20090266 Ver 2_USACE Correspondence_20101022

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
Washington Regulatory Field Office
Post Office Box 1000
IN REPLY REFER TO Washington, North Carolina 27889-1000
CERTIFIED/RETURN RECEIPT REQUESTED
October 21, 2010
Regulatory Division
Action ID SAW-2009-01146 / Greenville Utilities Emergency Drought
Management Plan
Mr. Ricky Langley
Greenville Utilities Commission
1721 Waterway Road
Greenville, North Carolina 27835
Dear Mr. Langley:
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On September 21, 2010, we received your request for verification pursuant to Section 404 of
the Clean Water Act and Section 10 of the Rivers and Harbors act, to utilize Nationwide Permit
18 to authorize impacts to wetlands and navigable waters of the Tar River for the construction of
a salt water intrusion dam across the river, approximately 500 feet downstream of Greenville
Utilities Commission's raw water intake in Greenville, Pitt County, North Carolina. This
correspondence also confirms your October 20, 2010, telephone conversation with Mr. Josh
Pelletier of my staff regarding this matter.
As discussed, we have reviewed your application and determined that your proposal would
result in adverse impacts to riverine wetlands and the navigable waters of the Tar River, also a
designated federal project. Additionally, this proposal may adversely impact endangered
species, anadromous fish and other wildlife resources as supported by comments submitted to the
Corps by the U.S. Fish and Wildlife Service, National Marine Fisheries Service and the North
Carolina Wildlife Resources Commission.
Based on the above, we have determined that the adverse effects of your proposal are more
than minimal. Accordingly, your project does not qualify for authorization under the nationwide
permit. Should you wish to pursue this project, you may seek authorization under a Department
of the Army (DA) individual permit. Mr. Pelletier is available to assist you with this process.
He can be reached at the Washington Regulatory Field Office, Post Office Box 1000,
Washington, North Carolina 27889, telephone [phone],
Please reference the very important points raised in our correspondence to you dated
November 2, 2009 (enclosed). As stated, the Corps appreciates Greenville's initiative and
foresight in planning for future drought events. However, many very important environmental
issues exist that you must satisfactorily address before a DA permit could be issued for such
work.
Thank you for your time and cooperation. The Wilmington District is committed to providing
the highest level of support to the public. To help us ensure we continue to do so, please
complete the Customer Satisfaction Survey located at our website at
http://re ug latory.usacesurvey.com/. If you have any questions, please contact Mr. Pelletier of my
Washington Regulatory Field Office staff, telephone [phone].
Sincerely,
' C
David M. Lekson, P.W.S.
Chief, Washington Regulatory Field Office
Enclosure
Copies Furnished (with enclosure):
Ms. Jennifer Derby, Chief
Wetlands Regulatory Section
Water Management Division
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
Ms. Becky Fox
Wetlands Regulatory Section - Region IV
United States Environmental Protection Agency
1307 Firefly Road
Whittier, North Carolina 28789
Mr. Pete Benjamin
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
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Mr. John Ellis
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Ron Sechler
National Marine Fisheries Service
Habitat Conservation Service
Pivers Island
Beaufort, North Carolina 28516
Mr. Ian McMillan
Division of Water Quality North Carolina
Department of Environment and Natural Resources
2321 Crabtree Blvd., Suite 250
Raleigh, North Carolina 27604
Mr. Alton Hodge
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Sean McKenna
Division of Marine Fisheries
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Ms. Maria Dunn
Wildlife Resources Commission
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Bennett Wynne
North Carolina Wildlife Resources Commission
901 Laroque Avenue
Kinston, North Carolina 28501
3
Mr. Harry Bailey
Division of Public Water Supply
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Barrett Lassiter
Greenville Utilities Commission
1721 Waterway Road
Greenville, North Carolina 27835
Ms. Heather Jacobs Deck
Pamlico-Tar River Foundation
Post Office Box 1854
Washington, North Carolina 27889
Ms. Jennifer Heard
Brown and Caldwell
5410 Trinity Road, Suite 302
Raleigh, North Carolina 27607
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November 2, 2009
Regulatory Division
ORM ID SAW 2009-01146 / Greenville Utilities Emergency Drought Management Plan
Mr. Ricky Langley
Greenville Utilities Commission
1721 Waterway Road
Greenville, North Carolina 27835
Dear Mr. Langley:
This correspondence is in regards to the document entitled Draft NEPA Environmental
Assessment, Greenville Utilities Commission, Emergency Drought Planning Project, dated
October 2009, submitted on your behalf by Ms. Jennifer Heard of Brown and Caldwell. The
purpose of this letter is to reiterate U.S. Army Corps of Engineers (Corps) concerns on the
subject plan.
As stated in correspondence to you dated July 7, 2009, the following comments are presented
in accordance with Section 404 of the Clean Water Act (CWA), Sections 9 and 10 of the Rivers
and Harbors Act of 1899, the National Environmental Policy Act (NEPA), and the Endangered
Species Act of 1973.
1. The Section 404(b)(1) Guidelines (Guidelines), published by the Environmental Protection
Agency in conjunction with the U.S. Army Corps of Engineers (Corps), contains substantive
environmental criteria used in evaluating discharges of dredged or fill material within Corps
jurisdiction. Under these Guidelines, no discharge can be permitted if a practicable alternative
with less adverse impact on the aquatic environment (unless the identified alternative poses other
significant environmental consequences) is available. The Corps' evaluation of a Section 404
permit application is a two part test involving: a) Determination of whether the project complies
with the Section 404(b)(1) Guidelines; and b) Public interest review. This public interest review
is a balancing test in which the public and private benefits of a project are compared against its
adverse impacts to the environment. It includes such considerations as conservation, economics,
aesthetics, navigation, fish and wildlife values, water supply, water quality, energy needs, flood
damage prevention, and cultural resources. The Corps also considers all comments received in
the permit process, whether in response to a public notice or a public hearing. A permit cannot
be issued or an application must be denied if the project fails to comply with the Guidelines or is
found to be contrary to the public interest.

2. As discussed, Department of the Army (DA) permit authorization, pursuant to Section 404
of the Clean Water Act, will be required for the discharge of excavated or fill material in waters
of the United States, including wetlands, in conjunction with this project, including disposal of
construction debris, borrow, wasting and other associated construction activities. Specific permit
requirements will depend on design of the project, extent of fill work within waters and wetlands
(dimensions, fill amounts, etc.), construction methods, and other factors.
3. On February 6, 1990, the DA and the U.S. Environmental Protection Agency signed a
memorandum of agreement establishing procedures to determine the type and level of mitigation
necessary to comply with the Clean Water Act Section 404(b)(1) Guidelines. Permits for work
within wetlands or other special aquatic sites are available only if the proposed work is the least
environmentally damaging, practicable alternative. This MOA provides for first, avoiding
impacts to waters and wetlands through the selection of the least damaging, practicable
alternative; second, taking appropriate and practicable steps to reduce impacts on waters and
wetlands; and finally, compensating for any remaining unavoidable impacts to the maximum
practicable extent.
4. Pursuant to 33 CFR Part 325.1(d)(7), a permit application must also include a statement
describing how impacts to waters of the United States are to be avoided and minimized. The
application must also include either a statement describing how impacts to waters of the United
States are to be compensated for, or a statement explaining why compensatory mitigation should
not be required for the proposed impacts. This required information is essential to our
expeditious processing of an application. A copy of this information must also be sent to the
North Carolina Division of Water Quality to enable them to adequately evaluate your application
for a Water Quality Certification pursuant to Section 401 of the Clean Water Act.
. 5. As discussed, the Corps is especially concerned with Greenville's proposal to allow for the
construction of a temporary dam across the Tar River in the vicinity of the Greenville Utilities
Water Treatment Plant. Following are issues related specifically to this:
a. As discussed, the Tar River is a designated navigable water of the United States.
Additionally, the Wilmington District is responsible for maintaining the navigable capacity of
the Pamlico and Tar Rivers upstream to Rocky Mount. The construction of any weir or dam, be
it temporary or not, will adversely affect navigation and as such, will be very difficult to permit.
b. The Wilmington District is also responsible for the Princeville dike project located
upstream of Greenville and any potential impacts to this federal project as a result of
Greenville's drought management plan must be considered.
c. Section 9 of the Rivers and Harbors Act of 1899 prohibits the construction of any
bridge, dam, dike or causeway over or in navigable waterways of the United States without
Congressional approval. Administration of Section 9 has been delegated to the U.S. Coast Guard
(USCG). Accordingly, should you wish to pursue the dam as part of Greenville's plan to address
drought situations, you must also obtain a Section 9 permit from the USCG.
2
d. Under section 10 of the Rivers and Harbors Act, the building of any wharfs, piers,
jetties, and other structures is prohibited without Congressional approval and excavation or fill
within navigable waters requires the approval of the Chief of Engineers. Accordingly, any such
work within the Tar River will also require a DA Section 10 permit.
e. The Magnuson-Stevens Act (Act) calls for direct action to stop or reverse the continued
loss of fish habitats. The Act requires cooperation amongst the National Marine Fisheries
Service (NMFS), the fisheries management councils and the federal and state agencies in
achieving the goals of Essential Fish Habitat (EFH) protection, conservation, and enhancement.
Further coordination with the NMFS will be necessary to ensure compliance with this Act.
f. The Fish and Wildlife Coordination Act (FWCA), as amended in 1964, was enacted to
protect fish and wildlife when federal actions result in the control or modification of a natural
stream or body of water. The statute requires federal agencies to take into consideration the
effect that water-related projects would have on fish and wildlife resources; take action to
prevent loss or damage to these resources; and provide for the development and improvement of
these resources. The statute requires consultation with the U.S. Fish and Wildlife Service
(USFWS), or NMFS, as appropriate, and the fish and wildlife agencies of any affected state or
states to develop measures to protect, develop, and improve wildlife. Any reports or decision-
making documents subsequently prepared by the action agency must include the
recommendations of the FWS and affected state for protecting fish and wildlife. Where possible,
the action agency must incorporate the recommendations in the project plans. The constructing,
licensing, or permitting federal agency is to include in the project plans such justifiable means
and measures as it finds should be adopted to obtain maximum overall project benefits.
6. Section 7 of the Endangered Species Act directs all federal agencies to use their existing
authorities to conserve threatened and endangered species and, in consultation with the Service,
to ensure that their actions do not jeopardize listed species or destroy or adversely modify critical
habitat. Section 7 applies to management of federal lands as well as other federal actions that
may affect listed species, such as federal approval of private activities through the issuance of
federal permits, licenses, or other actions. Any work that you propose must be fully evaluated to
determine its potential affect on federally listed threatened and endangered species.
7. Several facets of your proposal may represent significant impacts to the human
environment and as discussed, you should seriously consider the preparation of an environmental
impact statement (EIS) to adequately disclose and address these issues up front. You
acknowledged that you were considering this.
8. As provided to you at our May 20, 2009, meeting, please find the attached documents
entitled, a) Draft EPA Region 4 Guidelines on Drought Management in the Southeast, b) EPA
Section 404 Reservoir Review, and c) Alternatives Analysis. You must heed the information
provided in these documents.
3
C
The Corps appreciates Greenville's initiative and foresight in planning for future drought
events. The purpose of this correspondence is to document the important environmental issues
that you must address and inform you that some aspects of your proposal may be difficult to
permit and/or require a lengthy review process. To ensure that the Greenville Utilities
Commission adequately addresses Corps concerns, I strongly recommend that you continue to
closely coordinate with Mr. Pelletier.
Thank you for your time and cooperation. The Wilmington District is committed to
providing the highest level of support to the public. To help us ensure we continue to do
so, please complete the Customer Satisfaction Survey located at our website at
http://re ug_ latory.usacesurve .ccom/. If you have any questions, please contact Mr.
Pelletier, Washington Regulatory Field Office, temporary telephone [phone].
Sincerely,
FILENAME: GUCNEPAScoping
CESAW-RG-W/Lekson/aws/s
Mail
File
David M. Lekson, P.W.S.
Chief, Washington Regulatory Field Office
Enclosures
Copies Furnished (without enclosure):
Ms. Becky Fox
Wetlands Regulatory Section - Region IV
United States Environmental Protection Agency
1307 Firefly Road
Whittier, North Carolina 28789
Mr. Pete Benjamin
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. John Ellis
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
4

11
Mr. Ron Sechler
National Marine Fisheries Service
Habitat Conservation Service
Pivers Island
Beaufort, North Carolina 28516
Ms. Cyndi Karoly
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Mr. Alton Hodge
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Sean. McKenna
Division of Marine Fisheries
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Ms. Maria Dunn
Wildlife Resources Commission
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Bennett Wynne
North Carolina Wildlife Resources Commission
901 Laroque Avenue
Kinston, North Carolina 28501
5
Mr. Harry Bailey
Division of Public Water Supply
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Barrett Lassiter
Greenville Utilities Commission
1721 Waterway Road
Greenville, North Carolina 27835
Ms. Heather Jacobs Deck
Pamlico-Tar River Foundation
Post Office Box 1854
Washington. North Carolina 27889
Ms. Jennifer Heard
Brown and Caldwell
5410 Trinity Road, Suite 302
Raleigh, North Carolina 27607
6