20201283 Ver 1_SAW-2015-02646--Ms. Lori Tollie--RFAI Final 13 Jan 2021_20210114

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343

January 14, 2021

Regulatory Division

Action ID: SAW-2015-02646

Ms. Lori Tollie
Duke Energy
411 Fayetteville Street, Mail Code NC14
Raleigh, North Carolina 27601

Dear Ms. Tollie:

Please reference your Individual Permit application for Department of the Army (DA)
authorization to permanently discharge dredged or fill material into 2,861 linear feet of
stream channel associated with landfill expansion, the West Ash Basin (WAB), Borrow
Area 1, and Borrow Area 6, and 0.73 acre of wetlands, associated with landfill
expansion, and Borrow Area 1. The project is part of Duke Energy’s phase out of wet
coal ash handling, required by the Coal Ash Management Act of 2014 (CAMA-14), at
the Roxboro Steam Electric Plant located near Semora, in Person County, North
Carolina.

The U.S. Army Corps of Engineers, Wilmington District (Corps) advertised your
proposal by public notice dated December 4, 2020. Comments in response to the
notice were received from the North Carolina Division of Water Resources (NCDWR).
As we have similar concerns pertaining to avoidance and minimization associated with
the proposed project, please provide written responses to comments 1 through 8 from
the NCDWR Request for Additional Information. In addition, the North Carolina
Department of Natural and Cultural Resources (NCDNCR), United States Fish and
Wildlife Service (USFWS), and United States National Marine Fisheries Service (NMFS)
also commented and their comments are provided for your review.

In addition, a total of 100 emails or comment letters were received, along with six
individuals commenting by telephone. Ninety commenters raised concerns for their
property’s proximity to Borrow Site 1 or Borrow Site 2. Ninety-three commenters raised
concerns for aesthetic, recreational, and property value impacts that the proposed
project would have upon their properties. Seventy commenters requested that buffers
be increased in width. Eighty-six commenters requested a public hearing be held to
inform the public and receive feedback. Thirty-nine commenters raised concerns for
impacts to Hyco Lake due to the direction of groundwater flow across the project,
impacts to water tables, and impacts to private wells. Eighty-three commenters raised
concerns for impacts to water quality and aquatic and terrestrial life. Fifty-one

-2-

commenters requested additional detail regarding off -site alternatives considered,
including beneficial uses of the material along with the utilization of existing landfills.
Thirty-seven commenters raised concerns for noise, traffic, and vibration impacts
associated with the project. Thirty-five commenters expressed concern for soil erosion
and shallow bedrock in portions of the borrow areas. Thirty-five commenters raised
concerns for species protected under the Endangered Species Act (ESA) and Bald and
Golden Eagle Protection Act, as well as species protected by the State of North
Carolina. Twelve commenters requested accurate information regarding the volume of
soil needed for the project. Thirty-six commenters raised concerns for air quality and
the hours of work for this project. Thirty-three commenters requested information
regarding restoration/reclamation of borrow sites once complete. Thirty-four
commenters requested a more concise timeline for the project. Sixty-nine commenters
raised concern for impacts to local economies and tax revenues due to recreational
impacts. Sixty-seven commenters requested permanent conservation easements be
placed on several borrow areas. Twenty-two commenters noted a lack of public
engagement and requested an opportunity to engage via public outreach. One
commenter voiced support for the project and urged expedience. Three commenters
requested the permit be denied or tabled. One commenter stated that they are
considering legal action against the project. Three commenters referenced high cancer
rates among the residents of McGhees Mill Road and requested additional information
about water testing, distribution, and if these concerns would extend elsewhere because
of the project. Two commenters requested well water testing be conducted and
guidance on substances/potential contaminants that should require analysis. One
commenter (McGhees Mill Road) requested a buy-out of their property. The comments
received are enclosed for your information and to provide you with the opportunity to
address any of the stated concerns.

Further, on February 6, 1990, the Department of the Army (DA) and the U.S.
Environmental Protection Agency (EPA) signed a memorandum of agreement (MOA)
establishing procedures to determine the type and level of mitigation necessary to
comply with Clean Water Act (CWA) Section 404(b)(1) Guidelines. This MOA provides
for first, avoiding impacts to waters and wetlands through the selection of the least
damaging, practical alternative; second, taking appropriate and practical steps to reduce
impacts on waters and wetlands; and finally, compensation for remaining unavoidable
impacts to the extent appropriate and practical. To enable us to process your
application, in compliance with the MOA, we request that you provide the following
additional information:

-3-

A. Permits for work within wetlands or other special aquatic sites are available
only if the proposed work is the least environmentally damaging, practicable
alternative. Please furnish information regarding any other alternatives,
including upland alternatives, to the work for which you have applied and
provide justification that your selected plan is the least damaging to water or
wetland areas. For example, please address other alternatives, such as
industrial solid waste landfills, close in place/cap in place, materials/products
use, and other “beneficial use”/structural fill projects.

i. See also comment 1 in the NCDWR request for additional information;

B. It is necessary for you to have taken all appropriate and practicable steps to
minimize losses of Waters of the U.S., including wetlands. Please indicate all
that you have done, especially regarding development and modification of
plans and proposed construction techniques, to minimize adverse impacts.

i. You need to quantify temporary and permanent impacts to streams
and wetlands. Also, please provide the method by which you
quantified these impacts. Note that compensatory mitigation will be
required for such impacts resulting in a loss of hydrology and therefore
aquatic function, typically at a 2:1 ratio unless otherwise justified based
on resource quality through the completion of the appropriate
functional assessment, such as the North Carolina Wetland
Assessment Method or North Carolina Stream Assessment Method .
ii. See also comments 2 through 8 in the NCDWR request for additional
information;

C. The MOA requires that appropriate and practicable mitigation will be required
for all unavoidable adverse impacts remaining after the applicant has
employed all appropriate and practicable minimization. The Corps does not
typically accept phased mitigation, but we understand this project may require
some flexibility. Please expand on your plan to mitigate for the projected,
unavoidable loss of waters or wetlands and the projected timelines for
acquiring mitigation. Include in your response a more detailed analysis of
how much material will be needed, and how much is available on each
borrow site under consideration.

-4-

i. Please note that evaluation of responses to item B.i above may affect
compensatory mitigation requirements.

D. In addition, an adjacent property owner did not receive the postcard
announcing the Public Notice and requesting comment. The property was
identified on the map of adjacent properties provided, but the owner’s name
and address were not in the list submitted for our mailing.

i. Please review the list of owners against the targeted properties and
provide a statement as to whether other intended recipients did not
receive the notice.
Additionally, the following items must be resolved prior to continuing to process your
permit request:

1) Please copy the Corps on your response to NCDWR’s Request for Additional
Information letter dated January 4, 2021;

2) Please provide the Corps your responses to the public comments received;

3) Please note that responses to the questions above may prompt additional
information requests to allow full evaluation of the proposed project.

The above requested information is essential to the expeditious processing of your
application. Please forward this information to us within 30 days of your receipt of this
letter. If you have any questions regarding these matters, please contact me at (919)
554-4884 extension 35 or [e-mail].

Sincerely,

Scott C. McLendon
Chief, Regulatory Division

Enclosures

Copies Furnished w/enclosures:

-5-

Mr. Richard Harmon
Wood E&IS
4021 Stirrup Creek Drive, Ste 100
Durham, North Carolina 27703

Copies Furnished w/o enclosures:

Mr. Todd Bowers
Permit Review Specialist
Wetlands Regulatory Section
U.S. Environmental Protection Agency - Region IV
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, Georgia 30303

Mr. Rick Trone
Division of Water Resources
North Carolina Department of Environmental Quality
512 N. Salisbury Street, Ste 942-F
Raleigh, North Carolina 27699-1617