 2H .0506(h) and 15A NCAC
2B .0233(10). Until the Wetland Restoration Program receives and clears your check (made payable to: DENR -
Wetlands Restoration Program), wetland and stream impacts (including fill) shall not occur. Mr. Ron Ferrell should
be contacted at [phone] If you have any questions concerning the Wetland Restoration Program. You have
one month from the date of this Certification to make this payment- For accounting purposes, this Certification
authorizes the fill of 1.8 acre of riparian wetlands and 1,353 linear feet of streams in the Neuse River Basin,
Cataloging Unit 03020201, and 2.1 acres of wetland mitigation and 2,126 linear feet of stream mitigation is
require,d Please be aware that the Wetland Restoration Pr(.r)ram (WRP) rules require rounding of wetland
impacts to the nearest quarter acre and stream impacts to the nearest linear foot (15A NCAC 2R .0503(b));"
3. That the activity be conducted in such manner as to prevent significant increase in turbidity outside the area of
construction or construction related discharge (50 NTU's in streams and rivers not designated as trout waters by
DWQ; 25 NTU's in all saltwater classes, and all lakes and reservoirs; 10 NTU's in trout waters);
4. All sediment and erosion control measures placed in wetlands and waters shall be removed and the original grade
restored within two months after the Division of Land Resources has released the project;
5. Measures shall be taken to prevent live or fresh concrete from coming into contact with waters of the state until
the concrete has hardened;
6. Stormwater from the runway safety areas and access roads shall be managed-so as not to directly discharge into
surface waters. Stormwater may be discharged into wetlands on the site as long as discharge is directed to
diffuse flow at non-erosive velocities;
12
iUG-9-F,302 09:39 FRDM:DWQ-WETLANDS 9197336893 70:98765823 P:4,15
7. An additional condition is that stormwater shall be directed to dffuse flow at non-erosive velocities through the
protected stream buffers. Additional written approval from DWQ is needed for this purpose. Impacts to the stream
and buffer may not. occur until this written approval is received;
8. Waste or borrow sites shall not be located in streams or wetlands;
9. All temporary fill shall be removed to the original grade after construction is complete and the site shall be
stablllzed to prevent erosion;
10. The enclosed 'Certification of Completion Form" is to be used to notify DWO when all work included in the 401
Certification has been completed.
Violations of any condition herein set forth shall result in revocation of this Certification and may result in criminal
and/or civil penalties. This Certification shall expire on expiration of the 404 Permit
It this Certification is unacceptable to you, you have the right to an adfudicatory hearing upon written request within
sixty (60) days following receipt of this Certification. This request must be in the form of a written petition conforming to
Chapter 1505 of the North Carolina General Statutes and filed with the Office of Administrative Hearings, 6714 Mail
Service Center, Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the right to an
adjudicatory hearing on the modifications upon written request within sixty (60) days following receipt of the Certification-
Unless such demands are made, this Certification shall be final and binding.
This the 9'" day of August 2002
DIVISION OF WATER QUALITY
Alan W. Klimek, P.E
WQC # 3386
AW K/Cbk
13
- ---" 70:98765823 P:5/5
NORTH CAROLINA-DIViSON.OF WATER QUALITY
491 WATER QUALITY CERTIFICATION
SUMNfiARY OF PERMITTED IMPACTS AND MITIGATION REQUIREMENTS
In accordance with 15A NCAC 2 H .0500, Mr. John Brantley, Airport Director of the Raleigh Durham Airport
Authority has permission as outlined below to fill 1.8 acres of wetlands and 1,353 linear feet of streams and to impact
114.283 square feet of Neuse Buffers in order to construct a new runway safety area with access roads at the Raleigh
Durham Airport in Wake County. North Carolina. All activities associated with these authorized impacts must be
conducted with the conditions listed in the attached certification. THIS CERTIFICATION aS NOT VALID WITHOUT THE
ATTACHMENTS.
COMPENSATORY MITIGATION REOUiREMENT
WETLAND RESTORATION PROGRAM
LOCATION:
COUNTY
BA$IN/SUBBASIN
Impacts:
1.8 acres of riparian wetlands
1,353 linear feet of intermittent and perennial streams
Raleigh Durham Airport, Runway SR-23L
Wake
Neuse (03-02-02-01)
114,283 square feet of Neuse Buffers
As required by 15A NCAC 2H .0506, and the conditions of this certification, you are required to compensate for
the above impacts through the restoration, creation, enhancement or preservation of wetlands as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Mitigation:
2.1 acres of riparian wetlands
2,128 linear feet of perennial streams
Buffers - for South End only
Zone 1 -59,471 square feet x 3 =178.413 square feet
Zone 2 - 48,395 square feet x 1.5 = 72,592.5 square feet
Total = 251,005.5 square feet
Note: Linear foot requirements proposed to be mitigated through the Wetland Restoration Program must be rounded
to the nearest foot and acreage requirements must be rounded to one-quarter acre increments according to 15 2r
.0503(b).
One of the options you have available to satisfy the compensatory mitigation requirements is through the payment
of a fee to the Wetlands Restoration Fund per NCAC 2R .0503. If you choose this option, please sign this form and mail it
to the Wetlands Restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be
sent to you upon receipt of this form. PLEASE NOTE, THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU
RECEIVE NOTIFICATION THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION
PROGRAM.
Signature
Date
14
WETLANDS RESTORATION PROGRAM
DIVISON OF WATER QUALITY
1619 Mail Service Center
RALEIGH, N.C. 27669-1619
[phone]
FILED
OFFICE OF
ADMINISTRATIVE HEARINGS
Oct 10 9 04 AM 2002
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648
Raleigh-Durham Airport Authority )
Petitioner, )
NOTICE OF CONTESTED CASE
V. ) AND ASSIGNMENT
G.S.150B-23, 33(b)(4)
Department of Environment and )
Natural Resources and its Division of )
Water Quality; William Ross, Secretary, )
in his official capacity; and Alan Klimek, )
Director of the Division in his official )
capacity )
Respondent. )
NOTICE IS HEREBY GIVEN that a petition for a contested case hearing pursuant to
G.S. 150B-23(a) was filed in and accepted by the Office of Administrative Hearings on
October 08, 2002. In accordance with G.S. 150B-23(a) and 26 NCAC 3 .0003,
Beecher R. Gray, Administrative Law Judge, has been assigned to preside in this case. The
administrative law judge may be contacted by mail at 6714 Mail Service Center, Raleigh,
N.C. 27699-6714, or by telephone at [phone].
The Respondent shall submit, within 30 days , a copy of the document constituting
agency action, which caused the filing of the Petition.
A copy of any document or other pleading filed with the Office of Administrative
Hearings must also be sent to the other party at the time of filing. If a party changes his
or her mailing address, or if the address is incorrect, the Office of Administrative Hearings
must be notified of the new or corrected address.
NOTE: You may receive an Order for Prehearing Statements to which you must
respond within 30 days.
This the 10th day of October, 2002.
Julian Mann, III
Chief Administrative Law Judge
Kim Hausen
Chief Hearings Clerk
Office of Administrative Hearings
6714 Mail Service Center
Raleigh NC 27699-6714
919/733-0926
V
15
On this date mailed to:
Charles D. Case
Hunton & Williams
Attorneys at Law
PO Box 109
Raleigh, NC 27602
ATTORNEY FOR PETITIONER
Secretary William G. Ross, Jr.
N. C. Department of Environment and
Natural Resources
Attn: Dan Oakley
1601 Mail Service Center
Raleigh, NC 27699-1601
RESPONDENT
16
rtL?u
OFFICE OF
ADMINISTRATIVE HEARINGS
Oct 10 9 04 AM 2002
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648
Raleigh-Durham Airport Authority
Petitioner, )
ORDER FOR PREHEARING
V. ) STATEMENTS
Department of Environment and )
Natural Resources and its Division of )
Water Quality; William Ross, Secretary, )
in his official capacity; and Alan Klimek, }
Director of the Division in his official )
capacity )
Respondent. )
In order to permit the prompt preparation of this case for hearing,
IT IS HEREBY ORDERED, pursuant to 26 NCAC 3.0004, that each parry file with
the Office of Administrative Hearings and serve upon the other parties a Prehearing
Statement containing your present position with regard to the following:
1. The issues to be resolved, and the statutes, rules, and legal precedent involved;
2. A brief statement of the facts and reasons supporting the party's position on each
issue in dispute;
3. A list of proposed witnesses;
4. Whether you wish to pursue discovery. If so, the length of time required if
different from the time set in the Scheduling Order;
5. Requested location of hearing; if different from the location set in the Scheduling
Order;
6. Estimated length of hearing;
7. If you do not have an attorney, your home and business addresses and telephone
numbers;
8. The date by which you will be ready to have a hearing in this case if different
from the date set in the Scheduling Order;
9. Other special considerations.
This Prehearing Statement must be filed and served within 30 days of the date of
this ORDER.
This the 10th day of October, 2002.
Becher R. Gray
17 Administrative Law Judge
On this date mailed to:
Charles D. Case
Hunton & Williams
Attorneys at Law
PO Box 109
Raleigh, NC 27602
ATTORNEY FOR PETITIONER
Secretary William G. Ross, Jr.
N. C. Department of Environment and
Natural Resources
Attn: Dan Oakley
1601 Mail Service Center
Raleigh, NC 27699-1601
RESPONDENT
This the 10th day of October, 2002.
Kim Hausen
Chief Hearings Clerk
O ice of Administrative Hearings
6714 Mail Service Center
Raleigh NC 27699-6714
919/733-0926
18
FILED
OFFICE OF
ADMINISTRATIVE HEARINGS
Oct 10 9 04 AM 2002
STATE OF NORTH CAROLINA

COUNTY OF WAKE IN THE OFFICE OF
ADNIINISTRATIVE HEARINGS
02 EHR 1648
Raleigh-Durham Airport Authority )
Petitioner, )

V. ) SCHEDULING ORDER
Department of Environment and )
Natural Resources and its Division of )
Water Quality; William Ross, Secretary, )
in his official capacity; and Alan Klimek, )
Director of the Division in his official )
capacity )
Respondent. )
The undersigned has established the following Scheduling Order. This Scheduling
Order may be later amended in the discretion of the Administrative Law Judge, based upon
information provided in the parties' Prehearing Statements. The parties will be notified of
any changes by way of an Amended Scheduling Order.
1. The hearing for this contested case will be in Raleigh, North Carolina, for the
week beginning January 27, 2003. At least 15 days prior to the hearing the
Administrative Law Judge will mail to the parties a more specific notice of the
date, time and location of the hearing.
2. Discovery shall be completed on or before January 13, 2003.
IT IS SO ORDERED.
This the 10th day of October, 2002.
Becher R. Gray
Administrative Law Judge
19
a
On this date mailed to:
Charles D. Case
Hunton & Williams
Attorneys at Law
PO Box 109
Raleigh, NC 27602
ATTORNEY FOR PETITIONER
Secretary William G. Ross, Jr.
N. C. Department of Environment and
Natural Resources
Attn: Dan Oakley
1601 Mail Service Center
Raleigh, NC 27699-1601
RESPONDENT
This the 10th day of October, 2002.
Kim Hausen
Chief Hearings Clerk
Office of Administrative Hearings
6714 Mail Service Center
Raleigh NC 27699-6714
919/733-0926
20

STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUN 1'Y OF WAKE 02 EHR 1648
RALEIGH-DURHAM AIRPORT AUTHORITY,
Petitioner, )
V. ) NOTICE OF APPEARANCE
)
NORTH CAROLINA DEPARTMENT OF )
ENVIRONMENT AND NATURAL )

RESOURCES. DIVISION OF WATER ) n

:K

QUALITY, o
:=
T
-
AN
N i
Res ondent. ) =mar M

PLEASE TAKE NOTICE that the above case previously assigned to Assistant Af?orney
N
General Jill B. Hickey, has now been reassigned to Mary Penny Thompson. Ms. Thompson will
replace Ms. Hickey a counsel for Respondent, N.C. Department of Environment and Natural
Resources. All future pleadings, notices, calendars, or other documents should be directed to
Ms. Thompson.
This the A,r day of February, 2003.
ROY COOPER
Attorney General
Mary Penny ompson
Assistanttornev General
J
NC State Bar No. 24567
N.C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, North Carolina 27602-0629
[phone]
[phone] FAX
21
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing NOTICE OF APPEARANCE has been served
on the petitioner in this action by depositing a copy of same in an official depository of the United
States Postal Service, first-class postage prepaid, and addressed to petitioner as follows:
Charles D. Case
Craig A. Bromby
Hunton & Williams
Post Office Box 109
Raleigh, North Carolina 27602
This the 5,7?5r- day of February, 2003.
Mary Pe Thompson
As ' t Attorney General
22
23 SECTION II

STATE OF NORTH CAROLINA IN THE OFFICE OF CAnU Uri
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648 N
Raleigh-Durham Airport Authority,
1 ? - u
Petitioner, ) _-- r
vs. )
PETITIONER'S
North Carolina Department of Environment) PREHEARING STATEMENT
and Natural Resources, et al., )
Respondent. )
COMES NOW Petitioner the Raleigh-Durham Airport Authority (the "Authority"),
pursuant to the Order for Prehearing Statement, dated October 10, 2002, by Administrative Law
Judge Beecher R. Gray (the "Order"), and files this Prehearing Statement. The numbered
paragraphs in this Prehearing Statement correspond to the numbered items in the Order.
1. Issues to be resolved, and the statutes, rules, and legal precedent involved.
A. Issues to be resolved
Under the provisions of section 401 of the Clean Water Act, the State of North Carolina
must certify that the discharge to waters of the State authorized by the federal license applied for
by the Petitioner, in this case a permit under section 404 of the Clean Water Act, will comply
with the applicable provisions of sections 301, 302, 303, 306 and 307 of the Clean Water Act.
The Environmental Management Commission ("EMC") has been delegated the responsibility to
administer the State's authority under section 401. The EMC has subdelegated that authority to
the Director of the Division of Water Quality ("DWQ") of the Department of Environment and
Natural Resources ("DENIV ). (Herein, Respondent refers to DWQ, DENR and any individuals
acting in their official capacity on behalf of either body in issuing the 401 Certification at issue
24
here.) On August 9, 2002, Respondent issued to Petitioner a document entitled North Carolina
401 Water Quality Certification No. 3386 (the "401 Certification').
The issues in this case are: (1) whether Respondent exceeded its authority in placing
mitigation conditions in the 401 Certification issued to the Petitioner; (2) whether Respondent
acted erroneously when it issued the 401 Certification; (3) whether Respondent failed to use
proper procedure in its issuance of the 401 Certification; (4) whether Respondent acted
arbitrarily or capriciously in placing mitigation conditions in the 401 Certification; and (5)
whether Respondent failed to act as required by law or rule when it placed mitigation conditions
in the 401 Certification, as well as any other legal issues raised by the facts and reasons
supporting appeal, as described in paragraph 2 below.
B. The statutes, rules, and legal precedent which Petitioner knows at this time to
. be involved in this case include.
33 U.S.C. § 1341
N.C. Gen. Stat. § 143-214.1
N.C. Gen. Stat. § 143-214.7
N.C. Gen. Stat. § 143-214.20
N.C. Gen. Stat. § 143-214.21
N.C. Gen. Stat. § 143-215.3
N.C. Gen. Stat. § 143B-282(a)(1)u.
15A NCAC 2B.0233
15A NCAC 2B.0242
15A NCAC 2H.0506
15A NCAC 2H.0507
15A NCAC 2R.0402
Petitioner reserves the right to supplement this list of authorities as other authorities are
discovered during legal research and preparation for the contested case hearing.
2. Statement of the facts and reasons supporting the party's position on each issue in
dispute.
The 401 Certification contains requirements for wetland mitigation. and stream (buffer)
mitigation, and cites the Neuse Buffer Rules as at least a part of the basis for imposing those
mitigation obligations. However, the Neuse Buffer Rules also. provide an exemption from such
25

mitigation obligations for "present and ongoing" uses, including maintained lawns. In this case,
a large part of the use of the riparian buffer in the area at issue will remain as a maintained
vegetated area and is, thus, entitled to the exemption from the rules provided for in 15A NCAC
2B .0233(3)(b).
The Authority had to install the safety areas (RSAs) due to the requirements and mandate
by the Federal Aviation Administration (FAA), which is enforced through the manner in which
the FAA makes its decisions on grant moneys or loans. Specifically, FAA policy stipulates that
certain projects, including rehabilitation, reconstruction, or overlay of existing runway pavement,
trigger the need for compliance with RSA standards in the applicable FAA Advisory Circular.
The FAA will not approve funding for a project to reconstruct a runway, or to perform necessary
maintenance due to deterioration of the surface related to age and use, unless the runway has
conforming RSAs. This FAA policy means that failure to have safety areas that conform to
FAA criteria would result in loss of eligibility for funding, and therefore potential loss of use of
the runway. The planned project therefore is necessary for "protection of existing structures and
facilities" and because "protection of existing structures and facilities when this requires
additional disturbance of the riparian buffer or the stream channel" is allowable under the Neuse
Rules, the Authority believes that the proper category of use for the planned project would be
"allowable." Because the impacts on the buffer that are at issue in the 401 certifications and this
matter are an inextricable part of the RSA project, it was necessary to perform them in order that
the Authority be able to maintain an existing use (allowable activity, rather than allowable with
mitigation) by maintaining its eligibility for money necessary to maintain the use.
Upon information and belief, Respondent received the Authority's joint application for a
permit under Section 404 of the Clean Water Act and for certification under Section 401 on
May 7, 2002. Respondent took an initial action on the application on July 19, 2002, but did not
26

take final action on the application until August 9, 2002. According to 15A NCAC 2H .0507, if
the Director does not take final action within 60 days of receipt of the application, Respondent's
authority to issue the 401 Certification was waived.
3. List of nrooosed witnesses:
Miriam Gilkinson
Michael Fischer
Petitioner reserves the right to identify additional witnesses as discovery and
investigation proceeds.
4. Discovery.
Petitioner anticipates pursuing discovery. The time frame set forth in the Scheduling
Order dated October 10, 2002 (the "Scheduling Order"), appears to be satisfactory for this
purpose.
5. Location of hearing
Petitioner concurs that venue in Raleigh, N.C. as set forth in the Scheduling Order is
appropriate.
6. Estimated length of hearing
Petitioner estimates the hearing will take two to three days.
7. Service address and contact information
Charles D. Case
Craig A. Bromby
Julie B. Beddingfield
Hunton & Williams
Post Office Box 109
Raleigh, N.C. 27602
[phone]
8. Date for hearing
Petitioner estimates that it can be prepared for hearing by January 27, 2003, the date set
forth in the Scheduling Order.
27
9. Other special considerations
Petitioner is not aware of any special considerations.
This the ? day of Nc;vember, 2002.
HUNTON & WILLIAMS
Charles . Case
N.C. Bar # 7652
Craig A. Bromby
N.C. Bar # 6526
Julie Beddingfield
N.C. Bar # 29102
Post Office Box 109
One Hannover Square, Suite 1400
Raleigh, North Carolina 27602
[phone]
Attorneys for Raleigh-Durham Airport Author
28
CERTIFICATE OF SERVICE
This is to certify that I caused a copy of the foregoing PETITIONER'S PREHEARING
STATEMENTS to be served on the following individuals by hand delivery to the following:
Beecher R. Gray
Senior Administrative Law Judge
Office of Administrative Hearings
Capehart-Crocker House
424 N. Blount Street
Raleigh, NC 27601-2817
and by depositing a copy of the same in the United States mail, first clas$, postage prepaid and
addressed as follows:
Jill B. Hickey Esq.
Assistant Attorney General
N. C. Department of Justice
Environmental Division
P.O. Box 629
Raleigh, NC 27602-0629
This the/ day of November, 2002.
29
COPY
STATE OF NORTH CAROLINA" F-- .3 N THE OFFICE OF
ADMINISTRATIVE HEAR INIGS
COUNTY OF WAKE 02 EHR 1648
RALEIGH-DURHAM AIRPORT, )
AUTHORITY, )
Petitioner, )
V. )
DEPARTMENT OF )
ENVIRONMENT AND NATURAL )
RESOURCES, DIVISION OF WATER )
QUALITY )
Respondent.
RESPONDENT'S
PREHEARING STATEMENT

NOW COMES the Division of Water Quality (DWQ) of the North Carolina Department
of Environment and Natural Resources, Respondent, by and through the undersigned pursuant to
N.C. Gen. Stat. § 150B-22(b)(4) and Rule 26 NCAC 3 .0004, and files this Prehearing Statement.
1. This matter involves the issuance by the Division of Water Quality (DWQ) of a
401 water quality certification to Petitioner Raleigh-Durham AirportAuthority ("RDr r'), The
401 water quality certification authorizes the discharge of fill material in 1.8 acres of wetlands
and 1353 linear feet of streams in the Neuse River Basin and impacts to 114,283 square feet of
Neuse buffers.
The issues to be resolved are whether Respondent, in issuing the 401 certification:
a. exceeded its authority or jurisdiction;
b. acted erroneously;
C. failed to use proper procedure;
d. acted arbitrarily or capriciously;
e. failed to act as required by law or rule.
The statute involved is the federal Clean Water Act (33 U.S.C. §1341) and Article 21,
Chapter 143 of the North Carolina General Statutes. The federal rules involved are codified at 40
30
CFR Part 230 and 33 CFR Part 320. The State rules involved are 15A NCAC 2B .0100 et seq,
.0200 et seq, and 15A NCAC 2H .0500 et seq. Respondent reserves the right to supplement this
list of authorities as other authorities are discovered during legal research and preparation for the
contested case hearing
2. In order to construct a runway safety area (RSA), Petitioner will destroy 1353 feet
of stream and the adjacent riparian buffers. The RSA project calls for placing the stream: in a
pipe and covering it and the adjacent riparian buffers with up to 45 feet of dirt. Approximately
2.4 acres of protected riparian buffers will thus be destroyed. Petitioner challenges the mitigation
requirements imposed for the destruction of the buffers.
Petitioner contends that the activity is exempt from the Neuse Buffer Rules on the theory
that the use is a "present and ongoing use" pursuant to 15A NCAC 2B .0233(3)(b). Respondent
contends that the exemption does not apply because the exemption is only allowed if "no
additional vegetation is removed from Zone 1" pursuant to 15A NCAC 2B .0233(3)(b)(i).
Petitioner's RSA project will clearly remove the vegetation from Zone 1. Further, the exemption
does not apply to the grading and revegetation of Zone 2 because the grading and revegetation of
Zone 2 is allowed only if "the health of the vegetation in Zone 1 is not compromised". Id.
Petitioner also contends that the RSA is necessary for "protection of existing structures
and facilities" and, thus, the project is "allowable" pursuant to the table of uses set forth at 15A
NCAC 2B .0233(6). Respondent contends that the RSA is properly characterized as an "airport
facility" pursuant to 15A NCAC 2B .0233(6), and thus, the use of the buffer for the RSA is
"allowable with mitigation."
Petitioner contends that Respondent waived its right to issue the 401 certification because
31

it did not take final action on Petitioner's application until August 9, 2002. Respondent issued
the 401 certification on July 19, 2002 and revised it on August 9, 2002.
3. Witnesses for the Respondent include, but are not limited to, the following
employees of DWQ;
John Dorney - Supervisor, 401 Certification Program
Bob Zarzecki - 401 Program Staff
Cyndi Karoly - 401 Program Staff
Additionally, Respondent may call as a witness any person familiar with Petitioner's
application for a 401 water quality certification for the RSA project, as well as any person named
as a witness by any other party. Respondent reser;cs the right to supplement this list as it
prepares for hearing in this matter.
4. Respondent wishes to pursue discovery. At the current time, the length of the
discovery period appears appropriate.
5. Respondent concurs that venue in Raleigh, as set forth in the Scheduling Order, is
appropriate.
6. The length of the hearing is estimated at one day.
7. Not applicable.
8. Respondent currently is scheduled for a contested case hearing in 01 EHR 1497
before ALJ Chess beginning January 27, 2003. That hearing is likely to take the entire week.
Thus, at this point, Respondent cannot concur that it will be available during the week of January
27, 2003.
.9'. Respondent respectfully requests that the ALJ set a date certain for the filing of
motions for summary judgment, a hearing date on the motions, and a date for the contested case
32
hearing which is no earlier than two weeks after the ALT renders his decision on the motion for
summary judgment.
Respectfully submitted, this the `day of November, 2002.
ROY COOPER
Attorney General
J' 1 B. Hic ey
ssistant Attorney Gene
N.C. Dept. of Justice
Post Office Box 629
Raleigh, N.C. 27602-0629
Phone: [phone]
Fax: [phone]
N.C. State Bar No. 13903
CERTIFICATE OF SERVICE
I certify that the foregoing Prehearing Statement has been served on counsel below by
depositing a copy of the same in an official depository of the U.S. Postal Service in a postage-
prepaid first-class envelope addressed as follows:
Charles Case
Hunton & Williams
PO Box 109
Raleigh, NC 27602
This the day of November, 2002
it B. Hickey
sistant Attorney General
33

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
02 EHR 1648

Raleigh-Durham Airport Authority,
Petitioner,
V.
N.C. Dept. of Environment and
Natural Resources, Division of
Water Quality,
Respondent.
PETITIONER'S MOTION
FOR SUMMARY JUDGMENT
NOW COMES Petitioner Raleigh-Durham Airport Authority ("Petitioner''), pursuant to
N.C. Rule of Civil Procedure 56, N.C. Gen. Stat. § lA-1, Rule 56, under the authority of N.C.
Gen. Stat. § 150B-36(d), and 26 NCAC 3 .0115, and moves the Administrative Law Judge to
grant summary judgment as to the issues of (1) whether there is a riparian area within the
meaning of 15A NCAC 2B .0233 after the removal of the stream to which the regulated area
would have been riparian; and (2) whether Respondent waived the 401 Water Quality
Certification requirement. In support of this motion, Petitioner offers the following uncontested
facts and attached Exhibits.
1. 15A NCAC 2B .0202 (56) defines "riparian area" as an area adjacent to a body of water.
2. In order for a riparian area to be subject to the provisions of 15A NCAC 2B .0233, it
must be adjacent to a perennial stream, an intermittent stream, a lake, a pond, or an estuary.
Respondent's Responses to Petitioner's First Set of Request for Admission 911-
3. To the extent a perennial or intermittent stream channel is completely removed by fill or
pipe, a buffer no longer needs to be maintained along the former footprint. Respondent's
Response to Petitioner's First Set of Request for Admissions #2.
4. Under the terms off the 404 permit issued to Petitioner, the perennial or intermittent
stream channel to which the buffer for which mitigation is sought is riparian will be completely
removed by stream or pipe. Respondent's responses to Petitioner's First Set of Requests for
Production of Documents.2
1 Respondent's Responses to Petitioner's First Set of Request for Admissions is attached
here to as Exhibit A.
2 Respondent's Responses to Petitioner's First Set of Interrogatories and Requests for
Production of Documents is attached here to as Exhibit B.
34
5. If a portion of a stream is filled or piped, the area surrounding the free-flowing ends of
the filled or piped stream will be riparian. Respondent's Responses to Petitioner's First Set of
Interrogatories #8.
6. Petitioner submitted its application for water quality certification (the "Application") pursuant
to Section 401 of the Clean Water Act in accordance with the terms of 15A NCAC 2H.0502 on
April 25, 2002. Respondent has made no allegation to the contrary, as shown in Exhibit C
attached hereto.
7. Respondent received Petitioner's Application at its offices in Raleigh, North Carolina, on or
before April 29, 2002, as shown by the stamp on Exhibit C. Respondent has made no allegation
rr f^?; < to the contrary.
G-
t 8. Respondent had not granted or denied Petitioner's Application as of June 28, 2002.
Respondent has made no allegation to the contrary.
9. Respondent issued a 401 Water Quality Certification No. 3386, which was also indicated to
constitute approval under the Neuse River Buffer Rules, on July 19, 2002, as shown in Exhibit D
%i attached hereto.
10. Respondent, sua sponte, issued a 401 Water Quality Certification No. 3386, which was also
indicated to constitute approval under the Neuse River Buffer Rules, on August 9, 2002,
replacing the earlier document issued on July 19, 2002, as shown in Exhibit E attached hereto.
11. Petitioner at no time prior to June 28, 2002, agreed in writing to a longer review period for
its Application. Respondent has made no allegation to the contrary.
12. Neither Respondent, pursuant to 15A NCAC 2H .0503, nor the United States Army Corps of
Engineers determined before June 28, 2002 to hold a public hearing on the Application.
Respondent has made no allegation to the contrary.
13. Prior to June 28, 2002, Respondent did not identify nor request from Petitioner additional
information necessary to the decision of the Director of the Division of Water Quality.
Respondent has made no allegation to the contrary.
14. Prior to June 28, 2002, Petitioner at no time was asked to provide, or refused, access for the
Division of Water Quality to its records or premises for the purpose of gathering information
necessary to the decision of the Director of the Division of Water Quality. Respondent has made
no allegation to the contrary.
15. Following receipt of the Application and prior to June 28, 2002, Respondent at no time
identified to or requested from Petitioner any information essential to the decision of the Director
of the Division of Water Quality which was subsequently deemed to be unavailable. Respondent
has made no allegation to the contrary.
35
A.
16. 15A NCAC 2H.0507(a) provides that failure by the Director of the Division of Water
Quality to grant or deny the Application within 60 days after receipt of the Application.at the
offices of the Director in Raleigh, North Carolina, to wit, June 29, 2002, shall result in a waiver
of the certification requirement by the Director, subject to certain exceptions enumerated at 15A
NCAC 2H .0507(a)(1) - (5).
17. As a result of the foregoing facts, the requirement for certification under Section 401 of the
Clean Water Act pursuant to the rules at 15A NCAC 2H.0507 was waived effective June 29,
2002.
WHEREFORE, Petitioner respectfully requests that the Administrative Law Judge
determine the following:
a. that Respondent may not lawfully compel Petitioner to provide mitigation for loss
of riparian area, since the area ceases to be riparian to any body of water as part of the permitted
project;
b. that Respondent waived the 401 Water Quality Certification requirement
according to the terms of its own rules; and
grant summary judgment on these issues in this contested case in favor of the Petitioner.
This the ZOt day of May, 2003.
HUNTON & WILLIAMS LLP
By:
Char es D. Case
State Bar No. 7652
Craig A. Bromby
State Bar No. 6526
Julie B. Beddingfield
State Bar No. 29102
Post Office Box 109
Raleigh, North Carolina 27602
Telephone: [phone].
ATTORNEYS FOR PETITIONER
36

CERTIFICATE OF SERVICE
This is to certify that I caused a copy of the foregoing PETITIONER'S MOTION FOR
JUDGMENT ON THE PLEADINGS to be served on the following individuals by depositing a
copy of the same in the United States mail, first class, postage prepaid and addressed as follows:
Ms. Mary Penny Thompson, Esc}.
Assistant Attorney General
N.C. Department of Justice
Environmental Protection Division
P. O. Box 629
Raleigh, NC 27602
This the 4 day of May, 2003.
37
48638.000031 RALEIGH 204363v8

Craig Bromby
HUNTON & WILLIAMS
P. O. Box 109
Raleigh, NC 27602
Reply to:
Mary Penny Thompson
Environmental Division
Tel: [phone]
Fax: [phone]
[e-mail] 1. j us. state. nc. us
April 4, 2003
APR - 7 ;j
Re: Raleigh Durham Airport Authority vs. N.C. Dep't of Environment and Natural
Resources, Div. of Water Ouality
Respondent's Responses to Petitioner's First Set of Discovery Requests
Dear Craig:
Please find enclosed Respondent's responses to your requests for admission. Per our e-
mail agreement today, responses to your interrogatories and requests for production of documents
will be sent to you on April 15, 2003.
With best wishes. I am
Sincerely.
.s?czy
Ma , ennv Thompson
Assistant Attorney General
ROY COOPER
ATTORNEY GENERAL
Enclosure: Respondent's Responses to Petitioner's First Set of Requests for Admission
?v...r Ownvo?
EXHIBIT
ALLSTATE LEM SWRY Co.
State of North Carolina
Department of Justice
P. O. Box 629
RALEIGH
27602-0629
38
STATE OF NORTH CAR?{,?IA ?,PR - 7
COUNTY OF WAKE
Raleigh-Durham Airport Authority,
Petitioner,
V.
N.C. Department of Environment and
Natural Resources, Division of
Water Quality,
Respondent.
f IN THE OFFICE OF
1 MINISTRATIVE HEARINGS
02 EHR 1648
RESPONDENT'S RESPONSES
TO PETITIONER'S FIRST SET
OF REQUESTS FOR ADMISSION
Respondent hereby serves Petitioner with Respondent's Responses to Petitioner's First
Set of Requests for Admission pursuant to Rules 26 and 36 of the North Carolina Rules of Civil
Procedure and Rule .0112 of the Rules of the Office of Administrative. Hearings, Hearings
Division.
GENERAL OBJECTIONS
1. The Respondent objects to the scope of the definitions and instructions which
preface Petitioner's interrogatories and request for production of documents (hereinafter.
"Petitioner's requests") to the extent that they attempt to impose requirements on the Respondent
that exceed the requirements of the Rules of Civil Procedure.
2. The Respondent further objects to the scope of.Petitioner's requests to the extent
that they seek information relating to: (1) information prepared or obtained in anticipation of
Iitiuation or for trial; (2) information encompassed within the attorney-client and work product
privile?_es: or (3) any other information that is not properly discoverable under the Rules of Civil
Procedure. State statutes. or the common law.
3. The Respondent further objects to Petitioner's requests to the extent thev seek
documents and/or information that are not within the possession. custody or control of the
Respondent.
4. The Respondent further objects to these requests as unduly burdensome and
oppressive to the extent they seek documents and/or information already in Petitioner's
possession.
The Respondent further objects to these requests to the extent they assume facts
that do not exist or are incorrect.
6. The Respondent further objects to the Petitioner's overbroad definition of
U
39
"Identify" which prefaces Petitioner's requests to the extent that it seeks the residential address
of state employees because such information is protected as confidential under N.C. Gen. Stat.
§§ 126-22 and 126-24.
7. The Respondent assumes no duty to supplement its answers except to the extent
required by Rule 26(e) of the Rules of Civil Procedure. The Respondent reserves the right to
modify, amend, or add to its responses or objections.
To the extent applicable, the Respondent incorporates by reference all of these General
Objections into its Responses below.
REQUESTS FOR ADMISSIONS
1. Admit that in order to be subject to the provisions of the Neuse River Riparian Buffer
protection rule (15A NCAC 2B .023 31), the protected buffer must be adjacent to a
perennial stream, an intermittent stream, a lake, a pond, or an estuary.
RESPONSE: Admitted.
2. Admit that upon removal of a segment of a perennial stream or an intermittent stream by
the deposition of fill material pursuant to a properly issued permit under Section 404, the
provisions of 15A NCAC 2B .0233 no longer apply to the former footprint of the
removed stream or the adjacent riparian buffer.
RESPONSE: Admitted in part and Denied in part. To the extent that a perennial or
intermittent stream channel is completely removed by fill or pipe. then a
buffer no longer needs to be maintained along the former footprint, but the
impacts must be mitigated. To the extent that the perennial or intermittent
stream is relocated or only partially filled, then a buffer must be
maintained and the impacts must be mitigated.
Admit that the term riparian buffer as it applies to an intermittent stream or a perennial
stream means that strip of land adjacent to and extending, perpendicularly from the
landward limit of the top of the bank or the rooted herbaceous vegetation.
RESPONSE: Admitted.
4. Admit that Federal Aviation Administration standards require runway safety areas
extendin?_ 1000 feet beyond.each end of runw?aN- 5R-23L at the Raleigh-Durham Airport.
RESPONSE: Can neither admit nor deny since the information appears to reside in a
federal agency. namely the Federal Aviation Administration. not under the
direction or control of the Respondent.
40
5. Admit that constructing an extension to a runway safety area for an existing runway
where such extension is required by a federal regulatory agency is a necessary protection
of the existing runway structure within the meaning of 15A NCAC 2B .0233.
RESPONSE: Denied.
6. Admit that the grassed area around the edge of runway 5R-23L at Raleigh-Durham
Airport is an existing use within the meaning of 15A NCAC 2B .0233.
RESPONSE: Admitted in part and Denied in part. The action of maintaining the
grassed area around the edge of runway 5R-23L at-Raleigh-Durham
Airport in the conditions existing prior to the effective date of 15A NCAC
2B.0233 is an existing use. Any. other use is not an existing use.
7. Admit that protection of an area adjacent to an intermittent or permanent stream which
has been filled is no longer necessary for the purpose of preventing nutrients from
entering the intermittent or permanent stream.
RESPONSE: Admitted in part and Denied in part. See Response to Request for
Admission No. 2.
Admit that the work at issue in this matter constitutes action to protect existing structures,
facilities. and/or streambanks within the meaning of 15A NCAC 2B .0233 either by the
maintenance of a grassy buffer area (lawn) or otherwise.
RESPONSE: Denied.
9. Admit that the area at issue in this matter qualifies as an "airport facility" under 15A
NCAC 28.0233 or the General Major Variance.
RESPONSE: Admitted.
10. Admit that protection of an area adjacent to an intermittent or permanent stream which
has been filled is no longer necessan• for the purpose of preventing nutrients from
enterin?_ the intermittent or permanent stream.
RESPONSE: Admitted in part and Denied in part. See Response to Request for
Admission No. 2.
41
This the 4th day of April, 2003.
ROY COOPER
ATTORNEY GENERAL
By: . 2
Mary Pe Thompson
Assis Attorney General
N. C. Department of Justice
P. 0. Box 629
Raleigh, N.C. 27602
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing RESPONDENT'S RESPONSES TO
PETITIONER'S FIRST SET OF DISCOVERY REQUESTS was this day served upon the
counsel for petitioner by depositing a copy of the same in the United States Mail, postage
prepaid. in an envelope addressed as follows:
Craig A. Bromby
HGNTON & WILLIAMS
P. 0. Box 109
Raleigh. NC 27602
This the 4th day of April, 2003,
Mary !ennhompson
42
J
"Identify" which prefaces Petitioner's requests to the extent that it seeks the residential address
of state employees because such information is protected as confidential under N.C. Gen. Stat.
§§ 126-22 and 126-24.
7. The Respondent assumes no duty to supplement its answers except to the extent
required by Rule 26(e) of the Rules of Civil Procedure. The Respondent reserves the right to
modify, amend, or add to its responses or objections.
To the extent applicable, the Respondent incorporates by reference all of these General
Objections into its Responses below.
INTERROGATORIES
I. Identify every person supplying information used to respond to the requests for
admission set out above, these interrogatories, or the requests for documents set out
below (other than your attorney).
RESPONSE: John R. Dorney
Wetlands and 401 Water Quality Certification Unit Supervisor
1650 Mail Service Center
Raleigh. NC 27699-1650
[phone]
Robert Zarzecki
Environmental Specialist III
1650 Mail Service Center
Raleigh, NC 27699-1650
[phone]
2. For each request for admission which you have not admitted without qualification or
objection, or which you have denied, in whole or in part, state the following:
(a) The basis for your denial, including a citation by section number to all provisions
.in law or rule contended to provide some or all of that basis, and whether any part
of the General Major Variance provides any part of that basis,
(b) All facts supporting your denial:
(c) The identity of all persons known to have knowledge of such facts;
(d) The identity of all documents which contain information pertaining to such facts:
and
(e) The identity of all documents that refer or relate to the subject matter of this interrogatory.
43
such as piping the stream and elevating the grassed area by means of fill,
is not an existing use.
(b) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(e) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
Request for Admission No. 7
(a) To the extent that a perennial or intermittent stream channel is completely
removed by fill or pipe, then a buffer no longer needs to be maintained
along the former footprint, but the impacts must be mitigated pursuant to
N.C. Admin. Code tit. 15A, r. 2B.0233. To the extent that the perennial or
intermittent stream is relocated or only partially filled, then a buffer must
be maintained and the impacts must be mitigated pursuant to N.C. Admin.
Code tit. 15A, r. 2B.0233.
(b) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(e) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
Request for Admission No. 8
(a) The existing runway is not threatened. Additional safety area may
provide a benefit to the use of the structure, but will not protect the
runway, itself. from a threat. A typical threatened structure involves an
eroding channel which by its gradual movement towards the structure by
natural processes may undermine the integrity of the structure.
(b) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
44
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(e) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
Request for Admission No. 10
(a) To the extent that a perennial or intermittent stream channel is completely
removed by fill or pipe, then a buffer no longer needs to be maintained
along the former footprint, but the impacts must bd mitigated pursuant to
N.C. Admin. Code tit. 15A, r. 2B.0233. To the extent that the perennial or
intermittent stream is relocated or only partially filled, then a buffer must
be maintained and the impacts must be mitigated pursuant to N.C. Admin.
Code tit. 15A, r. 213.0233.
(b) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(e) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
Identify. all documents DENR relied upon in reaching its decision to issue the 401
Certification, including specifically its decision to require mitigation for Neuse buffer
impacts. including but not limited to any statutes, policies, guidance, rules, the General
Major Variance, or any other similar standard or reference.
RESPONSE: Respondent elects to produce its business records attached hereto in
response to this interrogatory.
4. ldentif. the names and addresses of each person you may call as a witness. giving a brief
summary of the testimony expected from each.
RESPONSE: John R. Dorney, identified in Response to Interrogatory No. 1.
Bob Zarzecki. identified in Response to Interrogatory No. 1.
45
Steve Mitchell
Environmental Specialist III
DWQ Raleigh Regional Office
P. 0. Box 27687
Raleigh, NC 27611
[phone]
5. With respect to-each person which you may call as an expert witness at the hearing to be
held on this matter, please provide the following information:
(a) Identify by name, address, and telephone number each such person;
(b) For each person identified, state the subject matter of which the expert is expected
to testify;
(c) For each person identified, state the substance of the facts and opinions to which
the expert is expected to testify.
(d) For each person identified, state a summary of the grounds for each opinion
identified in response to subsection (c) of this Interrogatory.
RESPONSE: Respondent has not yet identified the expert witnesses it will call at trial,
but considers its agency witnesses to have expertise in the subject matters
they administer and regulate.
John R. Dorney
(a) identified in Response to Interrogatory No. 1.
(b) waters of the State, riparian buffer regulation. 401 Water Quality
Certifications
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
Bob Zarzecki
(a) identified in Response to Interrogatory No. 1.
(b) waters of the State, riparian buffer regulation. 401 Water Quality
Certifications
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
46
Steve Mitchell
(a) identified in Response to Interrogatory No. 4.
(b) waters of the State, riparian buffer regulation
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
6. Should DENR later decide to present testimony or any study, report or other document
prepared by any expert other than those identified in response to this Interrogatory,
please provide the information requested above with respect to those experts.
RESPONSE: Respondent will supplement its responses if additional expert witnesses or
grounds for expert opinions are identified.
7. Explain why, under 15A NCAC 2B .0233, an area adjacent to a perennial or intermittent
stream which has been filled pursuant to a permit issued under Section 404 of the Clean
Water Act must be protected for the purpose of removing nutrients.
RESPONSE: See Responses to Requests for Admission Nos. 2, 7 and 10 as well as
Response to Interrogatory No. 2.
Explain how an area adjacent to a perennial or intermittent stream which has been filled
pursuant to a permit issued under Section 404 of the Clean Water Act is riparian to a
surface water.
RESPONSE: If a portion of the stream is filled or piped, the areas surrounding the free-
flowing ends of the filled or piped stream will be riparian and will require
a semi-circle buffer.
DOCUMENTS TO BE PRODUCED
All documents identified in response to the foregoing Interrogatories, including but not
limited to photographs. field notes. interviews, tape recordings, electronic mail messages,
correspondence. and notes of telephone conversations.
All documents relating to site visits by DENR employees or consultants to the Raleigh-
Durham International Airport with respect to the RSA Project. including but not limited
to photographs. field notes, interviews, tape recordings. electronic mail messages.
correspondence, and notes of telephone conversations.
47

STATE OF NORTH CAROLINA
COUNTY OF WAKE
VERIFICATION
The undersigned, John Dorney, first being duly sworn, deposes and says that he is
responding in his capacity as the Supervisor of the Wetlands and 401 Water Quality Certification
Unit, Division of Water Quality, North Carolina Department of Environment and Natural
Resources, and verifies that the facts set forth in each response given by him to answer the
foregoing interrogatories are true based on his knowledge, information and belief, except those
to which objections have been lodged by counsel.
Subscribed and sworn to before me
this the day of April. 2003.
vl cam. ?
Notan, Public
My Commission Expires:
(SEAL) t:0 SAr q
U ?
?;. {; GAD! iC ?•?.,.
??/111tlilt??`
48

3. All documents relating to the interpretation and application of the Neuse River Riparian
Buffer rule to the RSA Project, including but not limited to rules, policies, guidance.
photographs, field notes, interviews, tape recordings, electronic mail messages,
correspondence, and notes of telephone conversations.
4. All documents relating to the characterization of wetlands, isolated wetlands, perennial
streams, intermittent streams, and ephemeral streams located within or affected by the
RSA Project area, including but not limited to rules, policies, guidance, photographs,
field notes, interviews, tape recordings, electronic mail messages, correspondence, and
notes of telephone conversations.
This the 17th day of April, 2003.
ROY COOPER
ATTORNEY GENERAL.
Mary Penny ompson
Assis ttomey Gene .
N. C. Department ofT stice
P. 0. Box 629
Raleigh, N.C. 27602
49

STATE OF NORTH CAROLINA
E?X--Ht81T
ALL-STATE LEGAL SUPPLY Co.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648
Raleigh-Durham Airport Authority,
Petitioner,
V.
N.C. Dept. of Environment and
Natural Resources, Division of
Water Quality,
Respondent.
RESPONDENT'S RESPONSES
TO PETITIONER'S FIRST SET
OF INTERROGATORIES AND
REQUESTS FOR PRODUCTION
OF DOCUMENTS
Respondent hereby serves Petitioner with Respondent's Responses to Petitioner's First
Set of Interrogatories and Requests for Production of Documents pursuant to Rules 26.33 and 34
of the North Carolina Rules of Civil Procedure; and Rule .0112 of the Rules of the Office of
Administrative Hearings, Hearings Division.
GENERAL OBJECTIONS
1. The Respondent objects to the scope of the definitions and instructions which
preface Petitioner's interrogatories and request for production of documents (hereinafter,
"Petitioner's requests") to the extent that they attempt to impose requirements on the Respondent
that exceed the requirements of the Rules of Civil Procedure.
2. The Respondent further objects to the scope of Petitioner's requests to the extent
that they seek information relating to: (I) information prepared or obtained in anticipation of
litiuation or for trial; (2) information encompassed within the attorney-client and work product
priyileoes. or (3) any other information that is not properly discoverable under the Rules of Civil
Procedure. State statutes. or the common law.
3. The Respondent further objects to Petitioner's requests to the extent they seek
documents and/or information that are not within the possession. custody or control of the
Respondent.
4. The Respondent further objects to these requests as unduly burdensome and
oppress iye to the extent they seek documents and/or information already in Petitioner's
possession.
5. The Respondent further objects to these requests to the extent they assume facts
that do not exist or are incorrect.
6. The Respondent further objects to the Petitioner's overbroad definition of
50

RESPONSE:
Request For Admission No. 2
(a) To the extent that a perennial or intermittent stream channel is completely
removed by fill or pipe, then a buffer no longer needs to be maintained
along the former footprint, but the impacts must be mitigated pursuant to
N.C. Admin. Code tit. 15A, r. 213.0233. To the extent that the perennial or
intermittent stream is relocated or only partially filled, then a buffer must
be maintained and the impacts must be mitigated pursuant to N.C. Admin.
Code tit. 15A, r. 213.0233.
(b) Respondent elects to produce its business records.attached hereto in
response to this interrogatory.
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(e) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
Request for Admission No. 5
(a) The existing runway is not threatened. Additional safety area may
provide a benefit to the use of the structure, but will not protect the
runway, itself, from a threat. A typical threatened structure involves an
eroding channel which by its gradual movement towards the structure by
natural processes may undermine the integrity of the structure.
(b) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(c) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(d). Respondent elects to produce its business records attached hereto in
response to this interrogatory.
(e) Respondent elects to produce its business records attached hereto in
response to this interrogatory.
Request for Admission No. 6
(a) The action of maintaining the grassed area around the edge of runway 5R-
23L at Raleigh-Durham Airport in the conditions existing prior to the
effective date of 15A NCAC 213.0233 is an existing use. Any other use.
51
.r
i
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing RESPONDENT'S RESPONSES TO
PETITIONER'S FIRST SET OF INTERROGATORIES AND REQUESTS FOR
PRODUCTION OF DOCUMENTS was this day served upon the counsel for petitioner by hand-
delivering a copy addressed as follows:
Craig A. Bromby
Julie Beddingfield
HUNTON & WILLIAMS
421 Fayetteville Street Mall
Suite 1400
Raleigh, NC 27601
This the 17th day of April, 2003.
Mary Penn ompson
52
Kimsey-Hom s
i
and Associates, Inc. ;?ILE EZI
Ccn
April 25, 2002 ¦
P.O. Box 33068
02 0662 ?i630680? Carofna
Mr. John Dorney
Division of Water Quality
North Carolina Department of Environment and Natural Resources
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Re: Application for Individual Section 401 Water Quality Certification
Runway 5R-23L Safety Area Extension
Raleigh-Durham International Airport
Dear Mr.Dorney:
Followin; our meeting on February 27, 2002, enclosed for your review are seven
(7) copies of the Individual permit application for the above referenced project.
An application fee of 5475 is included as part of the application package. Thank
you for your attention to this project. Please call me at 677-2073 if you have any
comments or questions regarding this application.
Very truly yours,
UYMEY-HORN AND ASSOCLATES, INC.
AGIV90
Beth A. Reed, PWS
Associate
Copy: Miriam Gilkinson - RDU
Rob Hume - KKk
Harlan Britt - KJ-LA
a'= ? ? ?Kns?yorouP
53
:AY 91-- 20-K
APPLICATION FOR DEPARTMENT OF THE ARIMY PERIMIT OMB APPROVAL NO.O"10403 1
(33 CFR 325) Expires October 1996
M
Public reporting burden for this collection of information is estimated to average 5 hours per response, including the time for reviewing instructions, searching
+ing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden
Late or any other aspect of this collection of information. including suggestions for reducittg this burden. to Department of Defense. Washington Headquarters
Service Directorate of information Operations and Reports, 1215 Jefferson Davis Highway. Suite 1204. Arlington, VA .2201-4302. and a.Lhe Office of Management
and Budget Paperwork Reduction Project (0710.0003), Washington DC 20503. Please DO NOT RETURN your form to either of tboscadtlPtsses completed
anntications must be submitted to the District Engineer having iurisdietion over the location of the oronosed activity. - `•-") '_ L.- 1)' t .
PRIVACY ACT STATEME j
rr iI
Authority: 33 L'SC 401, Section 10:141.3, Section 404. Principal Purpose: These laws requir pe ts aphor)!f? vities in. or atfeetfng` 0
navigable waters of the United States the discharge of dredged or fill material into waters of the Unt ed?tatesapd ibet?srtati on of dredged materiel for the
purpose of dumping it into ocean waters Routine Uses: Information provided on this form will be used in evargii ' eie app`it+»^ iar a hermit. Disclosuce:
Disclosure of requested information is voluntary. If information is not provided. however. the permit application cannot processedtmt` AW; Littipbe issued.
L)R ITY SECTION
One set of original drawings or good reproducible copies which show the location and character of the proposed activity must be attached to this application (see
sample drawings and instructions) and be submitted to the District Engineer having jurisdiction over the location of the proposed activity. An application that is not
completed in full will be returned.
(ITEMS 1 THRU 4 TO BE FILLED BY THE CORPS)
1. APPLICATION NO. 2. FIELD OFFICE CODE 1 3. DATE RECEIVED 4. DATE APPLICATION COMPLETED
S. APPLICANT'S NAME 18. AUTHORIZED AGENT'S NAME AND TITLE t.e sent is not regnsrod)
Raleigh Durham Airport Authority Kimiev-Horn and Associates. Inc.
6. APPLICA.NT'S ADDRESS 19. AGENT'S ADDRESS
Attn:: John Brantley. Airport Director Arm: Beth Reed. Associate
Raiei^-h Durham Airport Authonn P.O. Box 33065
P.O. Boa 50001 I Raleigh, NC 27636-3065
RDU Atrnor,. NC _7623
i 1 0. AGENT'S PHONE NOS. WIAREA CODE
s. Residence a. Residence
I
j
h. Business i Q? Q F»(:-_; O0 b. Business (91 Q 16---2000
I 1. STATEMENT OF AUTHORIZATION
I herch* % authorize. Mmle%-Horn and Associates Inc. to act in my behalf as m) ' agent in the processing of this application and to
furnish. upon request. supplemental information in support of this permit application.
A?PLICANT'S GN TL'RE DATE
NAME. LOCATION A- D DESCRIPTION OF PROJECT OR ACTrN*rM'
PROJECT NAME OR TITLE (see instructions)
Re,: _ i)urran ii.._-aattona: Atrpa t Rtmvtay SR 23L Safety Area Extension
I?. % A'*IE OF N%ATERBODI . IF 1:'%0«'N fif applicable) ! 14. PROJECT STREET ADDRESS (if applicable)
.me.. ^a:._. yes o' Boer and >vcamore Crecis N 'A
15. LOCATION OF PROJECT
t'=?r Korth Caroimz
_r Nn. STATE
OTHER LOCATION DESCRIPTIONS. IF KNOWN tsrr tcsTRuCZtoxs,
Tre pronosed areas are iucated a: ;he ends or Runway SR-13L a: the Raletch-Durham international Atroom kDoroximatr site ianmde and 54
icr.. ;uoe Err o, °` ._ 5F" a: the !North endand 5' '5**. 25' 4?1' 100" a: the South end
17. DIRECTIONS TO THE SITE
r.: s::c :c located a::a: k::e:_:.- Puri a- is:ema:corn: Airport From westbound ante •state-0. exr 11.t lAviatcor. Pari??ayc headtn^ north. and proceed through intersection at
Na:cona: Cwarc Road. anc co:: rue 1 a^amxt.: auiy one mile, The south end of Runw•ae 5R-13L atll be on you-ri_n:. tmmedtateiy oeiore the Aviation Pari.•uay7ermmal
tun::yea i^ Se :raa-nc e:
E:*%G FORA 4?45. Feb Q4 EDITION OF SEI' 91 IS OBSOLETE.
'•R. Nature oG4,ctivity (Description of projeeL Include all features)
See Block 18 Attachment.
Project Purpose Describe the reason or purpose of the project see instructions)
See Block 19 Attachment
USE BLOCKS 20-22 IF DREDGED AND/OR FILL MATERIAL IS TO BE DISCHARGED
20. Reason(s) for Discharge
All discharges to jurisdictional waters shall be earthen fill material associated with the upgrading of the current runway SR-23L safety areas to meet FAA standards.
21. T'pe(s) of Material Being Discharged and the Amount of Each Type in Cubic Yards
Clean structural fill acquired from on-site stockpiles will be utilized for embank meat construction. (See sheets 4 of 6 and 6 of 6 for cross sections). The amount of fill
necessary to fill the waters to the grade of the adjacent uplands will be minimal. However, following this conversion from waters to uplands, more significant quantities off.
are required to bring the fill area to the grade required for the RSA. An estimated 100 -200 thousand cubic yards of fill will be required for the construction at the northern
of the runway. An estimated 360-480 thousand cubic yards of fill will be required for construction at the southern end of the runway. Exact dimensions of and type of fill w
be determined upon approval of final plans.
22 Surface Arm in Acres of Wetlands or Other Waters Filled (see Instructions)
See Block Z2 Attachment.
23. Is Any Portion of the Work Already Complete' Yes No X IF YES. DESCRIBE THE COMPLETED WORK
24. Addresses of Adjoining Proper Owners. Lessees. Etc. Whose Propern Adjoins the Waterbody (if more than can be entered here, please attach a
supplemental list).
Se-_ Block 24 Attachment
25. List of Other Certifications or Approvals/Denials Received from other Federal, State or Loral Agencies for Work Described in This Application.
AGENCY TYPE APPROVAL* IDENTIFICATION NUMBER DATE APPLIED DATE APPRQVED DATE DENIED
N/A N/A
A draft Environmental Assessment for the proposed projects was submitted to the State Clearinghouse and Federal Agencies on March 26. 2002 for review
*Would include but is not restricted to zoning. building and flood plain permits
26. Application is hereby made for a permit or permits to authorize the work described in this application. I certify that the information in this
application is complete and accurate. I further certify that I possess the authorit}• to undertake the work described herein or am acting as the duly authorized
agent of the applicant
SICNATURE OF APPLIC4\T DATE
SIGNATURE OF AGENT 'DATE
The application must be signed by the person who desires to undertake the proposed activity {applicant) or it may be signed by a duiv authorized agent if the
Statement in block 11 has been filled out and signed.
18 U.S.C. Section 1001 pro-,ides that: Whoever, in any manner within the jurisdiction of any department or agency of the United
.s
knowingly and willfully falsifies, conceals, or covers up any trick scheme, or disguises a material fact or makes 2111• false, fictitious
or fraudulent statements or representations or makes or uses any false writing or document knowing same to contain ani. false.
fictitious or fraudulent statements or entry. shall be fined not more than S10.000 or imprisoned not more than five years or both.
55 L.S.GPO:1994-526-i79/82018
Block 18- Nature of the Activity
A Runway Safety Area (RSA) is a smoothly graded surface area along the sides (laterally) and at
the end of a runway that is suitable for reducing the risk of damage to airplanes and injury to
passengers in the event of an undershoot, overshoot, or excursion from the runway. The safety
area both enhances airport safety and provides greater accessibility for emergency equipment
after an incident. The proposed project has three components: extending RSAs to conform to
Federal Aviation Administration (FAA) criteria, constructing a 12,000-foot service road around
the RSA at the south end of the runway, and relocating a 2,000-foot accessaoad to the FAA radar
site at the north end of the runway. The proposed project includes clearing, earthwork, drainage,
erosion control, asphalt, paving, and modifications to the Instrument Landing Systems for
Runway 5R-23L; these activities would be related to construction of the safety areas and access
roads at the ends of the runway. The proposed safety area improvements will consist of pervious
grassed surfaces for all areas except for.the proposed 20-foot wide access roads adjacent to each
end of the runway. Drawing 2 of 6 shows the locations of these proposed'improvements. The
following text describes activities at the south and north ends of the runway.
The proposed project would extend the existing safety areas approximately 750 feet from the
existing 250-foot "safety area" at the south end of the runway and approximately 800 feet from
the existing 200-foot "safety area" at the north end of the runway. A service road approximately
12.000 feet in length would be constructed from the Terminal A complex, around the proposed
safety area at the south end of Runway 5R to the east side of the airfield near the Air National
Guard facility. An existing FAA radar site access road, approximately 2,000 feet in length, would
be relocated to the south end of the proposed safety area. Although the design minimizes impacts
to wetlands and streams to the extent feasible, discharge of fill material into jurisdictional areas is
a necessary element of this project.
56
Altematives Analysis
Any viable option for RSAs that conform to the FAA design standard must maintain the usable runway
length of 7,500 feet, relocate existing navigational aids on both ends of the runway, relocate an existing
2,000-foot access road to the.FAA radar site at the north end of the runway, and add a 12,000-foot service
road around the RSA at the south end of the runway. An analysis considered RSA construction and
runway shift options. A runway shift moves usable runway length longitudinally along the existing
runway centerline without adding to, or reducing, the existing usable runway length of 7,500 feet. A
detailed discussion of the alternatives analysis is contained in the EA for this project
Alternative 1: Provide 1,000-foot Runway Safety Areas
Alternative 1 would provide 1,000-foot RSAs on each end of Runway SR-23L, and would not require a
runway shift. Construction activities would affect airport operation for.up to three months, and, based on
June-July 2000 field reconnaissance, would fill the following features.
I I South End North End Total
Wetland (acres) 0.8 I 1.0 1.8
Stream (linear feet) I 1,248 105 I 1,353
Buffer (square feet) I 107,866 6,417 114,283.
Alternatives 2 and 3: Runway Shift Options
The runway shift options would shift Runway 5R-23L to the north, provide a 1,000-foot RSA at the north
end of the runway, provide a shorter RSA construction area at the south end and relocate the runway
threshold at the south end. This runway shift, in conjunction with the partial RSA and implementation of
a relocated runway threshold, would result in an overall 1,000-foot RSA at the south end.
Although runway shift options would meet FAA RSA design standards, they would not minimize impacts
on regular and continuous operation of Runway SR-23L. In addition to runway shutdown during
NAVAID relocation and earthwork, these Alternatives would require additional work that would extend
the duration of construction during which the runway would be out of senice. These Alternatives would
require changes to the runway profile to meet FAA criteria for runways serving air carrier traffic and
modifications and/or additions to associated runway elements, such as relocation of the high-speed
taxiway exit. construction of a connector taxiway, removal and reinstallation of touchdown zone lights,
and installation of runway centerline lights in the runway extension. Construction activities associated
with runway shift options would require a minimum of six months.
57

Runway shift options would have varying impacts to streams, wetlands, and buffers. In addition, the
relocated access road at the north end would require realignment through an existing stormwater detention
basin determined by the Corps to be jurisdictional waters of the US. Further, to allow for MALSR
construction and proper clearances for approaches and departures in accordance with FAR Part 77 critical
surfaces off the north end of the runway, this Alternative would require tree removal both from private
property and in Umstead Park. The latter, considered a taking of the park land, would require a Section
303(c) analysis of feasible and prudent alternatives to the proposed taking. Required tree removal and
changes in the approach procedures for aircraft (flying at lower altitudes over the same areas as the .
current approach paths) would likely result in increased noise levels to the neighborhoods to the north and
to Umstead Park
Based on the above considerations, Alternative 1 is the proposed project. Table 1 presents the alternatives
and summarizes the potential environmental consequences for each alternative considered.
Avoidance and Minimization
in accordance with Section 404(b)(1) guidelines, the following is a discussion of the sequencing analysis
performed for the proposed project.
Due to the location and orientation of the streams and wetlands adjacent to the north and south ends of
Rimway 5R-23L, avoidance of these areas is not possible if safety areas are constructed. Although
considered, relocation of the perennial stream at the south end of Runway 5R-23L would not be feasible
due to spatial constraints involving possible future airport expansion areas, an existing large diameter gas
line in the Nicinity, and a steep topographic gradient. Although design measures reduce impacts on both
ends of the runway, the project footprint necessary to construct safety areas that conform to FAA
standards and the need to maintain regular and continuous airport operations limit mminiz lion
opporttuuries.
Muumization efforts focused on the design of safety area fill slopes and access roads that would reduce
impacts. A 4:1 design slope was required to permit the safe operation of mowing equipment necessary for
minimizing visual barriers. Although flatter slopes would be optimal from an operations standpoint, fill
slopes along the south end of Runway 5R-23L safety area would be. steepened to 4:1 in order to minimize
impact to an emereent and forested wetland area located immediately adjacent to the proposed safety area
footprint. On the northern end of Runway 5R-23L, 4:1 fill slopes minimize encroachment into the
intermittent stream located immediately adjacent to the safety area.
58
The access roads were located to minimize impacts. The southern access road adjacent to Runway 5R-
23L was shifted to the north to avoid a wetland area southeast of Terminal Boulevard. The road was
designed to cross the fill at the end of the proposed southern runway safety area in order to avoid further
riparian wetland and stream impacts. Placing the service road within the proposed fill area would
minimize additional stream and wetland impacts. Similarly, the northern access road corridor was also
designed to cross the fill slope of the proposed safety area minimizing additional impacts to the wetland
and intermittent stream The remainder of the service road will be constructed along a route connecting
existing access roads with culverts and crossings in place in order to avoid additional impacts.
Mitigation
To satisfy.the mitigation requirements for the proposed project, the Authority proposes to purchase
required stream, Neuse buffer, and wetland mitigation credits from the North Carolina Wetland
Restoration Program (WRP). On September 28, 2000, the Authority's agent met with Mr. Ron Ferrell
(VdRP representative) to discuss WRP's willingness to accept mitigation for this project. A second
meeting was held on February 2, 2002. Mr. Ferrell indicated that in the absence of acceptable on-site
mitigation opportunities, WRP would be agreeable to accept payment for mitigation. In subsequent
meetings with the US Army Corps of Engineers (Corps), on February 9, 2002, and North Carolina
Department of Water Quality (DWQ), on February 27, 2002, it was agreed that payment into the WRP
would be acceptable as mitigation for wetland, stream, and buffer impacts. The Authority proposes a 1:1
mitigation ratio for emergent wetland and unimportant stream impacts and a 2:1 ratio for forested wetland
and stream impacts. The Authority will submit a formal request to WRP for mitigation credits. The
Authonn- will forward the Agency's response to the Corps and DWQ upon receipt.
Indirect impacts to stream reaches will be minimized by adherence to applicable federal and state
construction guidelines and proper erosion control techniques. A soil erosion and sedimentation control
plan will be filed with North Carolina Department of Environment and Natural Resources (NCDENR)
pnor to construction.
An on-site wetland, stream. and Neuse buffer mitigation. search was conducted on Airport properry
October 16 - 26. 2000. The search entailed field reconnaissance of all perennial and intermittent streams
located within Airport property indicated on USGS 7.5 minute topographic quadrangle maps or the Wake
59

County soil survey. No feasible buffer mitigation sites were found. On-site stream mitigation
opportunities were limited. Two impaired stream segments were found on airport property. Well-
developed hardwood buffers surround these stream segments. Because of the well developed forested
buffers, the inability of the Authority to place streams or buffers into a permaruent conservation easement,
and possible future airport expansion plans, on-site stream and buffer restoration efforts were not deemed
practicable for the stream reaches within the Airport property.
No wetland restoration or enhancement opportunities were identified on airport property. FAA guidelines
(FAA AC 15015200-33) restrict wetland creation opportunities on-site. The guidelines recommend that
airports refrain from the creation of wetlands and other potential wildlife attractants. The FAA defines
wildlife attractants as:
"any human-trade structure, land use practice, or human-made or natural geographic
feature, that can attract or sustain hazardous wildlife within the landing or departure
airspace, aircraft movement area, loading ramps, or aircraft parking areas of an airport.
These attractants can include but are not limited to architectural features, landscaping,
waste disposal sites, wastewater treatment facilities, agricultuual or aquacultural
activities, surface mining, or wetlands."
The FAA recommends a separation of 5,000 to 10,000 feet between the siting of wildlife attractants and
the airport's aircraft movement areas, loading ramps, and aircraft parking areas (FAA AC 150/5200-33).
Further. the FAA recommends a distance of 5 statute miles between the siting of wildlife attractants and
the approach or departure airspace. Because of the restrictions to wetland mitigation on airport
prop-canes, the FAA encourages the. use of wetland banks as a means to satisfy mitigation requirements:
"Wetland mitigation banks meeting these siting criteria offer an ecologically sound approach to
mitigation."
60
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61

Block 22- Surface Area in Acres of Wetlands or Other Waters Filled
Drawings 3 of 6 and 5 of 6 illustrate the impacts to wetlands and streams that would result from
the proposed project. All impacts would be a result of fill necessary to construct the earthen
safety areas. The following outlines the anticipated impacts:
South End, Runway 5R-23L
Jurisdictional Wetlands and Streams
Important stream 773 linear feet
Unimportant stream 475 linear feet
Emergent wetland 0.5 acre
Forested wetland 0.3 acre
DWQ Neuse Buffer
Zone I buffer 59,471 feet'
Zone U buffer 48,395 feet
'
North End, Runway 5R-231,
Jurisdictional Wetlands and Streams
Important stream None
Unimportant streanp 105 linear feet
Emergent wetland 1.0 acre
Forested wetland None
DWQ Neuse Buffer*
Zone I buffer 1,586 feet'
Zone H buffer 4,831 feet
Based upon discussion with DWQ staff, because the planned construction at thenorth d of
Runway SR-23L would disturb less than 150 linear feet of stream and less than one d acre of
buffer, no buffer mitigation is required for construction of the north end by DWQ.

62
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Project Area

0 2000 4000 Feet
Raleigh-Durham
International Airport
RDU Authority
Wake County, NC
h
63
Runway 6R-23L
Safety Area Extension
Project Vicinity Map
=n
Krdey-Horn
and Anwaer, irc.
Scale: 1'=4,000'
Date: February, 2002
Sheet: 1 of 6

nI?C
Runway
Safety Ares
Extension
0 700 Feet
at, >
so - ; - N
rv Roa
- -' _ Avtita_y Safety
a'EXtenslon
_ - - -- -?? 0 700 Feel
Raleigh-Durham
Intemabonal Airport
RDU Authority
Wake County, NC

-,FAAAccess _

" -Road ..
`
Relocation' :.
..`

Scale: V= = 700'
Date: February, 20(
Sheet 2 of 6
ti vc
„
0.3 ACRE 0.1 ACRE
FORESTED EMERGENT
WETLAND WETLAND
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EME?vEN7?" (I iI)
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Runway 5R-23L i Scale:.I"=400'
Raleigh-Durham Safety Area Extension I PPP I=
International Airport `?? f Date: Feb. 2002
RD'J Authority 1 i iGmiev Hom Sheet:
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Runway 5R-23L i ;Scale: NTS
Raleigh-Durham Safety Area Extension ^? '
mternatioha! Airport `m 1 Date: Feb. 2002
RDU Authority i Kimiev Hom ; Sheet:
WaKe County, NO Runway - 23L Profile f and Ass=ctes. im.
6OF6
Ic 19
?G
'C
wuliam ti. moss Jr., secretary
North Carolina Department o' =_nvironment and Natural Resources
Alan W. Klimek. P.E. Director
Division oll Water Quality
July 19, 2002 L7uMWftYW-
r. t1161T
John Brantley
rport Director
aleigh Durham Airport Authority
.0: Box 80001
DU Airport, North Carolina, 27623
ear Mr. Brantley:
e: Raleigh Durham Airport, Runway 6R-23L Safety Area and Access Roads, Wake County, North Carolina
DWQ Project No. 02-0662; DOA Action ID No. 200021606
Attached hereto is a copy of Certification No. 3386 issued to Mr. John Brantley, dated July 19, 2002. This approval is
so valid for the Neuse River Buffer Rules (15A NCAC 2B .0233).
If we can be of further assistance, do not hesitate to contact us.
in rely. !
?I U
a . Klime , P.E.
V
,W K cok

2J-3 62
U.S. Army Corps of Engineers, Raleigh Regulatory Field Office
DW O. Raleig- Regional Office - Steve Mitchell
File Copy
-,enira. riies
Bet- =teed. Klmiev Home, P.O. Box 33068, Raleigh, NC, 27636-3066
69
,. 2IP ::. 151' Mai; Service Cente- Ralei=. N:2765?-1617 ;?19: 73.-:.-701--
WWI
R
Customer Service
11 80: 5:?-'74E
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public Laws 92-500 and 95-21-
of the United States and subject to the North Carolina Division of Water Quality (DWQ) Regulations in 15 NCAC 2H,
Section .0500 to the Mr. John Brantley, resulting in the discharge of fill into 1.8 acre of jurisdictional wetlands and 1,353
linear feet of unnamed intermittent and perennial tributaries to Brier Creek and Sycamore Creek and to impact 114,283
square feet of Neuse Buffers associated with the construction of runway safety areas on the northern and southern ends
of an existing runway (Runway SR-23L), and the construction of access roads around the proposed safety areas at the
Raleigh Durham Airport in Wake County, North Carolina, pursuant to an application filed on 7th day of May of 2002. This
approval is also valid for the Neuse River Buffer Rules (15A NCAC 2B .0233).
The application provides adequate assurance that the proposed work 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 only valid for the purpose and design that you submitted in your application and as described in the
Public Notice. If you change your project, you must notity us and send us a new application for a new certification. If the
property is sold, the new owner must be given a copy of the Certification and approval letter and is thereby responsible for
complying with all conditions. Should wetland or stream fill be requested in the future, additional compensatory mitigation
may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to be valid, you must follow the
conditions listed below. In addition, you should get any other federal, state or local permits before you go ahead with your
project including (but not limited to) Solid Waste, Sediment and Erosion control, Coastal Stormwater, Non-discharge and
Water Supply Watershed regulations.
Conditions of Certification:
t . Appropriate sediment and erosion control practices which equal or exceed those outlined in the most recent
version of the "North Carolina Sediment and Erosion Control Planning and Design Manual" or the "North Caroling.
Surtace Mining Manual` whichever is more appropriate (available from the Division of Land Resources (DLR) in
the DENR Regional or Central Offices) shall be in full compliance with all specifications governing the proper
design, installation and operation and maintenance.of such Best Management Practices in order to assure
compliance with the appropriate turbidity water quality standard;
2. We understand that you have chosen to contribute to the Wetland Restoration Program in order to compensate for
.the impacts to wetlands and streams. in accordance with 15A NCAC 2R .0402 and 15A NCAC 2B .0242(7), this
contribution will satisfy our compensatory mitigation requirements under 15A NCAC 2H .0506(h) and 15A NCAC
2B .0233(10). Until the Wetland Restoration Program receives and clears your check (made payable to: DENR -
Wetlanes Restoration Program), wetland and stream impacts (including fill) shall not occur. Mr. Ron Ferrell should
be contacted at [phone] if you have any questions concerning the Wetland Restoration Program. You have
one month from the date of this Certification to make this .payment. For accounting purposes, this Certification
authorizes the fill of 1.8 acre of riparian wetlands and 1,353 linear feet of streams in the Neuse River Basin,
Cataloginc knit 03020201, and 2.6 acres of wetland mitigation and 2,706 linear feet of stream mitigation is
require C. ?lease be aware that the Wetland Restoration Program (WRP) rules require rounding of wetland
imoacts to the nearest quarter acre and stream impacts to the'nearest linear foot (15A NCAC 2R .0503(b));"
3. That the a^tivity be conducted in such manner as to prevent significant increase in turbidity outside the area of
construction or construction related discharge (50 NTU's in streams and rivers not designated as trout waters by
D1NC; 25 NTU's in all saltwater classes, and all lakes and reservoirs; 10 NTU's in trout waters);
4. Al! sediment and erosion control measures placed in wetlands and waters shall be removed and the original grade
restored within two months after the Division of Land Resources has released the project;
5. 1`-?4e2sures shall be taken to prevent live or fresh concrete from coming into contact with waters of the state until
the concrete nas hardened;
S:o,m ater from the runway safety areas and access roads shall be managed so as not to directly discharge into
su,:ace waters. Stormwater may be discharged into wetlands on the site as long as discharge is directed to
d.ffuse How, at non-erosive velocities;
70
7. An additional condition is that stormwater shall be directed to diffuse flow at non-erosive velocities through the
protected stream buffers. Additional written approval from DWQ is needed for this purpose. impacts to the stream
and buffer may not occur until this written approval is received;
8. Waste or borrow sites shall not be located in streams or wetlandsf
9. All temporary fill shall be removed to the original grade after construction is complete and the site shall be
stabilized to prevent erosion;
10. The enclosed "Certification of Completion Form" is to be used to notify DWQ when all work included in the 401
Certification has been completed.
Violations of any condition herein set forth shall result in revocation of this Certification and may result in criminal
id/or civil penalties. This Certification shall expire on expiration of the 404 Permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon written request within
qty (60) days following receipt of this Certification. This request must be in the form of a written petition conforming to
,iaper 1506 of the North Carolina General.Statutes and fined with the Office of Administrative Hearings, 6714 Mail
arvice Center, Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the right to an
ijudicatory hearing on the modifications upon written request within sixty (60) days following receipt of the Certification.
-iless such demands are made, this Certification shall be final and binding.
This the 19" day of July 2002
DIVISION OF WATER QUALITY
iim
OC r 33B6
N K/cbk
71
NORTH CAROLINA-DIVISON OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
SUMMARY OF PERMITTED IMPACTS AND MITIGATION REQUIREMENTS
in accordance with 15A NCAC 2 H .0500, Mr. John Brantley, Airport Director of the Raleigh Durham Airport
Authority has permission as outlined below to fill 1.B acres of wetlands and 1.353 linear feet of streams and to impact
114,283 square feet of Neuse Buffers in order to construct a new runway safety area with access roads at the Raleigh
Durham Airport in Wake County, North Carolina. All activities associated with these authorized impacts must be
conducted with the conditions listed in the attached certification. THIS CERTIFICATION IS NOT VALID WITHOUT THE
ATTACHMENTS.
COMPENSATORY MITIGATION REQUIREMENT
WETLAND RESTORATION PROGRAM
LOCATION: '
COUNTY:
BASIN/SUBBASIN
Impacts:
1.8 acres of riparian wetlands.
Raleigh Durham Airport, Runway 5R-23L
Wake
Neuse (03-02-02-01)
1.353 linear feet of intermittent and perennial streams
114.283 square feet of Neuse Buffers
As required by 15A NCAC 2H .0506, and the conditions of this certification, you are required to compensate for
the above impacts through the restoration, creation, enhancement or preservation of wetlands as outlined below prior to
conducting any activities that impactor degrade the waters of the state.
Mitigation:
2.6 acres of riparian wetlands
2.706 linear fee: o`. perennial streams
Buffers - for South End only
Zone ; - 59,471 square feet x 3 =176,413 square feet
Zone 2 - 46.395 square feet x 1.5 = 72,592.5 square feet
Totai = 251.005.5 square feet
Not _inea- foot requirements proposed to be mitigated through the Wetland Restoration Program must be rounded
to the nearest toot and acreage requirements must be rounded to one-quarter acre increments according to 15 2r
.C5C3(ol.
One o`: the options you have available to satisfy the compensatory mitigation requirements is through the payment
o' a ire to the Wetiands Restoration f=und per NCAC 2R .0503. If you choose this option, please sign this form and mail it
to the Wetianos :=restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be
sen' tc vo:: coon receipt o` this form. PLEASE NOTE, THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU
NZ71=i:;ATFON THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION
PR:).aR 1%tJ,.
Slonature 72 Date
W- I LANDS RESTORATION PROGRAM
DiVISON OF WATER QUALITY
1619 Mail Service Center
RALEIGH, N.C. 27669-1619
[phone]
Norm uaronn2 Lawa,lo,,, .-............,........_ ....._._...----•---
Atari W. Klimek, P.E. Director
.y
f Division of Water Quality
Diu --f
August 9, 2002 EXHIBIT
A•1 LBAL 9P V/ Co-
LL r. John Brantley
trport Director
aleigh Durham Airport Authority
.O. Box 80001
DU Airport, North Carolina, 27623
ear Mr. Brantley.
e: Raleigh Durham. Airport, Runway 5R-23L Safety Area and Access Roads, Wake County, North Carolina
DWO Project No. 02-0662; DOA Action ID No. 200021506
Attached hereto is a copy of Certification No. 3386 issued to Mr. John Brantley, dated August 9, 2002. This approval
also valid for the Neuse River Buffer Rules (15A NCAC 2B .0233). This Certification replaces the one issued to you on
jiv 19, 2002.
If we can be of further assistance, do not hesitate to contact us.
Sincerely,
a
/-? Alan W.. Klimek; P-E-
l/ .
,WK,,cDk
;a-nrnents
206o2mod
U.S. Ar-mv Corps of Engineers, Raleigh Regulatory Field Office
DWG. Raleigh Regionai Office - Steve Mitchell
File Cope 73
Central Files
Seth Reef. Kirnley Horne. ?.0. Box 33068, Raleigh, NC, 27636-3056
Division o' water Cua! - Mai'. Service Center Ratet?n. NC 2769-16117 [phone]
L -1
NODR
Customer Service
t 800 525-7746

X
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
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 Quality (DWO) Regulations in 15 NCAC 2H,
Section .0500 to the Mr. John Brantley, resulting in the discharge.of fill into 1.8 acre of jurisdictional wetlands and 1,353
linear feet of unnamed intermittent and perennial tributaries to Brier Creek and Sycamore Creek and to impact 114,263
square feet of Neuse Buffers associated with the construction of runway safety areas on the northern and southern ends
of an existing runway (Runway 5R-23L), and the construction of access roads around the proposed safety areas at the
Raleigh Durham Airport in Wake County, North Carolina, pursuant to an application filed on 7th day of May of 2002. This
approval is also valid for the Neuse River Buffer Rules (15A NCAC 2B .0233).
. The application provides adequate assurance that the proposed work 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 55-217 if conducted in accordance with the
application and conditions hereinafter set forth.
This approval is only valid for the purpose and design that you submitted in your application and as described in the
Public Notice. If you change your project, you must notify us and send us a new application for a new certification. If the
property is sold, the new owner must be given a copy of the Certification and approval letter and is thereby responsible for
complying with all conditions. Should wetland or stream fill be requested in the future, additional compensatory mitigation
may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to be valid, you must follow the
conditions listed below. In addition, you should get any other federal, state or local permits before you go ahead with your
project including (but not limited to) Solid Waste, Sediment and Erosion control, Coastal Stormwater, Non-discharge and
Water Supply Watershed regulations.
Conditions of Certification:
Appropriate sediment and erosion control practices which equal or exceed those outlined in the most recent
version of the "North Carolina Sediment and Erosion Control Planning and Design Manual' or the "North Carolina
Surface Mining Manual" whichever is more appropriate (available from the Division of Land Resources (DLR) in
the DENR Regional or Central Offices) shall be in full compliance with all specifications governing the proper
design, installation and operation and maintenance of such Best Management Practices in order to assure
compliance with the appropriate turbidity water quality standard;
2. We understand that you have chosen to contribute to the Wetland Restoration Program in order to compensate for
the impacts to wetlands and streams. in accordance with 15A NCAC 2R .0402 and 15A NCAC 2B.0242(7), this
contribution will satisfy our compensatory mitigation requirements under 15A NCAC 2H .D506(h) and 1 SA NCAC
2B.0233(10). Until the Wetland Restoration Program receives and clears your check (made payable to: DENR -
Wetlangs Restoration Program), wetland and stream impacts (including fill) shall not occur. Mr. Ron Ferrell should
be contacted at [phone] if you have any questions concerning the Wetland Restoration Program. You have
one month trom the date of this Certification to make this payment. For accounting purposes, this Certification
authorizes the fill of 1.8 acre of riparian wetlands and 1,353 linear feet of streams in the Neuse River Basin,
Cataioamg Unit 03020201, and 2.1 acres of wetland mitigation and 2.126 linear feet of stream mitigation is
required. Please be aware that the Weiland Restoration Program (WRP) rules require rounding of wetland
impacts to the nearest quarter acre and stream impacts to the nearest linear foot (15A NCAC 2R .0503(b));-
3. That the activity be conducted in such manner as to prevent significant increase in turbidity outside the area of
constructon or construction related discharge (50 NTU's in streams and rivers not designated as trout waters by
DWC: 25 NTU's in all saltwater classes, and all lakes and reservoirs-, 10 NTU's in trout waters);
4. Al! sediment and erosion control measures placed in wetlands and waters shall be removed and the original grade
restored within two months after the Division of Land Resources has released the. project;
5. Measures shall be taken to prevent live or fresh concrete from coming into contact. with waters of the state until
the concrete has hardened;
6. Sto-mwater from the runway safety areas and access roads shall be managed so as not to directiv discharge into
su=ace waters. Stormwater may be discharged into wetlands on the site as long as discharge is directed to
ditiuse floe a: non-erosive velocities;
74
7. An additional condition is that stormwater shall be directed to diffuse flow at.non-erosive velocities through the
protected stream buffers. Additional written approval from DWQ is needed for this purpose. Impacts to the stream
and buffer may not occur until this written. approval is received;
B. Waste or borrow sites shall not be located in streams or wetlands;
9. All temporary fill shall be removed to the original grade after construction is complete and the site shall be
stabilized to prevent erosion;
10. The enclosed "Certification of Completion Form" is to be used to notify DWQ when all work included in the 401
Certification hat been completed.
Violations of any condition herein set forth shall result in revocation of this Certification and may result in criminal
and/or civil penalties. This Certification shall expire on expiration of the 404 Permit.
if this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon written request within
sixty (60) days.following receipt of this Certification. This request must be in the form of a written petition conforming to
'hapter 150E of the North Carolina General Statutes and filed with the Office of Administrative; Hearings, 6714 Mail
service Center, Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the right to an
adjudicatory hearing on the modifications upon written request within sixty (60) days following receipt of the Certification.
Jnless such demands are made, this Certification shall be final and binding.
This the 9th day of August 2002
DIVISION OF WATER QUALITY
v? Alan W. Klimek, P.E.
VQC # 3386
rW K/cbk
75
NORTH CAROLINA-DIViSON OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
SUMMARY OF PERMITTED IMPACTS AND MITIGATION REQUIREMENTS
In accordance with 1 SA NCAC 2 H .0500, Mr. John Brantley, Airport Director of the Raleigh Durham';Airport
Authority has permission as outlined below to fill 1.8 acres of wetlands and 1,353 linear feet of streams and to impact
114,283 square feet of Neuse Buffers in order to construct a new runway safety area with access roads at the Raleigh
Durham Airport in Wake County, North Carolina. All activities associated with these authorized impacts must be
conducted with the conditions listed in the attached certification. THIS CERTIFICATION IS NOT VALID WITHOUT THE
ATTACHMENTS.
COMPENSATORY MITIGATION REQUIREMENT
WETLAND RESTORATION PROGRAM
LOCATION: Raleigh Durham Airport, Runway 5R-23L
COUNTY: Wake
BASIN/SUBBASIN Neuse (03-02-02-01)
Impacts:
1.8 acres of riparian wetlands
1,353 linear feet of intermittent and perennial streams
114,283 square feet of Neuse Buffers
As required by 15A NCAC 2H .0506, and the conditions of this certification, you are required to compensate for
the above impacts through the restoration, creation, enhancement or preservation of wetlands as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Mitigation:
2.1 acres of riparian wetlands
2.125 linear feet o= perennial streams
Buffers - for South End only
Zone 1 - 59.471 square feet x 3 = 178.413 square feet
Zone 2 - 48,395 square feet x 1.5 = 72.592.5 square feet
Total = 251.005.5 square feet
Note: Linear foot requirements proposed to be mitigated through the Wetland Restoration Prooram must be rounded
to the nearest foot and acreage requirements must be rounded to one-quarter acre increments according to 15 2r
.C503(b1.
One o' the options. you have available to satisfy the compensatory mitigation requirements is through the payment
o' a fee to the Wetlands Restoration Fund per NCAC 2R .0503. If you choose this option, please sion this form and mail it
tc the Weianas Restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be
san*, to you uoon receipt o' this form. PL=-ASE NOT E, THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU
RE-EIVE < iFiSA71ON THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION
PROGRAM.
Signature 76 Date
WETLANDS RESTORATION PROGRAM
DIVISON OF WATER QUALITY
1619 Mail Service Center
RALEIGH. N.C. 27669-1619
[phone]
Y
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE BEARINGS
02 EEIR 2209
A
Raleigh-Durham Airport Authority, )
Petitioner, )
}
V. )
North Carolina. Department of Environment )
and Natural Resources.,
)
Respondent. )
MOTION TO DISMISS
AND MOTION FOR AN
ENLARGEMENT QF T)1 W, TO FILE
PREHEARING STATEMENT
NOW COMES the North Carolina Department Of Environment and Natural Resources
'DE'
KR"), Respondent, by and through its undersigned counsel, Mary Penny Thompson,
Q ssistant Attorney General., and moves the presiding Administrative Law Judge pursuant to
?l. C. Gen. Stat. § 15OB-36(c)(1), and Rule 12(b)(1) of the North Carolina Rules of Civil
3rocedure for an Order of Dismissal and Entry of Final Decision on the ground that the Office of
kdmi.nistrative hearings ("OAH") lacks subject matter jurisdiction because Respondent has not
aken final agency action depriving the petitioner of property, ordering petitioner to pay a fine or
ivil penalty, or otherwise substaui.tially prejudicing petitioner's rights.
11-L Support of this Motion, the Respondent shows the following:
1. Subject matter jurisdiction must exist before OAH can take jurisdiction of a case.
°arties may not waive subject matter jurisdiction. Under N. C. Gen. Stat. § 1 A-1, Rule 12(b)(3),
,hen a court lacks subject matter jurisdiction, the court shall dismiss the case. - OAH has the
over under N. C. Gen. Stat. § 15OB-36 to dismiss a contested case petition for lack of subject
utter jurisdiction.
77
ZO'd Z5:bI ?0 o u?? f 9919-9I1-6I6:xp3 N0Ii33S GNU-1 8 831bM
2. Petitioner, Raleigh-Durham Airport Authority, attempts to appeal u "Notice of
Violation" ("NOV") issued by Respondent on September 16, 2002, for alleged violations of the
Neuse Buffer Rules (the "Rules") along an unnamed tributary to Crabtree Creek, a tributary to
the Nuese River in Wake County, North Carolina. Petitioner alleges that the NOV was
improperly and unlawfully issued by Respondent. The NOV is attached hereto by reference as
Exhibit A and incorporated herein.
The NOV is an interlocutory notification by the Division that Petitioner's activity
is not in compliance with the Rules. The NOV notifies the Petitioner of violations of the Rules
and instructs Petitioner to contact the Raleigh Regional office of the Division of Water Quality
within ten (10) days of receipt. The NOV adOses Petitioner that the site remains in violation of
the Neuse River Basin: Nutrient Sensitive Waters Management Strategy; Protection and
Maintenance of )existing Riparian Areas, N. C. Admin. Code tit. 15A, r. 2B.0233, and is
considering sending a recommendation for enforcement to the Director.
4. Respondent, as of the filing of this petition, has not made a recommendation
against the Petitioner for these violations nor sought any other enforcement action against
Petitioner, such as an injunction pursuant to N. C_ Gen. Stat. §113A-65, although it may do so in
the future. The NOV is thus not a sufficiently fuial action to give rise to a contested case;
natters addressed in the NOV are not ripe for appeal.
Petitioner is not a "person aggrieved" within the meaning of N. C. Gen. Stat.
I SOB-2. The NOV notified Petitioner of the violation and requested a response within ten (10)
lays of its receipt. The NOV presents Petitioner with a choice: to respond or be subject to a
ecommendation of enforcement. This. choice, however, does not substantially prejudice
78
Petitioner's rights. Petitioner does not suffer an "injury" by being faced with the choice of
complying or not complying with the regulation or by being notified that it is in violation, of a
regulations. The NOV is no more than a reiteration of Petitioner's obligations under the law as a
person conducting a land disturbing activity and does not alter these obligations. Petitioner has
no inherent right to conduct a land-disturbing activity. The NOV creates an opportunity for
Respondent to negotiate a solution rather than to levy a penalty and/or initiate an injunctive
action immediately. Should Respondent assess a penalty against Petitioner, then Petitioner may
appeal to the Office of Administrative Hearings (or present its defense in court, if the Agency
files for an injunction).
6. OAH's jurisdiction over contested cases arises under N. C. Gen. Stat. § 150B-23.
Pursuant to N. C. Gen. Stat. § 150B-23, "A petition, shall state facts tending to establish that the
agency has deprived the petitioner of property, has ordered the petitioner to paya fine or civil
penalty, or has otherwise substantially prejudiced the petitioner's rights..." N. C. Gen. Stat.
§ I SOB-23(Emphasis added).
7. Agency action must be final before it is ripe for a contested case under. N. C. Gen.
Stat § 150B-23. The language of N. C. Gen. Stat §150B-23 that respondent "has deprived", "has
ordered", and "has substantially prejudiced" suggests a limitation in N. C. Gen. Stat § I SOB- 23 to
"completed. actor event." ht Change County Sensible Highway v. N.C. Dept. of
i ransportation, 46 N.C. App. 350, 362, 265 S.E.2d 890 (1980), the Court of Appeals stated that
he finality requirement
is an implementation of the general policy against piecemeal judicial involvement
in agency processes. This policy is designed to conserve judicial resources, avoid
delay that would be occasioned by prenature judicial intervention, and prevent
79
judicial intervention when agency action has not "crystallized" into a settled or
"ripe" controversy, but remains hypothetical, intermediate, provisional, or
preliminary.
Scc e.g., Granville tad. o'fC:ommissioners v. N.C. Hazardous Waste Management Commission,
329 N.C. 615, 407 S.E.2d 785 (1991), and cases cited therein; Citizens for Clean industry, inc. v.
Lofton, 109 N.C. App. 229, 427 S.E.2d 768 (1993), overruled on other grounds; Empire Power
Company v. N.C. Dept. of Environment and Natural Resources, 337 N.C. 369, 447 S,E.2d 768,
rehearing denied, 338 N.C. 314, 451 S.E.2d 634 (1994).
8. The NOV is a provisional, intermediate step which is part of the agency's
investigation and documentation that may, or may not, lead to a final agency action, such as an
assessment of a penalty. The notification affords petitioner the opportunity to achieve
compliance prior to the initiation of a formal action, such as a penalty assessment or injunctive
fiction. The NOV invites the Petitioner to call. the Raleigh Regional Office Supervisor or
-he Regional Environmental Specialist if Petitioner has any questions about the NOV. Thus, the
\iOV presents Petitioner with the opportunity to further discuss the NOV, including any of
?ctitioner's alleged concerns about proprietyof the NOV. The NOV does not suggest that
administrative proceedings are complete.
9. OAH has dismissed similar contested cases for lack of subject matter jurisdiction
and ruled that the issuance of a notice of violation or non-compliance by an agency does not
.rcate an opportunity for contested cases under N. C. Gen. Stat. § 150B-23. See Hamilton
3each/Proctor-Silex. hic., v. DEHNR, 93 EHR 0477; Waters Oil Company of Plymouth. Tnc. v.
d C Department of Environment Health and Natural Resources. Division of Environmental
Diana ement, 90 EHR 1165 and 91 EHR 0317; Ashland Chemical Company v. NCRD, 88 NRC
80
0645; Johnston County Board of Education v.1) 87 DHR 1030.
10. The issuance of the NOV does not create any dispute whereby Respondent has
deprived Petitioner of any property or otherwise substantially Petitioner's rights so as to give rise
to a contested case hearing under N. C. Gen. Stat. §150B-23.
11. OAI'-1: and all state agencies whose decisions are subject to administrative review
will quickly become stymied by a ruling which would allow a person, suchx Petitioner, to
contest an NOV. Division of Water Quality staff, on average, issue thousands of notices of
violation each year. Many of these violations.are remedied after receipt of an NOV. Only a
small percentage of these violations ripen into enforcement actions. If appeal rights attached to
,notices of violation, both the Respondent Division and OAH would be overwhelmed. Moreover,
:he cases in which the Division later. issued a penalty or initiated permit revocation would return
?o OAH for a second round of appeals.
WHEREFORE, for the reasons stated herein, the Petition for Contested Case must be
I ismissed tinder Rule t 2(b)(1) as a premature filing which OAH lacks jurisdiction to hear.
tepondent prays that the presiding ALJ enter an Order and Final Decision dismissing this
:untested case on the gt-ounds that OAH lacks subject matter jurisdiction over this matter since
tepondent has not taken final agency action depriving Petitioner of property or otherwise
ubstantially prejudicing Petitioner's rights.. Respondent respectfully requests oral arguments on
his motion should the presiding ALJ deem it necessary.
Respondent has filed this Motion to Dismiss in lieu of a PreHearing statement and
esponse to notice of a contested case. For purposes of protecting the record, Respondent moves
or an enlargement of time, pursuant to N.C.G.S. 1 A-1, Rule 6(b), to file a PreHearing Statement
81
and response to notice of contested case pending the presiding AL1's ntling on Respondent's
Motion to Dismiss. This request is made within the time provided for filing PreHearing
SWICtllents and granting this request is unlikely to prejudice Petitioner in any way.
Respectfully submitted this the 8" day of January, 2003
ROY COOPER
Attorney General
r
Mary Penn .. hompson
Ass-is • Attorney General
N.17 epartment of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
[phone]
State Bar No. 24567
ATTORNEY FOR RESPONDENT
82
J
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 2209
Raleigh-Durham Airport Authority, )
Petitioner, )
V. } ORDFR
N. C. Department of Environment and j
Natural Resources, Division of Water )
Quality, )
Respondent. )
This cause came before the undersigned Administrative Law Judge on Respondent's
Motion to Dismiss this contested case petition filed herein on the ground that the Office Of
Administrative Hearings lacks subject matter jurisdiction. It appears to the Court that the motion
should be allowed.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this action is
dismissed.
This the day of '2003.
Beecher R. Gray
Administrative Law Judge
83

STATE OF NORTH CAROLIN i IN THE OFFICE OF
A I _? ` - ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648
1003 I'0V 2 y A I'D 18
Raleigh-Durham Airport A11th6d1,1; , )-S i F 11E
Petitioner,
V. ) PETITIONER'S BRIEF
IN SUPPORT OF ITS MOTION
N.C. Dept. of Environment and ) FOR SUMMARY JUDGMENT
Natural Resources, Division of )
Water Quality, )
Respondent. )
Petitioner Raleigh-Durham Airport Authority, submits this brief in support of its Motion
for Summary Judgment, filed with this Court on May 2, 2003, pursuant to N.C. Gen. Stat.
§ 150B-33(a)(3a) and Rule 56 of the North Carolina Rules of Civil Procedure, as well as 26
NCAC 3.0115 of the rules of the Office of Administrative Hearings.
INTRODUCTION
This contested case is a challenge to the issuance by Respondent of a 401 Water Quality
Certification imposing certain stream and buffer mitigation requirements. The 401 Water Quality
Certification was issued in connection with Petitioner's proposed plans to expand runway safety
areas at Raleigh-Durham International Airport pursuant to Federal Aviation Administration
requirements. Section 401 of the Clean Water Act, provides for certification by the State of
North Carolina that any discharges to waters of the State authorized by a federal license
proposed for issuance to Petitioner, in this case a permit under section 404 of the Clean Water
Act (the "404 Permit"), will comply with the applicable provisions of sections 301, 302, 303,
306, and 307 of the Clean Water Act.
84

On August 9, 2002, Respondent issued to Petitioner North Carolina Water Quality
Certification No. 3386 (the "401 Certification"). The 401 Certification contains requirements i
wetland and stream mitigation, including mitigation for 251,000 square feet of riparian buffer
area located within the Neuse River Basin, in which certain activities are restricted in accordan
with 15A N.C.A.C. 2B .0233. On or about October 8, 2002, Petitioner filed a Petition for
Contested Case Hearing to challenge the issuance of the 401 Certification and the buffer
mitigation. On or about May 2, 2003, Petitioner filed a Motion for Summary Judgment with
respect to (1) whether there is a riparian area within the meaning of 15A NCAC 2B .0233 after
removal of the stream to which the regulated area would have been riparian; and (2) whether
Respondent waived the 401 Water Quality Certification requirement.
ARGUMENT
I. RESPONDENT WAIVED THE REQUIREMENT FOR 401 CERTIFICATION
Respondent's rules governing water quality certification impose a time limit for final
action on an application for certification, and provide a waiver if certification is not timely
issued. 15A NCAC 2H .0507(a) states:
All applications for certification shall be granted or denied within 60 days
after receipt at the offices of the Director in Raleigh, North Carolina. Failure to
take final action within 60 days shall resuli in a waiver of the certification
requirement by the Director, unless:
(1) The applicant agrees, in writing to a longer period;
(2) Final decision is to be made pursuant to a public hearing;
(3) Applicant fails to furnish information necessary to the Director's
decision;
(4) Applicant refuses the staff access to its records or premises for the
purpose of gathering information necessary to the Director's decision or;
(5) Information necessary to the Director's decision is unavailable.
Y
85
15A NCAC 2H.0507(a)(emphasis added). As explained further infra, because Respondent
failed to issue the 401 Certification within 60 days, and because none of the exceptions to waiver
apply, Respondent has waived the certification requirement.
Petitioner submitted its application for 401 Certification (the "Application") on April 25,
2002. The Application bore a stamp indicating that it was received in the offices of the Division
of Water Quality ("DWQ") on April 29, 2002. Sixty (60) days from April 29, 2002, is June 28,
2002. However, a 401 certification was first issued on July 19, 2003 eighty one (81) days after
the Application was received. Respondent.rescinded sua sponte the first 401 Certification and
issued a new one on August 9, 2003 -- one hundred two (102) days after the Application was
received. Thus, the 401 Certification was not timely issued.
Moreover, none of the exceptions to the waiver rule are applicable. Petitioner never
agreed in writing to a longer period (15A NCAC 2H .0507(a)(1)), nor was there ever a decision
byRespondent to hold a public hearing (15A NCAC 2H .0507(a)(2)), and DWQ records
produced in discovery so reflect. At no point during the 60 days after it received the Application
did DWQ notify Petitioner that there was information necessary to its decision on the 401
'Certification that was not furnished by Petitioner (15A NCAC 2H.0507(a)(3)) or otherwise
unavailable (15A NCAC 2H .0507(a)(5)), and there are no indications to the contrary imDWQ
records produced in discovery. Finally, Petitioner never refused DWQ access to the site (15A
NCAC 2H.0507(a)(4)).
The language of 15A NCAC 2H.0507 with respect to the time limit for final action on a
401 certification application is not permissive, but rather, it requires a response within a specified
time, and, more importantly, provides a consequence - waiver - for failure to meet it. Because
DWQ failed to meet the 60-day requirement, and because none of the specified exceptions to
86
waiver apply, DWQ waived the certification requirement as to the 404 Permit for this proposed
project. Waiver of the certification means that the requirement imposed by the terms of the 401
Certification are inapplicable, including the mitigation requirements imposed pursuant to 15A
NCAC 2H .0506 and 15A NCAC 2B .0233 and .0242. Respondent has made no allegations
contrary to any of these assertions. Thus, Petitioner contends there are no material facts at issue,
and that summary judgment in its favor is both appropriate and warranted.
II. THERE IS NO RIPARIAN AREA AFTER STREAM REMOVAL TO WHICH.
MITIGATION REQUIREMENTS APPLY
In Session Laws 1995 c. 572, the General Assembly set a goal of the State "to reduce the
average annual load of nitrogen delivered to the Neuse River Estuary from point and nonpoint
sources by a minimum of thirty percent (30%)." As a result, rules were promulgated to "protect
and preserve existing riparian buffers in the Neuse River Basin to maintain their nutrient removal
function." 15A NCAC 2B .0233(1) (the "Buffer Rule").
The term "riparian buffer is undefined in the Buffer Rules. However, 15A NCAC 2B
.0202(56) defines "riparian area" as "an area that is adjacent to a body of water." Section 15A
NCAC 2B .0233(3) states that "[the Buffer Rule] shall apply to 50-foot wide riparian buffers
directly adiacent to surface waters in the Neuse River Basin ..."
Petitioner has applied for a Section 404 permit from the Corps allowing Petitioner to
legally remove the streams at issue. Under the project plan, Petitioner will re-route the flow of
the stream into a pipe which will carry the stream flow to where it will then be returned to an
open channel: Most of the former footprint of the stream will be filled, while a portion of the
former stream channel may contain the pipe in which the streamflow has been re-routed. In any
event the re-routing of the stream will remove water from any influence by the alleged buffer
r
87
area as the stream will no longer be adjacent to the alleged buffer area. Only after the stream
is re-routed will Petitioner engage in activities causing the impacts to the alleged buffer area for
which mitigation has been required. At that point, however, the alleged buffer area will cease to
be "riparian" and therefore the Buffer Rules no longer apply. That is, once the stream has been
re-routed, there will be no surface water to which the alleged buffer area is directly adjacent.
Petitioner does not contest that the alleged buffer area may have been riparian. buffer regulated
under the terms of 15A NCAC 2B .0233 prior to the re-routing of the stream. However, once the
stream is legally removed, there is no longer a surface water present and therefore no riparian
buffer. The alleged riparian buffer would be adjacent to the filled former footprint of the stream,
or the pipe. At most, Petitioner would be responsible for any temporal impacts to the alleged
buffer area during the removal of the stream.
It is important to note, also, that Petitioner does not contest the mitigation required with
respect to the removal of the uses of stream. Rather, Petitioner accepts and will provide
appropriate mitigation for 2.1 acres of wetlands and 2126 linear feet of perennial streams as
provided in the 401 Certification. Requirements to mitigate for the removal of a stream
simultaneously with requirements to mitigate for loss of stream buffer constitutes an abuse of
discretion and arbitrary and capricious imposition of mitigation requirements since the riparian
buffer ceases to exist upon the relocation of the stream to a pipe. The current requirement to
mitigation for removing a stream and for riparian buffer impacts is nonsensical, especially in
light of the purpose of the Buffer Rules.
The stated purpose of riparian buffer protection has to do with preserving and
maintaining the nutrient removal function of the buffer. Once the streams at issue have been
removed, there is no longer any stream to which nutrients would be conveyed through and over
88
the alleged buffer area. Surface water will no longer enter the stream across the alleged buffer
area because the stream will no longer be adjacent, in any real sense, to the buffer because it is
either no longer there, or it is contained in an impermeable pipe. Thus, it makes no sense to
protect the alleged buffer. Because there will be no riparian buffer at the time of the impacts to
the alleged riparian buffer area, there should be no mitigation requirements for those impacts as
the Buffer Rules would not apply.
WHEREFORE, Petitioner respectfully requests that the Administrative Law Judge
determine the following:
a. that Respondent may not lawfully compel Petitioner to provide mitigation for loss
of riparian area, since the area ceases to be riparian to any body of water as part of the permitted
project;
.b. that Respondent waived the 401 Water Quality Certification requirement
according to the terms of its own rules; and grant summary judgment on these issues in this
contested case in favor of the Petitioner.
u
,
,
This the 2 Say of November, 2003.
HUNTON & WILLIAMS LLP
C Charles V Case
. State Bar No. 7652
Craig A. Bromby
State Bar No. 6526
Julie B. Beddingfield
State Bar No. 29102
Post Office Box 109
Raleigh, North Carolina 27602
Telephone: [phone]
ATTORNEYS FOR PETITIONER
89
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing PETITIONER'S BRIEF
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT has been duly served upon
all parties of record by hand delivery to the following:
Ms. Mary Penny Thompson, Esq.
Assistant Attorney General
N.C. Department of Justice
Environmental Protection Division
P. O. Box 629
Raleigh, NC 27602
This the ?.,q6 day of November, 2003.
90
STATE OF NORTH CAROLINA INI THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648
Raleigh-Durham Airport Authority
Petitioner, )
RESPONDENT'S RESPONSE
V. ) IN OPPOSITION TO PETITI%NTER'S
MOTION FOR SUMMARY
N.C. Dept. of Environment and ) JUDGMENT =
C-1
Natural Resources. Division of
Water Quality. ) c
Respondent. )
NOW COMES the Respondent, pursuant to N.C. R. Civ. P. 56, N.C. Gen. SN. § 1 -;OB-
36(d) and N.C. Admin. Code tit. 26, r. 3.0115. and responds to Petitioner's motion for summan•
judgment and requests that Petitioner's motion be denied or that summary judgmcm be granted
in favor of Respondent on the issues raised in Petitioner's motion, specifically (1) whether a
riparian area exists in the project area; and (2) whether Respondent waived the 401 ZVater
Quality Certification requirement. In support of its response. Respondent offers the following
uncontested facts and attached exhibits:
Existence of Riparian Areas:
The Neuse River Basin Riparian Buffer Rule protects and preserves existing riparian
buffers in the Neuse River Basin to maintain their nutrient removal functions. N.C.
Admin. Code tit. 15A, r. 2B.0233(1)
2. The existing riparian buffers for this project exist along the bodies of water currently on
Petitioners property which are unnamed tributaries of Brier and Sycamore Creek. Block
91

I 3 of Petitioner's 404 application attached as Exhibit C to Petitioner's Motion for
Summary Judgment.
3. Petitioner desires to impact 1.8 acres of wetlands, 1,353 linear feet of stream and 114,283
square feet of buffers by making improvements to the north end and the south end of one
of its runways. Table 1 and Block 22 Attachment of Petitioner's 404 application attached
as Exhibit C to Petitioner's Motion.for Summary Judgment..
4. Because of its smaller impact, the work on the north end of the runway is allowable
without mitigation as long as there are no practical alternatives and Respondent provides
written authorization. N.C. Admin. Code tit. 15A. r. 2B.0233(6) and (7); as well as notes
on Block. 22 Attachment of Petitioner's 404 application attached as Exhibit C to
Petitioner's Motion for Summary Judgment.
?. The south end of the project is allowable with mitigation as long as there are no practical
alternatives. an appropriate mitigation strategy has been approved, and the Respondent
provides written authorization. N.C. Admin. Code tit. 15A. r..2B.0233(6) and (7).
Timing of Water Quality Certification Issuance:
6. An application for a water quality certification will be granted or denied within sift} davs
unless. among other things. the applicant agrees to a longer period. the applicant fails to
furnish information necessary to the decision, or information necessary to the decision is
unavailable. N.C. Admin. Code tit. 15A, r. 2H.0507(a).
', . Notice of each application must be provided to the public before a. decisio,
can be made
upon a water quality certification. N.C. Admin. Code tit. 15A. r. 2H.0503(a).
92
8. . The public notice requirement maybe satisfied by a joint notice with the U.S. Army
Corps of Engineers ("Corps") . N.C. Admin. Code tit. 15A, r. 2H.0503(c).
9. The Respondent does riot duplicate a Corps' public notice because it is a site-specific
application of guidelines employed by the Corps in evaluating permit applications. N.C.
Admin. Code tit. 15A, r. 2H.0506(i).
10. Respondent received a copy of the Corps' Public Notice on May 31, 200.3. Public Notice
attached hereto and incorporated herein by reference as Respondent's Exhibit A.
11. The water quality certification for Petitioner's project was initially issued on Jule 19.
2002, a date within sixty days of the Corps' public notice. July 19.2002.Water Quality
Certification attached as Exhibit D to Petitioner's Motion for Summarv Judament.
12. In evaluating requests for certification, the Respondent considers, among other thinuns. the
replacement of unavoidable losses of existing uses through mitigation. N.C. Admin.
Code tit. 15A, r. 2H.0506(b) through (h).
13. Respondent received a copy of the Wetlands Restoration Program's ("WRP") letter
outlining acceptable mitigation on June 21. 2002. June 21, 2002 Letter from WRP
attached hereto and incorporated herein by reference as Respondent's Exhibit B.
14. The water quality certification for Petitioner's project %vas initially issued on July 19.
2002, a date within sixty days of the June %1.2002 letter from WRP
15. A certification may be modified upon a determination that the information contained in
the application or supporting it is incorrect or that circumstances have changed. V.C.
Admin. Code tit. 15A, r. 2H.0507(d)(2).

93
t
16. On August 7, 2002. Respondent received a request from Petitioner to change its
certification to allow more time to pay for mitigation. Letter received from Petitioner on
August 7, 2002 attached hereto and incorporated herein by reference as Respondent's
Exhibit C.
17. Respondent reissued its certification, thereby according Petitioner another month from
issuance to make its mitigation payment. August 9. 2002 Certification attached as
Exhibit E to Petitioner's Motion for Summary Judgment.
1.8. On September 5. 2002, a similar request was received by Respondent from Petitioner
further justifying an extension until December 31, 2002 or thirty (30) days after the Final
Agency Decision on the certification, if Petitioner elected to contest its conditions
September 5, 2002 Letter attached hereto and incorporated herein by reference as
Respondent's Exhibit D.
19. Respondent alloyed the request by letter dated September 9, 2002. September Q. 2002
Letter attached hereto and incorporated herein by reference as Respondent's Exhibit E.
WHEREFORE. Respondent respectfully requests that the Administrative Lary Judge
determine the following:
a. Riparian areas exist within the project area, specifically unnamed tributaries to
Brier Creek and Sycamore Creek.
b. Petitioner's project will cause the unavoidable loss of existing uses within such
riparian areas.
C. Petitioner must replace, through mitigation, such unavoidable losses.
94
d. Respondent issued its Water Quality Certification within sixty (60) days of
Petitioner's completed application.
e. Respondent committed no error in reissuing its Water Quality Certification to
accommodate Petitioner's request for an extension of time to. pay mitigation.
Signed on this the 23rd day and filed on the 24th day of November, 2003.
ROY COOPER
ATTORNEY GENERAL
Mary Penny homG;XraI
Assisiaut'Attomey State Bar No. 24567
North Carolina Department of justice.
Environmental Division
Post Off ce Box 629
Raleigh, North Carolina 27602-0629
[phone]
[phone] fax
Attorney for Respondent
95
CERTIFICATE OF SERVICE
This is to certify the foregoing RESPONDENT'S RESPONSE N OPPOSITION TO
PETITIONER'S MOTION FOR SUMMARY JUDGMENT was served on Petitioner's counsel
as follows:
Charles Case, Craig Bromby and Julie Beddingfield
Attorneys at Law
HuN, TON & WILLIAMS
Via Fax and e-mail on November 23.2003
[phone]
[e-mail]
[e-mail]
[e-mail]
Via Hand-Delivery at the Office of Administrative Hearings on November 24, 2003)
Lee House, 422 N. Blount Street
Raleigh, NC 27603
Via U.S. Mail, Postage Prepaid on November 24, 2003
Post Office Box 109
Raleigh, NC 27602
This the 23rd day of November. 2003.
ROY COOPER
ATTORNEY GENERAL
Nlaty Penny hompson
Assistant Attorney General
96
RESP_ONDEN_T....S,.:
%TY ' = -J n -:- _ N • r:;
DEPARrwrNrT OF TIIL :4Rj
Wilmington Diarrict, Corps of EnQinccrs
Post 00-1ce Rl)x 1 RqO
Wilmington, North Carolina 23402-1894
Action 1D No. 200021506 May 7, 2002
PLZ3LIC N017C7.
The Raleigh Durham Airport Authority, Post OITLco Box 80001, KI )U, Airport, \C, 2-623,
has applied for a Department of the Army (DA) permit TO PLACE 1-MJ- NvITHIN 1.8 ACRES
OF WETL4NDS AND 1,353 LINEAR FEET OF UNNAMM TRMTM1 FS TO 13R1ER
CREEK A"TD SYCAMORE C:REF?K, TK TT4R N N LJSi-: R.1 VEX 13AS1N, ASSOCIATED WITH
CONS7RUCTTON OT,RL1NYv AY SAFETY. AFLEAS ON THE NORTHERN AND
SOUTHERN ENDS OF AN L-XISTING RUNT, rAY, AND THE CONSTItuCTION OP
ACCESS RC)ADS AROUND TRF ?ROPOS.ED S1V>=:I'Y A.REAS, AT THE RALEIGH
DURTIAM ATRPORT, IN WAKE COUNTY, NORTH CAROLIRA.
The fallowing description of the work is tttl;en from data provided by :11c appiiCaj:( anal
from observations made during a site visit by a ceprcccntativL: c)f lhu C urps of EnjOneers. Plates
submitted with the application slow the proposed construction of runway szsbty areas at the
nc)rt'herrt and suutheni terminus ofmnwa5. 5R-2zL at Raleig:r Durham Ai:-port. Construction of
the southcrn runway safety area will result in the;)laccrncnl. r. '36U 48f) thousand cubic }yards of
fit materiall that will extend approximately 1,000 From the -end of the c. staig paced ninivav at a
gr:ttual 2-3% slope. The end and sides of the fill. will he graded to a 4:1 slope. Upon
completion, the surface and sides of the fill will he stalsili.cd ;tnd mauntainmi in grass. A 12.000-
foot pavcd scrvicc road is proposed to be con tructcd a!ona the cdgc of the filled area to prove is
access LL) the saf ty area from the terminal and airport grounds cast of the runway. The southe:ri
phase of chc work will result in fill material being p lacLCl mint 0.5 :acre oFemergwit wetland and
0.3 ac ..of fores(cd wetland, as well as 1,248 linear feet of stream, of which 773 linear feet is
perennial or e:cl5i:biis imporrant aquatic function.
The northcnn nm-way safety area will require tine piacement of 100 - 200 rlrausand ?:c1hie
yawls fir fi 11 mulerial aid will be graded and ntainta.ined, in t 1; Salnc manner as the southern (ill,
Approxim:tcly 2,0(}t) feet of an existing radar sew ucccss rural located at the northern temtinus othe nmwac will be rcloca:ted to the edge of the new runway safety area and will pmvide access It';
huth the safety arm a ml the radar site. Impacts associated with the northern phase or the work
include the p€ac=mt of fill into 1.0 acre of ernergem wetland anti 105 linear feet of stream
channel, none of which is pcrcnniat or exhibits important aquatic function.
97.
31, . _3tC??il n_c?;a?u ich;U aer. is..ocrst The appii=it proposes to mitietrte for thtte
impacrS by providing payment Lnt i ?rtli C;art?lina 'ctlcm(jy Restunrtion Program for the
restora.6k)n ur2.126 linear feet of stream channel and 3.6 actvs of wetland. This would lxovidc
for reslixatinn A a 2 to I rttio for impacts to forested wetlands and stream channels that are
perennial or exhibit important aquatic function, and ru,,toretion ut a 2 to 1 ratio for impacts to
emergent wetlands and the remaining strtarns. The purpose of the N ork is to provide runway
s,iicty areas at the northern and southern ends of runway SR-23L Ilntt meet current Federal
A iatiun Administntian design standards (rL•yuiring safety areas to extract at least 1.000 fcc[
Ixyond tic end of the paved runes,-air surface), prv,?idu a safer runway environment. and ensuri;
crncrguncy equipment access the safety areas. Plans showing the work are included with this
public; Dunce.
The State of North Carolina will revicw. this public notice to determine the need for the
applicant to obtain any required State aLahorizutiOn. No Department ut the .4rmy° {DA) permit
will he issued until the coordinated State vie .,point on the piopossl has been recervAd: and
revicxALd by this agency, nor wiIl a I?A permit be issued until the Nord: Carolina Division of
Water Quality (NCDWQ) has determined the applicability ora 'WW.:r Quality Certificate as
rcduircd by Pi. 92-500.
This application is being considered pumusint to Section 404 -iF Lht:-C:le;ttn Water Act (33
U.S.C:. 1344). Any Dcrsott may request, in R7iting within the comment pcikid specified it the
notice, that a public hc:trinr be- held lcs consider this application. Requests for public h.aring
shall state, with particularity, the reasons for holding a public i?zaring.
The District Engrineer lras consulted the la1c 1. published version of the National Rcaistcr o:
Historic Places for the presence or absence of regist-t-md properties, or properties listed as Mein,
eligible for inclusion therein. Based on the best available evidence, it has buun determined that
no sites within the vicinity of the project are registered or lilted as, being eligible rUr infusion in
the Regisler. Examination of the National Rcgistcz of c Listcric Places constitutes tine cite it of
cultural r.-source investigations by. the DiNIrict Fnuineer, and' he is otherwise unaware cif the
presence oCother such resources. Presently, unlotown archeological, scientific, prchistrricaJ or
historical .iala Tnay be lost or destroyed by wL,k under the r%;quesred per-mit,
1-L--- Mstriet Eligineer, based on available information, is not avate that the propo.,td
activiry will affect ,pecies, or their critical habitat, designated as cnd2trigered or tiu•catened
pursuant to the Endanger d Species Act of 1973.
The deci`ittn Whether to issue a permit will be based oa an evaluation or the probable
impacts, including cumuLxtive itnpactt, of tile proposed activity and its intended use on the
Public interesL Evaluation of the probable irnpa+:ts that thz proposed activity may have on the
pubi *-C i purest requires a careful weighing of all those factors, which become relevarlt in ; =bL
Particular case. The benefits, which reasonably may be expected to accrue fsotn the proposal.
most be balanced auainst its reasonably foreseeable detrimCntS. flit: dccision whether 10
authoTirc a. proposal, and if su the ecmclitions under which it gill be sUow-ed to oceur, arc

70

therefore detmniined b3• the outec me of the general halancinv process. That decision should
rrtlect the national concern for both protection and utilivalion ufimportant resources. All faet;;rs
that tnay be relevant to the proposal must, be considered including the cumul Live elects thercoi.
Among those arc conStn-Winn. ecanurrtics, aesthetics, ge'nund cnvironmenral concerns,
wel Itmds, cultural values, fish and wildlife values, flood Ime ards and flood plain values (in
accordance with F.xectutive Order 11988), land use, navigatiun, shore ernsion and -.=rtion,
recreation, «<rterr supply and conservation, vatcr quality, energy nerds, safety; food wid fiber
production, mineral nctids, considerations of propem- owncrship, aril, in general, the needs and
we] fare of the people. For activities involving the placement of dredged or fill materials iu
waters of the United States, it pemrit will be denied if the discharge that would be nuthuriz:ed by
such permit would-not comply with the Environmental Protection Agency`,- 404(b)(1)
guidelines. Subject to the preceding sentence and arty other.1pplivable guidelines or zriteria, a
permit will be granted unless the District Engineer determines that it would be caatrary ca the
public interest
I'he Corps of Rngineers is soliciting wrrirttents from the public; FederaL Strc and local
agcacies and officials; Indian Tribes and nthet interested parties jr, order to consider and valuate
the impacts of this proposed activity. Any etanntenls received. ill be considered hV thL Corms r,t
Fn8mQLm to determine whcthur to issue, modify, condition oc dcoy a prt7nit far this pmts ? t,
To make this decision, cernntents are used to acscss axtpacts or. endsngcrcd species, :iistcr:ic
properties, matcrquality, gencrnl environmental cur=ls and the other public Interest tact,-)-s'_iste:i
above. Comments are used in the preparation of an F.mironmental As'cxsmenl (!?A) and/or are
Environmental 1mp=t Statement (.I$) pursuant to the Natioasl Environmental Poiicy Act
(NF.PA). Continents = also used to determine the need for a public: heurizz and to di,cc.:.1ine
the overall public interest of the proposed activity.
Generally, the decision w•hcthcr to issue this Departtntmt of the Army (DA) permit
modification Will nut be made until the North Carolina Division of 'rate: Owdity (,vC:l) % Q'
issues. denies, or waives State fiuutiun required by Section 4011 of the Clean Water.lkct. 1
NCl)WQ considers whether or not the proposed activity will comply -with Sections 301, 302,
306, and 307 of tlic Clean IVater Ace, Toe application and this public notice For the Depanmcnt
.of the Army (D^"/, pemit serve;" application to the NCDWQ :or certification.
Additional ini6miatton regarding tic Clean Water Act c,.;-.:zication may he revitnved. w i-c
offices of the Wretlands,1401 Unit. North C:arulina DENR, Division of Water Quality, 2321
C'rahtrce: Boulevard, Raleigh, North Carulim. Copies otrsuch materials will he futnrsrmi to any
person rcquesting.copies upon payment of reproduction costs.
All persons desiring it', nuke commenv? rugtirding the appii--gtion for Clean Watct Act
certification should do so in voting delivered to thu orth Carolina Division of Water Quality
(1JC:DWQ), A'cdands:401 TJnit, 1650 ]plait Scn?icc Contcr, Raleigh, North Carolina. '_7f,9o_
1650, on or before May 30, 2002, Attention- Mr. John Dome:

Writt,n comments pe: finent to the p
544 1, excension 26. reposed work. as outlined aiinvc, will 'ae received
this oflicc, Attention: Mr. Todd Ttt?wcll, until 4:1; p.m.; TLrc ii, 2002, or telephone (919)S-76.

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5 0Faa #.106

o I-Mv
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
02 EHR 1648
n.y+'] IfLY .? I' J
Authoriy, )
Raleigh-Durham Airport
Petitioner,
vs. )
L: I
?^
JOINT STIPULATION
DISMISSING INDIVIDUAL
North Carolina Department of Environment) RESPONDENTS ROSS AND
and Natural Resources, et al., ) KLEVIEK, WITHDRAWING
MOTION, AND MOVING TO
Respondent. ) FILE PREHEARING STATEMENT
COMES NOW Petitioner the Raleigh-Durham Airport Authority (the "Authority") and
Respondent Department of Environment and Natural Resources ("DENR"), including its
Division of Water Quality ("DWQ") and their employees and agents, and files this Joint
Stipulation, Dismissal and Motion. This is filed to resolve issues raised in DWQ's Motion to
Dismiss from this matter DENR. Secretary William R. Ross ("Ross") and DWQ Director Alan
Klimek (`.`Klimek') and also for a more definite statement, which was filed in this matter on or .
about November 12, 2002 (the "Motion").
In the Motion, DENR has indicated that neither Ross nor Klimek should or need be
included as respondents in the matter. The Authority had originally included both Ross and
Klimek as respondents in the matter, in order to ensure that the Authority had included the,
proper "agency" within the meaning of the Administrative Procedure Act ("APA"). Section
150B-2(1 a) defines an "agency" to include "an officer in the executive branch." The action
taken here was by Klimek, acting for DWQ. However, after discussion between counsel for the
parties, DENR agrees that, by dismissing Ross and Klimek, both DENR and DWQ will remain
in the matter as "agencies" within the meaning of the APA, and that, after the dismissal of Ross
107
A

A
and Klimek, DENR and DWQ do not contend that there is any absence of a proper "agency in
the matter. Thus, there is no need to keep Ross or Klimek in the matter, and the Authority
wishes hereby to dismiss them from the case.
DWQ has received and reviewed the Prehearing Statement filed by the Authority. In
light of that Statement and this Joint Stipulation, DWQ no longer believes it needs a more
definite statement of the substance of the appeal. As a result, DWQ is willing to withdraw its
Motion for such a statement.
DWQ filed its Motion in lieu of a prehearing statement. Given the resolution of the
matters raised in the Motion, as described above, DWQ is now able and ready to file its
Prehearing Statement. To that end, DWQ and the Authority jointly move that DWQ have until
November 25, 2002 to file its Prehearing Statement in this matter, and they stipulate that such a
filing would satisfy the requirements of the statutes, rules and order regarding the filing of that
statement.
This Joint Stipulation, Dismissal and Motion are all without prejudice or admission as to
the merits of any claim by the Authority or any defense by DENR or DWQ, and are without
prejudice to the Authority's right to call Klimek as a witness.
WHEREFORE, for the foregoing reasons, the Authority and DWQ jointly stipulate and
move that:
(1) both Ross and Klimek be dismissed as parties and Respondents from this matter
and that the case be recaptioned appropriately;
(2) DWQ is allowed to and hereby does withdraw its Motion; and
(3) DWQ be granted until November 25, 2002, to file its Prehearing Statement in this
matter.
108
A
Respectfully submitted this the Z/ day of November, 2002.
HUNTON & WILLIAMS
Ch es D. Case
Craig A. Bromby
Julie B. Beddingfield
HUN'TON & WILLIAMS
Post Office Box 109
Raleigh, North Carolina 276Q2
[phone]
ATTORNEYS FOR PETITIONER
RALEIGH-DURHAM AIRPORT AUTHORITY
DEPARTMENT OF JUSTICE
Jill . Hickey e?
Assistant Attorney General
N. C. Department of Justice
Environmental Division
P.O. Box 629
Raleigh, NC 27602-0629
[phone]
ATTORNEYS FOR RESPONDENTS
DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, DIVISION OF
WATER QUALITY, WILLIAM ROSS AND
ALAN KLEAEK
49
109
J?
copy,
STATE OF NORTH CAROLINA IN' THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE Z5'7 3 9 02 EHR 1648
RALEIGH-DURHAM AIRPORT. ^
AUTHORITY, ) =
Petitioner, )
V. ) RESPONDENTS'
MOTION FOR MORE
DEPARTMENT OF ) DEFINITE STATEMENT
ENVIRONMENT AND NATURAL ) and
RESOURCES, DIVISION OF WATER ) MOTION TO DISMISS
QUALITY, WILLIAM ROSS, ) DENR SECRETARY ROSS and
SECRETARY, in his official capacity; and ) DWQ DIRECTOR ALAN KLIMEK
ALAN KLMEK, DIRECTOR of the ) .
DIVISION OF WATER QUALITY, in his )
official capacity, )
Respondents. )
NOW COME Respondents, North Carolina Department of Environment and Natural
Resources, Division of Water Quality (DWQ), William Ross, Secretary, in his official capacity,
and Alan Klimek, Director of DWQ in his official capacity, by and through its counsel, Roy
Cooper, Attorney General, and Jill B. Hickey, Assistant Attorney General, and move the
presiding Administrative Law Judge pursuant to N.C.G.S. §160B-136(c)(1), and Rules 12(b)(1)
and (6) and (12)(e) of the North Carolina. Rules of Civil Procedure for an Order of Dismissal of
Secretary William Ross and DWQ Director Alan Klimek, in their official capacities, and for an
Order requiring Petitioner to file a more definite statement of its grievance with the State agency,
DWQ.
In support of this Motion, the Respondent shows the following:
1. This matter involves the issuance of a 401 water quality certification by DWQ to
Petitioner Raleigh-Durham Airport Authority ("RDU"). The 401 water quality certification
110
authorizes the discharge of fill material in 1.8 acres of wetlands and 1-353 linear feet of streams in
the Neuse River Basin and impacts to 114, 283 square feet of Neuse buffers. The 401
certification was signed by Cyndi Karoly for Alan W. Klimek, P.E., who is the Director of the
Division of Water Quality. The 401 certification contains 10 conditions; it is attached as Exhibit
A to this Motion.
2 In its Petition, Petitioner does not state what aspects of this 401 certification it
seeks to challenge in this contested case proceeding. Respondent, therefore, is unable to prepare
a Prehearing Statement as directed by the Administrative Law Judge. Respondent cannot
determine what the issues are for hearing or communicate its position on the issues. For this
reason, the Administrative Law Judge should issue an Order that (1) requires Petitioner to
submit a revised Petition that adequately informs Respondent of the nature of the challenge to
the 401 certification or (2) allows Respondent to file its Prehearing Statement after receiving the
Prehearing Statement of Petitioner which identifies the issues for hearing.
3. In its Petition, Petitioner names as Respondent two individuals: 'vv i1_liam Ross,
Secretary of DENR, acting. in his official capacity, and Alan Klimek, Director of the Division of
Water Quality, acting in his official capacity.
4. The North Carolina Administrative Procedure Act "establishes a uniform system.
of... adjudicatory procedures for asencies." N.C. Gen. Stat. §150B-1(a)(emphasis added).
Individual State employees or Cabinet Secretaries are not subject to the jurisdiction of the
contested case hearing procedure of the North Carolina Administrative Procedure Act. The
jurisdiction of OAH over contested cases is derived from Article 3 of the North Carolina
Administrative Procedure Act. Pursuant to N.C.Gen. Stat. § 150B-23, "A petition, shall state
111
R
facts tending to. establish that the aaencv has deprived the petitioner of property, has ordered the
petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner's
rights ..." (Emphasis added) Pursuant to N.C.Gen. Stat. § 150B-22, "It is the policy of the State
that any dispute between an agency and another person ... (emphasis added). As both N.C. Gen.
Stat. § 150B-22 and N.C. Gen. Stat. § 15OB-23 make plain, the OAH has jurisdiction over
disputes between persons and State agencies. Nothing in the NCAPA confers jurisdiction upon
OAH over individuals acting in their official capacities.
4. Under N.C.G.S. IA-1, Rule 12(h)(3), when a court lacks jurisdiction of the
subject matter, the court shall dismiss the case. (emphasis added)
5. As a second grounds for the dismissal of Secretary Ross, the Petition fails to
state a claim for which relief may be granted as to Secretary Ross. Pursuant to N.C. Gen. Stat. §
143B-282(a)(1)(u) and N.C. Gen. Stat. § 143-215.3(c), the Environmental Management
Commission (EMC) is authorized to issue 401 water quality certifications for the State of North
Carolina. The EMC has delegated that authority to the Director of the Division of Water Quality.
Secretary Ross has no authority to issue a 401 water quality certification; did not issue the 401.
water quality certification at issue in this contested case; has taken no action in his official
capacity with respect to the 401 water quality certification; and should be dismissed from this
proceeding for failure to state a claim upon which relief may be granted.
WHEREFORE, Respondent requests that the Administrative Law Judge enter an Order
dismissing Secretary Ross and Division of DWQ Director Alan Klimek as Respondents in this
matter pursuant to Rules 12(b)(1) and (6). Respondent further requests that the Administrative
Law Judge issue an Order that (1) requires Petitioner to submit a revised Petition which
112
adequately informs Respondent of the nature of the challenge to the 401 certification or (2)
allows Respondent to file its Prehearing Statement after receiving the Prehearing Statement of
Petitioner that identifies the issues for hearinc.
Respondent respectfully requests oral argument on this motion, and further requests that
the hearing be transcribed by a hearing assistant.
This the day of November, 2002.
ROY COOPER
Attorney General
ill B. H' key
Assistant Attorney Gen, I
N.C. Dept. of Justice
Post Office Box 629
Raleigh, N.C. 27602-0629
Phone: [phone]
Fax: [phone]
N.C. State Bar No. 13903
CERTIFICATE OF SERVICE
I certify that the foregoing MOTION FOR A MORE DEFINITE STATEMENT AND
MOTION TO DISMISS SECRETARY ROSS AND DIVISION DIRECTOR KLDvIEK has been
served on counsel below by depositing a copy of the same in an official depository of the U.S.
Postal Service in a postage-prepaid first-class envelope addressed as follows:
Charles Case
Hunton & Williams
PO Box 109
Raleigh, NC 27602
This the 4_?- day of November, 2002.
113
rUt7'-y • d{72 09:38 FRCM
LWQ-r+ETLrtiCS 919' t3ac93
O? W A rF9
f-
0 ~
T
T0:.3'55823
Fl•?•S
uiu^,ael F. Easley, Governc
? Ddf„`,1?rtt W":ym G . RY
Cart;lina Dg etar
OI CnVffCnfn?t Jr., $?Cr
?e
nt and;atual Rescurce
Alan W. K1i`M-k- P. Cirectc
DiviSicn Of Water Qualrc
Mr. John Brantley
Airport Director
Raleigh Durham Airport Authority
P.O. Box 800,01
ROU Airport. North Carolina, 27623
Dear Mr. Brantley:
August 9, 2002 RECEIVED
AUG 12 2002
R-k LEIGH REOGL k?0RY c f_ :"_-D oc'
C?
Re: Raleigh Durham Airport, Runway SR-23L Safety Area and Access Roads, Wake
DWQ Project No. 02-0662: DOA Action ID No. 200021506 County, North Carolina
Attached hereto is a copy Of Certification No. 3386 issued to Mr. John Brantley, dated August 9, 2002. This
is also valid for the Meuse River Buffer Rules (15A NGAC 26 .0233). This Certification replaces the one i
July 19, 2002. approve!
ssued to you on
If we can be of further assistance, do not hesitate to contact us.
Sincerely,
r ?j
Alan W. Klimek, P.E,
AW K/cbk
Attachments
020662mod
114
cc: U.S. Army Corps of Engineers,
Raleigh
DWQ. Raleigh Regional Office
File Copy Steve a gMecheatory Field Office
Central Files
Beth Reed, Kimsey Home, P.O. Box 33068, Raleigh, NO, 27636-3068
=. C. On,igbm of water Qualify 1617 Malt Service Cemter
Rater9n. NC 2764o_,c,-. ,.._-- --
scar r rc to

NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION. is issued in conformity with the requirements of Section 401 Public Laws 92-500 and 95
of the United States and subject to the North Carolina Division of Water Quality (DWQ) Regulations in 15 NCAC 2H,
Section .0500 to the Mr. John Brantley, resulting in the discharge of fill into 1.8 acre of jurisdictional wetlands and 1,353
linear feet of unnamed intermittent and perennial tributaries to Brier Creek and Sycamore Creek and to impact 114,233
square feet of Neuse Buffers associated Witt' the construction of runway safety areas on the norhern and southern ends
of an existing runway (Runway 5R-23L), and the construction of access roads around the proposed safety areas at the
Raleigh Durham Airport in Wake County, North Carolina, pursuant to an application filed on 7th day of May of 2002. This
approval is also valid for the Neuse River Buffer Rules (1 SA NCAC 213 .0233).
The application provides adequate assurance that the proposed work will not result in a violation of aoplicable 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 ccnducted in accordance with th
application and conditions hereinafter set forth.
This approval is only valid for-the purpose and design that you submitted in your application and as described in the
Public Notice, if you change your'
property is sold Project, you must notify us and send us a new application for a new certification. If the
, the new owner must be given a copy of the Certification and approvel letter and is thereby responsible for
complying with all conditions. Should wetland or stream fill be requested in the future, additional compensatory mitigation
may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to be valid, you must follow
conditions listed below. In addition, you should get any other federal, state or local permits the
before you go ahead with your
project including (but not limited to) Solid Waste, Sediment and Erosion control, Coastal Storm, water, Non-discharge and
Water Supply Watershed regulations.
Conditions of Certification:
1. Appropriate sediment and erosion control practices which equal or exceed those outlined in the most receit
version of the "North Carolina Sediment and Erosion Control Planning and Design Manual" or the "Nosh Carolina
Surface Mining Manual" whichever is more appropriate (available from the Division of Land Resources (DLR
the DENR Regional or Central offices) shall be in full compliance with alts , icadons governing the proper) n
design, installatlon and operation and maintenance of such Best Management Practices in order to assure
compliance with the appropriate turbidity water quality standard;
2. We understand that you have chosen to contribute to the Wetland Restoration Program in order to compensate for
the impacts to wetlands and streams. In accordance with 15A NCAC 2R .0402 and 15A NCAC 2B .0242;7), this
contribution will satisfy our compensatory mitigation requirements under 15A NCAC 211-1 .0506(h) and 15A NCAC
26 .0233(10), Until the Wetland Restoration Program receives and clears your check (made payable to: DENR -
Wetlands Restoration Program), wetland and stream impacts (including fill) shall not occur. Mr. Ron Ferrell should
be contacted at [phone] if you have any questions concerning the
one month from the date of this Certification to make this pa Wetland Restoration Program. You have
authorizes the fill of 1.8 acre of riparian we!landu wid 1,353 linear feeooas?sms i purpose
n setRi er8-a n'
Cataloging Unit 03020201, and 2.1 acres of wetland mitigation and 2.126 linear feet of stream mitigation is
required. Please be aware that the Wetland Restoration Frc•nram (VVRP) rules require rounding of wetland
impacts to the nearest quarter acre and stream impacts to the nearest linear foot (15A NCAC 2R .0503(b));"
3. That the activity be conducted in such manner as to prevent significant increase in turbidity outside the area of
construction or construction related discharge (50 NTU's in streams and rivers not designated as trout waters, y
DWQ; 25 NTU's in all saltwater classes, and all takes and reservoirs; 10 NTU's in trout waters);
4. All sadiment and erosion control measures placed in wetlands and waters shall be removed and the original rade
restored within two months after the Division of Land Resources has released the project; g
5. Measures shall be taken to prevent live or fresh concrete from coming into contact with :eaters of the state until
the concrete has hardened;
6. Storrmrrater from the runway safety areas and access roads s be 115
surface waters. Stormwater may be discharged into wet andsnonl the sae aged so as not to directly discharge into
diffuse flow at non-erosive velocities; as long as discharge is directed to
' ?"' i 33ocS
0
70:960765223
. .
7. An additional condition is that stormwater shall be directed to diffuse flow at non erosive velocities through the
protected stream buffers. Additional written approval from DW Q is needed for this purpose. impacts to the strear
and buffer may not occur until this written approval is received;
8. Waste or borrow sites shall not be located in streams or wetlands;
9. All temaorary fill shall be removed to the original grade after construction is complete and the site shall be
stabilized to prevent erosion;
10. The enclosed 'Certification of Completion Form" is to be used to notify DWO when all work included in the 401
Certification has been completed.
Violations of any condition herein set forth shall result in revocation of this Certification and may result in criminal
and/or civil penalties. This Certification shall expire on expiration of the 404 Permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon written request within
sixty (60) days following receipt of This Certification. This request must be in the form of a written petition conforming to
Chapter 1608 of the North Carolina General Statutes and filed with the Office of Administrative Hearings, 6714 Mall
Service Center, Raleigh, N.C. 27699-6714, it modifications are made to an original Certification, you have the right to an
adjucitcatory hearing on the modifications upon written request within sixty (60) days following receipt of the Certification.
Unless such demands are made, this Certification shall be final and binding.
This the 9" day of August 2002
DIVISION OF WATER QUALITY
(51, Alan W. Klimek, P.E..
W QC At 3386
AWK/ebk
116
t• I
?wix-WET?ar:CS ?i?73?o?9?
70:S67ES2c_
NORTH CAROLINA-DiVISON-OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
SUM&TARY OF PERMITTED PACTS AND MITIGATION REQUIREMENTS
P • c..
In accordance with 15A NCAC 2 H .0500, Mr. John Brantley, Airport Director of the Raleigh Durhan Airpo„
Authority has 'permission as outlined below to fill 1.3 acres of wetlands and 1,353 linear feet of streams and to impact
114.283 square feet of Meuse Buffers in order to construct a view runway sat'
Durhann Airport in Wake County, North Carolina. All activities associated.with these authorized iroads must be Leigh
conducted with the conditions listed in the d mpacts muss be A i ACHMENTS. attached certification. THIS CERTIFICATION IS NOT VALID WITHOUT THE
COMPENSATORY MITIGATION REQUIREMENT
WETLAND RESTORATION PROGRAM
LOCATION:
COUNTY:
BASIN/SUBBASIN
Impacts:
1.8 acres of riparian wetlands
1,353.11near feet of intermittent and perennial streams
114.283 square feet of Neuse Buffers
Raleigh Durham Airpor, Runway SR-23L
Wake
Neuse (03-02-02-01)
As required by 15A NCAC 2H .0506, and the conditions of this certification. You are required to compensate for
the above impacts through the restoration, creation, enhancement or preservation of wetlands as outlined below prior to
conducting any activities that impact or .degrade the waters of the state.
Mfttgation:
2.1 acres of riparian wetlands
2,126 linear feet of perennial streams
Suffers - for South End only
Zone 1 - 59,471 square feet x 3 = 178.413 square feet
Zone 2 - 48,395 square feet x 1.5 = 72,592.5 square feet
Total- 251,005.5 square feet
Note: Linear foot requirements proposed to be mitigated through the Weiland Re
.0503(b). storation Program must be rounded
to the nearest foot and acreage requirements must be rounded to one-quarter acre increments according to 15 2r
One of the options you have available to satisfy the compensatory mitigation requirements is though the payment
of a fee to the Wetlands Restoration Fund per NCAC 2R .0503. If you choose this option, please sign this form and mail it
to the Wetlands Restoration Fund at the address listed below. An invoice for the appropriate amount.of payment will be
sent to you upon receipt of this form. PLEASE NOTE, THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU
RECEIVE NOTIFICATION THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION
PROGRAM.
Signature
Date
117
WETLANDS RESTORATION PROGRA;V1
DiVISON OF WATER QUALITY
.1819 Mail Service Center
RALEIGH, N.C. 27669-15tg
[phone]
Mate of H00h Carolina
Do artme nt of Environment
ang Nagel asourcos
Raleigh Regional Office
Mlehm al F. Enslay, Govemor
William 0, (2011) Rona, aaereftry
titan W. Klimek, P.E., Dirsdor
MWSION OF WATER QUALTI'Y
September 16, 20.02
CEL12= NAM
12M IN 1MCFJPT gym".
Ms. Miriam Crilldnen
Ral04i Durham Airport Authority
Poet Office Box 90001
RDU Airport, N.C. 27623
Subject: Notiee orviolndatt
Reaommaidatlon Vor Enforcement
NSRRO 01.098
Maigh Durham Inttsma&nal Airport
w3wDur mm county
Dear Ms. Chllcins=
This Office is in mccipi of your' rcepawc to the Notioe Of Violation transmitted to the Raleigh Durham
Airport Authority. The zesponsa basically decried my violation of the Rules and contendrrrl that the Airport
Authority waa not subject. This Office is of the opinion flat Or site- emaks in vicloofn orThe Nurse River
Baaw: Nutrient Sensitive Waiera Manttptment Sf ftgy; Protection and Maintenance of E><isting Ripat-lats
Areas, Administrative Code T13A;.02B.0233 (NCAC 4233) od is considering eending a recommendation
for enf=Mcnt to the D=Ctor.
On February 23,200 1, Division of Water Quality (DWQ) staff ft= the Raleigh Regional and the Central
Ot'FICes eondttcted a site vfnit and deaormined that the buffer along. an wmnnad tributary to Crabtree Creek,
e tributary to the Meuse River, hart been ranaved and the dreinege &atuma had hmn placed inw ao mte
swalm. Thcoo acttcw brave result cd in a direct discharge of untreated storammer imto the t wgmed i imi*ry
which vw6hw the Nurse Suffer Rules.
Tice Neese Buffet ttules sates thatocmcetarated rmoff from new maw conveyimeo shall be conve tcd
to diffuses flow before the runoff Enters Zone 2 of the riparian buffer and allows corrective action to restore
diffuse flow. The Rules state that the 50 foot wide riparian buffer adjacent to waters of dw State shall be
prntected and the maintenance of these arses should be ouch that, to the maximum Went possibly, sheet flow
ofsurbee water to achieved.
Any sctivity that would result in water quality standard violations or that disrupt the 9ttuctural or functional
int iy of the r4mikian area is prohibited. Sectien -0233(5) stairs in the Table of Uses states that grading
and revegetating is allowed in Zone 2 only provided that diffuse now and the health of existing Vegetation
i M Molt 8arvies cinta?, Rowan, NC ZTM-1026
An Egttal opp0Runfly Affi mative Acttan lImployer
Talephern (sto) 571.4te0 FAX (e'1s)aT14ttltl
118 80% roqrof &10% poat-conmumer doper
Riot 11C A16:9.q.[ M A77111tl 17!01 NAMt?n an_•uun
Ems. W nakm w, mix MAr&w%A6 M@tftquwcg=
pago'lWO
PJAI NOWN01;
September 16.2002
in Zane 1 is not compromised and disnsrbrd cream Are stabilized. This activity is allowable if permitted by
the ]Division of Water Quality, but no tmpmT itt d land disturbing activities arc allelwcd in 'Lone I.
Your respamse indicates that: 1) thr.ac features write SrAwline d e;lz=ale until October of 7000 whm a RDU
contractor installed the concret: swaled and filled, ragm&d. and reseeded the area; 2) the total itttpaet was
approximately 7,500 2"m feet that bad been severely chmnet t4' and 3) the installation of the swales was
ah exempt activity bemuse the purpose was to atkdmfze sediment, nutrients and other pollution thatvm
boialt8 conveyed by the roadside drainage. No approval has been located for the* activities.
In your lettsr of -3bnwy 21, 2001 parbdiiing to other issues at RDU, you state that the Authority instilled
the concrete xaules to mitigate art a otieii probl= and m so doing, did not Allow for diffusion of stem wata
and flow across at least 50 fe-st ofripwian btfft prior to My into the sttcam. This Office now requesphat
dispc[ec f6 w of sm=water be accomplished or some other form of mitigation provided for the impac:L T6
concrete swale© can be removad, diffuser flow attained, and the riparian buffer reestabliahtd
You are requested to respond to this Notice Of Violadonvithin 10 days of its receipt . Your respmw be directed to me at 1628 Mail Service Center, Ialeillk North Csralina, 27599-1628. Thank you for
attention to this matter. If you nave any questions, please otmtaot Mr. Steve >TItchell or me at the Ire
Regiemal Office, telephone number [phone].
Siacarely,
X'--.4Z
Kanne:th Schuster, P.E.
Water Quality Regional 5upemsor
cc: RROiCO Enforcement
John Dontey
nbrict. forfnbrbu£02/N01
RDUNOV.098&
119
on MaGON 02.91 (NON) 20 ,90- 'Nvr
;1 'd 8 I t ? 1-1.3 6110:931
CERTIFICATE OF SERVICE
This is to certify that 1 have this day served a copy of the foregoing MOTION TO DISMISS
AND MOTION FOR AN ENLARGEMENT OF TIME TO NILE PREHhARING STATEMENT
on the Attorney for Petitioner by depositing a copy in the United States Mail, first class, postage
prepaid, addressed as follows:
Charles D. Case
Craig A. Bromby
Hunton & Williams
P.O. Box 109
Raleigh, NC 27602
This the 8' day of January 2003.
ROY COOPER
Attorney General
B%
Mary Penn hompson
Assist• ttorney General
120
121 SECTION III
FILED
OFFICE OF
ADMINISTRATIVE HEARINGS
Nov 06 1 52 PM 2003
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648
Raleigh-Durham Airport Authority )
Petitioner )
VS. )
Department of Environment and ) NOTICE OF HEARING ON
Natural Resources and its Division of ) MOTION
Water Quality; William Ross, Secretary, )
in his official capacity; and Alan Klimek, )
Director. of the Division in his official )
capacity )
Respondent )
NOTICE IS HEREBY GIVEN that the above-captioned case is scheduled for hearing
on the Motion for Summary Judgment. The date, time, -and location are as follows:
DATE: November 24, 2003
TIME: 9:00 a.m.
PLACE: Office of Administrative Hearings
Lee House
422 N. Blount Street
Raleigh, North Carolina
This the 6th day of November, 2003.
Becher R. Gray
Administrative Law Judge
122
A copy of the foregoing was mailed to:
Charles D. Case
Craig Bromby
Hunton & Williams
Attorneys at Law
PO Box 109
Raleigh, NC 27602
ATTORNEY FOR PETITIONER
Mary Penny Thompson
Assistant Attorney General
NC Department of Justice
PO Box 629
Raleigh, NC 27602-0629
ATTORNEY FOR RESPONDENT
This the 6th day of November, 2003.
*00fflofministrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
[phone]
Fax: [phone]
123
FILED
OFFICE OF
ADMINISTRATIVE HEARINGS
Apr 28 1 21 PM 2003
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648
Raleigh-Durham Airport Authority
Petitioner
vs.
Department of Environment and ) NOTICE OF HEARING
Natural Resources and its Division of ) G.9.15OB-23(b)
Water Quality; William Ross, Secretary, )
in his official capacity; and Alan Klimek, )
Director of the Division in his official )
capacity )
Respondent )
NOTICE IS HEREBY GIVEN that the above-captioned case will be brought on for
hearing before the undersigned administrative law judge on May 12, 2003, at 9:00 a.m. in the
Lee House, Hearing Room 420 N. Blount Street, Raleigh, North Carolina.
1. This hearing will be conducted in accordance with G.S. Chapter 150B and the Rules of
Contested Case Hearings in the Office of Administrative Hearings, copies of which
may be obtained at cost from Molly Masich, Director of APA Services or bv_ accessing
the OAH Web page at http://www.oah.state.nc.us/hearings/#Chapter3.
Unless otherwise determined by the administrative law judge. the hearing will proceed
in the following sequence:
a. Call of the case
b. Motions and other preliminary matters
c. Stipulations, agreements, or consent orders entered into the record
d. Opening statements
e. Presentation of evidence.- cross-examination
f. Final arguments
All parties are hereby notified to bring to the hearing all documents, records, and
witnesses needed to present the party's case.
NOTE: IF SPECIAL EQUIPMENT IS REQUIRED FOR THE PRESENTATION
OF EVIDENCE. THE PARTIES ARE RESPONSIBLE FOR 1v1AKING
ARRANGEMENTS FOR THE EQUIPMENT.
4. Subpoenas may be available to the parties pursuant to 26 NCAC 3 .0113 to compel the
attendance of witnesses or for the production of documents.
124
A party may represent himself or be represented by an attomey. A party who is
represented by an attorney must file a Notice of Representation within 10 days of
service of this Notice containing the name, address, and telephone number of the
attorney, unless the attorney has already corresponded with this Office concerning
this case.
TAKE NOTICE THAT A FAILURE TO APPEAR AT THE HEARING MAY RESULT IN:
A finding that the allegations of or the issues set out in this Notice may be taken as
true or deemed proved without further evidence;
2. Dismissal of the case or allowance of the motion or petition;
3. Suppression of a claim or defense; or
4. Exclusion of evidence.
NOTICE OF CANCELLATION OF HEARING
THE PARTIES MUST NOTIFY THE OFFICE OF ADMINISTRATIVE HEARINGS
AT LEAST 24 HOURS PRIOR TO THE CANCELLATION OF THE CONTESTED CASE
HEARING. FAILURE TO GIVE TIMELY NOTICE OF CANCELLATION MAY RESULT
IN A CHARGE TO THE PARTIES FOR THE COST OF THE COURT REPORTER OR
HEARING ASSISTANT. SEE 26 NCAC 3.0123)(f).
This the 28th day of April. 2003:
eecher R. Gray
Administrative Law Judge
125
A copy of the foregoing was mailed to:
Charles D. Case
Hunton & Williams
Attorneys at Law
PO Box 109
Raleigh, NC 27602
ATTORNEY FOR PETITIONER
Secretary William G. Ross, Jr.
N. C. Department of Environment and
Natural Resources
Attn: Dan Oakley
1601 Mail Service Center
Raleigh, NC 27699-1601
RESPONDENT
This the 28th day of April, 2003.
Offl of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
[phone]
Fax: [phone]
126
FILED
OFFICE OF
ADMINISTRATIVE HEARINGS
Apr 21 8 28 AM 2003
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1648 ? S2_09
Raleigh-Durham Airport Authority )
Petitioner )
vs.
Department of Environment and ) NOTICE OF HEARING
Natural Resources and its Division of ) G.S. 15011-23(b)
Water Quality; William Ross, Secretary, )
in his official capacity; and Alan Klimek, )
Director of the Division in his official )
capacity )
Respondent )
NOTICE IS HEREBY GIVEN that the above-captioned case will be brought on for
hearing before the undersigned administrative law judge on May 12, 2003, at 9:00 a.m. in the
Lee House, Hearing Room, 422 N. Blount St., Raleigh, North Carolina.
This hearing will be conducted in accordance with G.S. Chapter 150B and the Rules of
Contested Case Hearings in the Office of Administrative Hearings, copies of which
may be obtained at cost from Molly Masich, Director of APA Services or by accessing
the OAH Web page at http://www.oah.state.nc.us/hearings/#Chapter3.
2. Unless otherwise determined by the administrative law judge, the hearing will proceed
in the following sequence:
a. Call of the case
b. Motions and other preliminary matters
c. Stipulations, agreements, or consent orders entered into the record
d. Opening statements
e. Presentation of evidence; cross-examination
f. Final arguments
All parties are hereby notified to bring to the hearing all documents, records, and
witnesses needed to present the party's case.
NOTE: IF SPECIAL EQUIPMENT IS REQUIRED FOR THE PRESENTATION
OF EVIDENCE, THE PARTIES ARE RESPONSIBLE FOR MAKING
ARRANGEMENTS FOR THE EQUIPMENT.
4. Subpoenas may be available to the parties pursuant to 26 NCAC 3 .0113 to compel the
attendance of witnesses or for the production of documents.
127

A copy of the foregoing was mailed to:
Charles D. Case
Hunton & Williams
Attorneys at Law
PO Box 109
Raleigh, NC 27602
ATTORNEY FOR PETITIONER
Secretary William G. Ross, Jr.
N. C. Department of Environrnent and
Natural Resources
Attn: Dan Oakley
1601 Mail Service Center
Raleigh, NC 27699-1601
RESPONDENT
This the 21 st day of April, 2003.
Qk?-
Oof Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6711
[phone]
Fax: [phone]
128
5. A party may represent himself or be represented by an attomey. A parry who is
represented by an attorney must. file a Notice of Representation within 10 days of
service of this Notice containing the name, address, and telephone number of the
attorney, unless the attorney has already corresponded with this Office concerning
this case.
TAKE NOTICE THAT A FAILURE TO APPEAR AT THE HEARING MAY RESULT IN:
A finding that the allegations of or the issues set out in this Notice may be taken as
true or deemed proved without further evidence;
2. Dismissal of the case or allowance of the motion or petition;
3: Suppression of a claim or defense; or
4. Exclusion of evidence.
NOTICE OF CANCELLATION OF HEARING
THE PARTIES MUST NOTIFY THE OFFICE OF ADMINISTRATIVE HEARINGS
AT LEAST 24 HOURS PRIOR TO THE CANCELLATION OF THE CONTESTED CASE
HEARING. FAILURE TO GIVE TIMELY NOTICE OF CANCELLATION MAY RESULT
IN A CHARGE TO THE PARTIES FOR THE COST OF THE COURT REPORTER OR
HEARING ASSISTANT. SEE 26 NCAC 3.0123)(f).
This the 21st day of April, 2003.
t2eecher R. Gray
Administrative Law Judge
129
First-Class s Feels Paid
postage
UNITED STATES POSTAL SERVICE l1SPS
Permit No. G-10
e tint your name, address, and Z1P+4 in this box '
• Sender. Pleas P
NO CCa?olina
Ce of AdMnistra? ?eann9c
14 Mali SeOm
??aleigh, NC 27699-6714
1r;irtrit?it,Irl,ri,lrttl?rrlr,rlrrr{6r1rr4?rirrl,i?r,rr1S{
¦ Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
¦ Print your name and address on the reverse
so that we can return the card to you.
¦ Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
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CRe- N1Z I?
2. A.
PS F
A. Received by/? al A,io B. Date of Delivery
GV?\ ili` Cam,
C. Signat
X c -T% 17 Agent
r %1 ? Addressee
ss different brtN iem 1? ? Yes
D. Is de . ery aUdre
If YE enter delivery address below: J O No
?x69g
3. Service Type
C1 Certified Mail 0 Express Mail
? Registered 17 Retum Receipt for Merchandise
O Insured Mail ID C.O.D.
4. Restricted Delivery? (E)tra Fee) 0 Yes
D121
102595.00•M-0952
130
UNITED STATES POSTAL SERVICE
• Sender: Please print your name, address, and ZIP+4 in this box •
date of North Carolina trati
C#?ice Of Adminisve Hearing
_ 114 Mail Service Center
o ?`Raleiah, NC 27699-6714
¦ Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
¦ Print your name and address on the reverse
so that we can return the card to you.
¦ Attach this card to the back of the mailpiece,
or on the front 'rf space permits.
1. Article Addressed to:
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A. Received (Please Print Clearly) I B. Date of Delivery
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? Addre
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if YES, enter delivery ad8ress'`bet0w:
3, Service Type
0 CertHied Mail 0 Express Mail
C) Registered 0 Return Receipt for Merchandise
0 Insured Mail 0 C.O.D.
C r' 4. Restricted Delivery? (Extra Fee) 0 Yes
C L 1? t' ? Y ? M?
2. Article Number (Copy from service label) 70112 3150 .0005 2089 013 8
102595.00•M-0952
Domestic Return Receipt
P5 Form 3811, July 1999 131
First-Class Mail
Postage ? Fees Paid
LISPS
Permit No. G-10

00
PV.
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE FILED 02 EHR 1648
Raleigh-Durham Airport Authority, )
Petitioner, ) 1003 OCT I U P 2= 30
V. ) OFFICE OF
A D M I114 I S N FOR SUMMARY
N.C. Dept. of Environment and HEAR GMENT HEARING
Natural Resources, Division of )
Water Quality, )
Respondent. )
Petitioner, Raleigh-Durham Airport Authority, pursuant to Rule .0115 of the Rules of the
Office of Administrative Hearings, Hearings Division, hereby moves this court for a hearing on
Petitioner's Motion for Summary Judgment filed with this Court on May 2, 2003.
Petitioner has consulted with counsel for Respondent and determined that both parties
would be available for hearing any day the week of November 3, 2003, except for Tuesday,
November 4. Petitioner understands that the Administrative Law Judge will be sitting in
Charlotte, North Carolina the week of November 3, 2003. Petitioner is available to travel to
Charlotte for the hearing, and understands Respondent also consents to holding the hearing on
the Motion in Charlotte.
WHEREFORE, Petitioner respectfully requests this Court issue an order scheduling a
hearing in Charlotte, North Carolina, on Petitioner's Motion for Summary Judgment, on
November 3, 5, 6, or 7, 2003, according to the convenience of the Administrative Law Judge.
ILI
This the day of October, 2003.
HUNTON & WILLIAMS
By: _
Charles . Case
State Bar No. 7652
Craig A. Bromby
State Bar No. 6526
Julie B. Beddingfield
State Bar No. 29102
Post Office Box 109
Raleigh, North Carolina 27602
Telephone: [phone]
ATTORNEYS FOR PETITIONER
132
CERTIFICATE OF SERVICE
This is to certify the foregoing MOTION FOR SUMMARY JUDGMENT HEARING
was served on the attorneys of record for the Respondent by. placing in the custody of the United
States Postal Service, first class postage prepaid, and addressed as follows:
Ms. Mary Penny Thompson, Esq.
Assistant Attorney General
N.C. Department of Justice
Environmental Protection Division
P. 0. Box 629
Raleigh, NC 27602
This the / day of October, 2003.

133

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
AMiMSTRATIVE HEARINGS
02 EHR 1648
Raleigh-Durham Airport Authority, )
)
Petitioner,
VS. )
North Carolina Department of Environment )
and Natural Resources and its Division of )
Water Quality, )
Respondents.
JOINT MOTION TO CONTINUE THE
HEARING AND AMEND THE
SCHEDULING ORDER

COMES NOW Petitioner, Raleigh-Durham Airport Authority (the "Authority") ands
Respondent, Department of Environment and Natural Resources, including its Division of Water
Quality and their employees and agents, and jointly move pursuant to Rules .0118 and .0115 of
the Rules of the Office of Administrative Hearings, to amend the Scheduling Order dated
October 10, 2002 (the Order), in the above-captioned case. - In support of this motion, parties
state the following:
1. Counsel of record for Respondent has been promoted and reassigned with the
offices of the Department of Justice, which necessitates that new counsel be assigned and
substituted for current counsel of record. Substituted counsel will require a reasonable amount
of time to review the file, prepare discovery and prepare for a hearing; and
2. The primary witness for Petitioner is pregnant, which is due in February. She is
no longer an employee of the Authority, but is continuing to provide assistance on a contract
consulting basis. She has moved with her husband to Cincinnati, Ohio, and is constrained in her
ability to travel immediately prior to her delivery, as well as her ability to leave her child after
the delivery.
3. The parties believe that the following amended schedule will not unduly prejudice
Petitioners' rights to have this matter decided in a timely fashion:
134
A. Discovery shall be completed on or before April 4, 2003.
B. The hearing in this contested case will be scheduled no later than May 5,
2003, or such later date as the Administrative Law Judge presiding.may set, in Raleigh or such
location as is convenient to the Administrative Law Judge presiding.
THEREFORE, the Parties request that the contested case be continued in accordance
with a new schedule consistent with the schedule proposed in paragraph 4 above.
Respectfully submitted this the 23 dday of December, 2002.
DEPARTMENT OF JUSTICE
;'?6( ?? ???
Jill '13. Hickey
Assistant Attorney General
N. C. Department of Justice
Environmental Division
P.O. Box 629
Raleigh, NC 27602-0629
[phone]
ATTORNEYS FOR RESPONDENT
DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, DIVISION OF
WATER QUALITY
HUNTON & WILLIAMS

Chess D. Case _
Craig A. Bromby
Julie B. Beddingfield
HUNTON & WILLIAMS
Post Office Box 109
Raleigh, North Carolina 27602
[phone]
ATTORNEYS FOR PETITIONER.
RALEIGH-DURHAM AIRPORT AUTHORITY
135
STATE OF NORTH CAROLINA IN THE OFFICE OF
AD UsTISTRATIVE HEARINGS
L 02 EHR 1648
COUNTY OF WAKE
Raleigh-Durham Airport Authority,
Petitioner, )
ORDER
vs. )
North Carolina Department of Environment )
and Natural Resources and its Division of )
Water Quality, ) COPY
Respondents. )
Upon consideration of a joint motion filed December 23, 2002, for good cause shown in
accordance with Rule .0118 of the Rules of the Office of Administrative Hearings, it is hereby
Ordered as follows:
The October 10; 2003 Scheduling Order is amended as follows:
1. Discovery shall be completed on or before April 4, 2003;
2. The hearing in this contested case will be scheduled no later than May 5,
2003, in Raleigh, North Carolina. A notice of hearing will be sent to the parties prior to this
date.
This the J I day of 1 l' ?A , 200 . .
Beecher`R. Gray
Administrative Law Judge
136
CERTIFICATE OF SERVICE
This is to certify that I caused a copy of the foregoing ORDER to be served on the
following individuals by depositing a copy of the same in the United States mail, first class,
postage prepaid and addressed as follows:
Jill B. Hickey Esq. .
Assistant Attorney General
N. C. Department of Justice
Environmental Division
P.O. Box 629
Raleigh, NC 27602-0629
Charles D. Case
Craig A. Bromby
Hunton & Williams
P.O. Box 109
:Raleigh, NC 27602
This the-? I- day of L?? Qju-g- , 200 .

49638.000031 RALEIGH 196907v2 137
138 SECTION IV

-
HLTNTON
- copy?,
.
,.?._
HL'NTON & WILLIAMS LLP
WEEAMS POST OFFICE BOX 109
RALEIGH. NORTH CAROLINA 29602
TEL [phone]
FAX [phone]
CRAIG A. BROMBY
DIRECT DIAL: 919-899-3032
EMAIL: [e-mail]
December 8, 2003 FILE NO: 48638.000031
By Hand
The Honorable Beecher R. Gray
Administrative Law Judge
ti
Office of Administrative Hearings
Capehart-Crocker House - ; .
r, 7
424 N. Blount Street
Raleigh, NC 27601-2817 '
Re: Raleigh-Durham Airport Authority v. DENR
02 EHR 1648
Dear Judge Gray:
I enclose for your consideration an Order granting summary judgment in the above-referenced
matter. I have attached to the Order, for inclusion in the record of this proceeding, documents
provided to the Petitioner by the Respondent in response to discovery requests served on April
17, 2003. These documents are submitted because they are pertinent to matters discussed or
asserted during the hearing on the Motion for Summary Judgment, or were referred to during
the hearing. Given the fact that Respondent's Response to the Motion for Summary Judgment
was not received by Petitioner until the morning of the hearing, Petitioner did not otherwise
have an opportunity to submit these documents.
In addition to the documents provided herewith, Petitioner respectfully asserts that the record
for this matter consists of the pleadings and documents attached to those pleadings. The
undisputed facts in this case have been set forth in the pleadings and the attached documents,
however, I note for the record, and also so noted at the argument on the Motion for.Summary
Judgment, that the assertion by Respondent in their Response in Opposition to Petitioner's
Motion for Summary Judgment that the public notice issued by the Corps of Engineers for the
subject project was received on May 31, 2003, is not an undisputed fact. There was no
affidavit submitted in support of this assertion, the document attached to Respondent'.s
response does not state that the public notice was received on May 31, 2003, and one of the
documents attached hereto is a checklist provided by the Respondent in response to a Request
for Production of Documents which appears to indicate a receipt, date of May 3, 2003.

^139.:
H?UNTON
WILLAMS
The Hon. Beecher R. Gray
December 8, 2003
Page 2
A copy of the Order has been provided to Respondent for their review.
Please feel free to contact me if you have any questions.
Sincerely yours,
Craig A. Bromby
CAB:kmj
cc: Mary Penny Thompson, Esq.
Michael Fischer
140
Individual Permit QA/QC data collection sheet
Project Name U fri-ril Project # God- County I
1. Original Application (format for data: month/day/year)
Date of Public Notice tYla--
Date Put on Hold ('tf any) ffi-"
L
Date Info Received ('rf any) 7; ;L R ;L
Date Put on Hold again (if any)
Date Info Received again (if any)
Date Put on Hold again (if any)
Date Info Received Again (If any)
Date. 401 Issued -JIL 19 ;5
IL First Modification
Date modification request received + r7
ova
Date Put on Hold (If any)
Date Info Received (if any)
Date Put on Hold again (if any)
Date Info Received again (if any)
Date Put on Hold again (if any)
Date Info Received again (if any)
Date modified 401 Issued 'l` Da
111. Second Modification
Date modification request received S ,
Date Put on Hold (ff any)
Date Info Received (if any)
Date Put on Hold again (If any)
Date Info Received again (if any)
Date Put on Hold again (if any)
Date Info Received again (if any) _
Date modified 401 Issued ?--
IV. Third Modification it
Date modification reque eceived 1Ir-
Date Put on Hold (if t
Date Info Recer i any)
Date Put on Ho again (if any)
Date Info Re ived again (if any)
Date Put on Hold again (if any)
Date Info Received again (if any)
Date modified 401 issued
V. Fourth .Modification
Date modification request re ved
Date Put on Hold (if any) _
Date Info Received (if y)
100
Date Put on I
4d a n (if any)
Date Info Receiv again (if any)
Date Put on Ho again (H any)
Date Info Recf ived again (if any)
Date modified 401 Issued

141

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402.1890
W REPLY REF-=R To
May 2, 2002
Regulatory Branch (1145b)
L i
Action ID No. 200021506
Ms. Cyndi Karoly
North Carolina Department of Environment
and Natural Resources
Division of Water Quality
W etland/401 Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Ms. Karoly:
I?
IL
Enclosed is the application submitted by Raleigh Durham Airport Authority, for
Department of the Army authorization and a State Water Quality Certification to authorize the
proposed placement of fill into 1.8 acres of wetlands and 1,353 linear feet of unnamed tributaries
to Brier Creek and Sycamore Creek, in the Neuse River Basin, associated with construction of
runway safety areas on the north and south ends of runway 5R-23L, and the construction of
access roads around the proposed safety areas, at the Raleigh Durham Airport, in Wake County,
North Carolina.
We are considering authorizing the proposed activity pursuant to Section 404 of the Clean
Water Act, and we have determined that a water quality certification is required under the
provisions of Section 401 of the same law. A Department of the Army permit will not be granted
until the certification has been obtained or waived.
In accordance with our administrative regulations, in most cases, 60 days after receipt of a
request for certification is a reasonaoie time for State action. Therefore, if you have not acted on
the request; or asked for an extension of time, by July 1, 2002, the District Engineer will deem
that N giver has occurred.
142
Should you have any questions or comments regarding this matter, please don't hesitate to
contact meat (919) 876-844.1, extension 26.
Sincerely,
Todd I Tugwell
Regulatory Specialist,
Raleigh Field Office
Enclosure
Copy Furnished (%ithout enclosure):
Mr. Doug Huggett
Division of Coastal Management
1638 Mail Service Center
Raleigh, North Carolina 27699-1638
143
(3? CFR 325) I Expires October 1996
!
olic reporting burden for this collection of information a estimated to average 5 hours per response. including the time for reviewing instructions. searching
.isting data source& gathering and maintaining the data needed. and completing and reviewing the collection of information. Send comments regarding this burder.
timate or any other aspect of this collection of information. including suggestions for reducing this burden, to Department of Defense. Washington Headquarters
'-vice Directorate of information Operations and Reports. 1215 Jefferson Davis Highway. Suite 1204. Arlington, VA :22024302. and to the Office of Management
J Budget. Paperwork Reduction Project (0710-0003} Washington. DC 20503. Please DO NOT RETURN your form to either of those addresses. Completed
tnlieations must he submitted to the District Engineer having iurisdiction over the location of the proposed activity.
PRr'ACY ACT STATEMENT
ithority: 33 USC 401. Section 10: 1413. Section 404. Principal Purpose: These laws require permits authorizing activities in, or affecting,
ivigable waters of the United States, the discharge of dredged or fill material into waters of the united States, and the transportation of dredged materiel for the
irpose of dumping it into ocean waters Routine Uses: Information provided on this form will be used in evaluating the application for a permit. Disclosure:
sciosure of requested information is voluntary. If information is not provided, however, the permit application cannot be processed nor can a permit be issued.
ne set of original drawings or good reproducible copies which show the location and character of the proposed activity must be attached to this application (see
mple drawings and instructions) and be submitted to the District Engineer having jurisdiction over the location of the proposed activity. An application that is not
mpleted in full will be returned.
tT NIS 1 THRU 4 TO BE FILLED BY THE CORPS)
APPLICATION NO. FIELD OFFICE CODE a. D 'ED ) 2,T10N COMPLETED
300031606 CESAW-RG-R kPn? - -
APPLICANT'S NAME
:ieigh Durham Airport Authority
8. ALTHORIZED AGENT'S NAME AND TITLE Ian agent ne not teaaued)
Fimley-Horn and Associates, Inc.
APPLICANT'S ADDRESS
m: John Brantley. Aitaor. Director
.ieigh Durham Atrpor. Authonty
D. Box 8000 i
fit: Airport. NC: _76=:
9. AGENT'S ADDRESS
Atth: Beth Reed. Associate
P.O. Box 33068
Raleigh. NC 7636-3065
! 10. AGEN-r,s PHONE NOS. NN/AREA CODE
a. Residence it. Residence
b. Business [phone] ! b. Business (9'.9) 677-2000
STATEMENT OF AUTHORIZATION
eretn• authorize. Mmie-Horn and Associates. Inc . to act in my behalf as my agent in the processing of this application and to
-nish. upon request supplemental information in support of this permit application.
?IL M, 2m'Z
APPLICA\'T' GN TURE DATE
NAME. LOCATION AND DESCRIPTION OF PROJECT OR ACTIVITY
PROJECT NAME OR TITLE (see instructions)
eio.. Durham International Airport Rtmway SR-23L Safety Area Extension
NAME OF NVATERBODY. IF KNOWN (if applicable) j 14. PROJECT STREET ADDRESS (if applicable)
-tamed t; ibumncs o. Bnc: and Svcamar Creeks ? N/A
LOCATION OF PROJECT
=e j North Carolina
OTHER LOCATION DESCRIPTIONS. IF KNOWN (sEr Nsravcnons)
proposed proiec: areas are_ located at the ends of Runway 5R-23L at the Raleigh-Durham International Airport. Approximate site latitude and
.tulle are -'• 8` 16' 46.9. ". 'f05:'44.58" at the North end and '80G',' S i .'S . 35'51'5:.09" at the South end.
DIRECTIONS TO THE SITE
site is located a: the Raietgh-Durham International Airpor. From westbound Interstate-40, exit 285 (Aviation Parkway) heading north. and proceed through inurrseauon at
:oral Guard Road. and continue for approximately one mile. The south end of Runway SR-23L will be on your right immediately before the Aviation Parkway?erminai
.ievard interchange. See Drawing ; of 6.
FORM 4345. Feb 94 EDITION OF SEP 91 IS OBSOLETE.
144
Block IS Anachmen:.
9. Project Purpose Describe the reason or purpose of the project see instructions)
Block 19 Attachment.
USE BLOCKS 20-22 IF DREDGED AND/OR FILL MATERIAL IS TO BE DISCHARGED
0. Reason(s) for Discharge
Jl discharges to jurisdictional waters shall be earthen fill material associated with the upgrading of the cum-nt runway 5R-23L safety a = to meet FAA standards.
1. Type(s) of Material Being Discharged and the Amount of Each Type in Cubic Yards
.lean structural fill acquired from on-site stockpiles will be utilized for embankment construction. (See sheets 4 of 6 and 6 of 6 for cross sections). The amount of fill
eecssary to fill the waters to the gradc of the adjacent uplands will be minimal. However, following this conversion from waters to uplands, mars significant quantities of fill
m required to bring the fill area to the grade required for the RSA. An estimated 100 -200 thousand cubic yards of fill will be required for the construction at the northern en(
f the runway. An estimated 360-480 thousand cubic yards of fill will be required for construction at the southern =d of the runway. Exact dimensions of and type of fill will
e determined uoon ayoroval of final plans.
2. Surface Amin Acres of Wetlands or Other Waters Filled (see Instructions)
ee Block 22 Attachment.
3. Is Any Portion of the Work Already Complete? Yes No X IF YES, DESCRIBE THE COMPLETED WORK
4. Addresses of Adjoining Property Owners, Lessees, Etc- Whose Property Adjoins the Waterbody (if more than can be entered here, please attach a
. supplemental fist}
Block 24 Atrachmem
5. List of Other Certifications or Approvais/Deniais Received from other Federal, State or Local Agencies for Work Described in This Application.
AGENCY TYPE APPROVAL* IDENTIFICATION NUMBER DATE APPLIED DATE APPROVED DATE DENIED
N/A N/A
. draft Environmental Assessment for the proposed projects was submitted to the State Clearinghouse and Federal Agencies on March 26, 2002 for review
Would incinde but is not restricted to zoning, building and flood plain permits
Application is hereby made for a permit or permits to authorize the work described in this application. I certify that the information in this
application is complete and accurate. I further certify that I possess the authority to undertake the work described herein or am acting as the duly authorized
agent of the applicant
SIGNATURE OF APPLICANT
DATE SIGNATURE OF AGEN-r ATE
The application must be signed by the person who desires to undertake the proposed activity (applicant) or it may be signed by a duly authorized agent if the
Statement in block I i has been filled out and signed.
18 Z.S.C. Section 1001 provides that: Whoever, in any manner within the jurisdiction of any department or agency of the United
•tates
knowingly and willfully falsifies, conceals, or covers up any trick, scheme, or disguises a material fact or makes any false, fictitiou
or fraudulent statements or representations or makes or uses any false writing or document knowing same to contain any false,
fictitious or fraudulent statements or entry shall be fined not more than S10.000 or imprisoned not more than five years or both.
?l:?.ls!'VaYY4-7LVw ?woivio
145
Block 18- Mature of the Activity
A Runway Safety Area (RSA) is a smoothly graded surface area along the sides (laterally) and at
the end of a runway that is suitable for reducing the risk of damage to airplanes and injury to
passengers in the event of an undershoot, overshoot, or excursion from the runway. The safety
area both enhances airport safety and provides greater accessibility for emergency equipment
after an incident. The proposed project has three components: extending RSAs to conform to
Federal Aviation Administration (FAA) criteria, constructing a 12,000-foot service road around
the RSA at the south end of the runway, and relocating a 2,000-foot access road to the FAA radar
site at the north end of the runway. The proposed project includes clearing, earthwork, drainage,
erosion control, asphalt, paving, and modifications to the Instrument Landing Systems for
Runway 5R-23L; these activities would be related to construction of the safety areas and access
roads at the ends of the runway. The proposed safety area improvements will consist of pervious
grassed surfaces for all areas except for the proposed 20-foot wide access roads adjacent to each
end of the runway. Drawing 2 of 6 shows the locations of these proposed improvements. The
following text describes activities at the south and north ends of the runway.
The proposed project would extend the existing safety areas approximately 750 feet from the
existing 250-foot "safety area" at the south end of the runway and approximately 800 feet from
the existing 200-foot "safety area" at the north end of the runway. A service road approximately
12,000 feet in length would be constructed from the Terminal A complex, around the proposed
safety area at the south end of Runway 5R to the east side of the airfield near the Air National
Guard facility. An existing FAA radar site access road, approximately 2,000 feet in length, would
be relocated to the suutir end of the proposed safety area. Although the design minimizes impacts
to wetlands and streams to the extent feasible, discharge of fill material into jurisdictional areas is
a necessary element of this project.
146
Block 19- Proposed Project Purpose
Current FAA policy for RSAs at Federally obligated airports mandates that coincident with new runway
construction or significant runway expansion, RSAs shall conform to the standards contained in FAA
Advisory Circular 150/5300-13, "Airport Design," to the extent practicable. The standards stipulate that
for Design Category D, Group IV airports the safety area must be smoothly graded 1,000 feet beyond the
end of the runway, able to support aircraft that overrun the runway without causing structural damage to
the aircraft or injury to its occupants. In a March 9, 1999 correspondence, the FAA advised the Raleigh
Durham Airport Authority (Authority) that the RSAs for Runway 5R and Runway 23L do not meet
longitudinal FAA airport design standards. Presently the 1,000-foot areas beyond both ends of Runway
SR-23L have severely varying topography, with maximum elevation difference of approximately 65 feet
below the ends of the runway. Therefore, the Authority must have RSAs before the Authority initiates a
program to rehabilitate, overlay; reconstruct, or extend Runway 5R-23L.
Approximately half of the landings and takeoffs at the Airport occur on Runway 5R-23L, so regular,
continuous, and safe operation of this runway is essential to Airport operations. Available runway length
limits the weight (and therefore the size and type of aircraft) that can use a runway, so maintaining the
7,500-foot length for Runway 5R-23L is essential to Airport operations.
In addition to providing the RSAs, the proposed project would connect and improve several existing
former service roads to construct a 12,000-foot service road around the RSA at the south end of the
runway, and would relocate an existing 2,000-foot FAA radar site access road at the north end of the
runway. The design standards recommend that no part of an RSA be more then 100 meters (330 feet)
from an all-weather road or a paved operational surface, so that the entire RSA is accessible by safety and
firefighting equipment. The proposed project would include clearing, earthwork, drainage, erosion
control, paving the service road, and relocations of runway navigation aids. The purpose of the proposed
project is to construct RSAs that meet current applicable FAA design standards, provide a safer runway
environment, and ensure emergency equipment access to the. safety areas in the event of an incident. The
Authority anticipates that phased construction of the proposed project would begin in federal fiscal year
(FFY) 2003-2004 and would end in FFY 2005-2006. The first phase, which would begin in the spring of
2004, would occur at the southern end where the topography is more severe. The second phase, which
would include activities at the northern end, would follow the first phase. Exact dates and construction
phasing are a function of availability of FAA finding for the project and the selected construction
methodology with associated navigational aid relocations.
147
Alternatives Analysis
Any viable option for RSAs that conform to the FAA design standard must maintain the usable runway
length of 7,500 feet, relocate existing navigational aids on both ends of the runway, relocate an existing
2,000-foot access road to the FAA radar site at the north end of the runway, and add a 12,000-foot service
road around the RSA at the south end of the runway. An analysis considered RSA construction and
runway shift options. A runway shift moves usable runway length longitudinally along the existing
runway centerline without adding to, or reducing, the existing usable runway length of 7,500 feet. A
detailed discussion of the alternatives analysis is contained in the EA for this project
Alternative 1: Provide 1,000-foot Runway Safety Areas
Alternative 1 would provide 1,000-foot RSAs on each end of Runway 5R-23L, and would not require a
runway shift. Construction activities would affect airport operation for up to three months, and, based on
June-July 2000 field reconnaissance, would fill the following features.
South Fad North End Total
Wetland (acres) 0:8 1.0 1.8
Stream (linear feet) 1,248 105 1,353
Buffer (square feet) 107,866 6,417 I 114,283
Alternatives 2 and 3: Runway Shift Options
The runway shift options would shift Runway 5R-23L to the north, provide a 1,000-foot RSA at the north
end of the runway, provide a shorter RSA construction area at the south end and relocate the runway
threshold at the south end. This runway shift, in conjunction with the partial RSA and implementation of
a relocated runway threshold, would result in an overall 1,000-foot RSA at the south end.
Although runway shift options would meet FAA RSA design standards, they would not minimize impacts
on regular and continuous operation of Runway 5R-23L. In addition to runway shutdown during
NAVAM relocation and. earthwork, these Alternatives would require additional work that would extend
the duration f construction during which the runway would be out of service. These Alternatives would
require changes to the runway profile to meet FAA criteria for runways serving air carrier trafnC and
modifications and/or additions to associated runway elements, such as relocation of the high-speed
taxiway exit, construction of a connector taxiway, removal and reinstallation of touchdown zone lights,
and installation of runway centerline lights in the runway extension. Construction activities associated
with runway shift options would require a minimum of six months.
148
Runway 'shift options would have varying impacts to streams, wetlands, and buffers. In addition, the
relocated access road at the north end would require realignment through an existing stormwater detention
basin determined by the Corps to be jurisdictional waters of the US. Further, to allow for MALSR
construction and proper clearances for approaches and departures in accordance with FAR Part 77 critical
surfaces off the north end of the runway, this Alternative would require tree removal both from private
property and in Umstead Park. The latter, considered a taking of the park land, would require a Section
303(c) analysis of feasible and prudent alternatives to the proposed taking. Required tree removal and
changes in the approach procedures for aircraft (flying at lower altitudes over the same areas as the
current approach paths) would likely result in increased noise levels to the neighborhoods to the north and
to Umstead Park
Based on the above considerations, Alternative 1 is the proposed project. Table 1 presents the alternatives
and summarizes the potential environmental consequences for each alternative considered.
Avoidance and Minimization
In accordance with Section 404(b)(1) guidelines, the following is a discussion of the sequencing analysis
performed for the proposed project.
Due to the location and orientation of the streams and wetlands adjacent to the north and south ends of
Runway SR-23L, avoidance of these areas is not possible if safety areas are constructed. Although
considered, relocation of the perennial stream at the south end of Runway SR 23L would not be feasible
due to spatial constraints involving possible future airport expansion areas, an existing large diameter gas
line in the vicinity, and a steep topographic gradient. Although design measures reduce impacts on both
ends of the runway, the project footprint necessary to. construct safety areas that conform to FAA
standards and the need to maintain regular and continuous airport operations limit minimization
opportunities.
Minimization efforts focused on the design of safety area fill slopes and access roads that would reduce
impacts. A 4:1 design slope was required to permit the safe operation of mowing equipment necessary for
minimizing visual barriers. Although flatter- slopes would be optimal from an operations standpoint, fill
slopes along the south end of Runway 5R-23L safety area would be steepened to 4:1 in order to minimize
impact to an emergent and forested wetland area located immediately adjacent to the proposed safety area
footprint. On the northern end of Runway 5R-23L, 4:1 fill slopes minimize encroachment into the
intermittent stream located immediately adjacent to the safety area.
149
A.
The access roads were located to minimize impacts. The southern access road adjacent to Runway 5R-
23L was shifted to the north to avoid a wetland area southeast of Terminal Boulevard. The road was
designed to cross the fill at the end of the proposed southern runway.safety area in order to avoid further
riparian wetland and stream impacts. Placing the service road within the proposed fill area would
minimize additional stream and wetland impacts. Similarly, the northern access road corridor was also
designed to cross the fill slope of the proposed safety area minimizing additional impacts to the wetland
and intermittent stream. The remainder of the service road will be constructed along a route connecting
existing access roads with culverts and crossings in place in order to avoid additional impacts.
Mitigation
To satisfy the mitigation requirements for the proposed project, the Authority proposes to purchase
required stream, Neuse buffer, and wetland mitigation credits from the North Carolina Wetland
Restoration Program (WRP). On September 28, 2000, the Authority's agent met with Mr. Ron Ferrell
(WRP representative) to discuss WRP's willingness to accept mitigation for this project. A second
meeting was held on February 2, 2002. Mr. Ferrell indicated that in the absence of acceptable on-site
mitigation opportunities, WRP would be agreeable to accept payment for mitigation. In subsequent
meetings with the US Army Corps of Engineers (Corps), on February 9, 2002, and North Carolina
Department of Water Quality (DWQ) , on February 27, 2002, it was agreed that payment into the WRP
would be acceptable as mitigation for wetland stream, and buffer impacts. The Authority proposes a 1:1
mitigation ratio for emergent wetland and unimportant stream impacts and a 2:1 ratio for forested wetland
and stream impacts. The Authority will submit a formal request to WRP for mitigation credits. The
Authority will forward the Agency's response to the Corps and DWQ upon receipt.
Indirect impacts to stream reaches will be minimized by adherence to applicable federal and state
construction guidelines and proper erosion control techniques. A soil erosion and sedimentation control
plan will be filed with North Carolina Department of Environment and Natural Resources (NCDENR)
prior to construction.
An on-site wetland, stream, and Neuse buffer mitigation search was conducted on Airport property
October 16 - 26, 2000. The search entailed field reconnaissance of all perennial and intermittent streams
located within Airport property indicated on USGS 7.5 minute topographic quadrangle maps or the Wake
150
County Soil Survey. No feasible buffer mitigation sites were found. On-site stream mitigation
opportunities were limited. Two impaired stream segments were found on airport property. Well- y
developed hardwood buffers surround these stream segments. Because of the well developed forested
buffers, the inability of the Authority to place streams or buffers into a permanent conservation easement,.
and possible. future airport expansion plans, on-site stream and buffer restoration efforts were not deemed
practicable for the stream reaches within the Airport property.
No wetland restoration or enhancement opportunities were identified on airport property. FAA guidelines
(FAA AC .150/5200-33) restrict wetland creation opportunities on-site. The guidelines recommend that
airports refrain from the creation of wetlands and other potential wildlife attractants. The FAA defines
wildlife attractants as:
"any human-made structure, land use practice, or human -made or natural geographic
feature, that can attract or sustain hazardous wildlife within the landing or departure
airspace, aircraft movement area, loading ramps, or aircraft parking areas of an airport.
These attractants can include but are not limited to architectural features, landscaping,
waste disposal sites, wastewater treatment facilities, agricultural or aquacultural
activities, surface mining, or wetlands."
The FAA recommends a separation of 5,000 to 10,000 feet between the siting of wildlife attractants and
the airport's aircraft movement areas, landing ramps, and aircraft . parking areas (FAA AC 150/5200-33).
Further, the FAA recommends a distance of 5 statute miles between the siting of wildlife attractants and
the approach or departure airspace. Because of the restrictions to wetland mitigation on airport
properties, the FAA encourages the use of wetland banks as a means to satisfy mitigation requirements:
"Wetland mitigation banks meeting these siting criteria offer an ecologically sound approach to
mitigation."
151
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Blocs: 22- Surface Area in Acres of Wetlands or Other Waters Filled
Drawings 3 of 6 and 5 of 6 illustrate the impacts to wetlands and streams that would result from
the proposed. project. All impacts would be a result of fill necessary to construct the. earthen
safety areas. The following outlines the anticipated impacts:
South End, Runway 5R-23L
Jurisdictional Wetlands and Streams
Important stream 773 linear feet
Unimportant stream 475 linear feet
Emergent wetland 0.5 acre
Forested wetland 03 acre
DWQ Neuse Buffer
Zone T buffer 59,471 feet'
Zone II. buffer 48,395 feet'
North End, Runway SR-23L
Jurisdictional. Wetlands and Streams
Important stream None
Unimportant stream 105 linear feet
Emergent wetland' 1.0 acre
Forested wetland None
DWQ Neuse Buffer*
Zone I buffer 1,586. feet=
Zone H buffer 4,831 feet'
* Based. upon discussion with DWQ staff, because the planned construction at the north end of
Runway 5-R-23L would disturb less than 150 linear feet of stream and less than one third acre of
buffer, no buffer mitigation is required for construction of the north end by DWQ.

153
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Raleigh-Durham
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RDU Authority
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Runway 5R 23L
Safety Area Extension
Project Vanity Map
154

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Date: February, 2002
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RDU Authority
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Project Locations
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Runway 5R-23L
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Runway - 5R Plan View
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160
SECTION Y
161 SECTION VI
K Michael F. Easley, Governor
.1 WA's ' William G. Ross Jr., Secretary
Jx, ?G North Carolina Departmen! of Environment and Natural Resources
Alan W. Klimek, P.E. Director
'?- Division of Water Quality

July 19, 2002
. John Brantley
port Director
Leigh Durham Airport Authority
D. Box 60001
)U Airport, North Carolina, 27623
ar Mr. Brantley:

Raleigh Durham Airport, Runway 5R-23L Safety Area and Access Roads, Wake County, North Carolina
DWO Project No. 02-0662; DOA Action ID No. 200021506
Attached hereto is a copy of Certification No. 3386 issued to Mr. John Brantley, dated July 19, 2002. This.approval is
.o valid for the Neuse River Buffer Rules (15A NCAC 2B .0233).
If we can be of further assistance, do not hesitate to contact us.
Aain i ,
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acr iments
3662
U.S. Army Corps of Engineers, Raleigh Regulatory Field Office
DW O, Raleigh Regional Office - Steve Mitchell
Fiie Copy
Central riles
Beth Reed, Kimley Home, P.C. Box 33D68, Raleigh, NO, 27636-3068
162
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THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public Laws 92-500 and 95-21' in 15
NCAC of. the. United States and subject to the North Carolina Division of Water ; Quality B aDe ?; utsd ctional wetla ds and 1,353
Section .000 to the Mr. John Brantley, resulting in the discharge o impact 11 linear feet of unnamed intermittent and perennial
with the construction Brier Creek.and Sycamore
norther nand southern esnds
runway safety areas on Creek
safety
square, feet of Neese Buffers associated the p
areas Of an existing runway (Runway n), Nand the constrution of access orth Carolinacpu suant to an app( cat on fed onr7 hoday of May of 2002tThis
Raleigh Durham Airport in Wake County, y,
approval is also valid for the Neuse River Buffer Rules (15A NCAC 2B .0233).
Theapplication provides adequate assurance that the proposed work will not result in a violation of applicable Water.
' iolate Quality ty Standards and discharge guidelines. 02 Therefore, 307 of PL 92-500 a Carolina certifies that this
95-217 H conducted inta o dlance with the
the applicable portions of Sections 301, 302,
application and conditions hereinafter set forth. and as the
This approval is only valid for the purpose and design that you submitted in you application
If the
for a new certification.
Public Notice. H you change your project, you mustnotify us and send us a new application ereby
responsi property is sold, the new owner must ld etla d or stream fill be requested in thef utu el, letter addit ona cohmp nsatory mitigation
complying with all conditions. Shouhoe For this approval to be valid, you must follow the
may be required as described in 15A NCAC 2H .0506 (h) (6) and (7):
conditions listed below. In addition, you should get any other federal, state or local permits before you go ahead with your
project including (but not limited to) Solid Waste, Sediment and Erosion control, Coastal Stormwater, Non-discharge and
Water Supply Watershed regulations.
Conditions of Certification:
1. :Appropriate sediment and erosion control practices which equal or exceed those outlined in the most recent
version of the "North Carolina Sediment and Erosion Control Planning and Design Manual" or the "North Carofim.
Surface Mining Manual" whichever is more appropriate (available from the Division of Land Resources (DLR) in
the DENR Regional or Central Offices) shall be in full compliance with all specifications goveming the proper
design, installation and operation and maintenance of such Best Management Practices in order to assure
compliance with the appropriate turbidity water quality standard;
2. We.understand that you have chosen to contribute to the Wetland Restoration Program in order to compensate for
the impacts to wetlands and streams. In accordance with 15A NCAC 2R .0402 and 15A'NCAC 2B.0242(7), this
contribution will satisfy our compensatory mitigation requirements under 15A NCAC 2H .0506(h) and ?o N RC
2B .0233(10). Until the Wetland Restoration Program receives and clears your check (made payable
Wetlands Restoration Program), wetland and stream impacts (including fill) shall not occur. Mr. Ron Ferrell should
be contacted at [phone] If you have any questions concerning the Wetiand Restoration Program. ' You have
one month from the date of this Certification to make this payment. For accounting purposes, this Certification
authorizes the fill of 1.8 acre of riparian wetlands and 1,353 linear feet of streams in the Neese River Basin,
Cataloging Unit 03020201, and 2.6 acre of wetland mitigation and 2,706 linear feet of stream mitigation is
required. Please be aware that the Wetland Restoration Program (WRP) rules require rounding of wetland
impacts to the nearest quarter acre and stream impacts to the nearest-linear foot (15A NCAC 2R :0503(b));"
3. That the activity be conducted in such manner as to prevent significant increase in turbidity outside the area of
construction or construction related discharge (50 NTU s to streams and rivers not designated as trout waters by
DW Q; 25 NTU's in all saltwater classes, and all fakes and reservoirs; 10 NTU's in trout waters);
4. All sediment and. erosion control measures placed in wetlands and waters shall be removed and.the original grade
restored within two months after the Division of Land Resources has. released the project;
5. Measures shall be taken to prevent live or fresh concrete from coming into contact with waters of the state until
the concrete has hardened;
6. Stormwater from the runway safety areas and access roads shall be managed so as not to directly discharge into
surface waters. Stormwater may be discharged into wetlands on the site as long as discharge is directed to
diffuse flow at non-erosive velocities;
163
7. An additional condition is that stormwater shall be directed to diffuse flow at non-erosive velocities throuoh the
protected stream buffers. Additional written approval from DWQ is needed for this purpose. Impacts to the stream
and buffer may not occur until this written approval is received;
8. Waste or borrow sites shall not be located in streams or wetlandsf
9. All temporary fill shall be removed to the original.grade after construction is complete and the site shall be
stabilized to prevent erosion;
10. The enclosed "Certification of Completion Form" is to be used to notify DWQ when all work included in the 401
Certification has been completed.
Violations of any condition herein set forth shall result in revocation of this Certification and may result in criminal
d/or civil penalties. This Certification shall expire on expiration of the 404 Permit.
if this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon written request within
ty (60) days following receipt of this Certification. This request must be in the form of a written petition conforming to
apter 150E of the North Carolina General Statutes and filed with the Office of Administrative Hearings, 6714 Mail
rvice Center, Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the right to an
,udicatory hearing on the modifications upon written request within sixty (60) days following receipt of the Certification.
less such demands are made, this Certification shall be final and binding.
This the 19m day of July 2002
DIVISION OF WATER QUALITY
?l
)C ; 3386
! K/cbk
164
NORTH CAROLINA-DIVISON OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
SUMMARY OF PERMITTED IMPACTS AND MITIGATION REQUIREMENTS
In accordance with 15A NCAC 2 H .0500, Mr. John Brantley, Airport* Director of the Raleigh Durham Airport
Authority hzs:permission as outlined below to fil11.8 acres of wetlands and 1,353 linear feet of streams and to impact
114,283 square feet of Neuse Buffers in order to construct a new runway safety area with access roads at the Raleigh
Durham Airport in Wake County; North Carolina. All activities associated with these authorized impacts must be
conducted with the conditions listed in the attached certification. THIS CERTIFICATION IS NOT VALID WITHOUT THE
AT ACHMENTS.
COMPENSATORY MITIGATION REQUIREMENT
WETLAND RESTORATION PROGRAM
LOCATION:
Raieiah Durham Airport, Runway 5R-23L
COUNTY
BASIN/SUBBASIN
Impacts:
1.8 acres of riparian wetlands
1,353 linear feet of intermittent and perennial streams
114,283 square feet of Neuse Buffers
Wake
Neuse (03-02-02-01)
As required by 15A NCAC 2H .0506, and the conditions of this certification, you are required to compensate for
the above impacts through the restoration, creation, enhancement or preservation of wetlands as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Mitigation:
2.6 acres of riparian wetlands
2;706 linearfeet of perennial streams
Buffers - for South End only
Zone 1 - 59,471 square feet x 3 =178,413 square feet
Zone 2 - 48,395 square feet x 1.5 = 72,592.5 square feet
Total = 251,005.5 square feet
Note: Linear foot requirements proposed to be mitigated through the Wetland Restoration Program must be rounded
to the nearest fool and acreage requirements must be rounded to one-quarter acre increments according to 15 2r
.0503(b).
One of the options you have available to satisfy the compensatory mitigation requirements is through the payment
of a fee to the Wetlands Restoration Fund per NCAC 2R .0503. If you choose this option, please sign this form and mail it
to the Wetlands Restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be
sent to you upon receipt of this form.. PI EASE NOTE, THE ABOVE IMPACTS ARE NOT ALJTHORIZED UNTIL YOU
RECEIVE NOTIFICATION THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION
PROGRAM.
Signature -165 Date
WETLANDS RESTORATION PROGRAM
DIVISON OF WATER QUALITY
1619 Mail Service Center
RALEIGH, N.C. 27669-1619
n.M V Kimsey-Horn
hh.JM and Associates, Inc.
April 25, 2002
EicE ccar
P.O. Box 3M
f=k Ramon. North Caroii 2
02066
27wo-30o-A
Mr. John Domey
Division of Water Quality
North Carolina Department of Environment and Natural Resources
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Re:. Application for Individual Section 401 Water Quality Certification
Runway 5R-23L Safety Area Extension
Raleigh-Durham International Airport
Dear Mr.Dorney:
Following our meetin- on February 27, 2002, enclosed for your review are seven
(7) copies of the Individual permit application for the above referenced project.
An application fee of 5475 is included as part of the application package. Thank
you for your attention to this project Please call me at 677-2073 if you have any
comments or questions regarding this application.
Very roily yours,
KMXY-HORN ANTD ASSOCLATES, INC.
A4?'K?o
Beth A. Reed, PWS
Associate
Cope: Miriam GiIlinson - RDU
Rob Hume - K HA
Harlan Brir - I;AA

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166
APPLICATION FOR DEPARTME%T OF THE AR-Nn' PETC 1IT -? ONIB APPRON AL N0. 071MO' 1
(33 CFR 325) Expires October 1946
: reporting burden for this collection of information g admitted to average 5 hours per response, including the time for reviewing, instructions. searehin-,
Zg data sources. gathering and maintaining the data needed. and completing and reviewinc-the collection of information. Send comment regarding this burden
ate or any other aspect of this collection of information. including su opestions for reducing this burden. to Department ofDefense. Washington Headquarters
ze Directorate of information Operations and Reports, 1215 Jefferson Davis Highway. Suite 1204. Arlington. VA =10:-4302 anc, to_the office of management
.udget. Paperwork Reduction Project (07104003}, Washington. DC 20503. Please DO NOT RETURN your form to either of ihosaddresses. Comp ted
rations must be submitted to the District Engineer hsvin% jurisdiction over the location of the proposed activirv. - - - -
PRIVACY ACT STATEME I l
arias: 33 USC 401. Section 10:141 3. Section 404. Principal Purpose: These laws requir, 074 a?oivities in or affteringw 0
able Willem of the United States the discharge of dredged or fill material into waters of thd?Ltat? a,massportation of dredged materiel for the
)se of dumping it into ocean waters. Routine Uses: Information provided on this form will be used in evaftf 6C a?p`Ilow? fnr a permit Diselosuic:
)sure of requested information is voluntary. If information is not provided. however. the permit application cannot proeessedtmr:af" kip be issued.
Mr. (TY Scrim
et of original drawings or good reproducible copies which show the location and character of the proposed activity must be attached to this application (set
to drawings and instructions) and be submitted to the District Engineer having jurisdiction over the location of the proposed activirt•. An application that is not
ieted in full will be returned
'PLICATION NO. 2. FIELD OFFICE CODE 13. DATE RECEIVED 4. DATE APPLICATION
PLICA-N--rS NAME I L ALTHORIZED AGENT'S NAME AND TITLE 4as a•mt u ¦ut r"a ed)
:h Durham Arrpon Authonn Kimley-Horn and Associates. inc.
PL1C.4NT'S ADDRESS
lnhn Branthv... Airport Director
:h Du, itam A,.-Dor, Authonn
-3o) ,80001
Armor.. NC 276::
Aim: Beth Reed. Associate
..O. Box 3306&
Raleigh. NC 27636-3065
1 0. AGENT'S PHONE NOS. WIAREA CODE
Residence a. Residence
I
f
I
Business of o . > =` .2 0:' l b. Business (91016-7-2000
STATEMEN-F OF At"THORIZATION
:M authorize Kimir\-Horn and kssoci2tes._Inc. to act in my behalf as my agent in the processing of this application and to
,;n. upon request, supplemental information in support of this permit application.
API'LICANT'S G%. TL'RE DATE
NAME. LOCATION AND DESCRIPTION OF PROJECT OR ACTT\'TT1'
PROJECT N 401E OR TITLE isee instructions)
A=Cr. Rtinw5R23L 5aien Area Lx:enslon
ANTE OF tk ATERBODI . IF KNOM7fif applicable) 14. PROJECT STREET ADDRESS (if applicable)
(K ATIO', OF PROJECT
Ncrth (7amier): 167
NT1 STATE
:)THER LOCATION DESCRIPTIONS. IF IC\O",% (sLEL?STRL'c moxr)
ronosce vrn:::: a::as art w:a::d a:tae ends of Runwac SR-_3L a: the Ralcrch•Durham inttartanonal Alroor. Aavroxttnai: site ia-rucc and
tn: South end
DIRECTIONS TO THE SITE
icrc_:: : F.:::.: •:?eci a- in:-aancnz: Alroon =For,. wcsthound irt:^ s at:=0. ext::SS tAt tauor. Penncat ) h=dm= no-: ,and vrocrd throu_: mtc citron a:
^a: :,car[ kc::,_ znc c r.....: toy :. rrnxtata? on: mti: Tn: sdutn end of Runuma SR-:;-! will oc or you- nga:. tmr=G=!ci\. the Avmticr. °ari.•xay T::mma1
FURS) 4?:E. F01 u4 EDITION OF SEP 41 IS OBSOLETE.
?. harure of Activin• (Description of project Iadude all features)
ec Block I S Attachment.
Project Purpose Describe the reason or.purpose of the project, see instructions)
x Block 19 AnachmeaL
USE BLOCKS 20-22 IF DREDGED AND/OR FELL MATERIAL IS TO BE DISCHARGED
9. Reason(s) for Discharge
11 discharges to jurisdictional waters shall be earthen fill tmterial associated with the upgrading of the current runway SR-23L safety areas to rnect FAA standards.
1. Type(s) of Material Being Discharged and the Amount of Each Type in Cubic Yards
jean structural fill acquired from on-site stockpiles will be utilized for embankment construction. (See sheets d of 6 and 6 of 6 for cross sections). The amount of fill
=weary to fill the waters to the grade of the adjacent uplands will be minimal. However, following this conversion from waters to upiands, more significant quantities of fill
-c required to bring the fill arts to the grade required for the RSA. An estimated 100-200 thousand cubic yards of fill will be required for the eonsauction at the northern end
'the runway. An esn=ttd 360-280 thousand cubic yards of fell will i e required for construction at the southern end of thyrunway. Exact dimensions of and type of fill will
- determined uatm aaximval of final plans.
_. Surface Area in Acres of Wetlands or Other Waters Filled (see Instructions)
-e Block __ Attach=='-
is Any Portion of the Work Already Complete' Yes No X IF YES, DESCRIBE THE COMPLETED WORK
Addresses of Adjoining Properry Owners. Lessees. Etc. Whose Property Adjoins the Waterbody (if more than can be entered here, please attach a
supplemental listl.
Block Am--hmcnt
List of Other Certifications or ApprovalsMeniais Received from other Federal, State or Local Agencies for Work Described in This Application.
AGEN*M, T"VPE APPROVAL' IDENTIFICATION NUMBER DATE APPLIED DATE APPRQVED DATE DENIED
'CIA NIA
draft Emiroomental Assessment for the proposed projects was submitted to the State Clearinghouse and Federal Agencies on March 26. 2002 for review
:ouid Include but is not restricted to zoning. building and flood plain permits
_ Application is bereb% made for a permit or permits to authorize the work described in this application. I certify that the information in this
application is compiete and accurate- I further certify that 1 possess the authority to undertake the work described berein or am acting as the duip authorized
went of the applicanL
SIGNATURE OF APPLICA-N'T
DATE SIGNATURE OF AGENT
G;L-
DATE
The application must be signed by the person who desires to undertake the proposed activity. (applicant) or it tray be signed by a duly authorized meat if the
4t2tcment in block 11 has been tilled out and signed.
18 U.S.C. Section 1001 pro-,ides that: Whoever, in any manner within the jurisdiction Qf an}• department or agency of the United
knowingK and willfulh• falsifies, conceals, or covers up any trick. scheme. or disettises a material fact or makes any false, fictitious
or fraudulent statements or representations or makes or uses any false writing or document knowing same to contain an}• false.
fictitious or fraudulent statements or entry. shall be fined not more than S10.000 or imorisoned not more than five nears or both.
,.o
1 L'.S.GPO:2 99.-520-278/82018
Block 18- Nature of the Activity
A Runway Safety Area (RSA) is a smoothly graded surface area along the sides (laterally) and at
ury
the end of a runway that is suitable for reducing the risk of damage to airplanes and inj to
passengers in the event of an undershoot, overshoot, or excursion from the runway. The safety
area both enhances airport safety and provides greater accessibility for emergency equipment
after an incident. The proposed project has three components: extending RSAs to conform to
Federal Aviation Administration (FAA) criteria, constructing a 12,000-foot service road around
the RSA at the south end of the runway, and relocating a 2,000-foot access road to the FAA radar
site at the north end of the runway. The proposed project includes clearing, earthwork, drainage,
erosion control, asphalt, paving, and modifications to the Instrument Landing Systems for
Runway 5R-23L; these activities would be related to construction of the safety areas and access
roads at the ends of the runway. The proposed safety area improvements will consist of pervious
grassed surfaces for all areas except for the proposed 20-foot wide access roads adjacent to each
end of the runway. Drawing 2 of 6 shows the locations of these proposed improvements. The
followin? text describes activities at the south and north ends of the runway.
The proposed project would extend the existing safety areas approximately 750 feet from the
existing 250-foot "safety area" at the south end of the runway and approximately 800 feet from
the existing 200-foot "safety area" at the north end of the nmway. A service road approximately
12.000 feet in length would be constructed from the Terminal A complex, around the proposed
safen- area at the south end of Runway 5R to the east side of the airfield near the Air National
Guard facility. An existing FAA radar site access road, approximately 2,000 feet in length, would
be relocated to the south end of the proposed safety area. Although the design minimizes impacts
to wetlands and streams to the extent feasible, discharge of fill material into jurisdictional areas is
a necessary element of this project.
169

Block 19 Proposed Project Purpose
Current FAA policy for RSAs at Federally obligated airports mandates that coincident with new runway
construction or significant runway expansion, RSAs shall conform to the standards contained in FAA
Advisory Circular 15015300-13, "Airport Design," to the extent practicable. The standards stipulate that
for Design Category D, Group N airports the safety area must be smoothly graded 1,000 feet beyond the
end of the runway, able to support aircraft that ovetztm the runway without causing structural damage to
the aircraft or injury to its occupants. In a March 9, 1999 correspondence, the FAA advised the Raleigh
Durham Airport Authority (Authority) that the RSAs. for Rtmway 5R and Runway 23L do not meet
longitudinal FAA airport design standards. Presently the 1,000-foot areas beyond both ends of Runway
5R-23L have severely varying topography, with maximum elevation difference of approximately 65 feet
below the ends of the runway. Therefore, the Authority must have RSAs before the Authority initiates a
program to rehabilitate, overlay, reconstruct, or extend Runway 5R-23L.
Approximately half of the landings and takeoffs at the Airport occur on Runway 5R-23L, so regular,
continuous, and safe operation of this nmway is essential to Airport operations. Available runway length
limits the weight (and therefore the size and type of aircraft) that can use a runway, so maintaining the
7.500-foot length for Runway SR-23L is essential to Airport operations.
In addition to providing the RSAs, the proposed project would connect and improve several existing
former service roads to construct a 12,000-foot service road around the RSA at the south end of the
rmway, and would relocate an existing 2,000-foot FAA radar site access road at the north end of the
runway. The design standards recommend that no part of an RSA be more then 100 meters (330 feet)
from an all-weather road or a paved operational surface, so that the entire RSA is accessible by safety and
firefighting equipment. The proposed project would include clearing, earthwork, drainage, erosion
control. paving the service road, and relocations of runway navigation aids. The purpose of the proposed
project is to construct RSAs that meet current applicable FAA design standards, provide a safer runway
=v ronment. and ensure emergency equipment access to the safety areas in the event of an incident. The
Authority anticipates that phased construction of the proposed project would begin in federal fiscal year
(MF 2003-2004 and would end in FFY 2005-2006. The first phase, which would begin in the spring of
30N, v.•ould occur at the southern end, where the topography is more severe. The second phase, which
would include activities at the northern end, would follow the first phase. Exact dates and construction
phasing are a function of availability of FAA funding for the project and the selected construction
me.thodolor-,N, with associated navigational aid relocations.
170
Alternatives Analysis,
Any viable option for RSAs that conform to the FAA design standard must maintain the usable runway
length of 7,500 feet, relocate existing navigational aids on both ends of the runway, relocate an existing
2,000-foot access road to the FAA radar site at the north end of the runway, and add a 12,000-foot service
road around the RSA at the south end of the runway. An analysis considered RSA construction and
runway shift options. A runway shift moves usable runway length longitudinally along the existing
runway centerline without adding to, or reducing, the existing usable runway length of 7,500 feet. A
detailed discussion of the alternatives analysis is contained in the EA for this project
Alternative 1: Provide 1,000-foot Runway Safety Areas
Alternative 1 would provide 1,000-foot RSAs on each end of Runway 5R-23L, and would not require a
runway shift. Construction activities would affect airport operation for up to three months, and, based on
June-July 2000 field reconnaissance, would fill the following features.
i I
i South End North End ( Total
Wetland (acres) 0.8 , 1.0 1.8
! Stream. (linear feet) I 1,248 I 105 ' 1,353
Buffer (square feet) 107,866 6,417 I 114:283
Alternatives 2 and 3: Runway Shift Options
The runway sniff options would shift Runway 5R-23L to the north, provide a 1,000-foot RSA at the north
end of the runway, provide a shorter RSA construction area at the south end and relocate the runway
threshold at the south end. This runway shift, in conjunction with the partial RSA and implementation of
a relocated runway threshold, would result in an overall 1.000-foot RSA at the south end.
.%hhouch runway shift options would meet FAA RSA design standards, they would not minimize impacts
on replar and continuous operation of Runway 5R-23L. In addition to runway shutdown during
NAVAID relocation and earthwork, these Alternatives would require additional work that would extend
the duration of construction during which the runway would be out of sern6ce. These Alternatives would
-eo>;tre changes to the runway profile to meet F_4A criteria for runwavs serving air carrier traffic and
modifications and/or additions to associated runway elements, such as relocation of the high-speed
tzvwav exit construction of a connector taxiway, removal and reinstallation of touchdown zone lights,
and installation of runway centerline lights in the runwav extension. Construction activities associated
nzth nmway shift options would require a minimum of six months.
f,
171

Runway shift options would have varying impacts to streams, wetlands, and buffers. In addition, the
relocated access road at the north end would require realignment through an existing stormwater detention
basin determined by the Corps to be jurisdictional waters of the US. Further, to allow for MALSR
construction and proper clearances for approaches and departures in accordance with FAR Pan 77 critical
surfaces off the north end of the runway, this Alternative would require tree removal both from private
property and in Umstead Park The latter, considered a taking of the park land, would require a Section
303(c) analysis of feasible and prudent alternatives to the proposed taking. Required tree removal and
changes in the approach procedures for aircraft (flying at lower altitudes over the same areas as the
current approach paths) would likely result in increased noise levels to the neighbprhoods to the north and
to Umstead Park
Based on the above considerations, Altemative 1 is the proposed project. Table 1 presents the alternatives
and summarizes the potential environmental consequences for each alternative considered.
Avoidance and Minimization
In accordance with Section 4046)(1) guidelines, the following is a discussion of the sequencing analysis
performed for the proposed project.
Due to the location and orientation of the streams and wetlands adjacent to the north and south ends of
Rurtwav 3R-23L, avoidance of these areas is not possible if safety areas are constructed. Although
considered, relocation of the perennial stream at the south end of Runway 5R-23L would not be feasible
due to spatial constraints involving possible future airport expansion areas, an existing large diameter an
line in the vicinin% and a steep topographic gradient. Although design measures reduce impacts on both
ends of the runway, the project footprint necessary to construct safety areas that conform to FAA
standards and the need to maintain regular and continuous airport operations limit minimization
onnoruruttes.
Mi-umization efforts focused on the design of safety area fill slopes and access roads that would reduce
impacts- A 4:1 design slope was required to permit the safe operation of mowing equipment necessary for
santmizing visual barriers. Although flatter slopes would be optimal from an operations standpoint, fill
sloes along the south end of Runway 5R-23L safety area would be steepened to 4:1 in order to minimize
impact to an emergent and forested wetland area located immediately adiacent to the proposed safety area
foor=t. On the northern end of Runway 5R-23L, 4:1 fill slopes minimize encroachment into the
tnte.-mnent stream located immediately adjacent to the safety area.
172

The access roads were located to minimize impacts. The southern access road adjacent to Runway 5R-
23L was shifted to the north to avoid a wetland area southeast of Terminal Boulevard. The road was
designed to cross the fill at the end of the proposed southern runway safety area in order to avoid further
riparian wetland and stream impacts. Placing the service road within the proposed fill area would
minimize additional stream and wetland impacts. Similarly, the northern access road corridor was also
designed to cross the fill slope of the proposed safety area minimizing additional impacts to the wetland
and intermittent stream. The remainder of the service road will be constructed along a route connecting
existing access roads with culverts and crossings in place in order to avoid additional impacts.
Mitigation
To satisfy the miti gation requirements for the proposed project, the Authority proposes to purchase
required strearn, Neuse buffer, and wetland mitigation credits from the North Carolina Wetland
Restoration Program (WRP). On September 28, 2000, the Authority's agent-met with Mr. Ron Ferrell
PAW representative) to discuss VW's willingness to accept mitigation for this project. A second
meeting was held on February 2, 2002. Mr. Ferrell indicated that in the absence of acceptable on-site
mitigation opportunities, WRY would be agreeable to accept payment for mitigation. In subsequent
meetings with the US Army Corps of Engineers (Corps), on February 9,. 2002, and North Carolina
Department of Water Quality (DWQ) , on February 27, 2002, it was agreed that payment into the VW
would be acceptable as mitigation for wetland, stream, and buffer impacts. The Authority proposes a 1:1
min_anon ratio for emergent wetland and unimportant stream impacts and a 2:1 ratio for forested wetland
and stream impacts. The Authority will submit a formal request to WRP for mitigation credits. The
Authonn- will forward the Agency's response to the Corps and DWQ upon receipt.
Indirect impacts to stream reaches will be minimized by adherence to applicable federal and state
construction guidelines and proper erosion control techniques. A soil erosion and sedimentation control
plan will be filed with North Carolina Department of Environment and Natural Resources (NCDENR)
Dior to cons=ucnon.
.%n or.-site wetland, stream, and Neuse buffer mitigation search was conducted on Airport propem
October 16 - 26. 2000. The search entailed field reconnaissance of all perennial and interrnittent streams
located within Airport property indicated on USGS 7.5 minute topographic quadrangle maps or the Wake
173
;• ,

County Soil Survey. No feasible buffer mitigation sites were found. On-site stream mitigation
opportunities were limited. Two impaired stream segments were found on airport property. Well-
developed hardwood buffers surround these stream segments. Because of the well developed forested
buffers, the inability of the Authority to place streams or buffers into a permanent conservation easement,
and possible future airport expansion plans, on-site stream and buffer restoration efforts were not deemed
practicable for the stream reaches within the Airport property.
No wetland restoration or enhancement opportunities were identified on airport property. FAA guidelines
(FAA AC 15015200-33) restrict wetland creation opportunities on-site. The guidelines recoarnend that
airports refrain from the creation of wetlands and other potential wildlife attractants. The FAA defines
wildlife attractants as:
"any human-made structure, land use practice, or human-made or natural geographic
feature, that can attract or sustain hazardous wildlife within the. landing or departure
airspace, aircraft movement area, loading ramps, or aircraft parking areas of an airport.
These attractants can include but are not linuted to architectural features, landscaping,
waste disposal sites, wastewater trea==t facilities, agricultural or aquaculttr-al
actMries. surface mining, or wetlands."
The FAA recommends a separation of 5,000 to 10,000 feet between the siting of wildlife attractants and
the airport's aircraft movement areas, loading ramps, and aircraft parking areas (FAA AC 150/3200-33).
Further. the F.4A. recommends a distance of 5 statute miles between the siting of wildlife attractants and
the approach or departure airspace. Because of the restrictions to wetland mitigation on airport
prop. :ties, the FAA encourages the use of wetland banks as a means to satisfy mitigation requirements-
"Wetland rnineation banks meeting these siting criteria offer an ecologically sound approach to
. rrutication."
174

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4

Block 22- Surface Area in Acres of Wetlands or Other Waters Filled
Drawings 3 of 6 and 5 of 6 illustrate the impacts to wetlands and streams that would, result from
the proposed project. All impacts would be a result of fill necessary to construct the earthen
safety areas. The following outlines the anticipated impacts:
South End, Runway 5R-23L
Jurisdictional Wetlands and Streams
Important stream 773 linear feet
Unimportant stream 475 linear feet
Emergent wetland 0.5 acre
Forested wetland 0.3 acre
DWQ Neuse Buffer

Zone I buffer 5 9,471. feet''
Zone U buffer 48,395 feet' .
North End, Runway 5R-23L
Jurisdictional Wetlands and Streams
Important stream None
Unimportant stream 105 linear feet
Emergent wetland 1.0 acre
Forested wetland None
DWQ Neuse Buffer*
Zone I buffer 1,586 feet=
Zone U buffer 4,831 feet'
* Based upon discussion with DWQ staff, because the planned construction at thc"north d of
Runway 5R-23L would disturb less than 150 linear feet of stream and less than one ti?urd acre of
buffer, no buffer mitization is required for construction of the north end by DWQ.
I?
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176 _ ?``
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J-/
Project Area

Raleigh-Durham
International Airport
RDU Authority
Wake County, NC
Runway 5R-23L
Safety Area Extension
Project Vicinity Map
`=?
Kmuey-Hom
and Assodaies, Im.

Scale: 1"=4,000'
Date: February, 2002
Sheet: 1 of 6
0 2000 .4000 Feet
177

K.
Q

Runway
Safety Arei
Extension

pw@ Safety
- - - °" `' a Extension
0 700 Feet
_ '178
Runway 5R-23L Scale: I'= 700'
Raleigh-Durham Safety Area Extension
International Airport hlb- 6H Date: February, 20(
RDU Authority and As Assoaaxnrss
Wake County, NC Project Locations and .
Sheet: 2 of 6

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0.3 ACRE
FORESTED
WETLAND
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0.1 ACRE
EMERGENT
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773 LF IMPACT
UT BRIER CREEK

EME°:? N-? !I?

EMERGENT
WETLAND
0.1 ACRE \
EMERGENT
WETLAND
70 U11
- 475 LF IMPACT
"UNIMPOP,TANT" /
STREAM

179
i Runway.5R-23L I Scale: 1"=1500'
Raleioh-Durham Safety Area Extension
International Airport ?!mQ I Date: Feb. 2002
RD'J Autnority ? lGmiw?-Hom ? Sheet:
Wake County, NC Runway - 5R Plan View ? and Akocatss, inc.. 3 OF 6
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Scale: NTS
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RDU Authority IGmev-Hom ; Sheet:
Wake County, NC Runway - 5R Profile aid 4s=-mes. ir._.
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181
Runway 3R-23L ; Scaie: "=400'
Raleigh-Durham ! Safety Area Extension WIWI
international Airport ?.!! ; Date: Feb. 2002
RDU Authority Kim:w-Horn
Runway 23L Plan View i and Assocatss, ins. ; ;Heel:
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-,F WATER
r
. William G. Ross jr., Secretary
Notch Carolina Department of =nvironment and Naturai Resources
Alan W. KhmeFC, P.E. Director
Division of water Oualiry
July 19, 2002 EXHIBIT
ALL-STATE LEGAL SttriLY CO.
John Brantley
,port Director
aieigh Durham Airport Authority
0. Box 80001
DU Airport, North Carolina, 27623
ear Mr.. Brantley:
Raleigh Durham Airport, Runway 5R-23L Safety Area and Access Roads, Wake County, North Carolina
DWO Project No. 02-0662; DOA Action ID No. 200021506
Attached hereto is a copy of Certification No. 3386 issued to Mr. John Brantley, dated July 19, 2002. This approval is
so valid for the Neuse River Buffer Rules (1 SA NCAC 2B .0233).
If we can De of further assistance, do not hesitate to contact us.
A, K" C ok
-a:.. ; -?"I S
20 J:-
.5. f;7-1V Co-oS o` Engineers, Raleigh Regulatory Field Office
DW O. Raieicr. Regional Office - Steve Mitchell
=iie Co:)v
:•antra: Ales
B_t*) K;miev Horne, P.O. Box 33068, Raleigh, NO, 27636-3068
183
_ _ • . c - .._ _ ,.a:.. 1,17 Ala;: Service Center Raletpn. NZ; ?769,-1e" ;°19, .,,_-701:
17
NOD=-NR
Customer Service
, s:)C? s.. »e
1*1
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION

THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public Laws 92-500 and 95-21
of the United States and subject to the North Carolina Division of Water Ouality (DWO) Regulations in 15 NCAC 2H.
Section .0500 to the Mr. John Brantley, resulting in the discharge of fill into 1.8 acre of jurisdictional wetlands and 1,353
linear feet of unnamed intermittent and perennial tributaries to Brier Creek and Sycamore Creek and to impact 114.283
square feet of Neuse Buffers associated,with the construction of runway safety areas on the northern and southern ends
of an existing runway (Runway 5R-23L), and the construction of access roads around the proposed safety areas at the
Raleigh Durham Airport in Wake County, North Carolina, pursuant to an application filed on 7th day of May of 2002. This
approval is also valid for the Neuse River Buffer Rules (15A NCAC 2B .0233).
The application provides adequate assurance that the proposed work 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 only valid for the purpose and design that you submitted in your application and as described in the
Public Notice. if you change your project, you must notify us and send us a new application for a new certification. If the
property is sold, the new owner must be given a copy of the Certification and approval letter and is thereby responsible for
complying with all conditions. Should wetland or stream fill be requested in the future, additional compensatory mitigation
may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to be valid, you must follow the
conditions listed below. In addition, you should get any other federal, state or local permits before you go ahead with your
project including (but not limited to) Solid Waste, Sediment and Erosion control, Coastal Stormwater, Non-discharge and
Water Supply Watershed regulations.
Conditions of Certification:
1. Aooroprnate sediment and erosion control practices which equal or exceed those outlined in the most recent
version of the "North Carolina Sediment and Erosion Control Planning and Design Manual" or the "North Caroline.
Sur,ace Mining Manual" whichever is more appropriate (available from the Division of Land Resources (DLR) in
Ens DENR Regional or Central Offices) shall be in full compliance with all specifications governing the proper
oesion, installation and operation and maintenance of such Best Management Practices in order to assure
compliance with the appropriate turbidity water quafity standard;
2 We understand that you have chosen to contribute to.the Wetland Restoration Program in order to compensate for
me impacis to wetlands and streams. in accordance with 15A NCAC 2R .D402 and 15A NCAC 2B .0242(7), this
contribution will satisfy our compensatory mitigation requirements under 15A NCAC 2H .0506(h) and 15A NCAC
2 .0233(10). Until the Wetland Restoration Program receives and clears your check (made payable to: DENR -
%%Ietianes Restoration Program), wetland and stream impacts (including fill) shall not occur. Mr. Ron Ferrell should
oe contacted at [phone] if you have any questions concerning the Wetland Restoration Program. You have
one month from the date of this. Certification to make this payment. For accounting purposes, this Certification
a:::nor;zes the fill of 1.B acre of riparian wetlands and 1,353 linear feet of streams in the Neuse River Basin,
:;ataiogm.- Unit 03020201, and 2.6 acres of wetland mitigation and 2.706 linear feet of stream mitigation is
re21111reZ. Piease be aware that the Wetland Restoration Program (WRP) rules require rounding of wetland
i-n:)ac:s to the nearest quarter acre and stream impacts to the nearest linear foot (15A NCAC 2R .0503(b)):"
na, the activity be conducted in such manner as to prevent significant increase in turbidity outside the area of
construmior, o- construction related discharge (50 NTU's in streams and rivers not designated as trout waters by
25 N i ?J's in all saltwater classes, and all lakes and reservoirs; 10 NTU's in trout waters);
se iirnerit and erosion control measures placed in wetlands and waters shall be removed and the original grade
restores wimin two months after the Division of Land Resources has released the project;
55 i fisasures snail be taken to prevent live or fresh concrete from coming into contact with waters of the state until
in= concrete has hardened;
S:ormwaterfrom. the runway safety areas and access roads shall be managed so as not to directly discharge into
s:=ace v;aters. Stormwater maybe discharged into wetlands on the site as Iona as discharge is directed to
c:;;use'io . a: non-erosive velocities: 184
7. An additional condition is that stormwater shall be directed to diffuse flow at non-erosive velocities throuo^ the
protected stream buffers. Additional written approval from DWO is needed for this purpose. Impacts the suetam
and buffer may not occur until this written approval is received;
6. Waste or borrow sites shall not be located in streams or wetiandsf
9. All temporary fill shall be removed to the original grade after construction is complete and the site shall be
stabilized to prevent erosion;
10. The enclosed "Certification of Completion Form" is to be used to notify DWO when all work included in the 401
Certification has been completed.
Violations of any condition herein set forth shall result in revocation of this Certification and may result in criminal
d/or civil penalties. This Certification shall expire on expiration of the 404 Permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon written request within
tty (60) days following receipt of this Certification. This request must be in the form of a written petition conforming to
iapter 1605 of the North Carolina General Statutes and filed with the Office of Administrative Hearings, 6714 Mail
?rvice Center, Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the right to an
;judicatory hearing on the modifications upon written request within sixty (60) days following receipt of the Certification.
iless such demands are made, this Certification shall be final and binding.
This the 19"' day of July 2002
DIVISION OF WATER DUALITY
lime
CC r 3386
V Kicbk
185
NORTH CAROLINA-DIVISON OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
4 SUMMARY OF PERMITTED IMPACTS AND MITIGATION REQUiR'=-M=_NTS
In accordance with 15A NCAC 2 H .0500, Mr. John Brantley, Airport Director of the Raleigh Durham Airoon
Autnority has permission as outlined below to fill 1.8 acres of wetlands and 1.353 linear feet of streams and to irnoact
114.263 square feet of Neuse Buffers in order to construct a new runway safety area with access roans at the Raleigh
Durnam Airport in Wake County, North Carolina. All activities associated with these authorized impacts must be
conducted with the conditions listed in the attached certification. THIS CERTIFICATION IS NOT VALID WITHOUT THE
ATTACHMENTS.
COMPENSATORY MITIGATION REQUIREMENT
WETLAND RESTORATION PROGRAM
LOCATION: '
COUNTY:
BASIN/SUBBASIN
Impacts:
1.6 acres of riparian wetlands
1,353 linear feet of intermittent and perennial streams
114.263 square feet of Neuse Buffers
Raleigh Durham Airport, Runway 5R-23L
Wake
Neuse (03-02-02-01)
As required by 15A NCAC 2H .0505, and the conditions of this certification, you are required to compensate for
the above impacts through the restoration, creation, enhancement or preservation of wetlands as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Mitigation:
2.6 acres o4 noarian wetlands
2.706 iin_a, fee: o` perennial streams
Buffers - for South =_nd only
,one 1 - `z9,471 souare feet x 3 = 178,413 square feet
,one 2 - 48.395 square feet x 1.5 = 72.592.5 square feet
Totai = 251.005.5 square feet.
Note: Line- foot requirements .proposed to be mitigated througn the Wetland Restoration Program must be rounded
tc. tn= ne_res. 'too: and acreage requirements must be rounded to one-auarter acre increments accordine to 15 2r
.."5C31D)
Win= o` the options you have available to satisfy the compensatory mitigation requirements is through the payment
o` c iee ,c• Ins Wetianas Restoration Fund per NCAC 2R .0503. If you choose this option, please sign this form and mail it
t:, the Wenancs Restoration Fund at the address listed below. An invoice for the appropriate amount of pavment will be
s. o uoor -eoeio' o`. this form. PLEASE NOTE, THE ABOVE IMPACTS ARE NO? AUTHORIZED UNTIL YOU
r??TiFi ,r,TlOi? THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION
S.--n2t:J"c
186
Date
W=1 LANDS RESTORATION PROGRAM
DIVISON OF WATER DUALITY
1619 Mail Service Center
RALEIGH. N.C. 27669-1619
[phone]
0 Norm Carolina Deparrnern of Snvuonmen: and Natu:a; Resources
? Alan W. Klimek. P._. Director
Division o'. Water Quairrv
j <
August 9, 2002
Ir. John Brantley
irport Director
aleigh Durham Airport Authority
.O. Box 80001
.DU Airport, North Carolina, 27623
-ear Mr. Brantley.
EXHIBIT
r
ALL•STATF LEGAL SUPPLY CO-
.e: Raleigh Durham Airport, Runway 5R-23L Safety Area and Access Roads, Wake County, North Carolina
DWO Project No. 02-0662; DOA Action ID No. 200021506
Attached hereto is a copy of Certification No. 3386 issued to Mr. John Brantley, dated August 9, 2002. This approval
also valid for the Neuse River Suffer Rules (15A NCAC 2B .0233). This Certification replaces the one issued to you on
Lily 19. 2002.
If we can be of further assistance, do not hesitate to contact us.
Sincerely,
-? Alan W. Klimek, P.E.
r?

2J562rnod
,, ; .5. Army Coros of Bnoineers, Raleigh Regulatory Field Office
DWG. Raieicn Reoionai Office- Steve Mitcnell 187
=iie Coov
Centra! =files
Setn Reed. Klmley Home. P.O. Box 33068, Raleigh, NC. 27636-306B
D:va:r. : at Gust 1 7 Mai' Seance Cente• Raw= . NC 27689-1617 (919+ 733-7015
N= NR
Customer Service
. 800 523-7748
r•
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public Laws 92-5.00 and 95-217
of the United States and subject to the North Carolina Division of Water Quality (DWQ) Regulations in 15 NCAC 2H,
Section .0500 to the Mr. John Brantley, resulting in the discharge of fill into 1.8 acre of jurisdictional wetlands and 1,353
linear feet of unnamed intermittent and perennial tributaries to Brier Creek and Sycamore Creek and to impact 114,283
square feet of Neuse Buffers associated with the construction of runway safety areas on the northern and southern ends
of an existing runway (Runway 5R-23L), and the construction of access roads around the proposed safety.areas at the
Raleigh Durham Airport in Wake County, North Carolina, pursuant to an application filed on 7th day of May of 2002. This
approval is also valid for the Neuse River Buffer Rules (15A NCAC 2B .0233).
The application provides adequate assurance that the proposed work 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 only valid for the purpose and design that you submitted in your application and as described in the
Public Notice. If you change your project, you must notify us and send us a new application for a new certification. If the
property is sold, the new owner must be given a copy of the Certification and approval letter and is thereby responsible for
complying with all conditions. Should wetland or stream fill be requested in the future, additional compensatory mitigation
maybe required as described in 15A NCAC 2H .0506 (h) (6) and (7). For this approval to be valid, you must follow the
conditions listed below. In addition, you should get any other federal, state or local permits before you go ahead with your
project including (but not limited to) Solid Waste, Sediment and Erosion control, Coastal Stormwater, Non-discharge and
Water Supply Watershed regulations.
Conditions of Certification:
Appropriate sediment and erosion control practices which equal or exceed those outlined in the most recent
version of the "North Carolina Sediment and Erosion Control Planning and Design Manual" or the "North Carolina
Surface Mining Manual" whichever is more appropriate (available from the Division of Land Resources (DLR) in
the D=NR Regional or Central Offices) shall be in full compliance with all specifications governing the proper
design, installation and operation and maintenance of such Best Management Practices in order to assure
compiiance with the appropriate turbidity water quality standard;
2. We understand that you have chosen to contribute to the Wetland Restoration Program in order to compensate for
the impacts to wetlands and streams. In accordance with 15A NCAC 2R :0402 and 15A NCAC 2B .0242(7), this
contribution will satisfy our compensatory mitigation requirements under 15A NCAC 2H .0506(h) and 15A NCAC
2B.0233(10). Until the Wetiand Restoration Program receives and clears your check (made payable to: DENR -
Wetlangs Restoration Program), wetland and stream impacts (including fill) shall not occur. Mr. Ron Ferrell should
oe contacted at [phone] if you have any questions concerning the Wetland Restoration Program. You have
one month from the date of this Certification to make this payment. For accounting purposes, this Certification
auinorizes the fill of 1.8 acre of riparian wetlands and 1,353 linear feet of streams in the Neuse River Basin,
Cataiocino llhit 03020201, and 2.1 acres of wetland mitigation and 2,126 linear feet of stream mitigation is
required. Please be aware that the Wetland Restoration Program (WRP) rules require rounding of wetland
impacts to the nearest quarter acre and stream impacts to the -nearest linear foot (15A NCAC 2R .0503(b));"
3. Tnat the activity be conducted in such manner.as to prevent significant increase in turbidity outside the area of
constr;;ct,on or construction related discharge (50 NTU's in streams and rivers not designated as trout waters by
DWC: 25 N T U's in all saltwater classes, and all lakes and reservoirs; 10 NTU's in trout waters);
Al sediment and erosion control measures placed in wetlands and waters shall be removed and the original grade
restorer within, two months after the Division of Land Resources has released the project;
S. Measures snall be taken to prevent live or fresh concrete from coming into contact with waters of the state until
the concrete has hardened;
6. Stormwater from the runway safety areas and access roads shall be managed so as not to directly discharge into
s;:: lace waters. Stormwater may be discharged into wetlands on the site as long as discharge is directed to
difiuse fior, a: non-erosive velocities; 188
7. An additional condition is that stormwater shall be directec to dittuse tlow at non-erosive veiociiies tnrougn the
protected stream buffers. Additional written approval from DWQ is needed for this purpose. Impacts to the strean,
and buffer may not occur until this written approval is received;
a. Waste or borrow sites shall not be located in streams or wetlands;
9. All temporary fill shall be removed to the original grade after construction is complete and the site shall be
stabilized to prevent erosion;
10. The enclosed "Certification of Completion Form" is to be used to notify DWQ when all work included in the 401
Certification has been completed..
Violations of any condition herein set forth shall result in revocation of this Certification and may result in criminal
-id/or civil penalties. This Certification shall expire on expiration of the 404 Permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon written request within
xty (60) days following receipt of this Certification. This request must be in the form of a written petition conforming to
hapter 150B of the North Carolina General Statutes and filed with the Office of Administrative Hearings, 6714 Mail
srvice Center, Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the right to an
djudicatory hearing on the modifications upon written request within sixty (60) days following receipt of the Certification.
Mess such demands are made, this Certification shall- be final and binding.
This the 9'" day of August 2002
DIVISION OF WATER QUALITY
(P,? u
v7 Alan W. Klimek, P.E.
QC " ? 3380
A K,--bk
189
I
NORTH CAROLINA-DIVISON OF WATER DUALITY
` 401 WATER OUALITY CERTIFICATION
i
r SUMMARY OF PERMITTED IMPACTS AND MITIGATION REOUIREMEtvT
In accordance with 15A NCAC 2 H .0500, Mr. John Brantley, Airport Director of the Raleigh Durham Airpon
Authority has permission as outlined below to fill 1.8 acres of wetlands and 1,353 linear feet of streams and to impact
114,283 square feet of Neuse Buffers in order to construct a new runway safety area with access roads at the Raleigh
Durham Airport in Wake County, North Carolina. All activities associated with these authorized impacts must be
conducted with the conditions listed in the attached certification. THIS CERTIFICATION IS NOT VALID WITHOUT THE
477ACHMENTS.
COMPENSATORY MITIGATION REOUIREMENT
WETLAND RESTORATION PROGRAM
LOCATION:
COUNTY:
BASIN/SUBBASIN
Impacts:
Raleigh Durham Airport, Runway 5R-23L
Wake
Neuse (03-02-02-01)
1.8 acres of riparian wetlands
1,353 linear feet of intermittent and perennial streams
114,20.3 square feet of Neuse Buffers
As required by 15A NCAC 2H .0506, and the conditions of this certification, you are required to compensate for
the above impacts through the restoration, creation, enhancement or preservation of wetlands as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Mitication:
2.1 acres o? riparian wetlands
2. ,25 imear fee: o' perennial streams
Buffers - for Soutn End only
Zone 1 59.471 square feet x 3 = 17B,413 square feet
Zone 2 - 48.395 square feet x 1.5 = 72.592.5 square feet
Tom! = 251.005.5 square feet
Note: Linear toot requirements proposed to be mitigated throuoh the Wetland Restoration Program must be rounded
tc. the nearest toot and acreage requirements must be rounded to one-quaver acre increments according to 15 2r
.0.523(01.
One of the options you have available to satisfy the compensatory mitigation requirements is through the payment
of a fe= tc. the wet;ands Restoration Fund per NCAC 2R .0503. If you choose this option, please sign this form and mail it
tc the Wet;a:';cs Restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be
sen: to yo.: uoon r=_ce:0t.o` this form. PLEASE NOTE. THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU
,.IVE N JTIFICATION THAT YOUR PAY(JicN T HAS BEEN PROCESSED BY THE WETLANDS RESTORATION
ROuRAIV...
Stonatur. Date
190
W=TLANDS RESTORATION PROGRAM
DIV!SON OF WATER OUAL17Y
1619 Mail Service Center
Fi.AL=IGH. N.C. 27669-1619
[phone]
O?OF wATFRQG Michael F. Easley
Governor
William G. Ross, Jr., Secretary
> I Department of Environment and Natural Resources
fl C Alan W. Klimek, PE, Director
Division of Water Quality
TRANSMITTAL
DATE: March 12, 2003
TO: Mary Penny Thompson, NC Dept. of Justice, Environmental Div., Room 323E
FROM: Bob Zarzecki
DWQ - Wetlands/401 Unit
NO. OF DOCUMENTS: 3 Files
RE: Raleigh-Durham Airport
DWQ Project No. Subject Approval
01-0902 RDU Airport Runway Safe Areas Buffer Only
02-0662 RDU Airport (Runway Safe Areas 401 & Buffer
02-1429 RDU Airport stormwater facility) Buffer Only General Variance
North Carolina Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
919-733-1786 (phone), 919-733-6893 (fax), hftp://h2o.enr.state.nc.us/ncwetiands/
O?O? W A T FgQG
r
> 1
Michael F. Easley
Governor
William G. Ross, Jr., Secretary
Department of Environment and Natural Resources
Q < Gregory J. Thorpe, Ph.D., Acting Director
Division of Water Quality
April 29, 2002
DWQ # 01-902
Wake County
Raleigh-Durham Airport Authority
C/o: Ms. Miriam Gilkinson, PE
1000 Trade Drive
PO Box 80001
RDU Airport, NC 27623
RE: Runway Safety Areas, Raleigh-Durham International Airport, Wake County, NC
Brier Creek [03-04-02; 27-33-4; C NSW]; Sycamore Creek [03-04-02; 27-33-9; B NSW]
Neuse River Buffer Rules (15A NCAC 2B .0233)
Dear Ms. Gilkinson:
Per your request, this office is providing you with written confirmation concerning the implementation of the Neuse River
Riparian Area Protection Rules (Neuse Buffer Rules; 15A NCAC 2B .0233) as they pertain to the proposed runway safety areas at the
Raleigh-Durham International Airport. This letter shall act as written confirmation of past verbal and e-mail discussions held between
you and Division of Water Quality (DWQ) staff and in response to your letter dated March 20, 2002 requesting that the runway safety
areas be considered as "exempt" or "allowable" under the Neuse Buffer Rules.
The buffer rules state that, "Airport Facilities that impact greater than 150 feet or one-third of an acre of riparian buffer" are
classified as "allowable with mitigation" [ 15A NCAC 2B .0233(6)]. Uses identified as "allowable with mitigation" need to be
reviewed for "no practical alternatives", have a buffer mitigation plan approved and receive written authorization from the DWQ prior
to construction [ 15A NCAC 2B .0233(7)]. They do not require a variance from the buffer rules. The DWQ has determined that the
proposed runway safety areas fall under the definition of "airport facilities" and are therefore "allowable with mitigation" and do not
require a variance. Uses identified as "allowable with mitigation" are required to comply with the Neuse Buffer Mitigation Program
(15A NCAC 2B .0242). The impacts in square feet to each zone of the riparian buffer includes the footprint of the use and "any
clearing and grading activities within the riparian buffer necessary to accommodate the use" (15A NCAC 2B .0242(3)(a)(i & ii).
The proposed run-way safety area are not considered an existing use or maintenance of an existing use (exempt from the
rules), because they don't currently exist and their construction will require that "additional vegetation" would be removed from Zone
1 and the health of the vegetation in Zone 1 would be compromised (i.e., removed)(15A NCAC 2B .0233). The DWQ has
determined that the proposed run-way safety areas are not considered "protection of an existing use".
This letter does not authorize any impacts to the protected buffers, streams or wetlands. This office has not yet received an
application for the proposed impacts. The review process for the proposed impacts will begin once this office receives a completed
Pre-Construction Notification (PCN) application. The appropriate approvals must be received prior to construction including but not
limited to 401/404 Wetlands Approvals, Neuse River Riparian Buffer Protection Rules (15A NCAC 2B .0233) authorization and
Sediment and Erosion Control Permits. Please call John Dorney at 919-733-9646 or Bob Zarzecki at 919-733-9726 if you have any
questions or require copies of our rules or procedural materials.
Cc: Steve Mitchell, DWQ Raleigh Regional Office
File Copy
Central Files
DWQ 010902
North Carolina Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
919-733-1786 (phone), 919-733-6893 (fax), hftp://h2o.enr.state.nc.us/ncwetiands/
Sincerel
/R?rD.u
John C. Brantley, Airport Director
March 20, 2002
RALEIGH-DURHAM AIRPORT AUTHORITY
1000 Trade Drive • PO Box 80001 • RDU Airport, NC 27623
tel: [phone] fax: (919)
Mr. John R. Dorney
NC Department of Environment and Natural Resources \4
840-0175 • www.rd-u.com
dfiQ?;1 SUt+;Tfllyi?`?
Divis>on of water Quality Q ) Z??Z z Z ObW
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Re: Applicability of Neuse Rules to Runway 5R-23L Extended Safety Area Project at Raleigh-
Durham International Airport
Dear Mr. Dorney:
Raleigh-Durham Airport Authority (Authority) representatives and Division of Water Quality (DWQ)
staff met on February 27 to discuss the Authority's planned project to extend the Runway 5R-3L Runway
Safety Areas (RSAs). Existing RSAs violate current Federal Aviation Administration (FAA) policy,
which mandates conformance to standards 1 that stipulate length, width, and maximum slopes and require
access for safety and firefighting equipment. The Authority intends to construct RSAs that meet current
applicable FAA design standards, provide a safer runway environment, and ensure emergency equipment
access to the safety areas in the event of an incident. Although the primary element of the project is
earthwork to construct the smoothly graded RSAs, the proposed project also includes paved
service/access roads. The project footprint necessarily impacts existing wetlands, streams, and buffers.
The Authority does not perceive that in our meeting of February 27 we reached a mutual understanding
on the extent to which the Neuse Rules should apply. The Authority understood DWQ believes the
project is "allowable with mitigation" and that mitigation is required for all disturbed buffers. The
Authority believes that this project should not be subject to mitigation requirements under the Neuse
Rules. The project not only maintains a present and ongoing use (maintained grassland), but also is
necessary for eligibility for FAA funding for maintenance required for continued use of the existing
runway. In the first case, the project would be exempt from the Neuse Rules; in the second case, the
project would be allowable under the Neuse Rules.
The Authority respectfully requests that you consider the following information, in support of a
conclusion that the appropriate category of use for the project is "exempt" or "allowable," not "allowable
with mitigation."
Present and Ongoing Use
A majority of the proposed project area is currently a maintained, grassed area. The proposed project
would construct smoothly graded, pervious, vegetated safety areas. Although the proposed project would
alter topography in the vicinity, the proposed project would not alter permanently the essential character
of most of the area. Through implementation of this project, the Authority would maintain a present and
ongoing existing use (maintained grassland), an exempt activity under the Neuse Rules.
The Neuse Rules stipulate that the "portion of the riparian buffer that contains the footprint of the existing
use is exempt from this Rule" until the existing use is converted to another use. Under the rules,
Design standards are in FAA Advisory Circular 150/5300-13, "Airport Design,"
R a l e i g h- 0 u r h a rn RE i r p a r t u t h a r i t V a rn b e r s
DURHAM RALEIGH DURHAM COUNTY WAKE COUNTY
Kenneth D. Gibbs, Sr., Chairman David T. Clancy, Vice-Chairman W. Stephens Toler, Treasurer J. Ray Sparrow, Secretary
Robert D. Teer, Jr. Robert W. Winston Lionel Parker R. David Lane
r ? y
Mr. John Dorney
March 20, 2002
Page 2 of 2
conversion occurs with addition of new impervious surface, cessation of an agricultural operation, or
cessation of lawn maintenance within the riparian buffer. For present and ongoing uses, "At the time an
existing use is converted to another use, this Rule shall apply." Because the project would not convert ??r 7
the existing use (maintained grassland), the Authority believes that the activity does not meet the
applicability criteria and the Neuse Rule should not apply.
The Authority understood DWQ would require buffer mitigation for all disturbed areas because the
topographical changes would "change the function" of the buffers, even though the planned project would
construct smoothly graded, vegetated safety areas. The buffer rules do not address alterations in
topography and resulting "loss of function." The Authority does not believe this is proper application or
interpretation of the Neuse Rules. Regardless, although the project would alter local topography, the
project would preserve an existing use, would not add impervious surface (other than the minor amount
required for the service/access roads), and would construct a smoothly graded, pervious, and vegetated
feature that preserves the spirit and intent of the Neuse Rules.
Protection of Existing Structures and Facilities
FAA policy stipulates that certain projects, including rehabilitation, reconstruction, or overlay of existing
runway pavement, trigger the need for compliance with RSA standards in the Advisory Circular. FAA
will not approve funding for a project to reconstruct a runway, necessary maintenance due to deterioration
of the surface related to age and use, unless the runway has conforming RSAs. FAA policy means that
failure to have safety areas that conform to FAA criteria would result in loss of eligibility for funding, and
therefore potential loss of use of the runway. The planned project therefore is necessary for "protection of
existing structures and facilities" and because "[P]rotection of existing structures and facilities when this
requires additional disturbance of the riparian buffer or the stream channel" is allowable under the Neuse
Rules, the Authority believes that the proper category of use for the planned project would be
"allowable."
Conclusion
The Authority believes that this project should not be subject to mitigation requirements under the Neuse
Rules. The project not only maintains a present and ongoing use (maintained grassland), but FAA
requires the project for continued use of the existing runway. The planned project, therefore, should be
either "exempt" or "allowable" under the Neuse Rules.
The Authority respectfully requests that DWQ reconsider the interpretation that the appropriate category
of use for the project is "allowable with mitigation" and concur that the proper category of use for the
project is "exempt" or "allowable." The Authority would appreciate your written response by April 30.
If you have any questions, please do not hesitate to call meat 840-2100, extension 238, or email meat
[e-mail].
Sincerely,
Miriam Gilkinson, P.E.
Environmental Manager
cc: Dave Powell/RDU
Steve Mitchell/DWQ
Bob Zarzecki/DWQ
Debbie Edwards/DWQ
Rob Hume/KHA
rRou
John C. Brantley, Airport Director
March 20, 2002
R A L E I G H - D U R H A M A I R P O R T A U T H O R I T Y
1 000 Trade Drive • PO Box 80001 • RDU Airport, NC 27623
tel: [phone] • fax: (919)
Mr. John R. Dorney
NC Department of Environment and Natural Resources
Division of Water Quality
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
840-0175 www.rd-u.com
MAR
i ' '?F;ITS tiY1up
Re: Applicability of Neuse Rules to Runway 5R-23L Extended Safety Area Project at Raleigh-
Durham International Airport
Dear Mr. Dorney:
Raleigh-Durham Airport Authority (Authority) representatives and Division of Water Quality (DWQ)
staff met on February 27 to discuss the Authority's planned project to extend the Runway 5R-3L Runway
Safety Areas (RSAs). Existing RSAs violate current Federal Aviation Administration (FAA) policy,
which mandates conformance to standards' that stipulate length, width, and maximum slopes and require
access for safety and firefighting equipment. The Authority intends to construct RSAs that meet current
applicable FAA design standards, provide a safer runway environment, and ensure emergency equipment
access to the safety areas in the event of an incident. Although the primary element of the project is
earthwork to construct the smoothly graded RSAs, the proposed project also includes paved
service/access roads. The project footprint necessarily impacts existing wetlands, streams, and buffers.
The Authority does not perceive that in our meeting of February 27 we reached a mutual understanding
on the extent to which the Neuse Rules should apply. The Authority understood DWQ believes the
project is "allowable with mitigation" and that mitigation is required for all disturbed buffers. The
Authority believes that this project should not be subject to mitigation requirements under the Neuse
Rules. The project not only maintains a present and ongoing use (maintained grassland), but also is
necessary for eligibility for FAA funding for maintenance required for continued use of the existing
runway. In the first case, the project would be exempt from the Neuse Rules; in the second case, the
project would be allowable under the Neuse Rules.
The Authority respectfully requests that you consider the following information, in support of a
conclusion that the appropriate category of use for the project is "exempt" or "allowable," not "allowable
with mitigation."
Present and Ongoing Use
A majority of the proposed project area is currently a maintained, grassed area. The proposed project
would construct smoothly graded, pervious, vegetated safety areas. Although the proposed project would
alter topography in the vicinity, the proposed project would not alter permanently the essential character
of most of the area. Through implementation of this project, the Authority would maintain a present and
ongoing existing use (maintained grassland), an exempt activity under the Neuse Rules.
The Neuse Rules stipulate that the "portion of the riparian buffer that contains the footprint of the existing
use is exempt from this Rule" until the existing use is converted to another use. Under the rules,
Design standards are in FAA Advisory Circular 150/5300-13, "Airport Design,"
A a I e i g h- D u r h a m A i r p o r t A u t h o r i t y M e m b e r s
DURHAM RALEIGH DURHAM COUNTY WAKE COUNTY
Kenneth D. Gibbs, Sr., Chairman David T. Clancy, Vice-Chairman W. Stephens Toler, Treasurer J. Ray Sparrow, Secretary
Robert D. Teer, Jr. Robert W. Winston Lionell Parker R. David Lane

Mr. John Dorney
March 20, 2002
Page 2 of 2
conversion occurs with addition of new impervious surface, cessation of an agricultural operation, or
cessation of lawn maintenance within the riparian buffer. For present and ongoing uses, "At the time an
existing use is converted to another use, this Rule shall apply." Because the project would not convert
the existing use (maintained grassland), the Authority believes that the activity does not meet the
applicability criteria and the Neuse Rule should not apply.
The Authority understood DWQ would require buffer mitigation for all disturbed areas because the
topographical changes would "change the function" of the buffers, even though the planned project would
construct smoothly graded, vegetated safety areas. The buffer rules do not address alterations in
topography and resulting "loss of function." The Authority does not believe this is proper application or
interpretation of the Neuse Rules. Regardless, although the project would alter local topography, the
project would preserve an existing use, would not add impervious surface (other than the minor amount
required for the service/access roads), and would construct a smoothly graded, pervious, and vegetated
feature that preserves the spirit and intent of the Neuse Rules.
Protection of Existing Structures and Facilities
FAA policy stipulates that certain projects, including rehabilitation, reconstruction, or overlay of existing
runway pavement, trigger the need for compliance with RSA standards in the Advisory Circular. FAA
will not approve funding for a project to reconstruct a runway, necessary maintenance due to deterioration
of the surface related to age and use, unless the runway has conforming RSAs. FAA policy means that
failure to have safety areas that conform to FAA criteria would result in loss of eligibility for funding, and
therefore potential loss of use of the runway. The planned project therefore is necessary for "protection of
existing structures and facilities" and because "[P]rotection of existing structures and facilities when this
requires additional disturbance of the riparian buffer or the stream channel" is allowable under the Neuse
Rules, the Authority believes that the proper category of use for the planned project would be
"allowable."
Conclusion
The Authority believes that this project should not be subject to mitigation requirements under the Neuse
Rules. The project not only maintains a present and ongoing use (maintained grassland), but FAA
requires the project for continued use of the existing runway. The planned project, therefore, should be
either "exempt" or "allowable" under the Neuse Rules.
The Authority respectfully requests that DWQ reconsider the interpretation that the appropriate category
of use for the project is "allowable with mitigation" and concur that the proper category of use for the
project is "exempt" or "allowable." The Authority would appreciate your written response by April 30.
If you have any questions, please do not hesitate to call me at 840-2100, extension 238, or email me at
[e-mail].
Sincerely,
P'u,? ?f `'?
Miriam Gilkinson, P.E.
Environmental Manager
cc: Dave Powell/RDU
Steve Mitchell/DWQ
,/Bob Zarzecki/DWQ
Debbie Edwards/DWQ
Rob Hume/KHA
ENVIRONMENTAL Fax : [phone] Jul 24 '02 14:41 P.01

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In support of this Petition
Petitioner state
th
fi
,
s
e

1. Petitioner, the Raleigh-Durham Airport Authority (the "Authority") operates the
Raleigh-Durham Airport (the "Airport") in Wake County
North Carolina
,
.
2.
The Authority is a``person" as defined in N.C.G.S. § 150B-2(7) and as used is oCher

^{>
provisions of the North Carolina Adrnwstrativ
a Procedure Act, codified in N.C
G:S
... ...
:

- .
.
Chapter 150B.
.

3. The - £„
Federal Aviation Authority (FAA) provides oversight and approval for construction
and maintenance projects at the Airport, including projects related to surfacin and
$
paving of runways at the Airport.

,1?

4. Currently, the Airport is in violation of the FAA policy which mandates that Rultwvay
Safety Areas ("RSAs") conform to FAA designs standards regarding length, width,
maximum slopes, and access for safety and firefighting equipment.
5.
E

Due to wear and tear, the asphalt runways at the Airport require repaving and.
reconstruction approximately every 15 to 20 years. Runway 5R-23L (the 'Runway') wR
need repaving and reconstruction to address its wear and tear within the next two (2)
T- _-A-...._ T!' A „ repaving and reconstruction of the Runwa '
Y,
tre? ip to FAA standards. .

eived a letter from Respondent in which
PIE-
Ile w
tbjec
5dyle- JIe el,
?ctior
es ev
•? or tl
`?!A nary 1
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-- -- - -. _ -- ?, Drity [
Rules because it is a "present and ongoing" use.
project area is currently maintained grassland and
grassland upon completion of the Project.

z
9. Respondenfs determination that the Project is "allowable with mitigation" has caused the ' K? '::
Authority to be aggrieved because (1) as a consequence of the determination mitigation
will be required in accordance with the Neuse Rules which will add significantly to the
Cost of the project; (2) the Project car iot be modified to signific ntly reduce costs
because of the requirements of FAA design standards for RSAs; and (3) in order to be .

ENVIRONMENTAL Fax:[phone] Jul 24 '02 14:42 P.02
L
able to continue to provide service at present and future levels, the runway requires
repair. In addition, because the Project properly should have been determined to 'be .
exempt or "allowable" under the Neuse rates, and because the Authority has beep,
expressly delegated authority by the General Assembly with respect to the
constcuetion :of
airport facilities in, over, or upon state waters or submerged lands, the Authority has
suffered a procedural injury by the action of the Respondent in purporting to restrict the
ability of the Authority with respect to the Project, and further, by classifying the Project
as "allowable with mitigation,"
{ Id: In de that the
determining Project is "allowable with mitigation" under the Neuse'Rules
Respondent exceeded its authori and acted erroneous)
ty jurisdiction, y, arbitrarily, or
capriciously, abused its discretion, and failed to act as required by law or rule.

<y C

ij.'.
,s

is

Michael F. Easley
0F w H T ?RpG
Governor
tom-- William G'. Ross, Jr., Secretary
Department of Environment and Natural Resources
Y
Kerr T. Stevens
Division of Water Quality
June 14, 2001
DWQ # 01-902
Wake County
Kimley-Horn and Associates, Inc.
Attn: Mr. Harlan Britt
3001 Weston Parkway
Cary, NC 27513
RE: Runway Safety Areas, Raleigh-Durham International Airport, Wake County, NC
Brier Creek [03-04-02; 27-33-4; C NSW]; Sycamore Creek [03-04-02; 27-33-9; B NSW]
Neuse River Buffer Rules (15A NCAC 2B .0233)
Dear Mr. Britt,
Per your request, this office is providing you with written confirmation concerning the implementation of the Neuse River
Riparian Area Protection Rules (15A NCAC 2B .0233) as they pertain to the proposed runway safety areas at the Raleigh-Durham
International Airport. This letter shall act as written confirmation of past verbal and e-mail discussions held between you and Division of
Water Quality (DWQ) staff.
The information presented to this office indicates impacts to approximately 1,260 feet of stream, associated buffers and
wetlands for the proposed runway safety areas. The buffer rules state that, "Airport Facilities that impact greater than 150 feet or one-
third of an acre of riparian buffer" are classified as "allowable with mitigation" [15A NCAC 2B .0233(6)]. Uses identified as "allowable
with mitigation" need to be reviewed for "no practical alternatives", have a buffer mitigation plan approved and receive written
authorization from the DWQ prior to construction [15A NCAC 2B .0233(7)]. They do not require a variance from the buffer rules. The
DWQ has determined that the proposed runway safety areas fall under the definition of "airport facilities" and are therefore "allowable
with mitigation" and do not require a variance.
The information presented to this office indicates that existing stormwater outfalls will be extended through the runway safety
areas and discharged directly to the stream. It is the understanding of this office that the existing outfalls discharge directly to the stream
and that no stormwater from new impervious surfaces will be directed to these outfalls. Therefore, it is the determination of this office
that these outfalls will not be required to discharge outside of the retained riparian buffers and can be approved at the same time that the
safety areas are approved.
This letter does not authorize any impacts to the protected buffers, streams or wetlands. This office has not yet received an
application for the proposed impacts. The review process for the proposed impacts will begin once this office receives a completed Pre-
Construction Notification (PCN) application. The appropriate approvals must be received prior to construction including but not limited
to 401/404 Wetlands Approvals, Neuse River Riparian Buffer Protection Rules (15A NCAC 2B .0233) authorization and Sediment and
Erosion Control Permits. Please call John Dorney at 919-733-9646 or Bob Zarzecki at 919-733-9726 if you have any questions or
require copies of our rules or procedural materials.
Sincerely,
G?
Kerr T. Stevens,
` Director
Cc: Steve Mitchell, DWQ Raleigh Regional Office
Richard Rogers, DENR Archdale
File Copy
Central Files
DWQ 010902
North Carolina Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
919-733-1786 (phone), 919-733-6893 (fax), http://h2o.enr.state.nc.us/ncwetlands/
ENUIRONMENTRL Fax:[phone] Jul 24 '02 - 14:41 P.01
Po
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In support of this Petition, Petitioner states the fi
-?mY 1. Petitioner, the Rol
sigh-Durham Airport Authority (the Authority") operates the
Raleigh-Durham Airport (the "Airport") in Wake Coumty, North Carolina.
0-
2. The Authority is a "person" as defined in N.C.G.S. § 15OB-2(7) and as used in other
provisions of the North Carolina Administrative Procedure Act, codified in N.C,Gs.
Chapter 150$-
3. The Federal Aviation Authority (FAA) provides oversight and approval for construction:' :-- <-R
and maintenance projects at the A including projects re
?? noted to surfacing and
paving of runways at the Airport.

4. Currently, the Airport is in violation of the FAA policy which mandates that R
y
Safety Areas ("RSAs") conform to regarding
FAA designs standards 1ength,
yvidth,
.
maximum slopes, and access for safety and firefighting equipment.
;.: Due to wear and tear, the asphalt runways at the Airport require repaving and
reconstruction approximately every 15 to 20 years. Runway SR-23L (the "Runway") V# : -
`
need repaving and reconstruction to address its wear and tear within the next two (2)
years. In order to obtain FAA approval for repaving and reconstruction of the Runway,: -
. =.. the Authority will need to bring the RSAs up to FAA standards. ' -;

6. On or about May 6 2002
,the Authority received a letter from Respondent in which
Respondent determined that the Authority's planned work on the Rim RSA x
Runway's
p
"Project') would be designated as "allowable with mitigation" under
NCAC 2B °
: '.. .0233 (the "Neese Rules"), and therefore subject to extensive mitigation requuemeats.:,:
"ic
..
7. The Authority contends the Project should be classified as "allowable" under the Neese;;.._:
Rules because the Project constitutes "protection of existing structures and facilities"
which are "allowable" under the Neese Rules even when protection of the use
additional disturbance of the riparian buffer or the stream, channel." 15A NCAC 2B.
0233(6). The Project is intended and necessary to protect the existing structure, the
Runway. Unless the RSAs are improved, the Authority will be unable to maintain its
existing use as a runway.

8. In addition, the Authority contends the majority of the Project is exempt from the .Neese
Rules because it is a "present and ongoing" use. The majority of the footprint of the
- project area is currently maintained grassland and will continue to be maintained
grassland upon completion of the Project.

9. Respondent's determination that the Project is "allowable with mitigation" has caused the
t -' Authority to be aggrieved because (1) as a consequence of the determination mitigation,
will be required in accordance with the Neese Rules which will add significantly to. the
cost of the Projecu (2) the Project es=ot be modified to Significantly reduce costs
x - because of the requirements of FAA design standards for RSAs; and (3) in order to be

9
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Re: RDU buffers
Subject: Re: RDU buffers
Date: Wed, 25 Oct 2000 12:41:32 -0400
From: Bob Zarzecki <[e-mail]>
To: [e-mail]
CC: John Dorney <[e-mail]>, Steve Mitchell <[e-mail]>
Mr Britt,
I have not been able to contact John Dorney this morning. After discussions with Stev.
existing runway at the RDU Airport could be considered as a "airport facility" use and
protection rules. I am responding to you per your request and identified time constra
determination. I hope to be able to give you this determination by the end of the wee:
- Bob Zarzecki
[e-mail] wrote:
> Bob, since the rules provide for impacts to buffers for airport projects that are gr
- - - - -- ------ -- - ----- -
Bob Zarzecki
Environmental Specialist III - DENR/ DWQ
401 Wetlands Certification Unit
1 of 1 10/25/00 12:41 PM