20061203 Ver 2_Hearing Officer Report_20100716

MEMORANDUM
DIVISION OF WATER QUALITY
July 16, 2010
TO: Coleen Sullins
FROM: Evan Kane
SUBJECT: 401 Certification Hearing for Western Wake Partners Wastewater Treatment Plant
I served as the Division of Water Quality's hearing officer for an application for a 401 Water Quality
Certification for the Western Wake Partners Wastewater Treatment Plant proposed to be located in the
community of New Hill in Wake County. The hearing was conducted on April 14, 2009 at 6:00 pm at the
Apex Town Hall in Apex in conjunction with the Army Corps of Engineers' hearing on the Environmental
Impact Statement (EIS) and Clean Water Act Section 404 permit application for the project. I have
attached for your information a copy of the public notice language and a transcript of the public hearing.
Cyndi Karoly of the Wetlands and Stormwater Branch provided staff support.
The Public Notice issued by the Corps of Engineers for this project described permanent impacts
including 509 linear feet of streams and 1.8 acres of wetlands, along with temporary impacts to 1,924
linear feet of streams and 6.8 acres of wetlands. Subsequently, the project design has been refined, and
the permanent impacts have been reduced and now include 378 linear feet of streams and 0.82 acre of
wetlands.
The hearing was well attended and a large number of written comments were received by the Corps
during the public comment period. Due to the fact that this 401 Certification hearing and comment
period was combined with those for the EIS and the 404 permit, most of the comments focused on
issues outside the scope of the 401 Certification. A large, well-organized citizens group of New Hill
residents and their supporters from other communities was present and made arguments against the
proposed location of the plant. The residents of New Hill appear to be overwhelmingly opposed to the
project. The leadership of the towns of Cary, Apex, and Holly Springs (all members of the Western Wake
Partners) are firmly behind the project. (The community of New Hill is unincorporated, so they do not
have a formal municipal leadership to weigh in on the proposed location.)
This has been a controversial project. A great many of the commenters presented credible claims that
the Western Wake Partners' site selection process was flawed and resulted in premature or unjustified
elimination of alternative sites. Some of these comments are relevant to the spirit of the rules for 401
Certification, in that they specifically point out that at least one alternative site would result in fewer
feet of impacts to streams and fewer acres of impacts to wetlands. However, DWQ is prevented by 15A
NCAC 2H .0506(i) from duplicating the alternatives analysis that is being required by the US Army Corps
of Engineers. Therefore, this report of the public hearing process will focus solely on impacts and
comments relevant to the preferred site identified in the EIS, also known as Site 14.
Following the outline of 15A NCAC 02H .0506(b) and (c), the criteria for review of applications, I submit
the following specific observations from the public comments.
No practical alternative, considering changes in design and a potential for reduction in size, the basic
purpose cannot practically be accomplished to avoid less adverse impact to surface waters or wetlands.
(15A NCAC 2H .0506(b)(1) and (c)(1)):
As stated above, a recurring theme of many of the comments is that the Western Wake
Partners' site selection process was flawed and resulted in premature or unjustified elimination
of alternative sites in the EIS. The most detailed and well-laid out arguments to this effect were
presented by Christopher Brook of the Southern Coalition for Social Justice, counsel to the New
Hill Community Association (Sections 2 and 4 of written comments of New Hill Community
Association). These comments lead to a point that is relevant to the spirit of the rules for 401
Certification in that they specifically point out that at least one alternative site would result in
fewer feet of impacts to streams and fewer acres of impacts to wetlands (Section 3.3.2. of
written comments of New Hill Community Association). However, 15A NCAC 2H .0506(i)
specifically prevents DWQ from duplicating the alternatives analysis that is being required by
the US Army Corps of Engineers.
Recommendation: Considering 15A NCAC 2H .0506(i), DWQ must make its determination
regarding the 401 certificate on the basis of the site that is ultimately approved by the Corps of
Engineers as having the least overall impacts.
Minimizes adverse impacts to surface waters by showing support for existing uses after project
completion(15A NCAC 2H.0506(b)(2) and (c)(2)):
The NC Wildlife Resources Commission (WRC) points out that the preferred site lies within the
Cape Fear River basin and upstream of significant fisheries and a primary nursery area for
numerous anadromous species. The WRC included several recommendations for minimization
of impacts to streams and wetlands on site, including the use of trenchless technology for
crossing streams and wetlands and crossing streams at near-perpendicular angles to the flow of
the stream.
Recommendation: DWQ staff should review the recommendations of the NC WRC and include
their recommendations, as applicable, in the conditions of the 401 Certification. A copy of the
WRC recommendations submitted during the public comment period and a clarifying email from
the WRC is included with this report.
The project does not result in the degradation of groundwaters or surface waters (15A NCAC 2H
.0506(b)(3) and (c)(3)):
No information was submitted during the public comment period that provides insight on this
issue. It is my understanding that DWQ staff will evaluate this issue during the formal review of
the application for the 401 Certification.
The project should not result in cumulative impacts that cause downstream violation of water quality
standards (15A NCAC 2H .0506(b)(4) and (c)(4)):
The NC WRC points out that the federally-listed dwarf wedgemussel (Alasmidonta heterodon) is
present in the Middle Creek watershed downstream of portions of the project service area
within the jurisdictions of Cary and Holly Springs. The NC WRC believes that further protective
measures are needed to protect water quality and habitats from secondary and cumulative
impacts within the jurisdictions of Cary and Holly Springs. The NC WRC recommends that each
town implement the measures outlined under "Specific Mitigation Measures for Waters
Containing Federally Listed Species" in the WRC's Guidance Memorandum to Address and
Mitigate Secondary and Cumulative Impacts to Aquatic and Terrestrial Wildlife Resources and
Water Quality (August 2002), available on N.C. Wildlife Resources Commission's web site at
http://www.ncwildlife.org/Wildlife Species Con/documents/pg7c3 impacts.pdf .
Recommendation: DWQ staff should review the recommended mitigation measures of the NC
WRC and include these measures, as applicable, in the conditions of the 401 Certification. A
copy of the WRC recommendations submitted during the public comment period and a
clarifying email from the WRC is included with this report.
Provides for protection of downstream water quality standards through the use of on-site stormwater
control measures (15A NCAC 2H.0506(b)(5) and (c)(5)):
No information was submitted during the public comment period that provides insight on this
issue. It is my understanding that DWQ staff will evaluate this issue during the formal review of
the application for the 401 certificate.
The project provides for replacement of existing uses through mitigation under US ACOE requirements
(15A NCAC 2H .0506(b)(6) and (c)(6)):
The applicant intends to provide mitigation for all stream and wetland impacts via the
Ecosystem Enhancement Program. The Ecosystem Enhancement Program notified the applicant
on July 22, 2009 that EEP is willing to accept payment for impacts associated with the project.
The acceptance expired on April 22, 2010, so the applicant will need new verification that the
acceptance is valid.
In written comments, Jeffrey and Lisa Ross point out that the EIS describes pipeline easements
of 30 to 40 feet in width, and that these widths were used to estimate the extent of wetland and
habitat impact. However, NC General Statute 40A-3(a)(1) requires that land condemned for any
"liquid pipelines" (including public sewer lines) be not less than 50 feet in width and not more
than 100 feet in width. Given this requirement, it is reasonable to expect that streams and
wetlands will experience temporary and permanent impacts across a significantly wider
easement than that specified in the EIS.
Recommendation: DWQ staff should require the applicant either: (a) to revise estimates of
stream and wetland impacts to reflect the easement condemnation widths required by G.S.
40A-3(a)(1) and to provide mitigation in keeping with the revised estimate, or (b)to demonstrate
why the estimated impacts would not extend to the full easement width required by statute.
In closing, in spite of the controversy surrounding this project, I believe that the 401 Certificate can be
issued, and that conditions should be added to the certificate to provide better protection of water
quality and wildlife habitats. If you need additional information, please feel free to contact me at 715-,
6182.
Attachments:
Public hearing notice
Public hearing transcript
NC Wildlife Resources Commission recommendations and clarification email