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HomeMy WebLinkAbout20011729 Ver 1_Report_20031106DRAFT STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES DIVISION OF WATER QUALITY TOWN OF SILER CITY, NC PROPOSED CONSTRUCTION/EXPANSION OF THE EXISTING ROCKY RIVER LOWER RESERVOIR Water Quality Certification & Isolated Wetland Permit PUBLIC HEARING PROCESS REPORT September 9, 2004 PUBLIC HEARING NOVEMBER 6, 2003 SILER CITY, NORTH CAROLINA DRAFT TOWN OF SILER CITY, NC PROPOSED CONSTRUCTION/EXPANSION OF THE EXISTING ROCKY RIVER LOWER RESERVOIR Water Quality Certification & Isolated Wetland Permit PUBLIC HEARING PROCESS REPORT September 9, 2004 1. Summary Page X 2. Introduction Page X 3. Background Page X 4. The Hearing Page X Overview Presentations Written Comments Ongoing Application Review 5. Issues & Responses Page X 6. Analysis & Recommendation Page X Water Quality Certification Rules Isolated Wetland Permit Conditions 7. CONCLUSION Page X 2 DRAFT REPORT: WATER QUALITY CERTIFICATION & ISOLATED WETLAND PERMIT REVIEW AND PUBLIC HEARING/COMMENT PROCESS: TOWN OF SILER CITY, NC PROPOSED CONSTRUCTION/EXPANSION OF THE EXISTING ROCKY RIVER LOWER RESERVOIR 1. SUMMARY The following report reviews the proposed project at the existing Rocky River Lower Reservoir in relation to the Town of Siler City's request for a Water Quality Certification and Isolated Wetland Permit for wetland and stream impacts associated with the construction of a new dam in the general location of the existing dam and the expansion of the existing reservoir. The basic overall conclusion reached in this report is illustrated by the following statement from this report: "In conclusion, it is recommended that a conditioned Water Quality Certification and Isolated Wetland Permit for the proposed Construction/Expansion of the Existing Rocky River Lower Reservoir be issued." Throughout the report, specific reasons for the conditions that should be contained in the Water Quality Certification and Isolated Wetland Permit are given. II. INTRODUCTION The Town of Siler City, as described in the Environmental Assessment, Individual 404 Permit Application and Isolated Wetland Permit application, proposes construction of a new dam on the Rocky River (Chatham County) to expand the existing Rocky River Lower Reservoir. The new dam would be located approximately 65 feet below the existing dam and would be approximately 12 feet taller than the existing dam. The expanded reservoir is intended to provide a safe and dependable water supply for the Town of Siler City that will satisfy projected demand for a planning period of approximately 20 years. The proposed work would involve the inundation of 7,916 feet of perennial stream channel, 1,588 feet of intermittent stream channel, 7.67 acres of jurisdictional wetlands, and 1.52 acres of isolated wetlands. The proposed project would discharge fill to less than 150 feet of streams/river. The United States Army Corps of Engineers (USACE) issued a Public Notice for the Section 404 Permit initially on December 28, 2001 and again on July 15, 2004. The comment period on the July 15, 2004 Public Notice ended on August 17, 2004. A Final Environmental Assessment (EA) was submitted to the N.C. State Clearinghouse on November 26, 2002 and a Finding of No Significant Impact (FONSI) was issued for the project on January 6, 2003. III. BACKGROUND DRAFT The DWQ objective for this report is to consider only the water quality impacts of developing the project and determine if a Water Quality Certification and Isolated Wetland Permit could and should be issued for the proposed fill and inundation of wetlands and streams. Determination of alternatives beyond the proposed alternative for reasons other than water quality impacts is beyond the regulatory authority of this Division. Also, the Division shall not duplicate site-specific guidelines performed by the USACE and as such relies on the USACE to evaluate alternatives to the proposed project. The file record for this project, including the Environmental Assessment (EA), 404 Application, Isolated Wetland Permit application and Draft Mitigation Plan, provides a large amount of information concerning the development of this proposed project. The environmental impacts have been well documented by the EA, applications and additional information including in the file record. The agencies have been involved in the review of the proposed project since late 2001. The DWQ staff members involved in the review of this project include staff from the 401 Oversight/Express Permits Unit, Planning Branch, Classification and Standards Unit, Modeling and TMDL Unit, NPDES Unit, Ecosystems Unit and Intensive Survey Unit. The 401 Oversight/Express Permits Unit also coordinated with the Division of Water Resources and Wildlife Resources Commission on water quality related issues associated with the proposed project. Staff reviewed the proposed reservoir site, upstream and downstream watersheds and the proposed mitigation sites. IV. THE HEARING Overview: In accordance with North Carolina General Statutes, a public hearing was held on November 6, 2003, in Siler City, North Carolina (Chatham County). Notice of the hearing was published in the October 1, 2003, North Carolina Register (Volume 18, Issue 7). Public announcements (announcement attached as pages 18 and 19) were sent to those people who have requested to be placed on the Water Quality Rule- Making Announcements mailing list, Water Quality Standards e-mail list and 401 Oversight/Express Review mailing list; to local governments with jurisdiction over land affected by the proposed reclassification; and to all owners of land affected by the proposed reclassification. Mr. Boyd DeVane, served as hearing officer for the Water Quality Certification and Isolated Wetland Permit. In addition, printed notices of this hearing were published in local newspapers: The Chatham News, The Greensboro News and Record, and The News and Observer. Because reclassification of surface waters upstream of the new dam from WS-IV to WS-IV CA would be required for the development of the proposed water supply reservoir, a "duel purpose" hearing was held as requested by the N.C. Environmental Management Commission (EMC) during their regularly scheduled May 8, 2003 meeting. The hearing received comments on the water supply reclassification and on the 401 Certification. The report on the reclassification request has been prepared by 4 DRAFT the Division of Water Quality staff and was presented to the EMC during their September 9, 2004 meeting. One hundred fifteen people registered at the public hearing. Seven attendees did not register for the hearing. Of those 115 people who registered, 75 provided the organizations they were representing. Several people belonged to environmental or conservation groups and others identified themselves as representing citizens, landowners, and/or representatives on behalf of other specific people. In addition, four consulting companies, three unidentifiable entities, two local governments (Chatham County and the Town of Siler City), two farms, two industries, one trucking company, a local newspaper, a hydroelectric firm, a hospital, and one law firm were represented. Presentations: DWQ staff presented opening continents and slides to provide a brief overview of the Water Quality Certification and Isolated Wetland Permit programs and the DWQ classification program and detailed information about the proposed reclassification and Water Quality Certification and Isolated Wetland Permit request. A session in which the public was given the opportunity to provide comments on the proposed reclassification followed. Thirty-six individuals registered to make comments at the hearing. However, four people were not able to stay long enough at the hearing to provide verbal comments, decided not to speak, or did not respond when called upon to comment. Four people spoke after the registered speakers provided their comments, and all four of these individuals had already provided verbal comments once. Of the 32 individuals who spoke, seven spoke in favor of the proposed reservoir expansion, two spoke neither for nor against the proposed reservoir expansion, and 23 voiced sentiments against the proposed reservoir expansion. People who spoke in support of the proposed reservoir expansion represented industries, a school, the town and the county. People who commented against the proposed reservoir expansion represented a hydroelectric firm, environmental groups, landowners, citizens, and/or provided no affiliation. Written Comments: Written comments were accepted through December 8, 2003, and 426 letters were received during the comment period. Nine letters were received in favor of the proposed reservoir expansion. Four hundred seventeen (417) letters were submitted against the proposed reservoir expansion. Fourteen letters against the proposed reservoir expansion were identical. Another 347 letters against the proposed reservoir expansion were identical to another template. Twenty-eight letters were various versions of the two templates. Only 28 letters against the reservoir expansion were unique, meaning they did not share the same language with either of the templates. The two templates comprise the majority of comments received, and cited several reasons opposing the proposal, which DWQ staff subsequently investigated thoroughly. (Written comments are available for review in the file record and within the Report of Proceedings for the Proposed Reclassification.) Please note that some people provided more than one letter and/or commented verbally. Of all the letters, all received in support of the reservoir expansion were DRAFT written by people representing the town, three industries, a school, a hospital and the county. However, only some of the letters against the reservoir expansion provided the authors' affiliations, and these affiliations included a downstream discharger, hydroelectric firm, church, heavy-duty truck/equipment services, farms, landowners, environmental groups, university, residents, citizens, automobile body shop, trailer park, and three unknown organizations. Ongoing Application Review: The public hearing was held at a point in the Water Quality Certification and Isolated Wetland Permit review process when the Final Environmental Assessment had been completed, the Finding of No Significant Impact (FONSI) had been approved by the State Clearinghouse, and applications had been submitted to the USACE for the 404 Permit and the DWQ for the Water Quality Certification and Isolated Wetland Permit. The Water Quality Certification and Isolated Wetland Permit remained on hold until now for various reasons including additional information on releases from the dam and their effects on downstream water quality, additional information on the nutrient and algal problems within the reservoirs and river, a cumulative impact analysis, concurrence with the USACE to ensure that all alternatives have been evaluated, and a comprehensive wetland mitigation plan. The USACE kept the 404 Permit on hold for various reasons including additional information on issues and alternatives presented during the public hearing and a comprehensive stream and wetland mitigation plan. The USACE issued a second Public Notice for the project on July 14, 2004 due to significant modifications to the original 404 Permit application and additional information provided during and after the Public Hearing (including the comprehensive stream and wetland mitigation plan). In response to the July 14, 2004 Public Notice, the DWQ kept the Water Quality Certification and Isolated Wetland Permit on hold until after the comment period ended on August 17, 2004. The DWQ conducted several meetings with representatives from the Division of Water Resources, DWQ Ecosystems Unit, N.C. Wildlife Resources Commission, Town of Siler City, USACE and Brian McCrodden of HydroLogics, Inc. during the spring and summer of 2004 to address issues raised during the Public Hearing process. In addition, the DWQ conducted a meeting with the Friends of the Rocky River in mid-August 2004 to discuss the reclassification, Water Quality Certification, Isolated Wetland Permit and the general water quality issues of the Rocky River and it's tributaries. Information and staff's notes derived from these meetings are including the file record. The following is a list of the major file materials used in the consideration of this application in addition to comments received during the Public Hearing process. Individual 404 Permit Application & Enclosures - November 2, 2001 USACE Public Notice - December 28, 2001 6 DRAFT Environmental Assessment & Appendices - November 26, 2002 DWR Memo / Dam Safety Permit - December 10, 2002 Isolated Wetland Permit Application - May 14, 2003 Finding of No Significant Impact (FONSI) - January 6, 2003 Siler City Watershed Protection Ordinance Chatham County Watershed Protection Ordinance Siler City Response Letter & Attachments - December 4, 2003 Siler City Response Letter & Conceptual Wetland & Stream Mitigation Plan - January 22, 2004 Siler City Response Letter & Attachments - March 15, 2004 DWR Memo -March 16, 2004 Draft Wetland & Stream Mitigation Plan - May 24, 2004 Cumulative Impact Analysis - received May 25, 2004 Letter from Brian McCrodden (HydroLogics, Inc.) - July 12, 2004 USACE Public Notice - July 15, 2004 Division of Water Resources Advisory Letter - August 10, 2004 City of Fayetteville, NC Public Works Commission Letter - August 10, 2004 N.C. Wildlife Resources Commission Advisory Letter - August 11, 2004 Notes from Meeting with Friends of the Rocky River - August 18, 2004 Report of Proceedings on the Proposed Reclassification - August 2004 V. ISSUES & RESPONSES Listed below are the major issues raised and the DWQ staff responses to those issues. Issue: Many commenters indicated their belief that there are much better solutions for meeting Siler City's water needs than this proposed plan to build a new dam. Response: DWQ staff checked with Division of Water Resources (DWR) personnel on the main alternative most highly discussed in the template comment letters: getting water from Chatham County via an additional allocation from Jordan Lake. The Division staff (Woody Yonts, P.E., memo dated 3/16/2004) provided the following comments regarding the availability of water supplies to meet the needs of Siler City. "The available water supply for Siler City is 4 mgd. The projected maximum daily demands for Siler City will reach 6 mgd before 2020. The monthly maximum daily demand average was 3.6 MGD or about 97 percent of the available supply in 2002, a time when customers were asked to reduce demand for 6 months; 3-months voluntary and 3-months mandatory. The sources of emergency supply for the Town during the 1998-2002 were raw water from a nearby private pond pumped through temporary piping placed in the median of US Highway 421 and water tanker trucks carrying raw water from the Deep River to the Town's Upper Reservoir. Five alternatives in addition to the preferred alternative, Lower Reservoir Expansion, were considered in detail as a part of the EA process." "We do not know of any assurance that Chatham County will get additional allocation anytime in the foreseeable future or any guarantee an interbasin transfer (IBT) certificate will be issued to transfer more surface water from the Haw River Basin to another river basin." DRAFT "The projected maximum daily demand in 2020 for the County's three service areas would reach 8.3 mgd. The projected maximum daily demand in 2020 for Siler City would exceed 6 mgd. It appears that the County would need more than 8 mgd to serve its own needs at the year 2020 and not have water to supply 2 mgd to Siler City. " It is important to note that for many who objected to the reclassification, the need for more drinking water was not the point of contention; several commenters simply disagreed on the best way for the Town to get additional drinking water. As one of the people at the hearing stated "I don't believe anyone in this room denies the fact that there is a water problem in Siler City, we only argue with the solution that has been found." Also, it is important to note that in accordance with 15A NCAC 02H.0506(i), the U.S. Army Corps of Engineers has the primary authority to ensure that wetlands and stream impacts have been avoided and minimized in site selection and on-site design since DWQ is not to duplicate the site-specific application of the Corps' step-down procedures. As such, the Corps is the lead agency on the review of alternatives to the proposed reservoir expansion. Issue: Many commenters stated their belief that the Siler City Wastewater Treatment Plant (WWTP) "...has a long history of violations that needs to be addressed before further demands are put on the plant by a larger reservoir." One statement was received indicating that the plant was out of compliance over 50% during certain months. Response: DWQ staff to look into the statements made on the compliance of Siler City's Wastewater Treatment Plant (WWTP). The staff selected four nearby municipal wastewater treatment plants for comparison. The number of months where some permit violations occurred was compiled for each of the four facilities during the past four years (48 months). The Town of Siler City showed some type of permit violation in 35% of the months during that period. The other municipalities showed permit violations occurring in 8%, 15%, 6% and 4% of the months during that period. Although this analysis was very simplistic, it does seem to indicate that compliance problems do exist at the Siler City facility. However, it should be noted that Siler City has very stringent effluent limitations, more stringent than most of those facilities, and continual compliance is more of a challenge. Discussions with DWQ regional field staff provided an opinion that Siler City had significant problems in the past but that the Town had made considerable improvements in their record. During the upcoming permit renewal (permit expires 10/31/06), that the DWQ staff will give serious consideration to the compliance issues of the Siler City treatment facility and evaluate what action should be taken to minimize the impact on water quality. It is the intent of the DWQ that any wastewater discharge permit expansions that might be enabled by development of this enlarged reservoir do not result in any degradation of the receiving waters of Loves Creek or the Rocky River. DRAFT Issue: "...expanding the reservoir will adversely impact both terrestrial and aquatic species in the areas inundated." "The proposed reservoir expansion will also adversely impact water quality by disturbing wetlands." Response: The expansion of the reservoir and inundation of additional acres will have an adverse impact on some aquatic species and wetlands. These issues are a critical component of the 401 Certification that must be issued before the US Army Corps of Engineers can issue their 404 Permit that is needed to construct the dam. The DWQ believe that the 401 Certification's conditions (as discussed later in this report) to minimize adverse impacts and to mitigate for impacts that do occur are an appropriate mechanism to address those concerns. Issue: Concerns were expressed about how the larger reservoir will exacerbate existing problems seen in the present reservoir and downstream. Response: There are some indications that excessive nutrients do adversely impact the quality of the existing reservoirs. Livestock have been observed adjacent to the reservoirs and some streams in the watershed. Some pasture and row crop activities certainly contribute nutrients to the reservoirs. There is no evidence that just having a larger reservoir will exacerbate the nutrient problems in the proposed reservoir or downstream. However, the desire to minimize problems in a new reservoir and downstream has been a focal point of the reclassification and the 401 Certification review. The Town has agreed to take several steps to minimize future problems. Some of those steps include: • The Town expanded its Extra Territorial Jurisdiction (ETJ), which gives them control of both sides of the Rocky River for a distance totaling approximately 18 miles. Prior to the ETJ expansion, the Town had jurisdiction of only 6.28 miles along only one side of the Rocky River. • The Town modified its Unified Development Ordinance (UDO) as suggested by the North Carolina Wildlife Resources Commission. The most important modifications relating to water quality include: • Increasing the minimum buffer requirements along the Rocky River, perennial tributaries and intermittent tributaries within the Town's ETJ to between 50 and 200 feet. A 200-foot buffer will be imposed along the entire reach of the Rocky River within the Town's planning area and along all perennial and intermittent streams within 2,500 feet of the Rocky River. Beyond 2,500 feet, the buffer requirement will be 100 feet for perennial streams and 50 feet for intermittent streams within the Town's jurisdiction. (Areas within the Town's jurisdiction but outside of the Rocky River subbasin are required to have 100- foot buffers on perennial streams and 50-foot buffers on intermittent streams.) • Requiring that new developments limit impervious surfaces by limiting/discouraging the use of curb and gutter and requiring grassed swales where the slope is less than 5%. • Requiring stormwater controls for any new development exceeding 7 percent impervious surface area. (It should be noted that most existing General 401 DRAFT Water Quality Certifications only require stormwater management for development that exceeds 30% impervious surface area.) • Prohibiting the direct discharge of stormwater via ditches or pipes in or through buffer areas. Alternate stormwater discharge methods, such as infiltration practices, will be encouraged over the use of detention ponds. • A fenced 100-foot vegetative buffer (117.3 acres) will be maintained around the expanded reservoir. All wetlands (0.31 acres) and stream channels (773 linear feet) within this buffer will be preserved, enhanced or restored, as appropriate. Additionally, approximately 34 other wetland sites (17.89 acres) will be created. • The Town has agreed to install a continuous monitoring gage in cooperation with the United States Geological Survey (USGS) at a location to be approved by the Department in the vicinity of the U.S. Highway 64 crossing of the Rocky River. The public can easily monitor this information through the USGS website where flow readings will be made available every 15 minutes. The Division will continue to evaluate the impact on the stream's quality and, if needed, will seek modifications in the reservoir's operation strategy to improve downstream quality. Issue: Because many citizens have seen undeniable evidence of poor water quality in areas downstream of the existing reservoir for many years, a major concern voiced in letters and at the public hearing was the potential for reductions in downstream flow during dry, summer climatological events or droughts. Response: This issue has been a serious concern of the hearing officers and the Division of Water Quality staff. The investigation of this issue has been the focus of major expenditures of time and resources by the staffs of the Division of Water Quality and the Division of Water Resources. Siler City also funded a hydrology consultant to prepare analyses of various operating procedure options, such as increasing release rates and frequencies. In order to address these issues of river quality, staff in both Divisions in coordination with the N.C. Wildlife Resources Commission and U.S. Fish & Wildlife Service have recommended some changes in the required operating procedures of the proposed reservoir. The goal of these procedures would be that the Town would increase the minimum release of water during normal and low flow conditions and would also be required to provide "pulse releases" that would better mimic conditions as they might be without a reservoir. After months of evaluation of the potential for adverse impacts on the Rocky River, the Division of Water Quality has concluded that certain actions must be taken by the Town. The Town has agreed to meet the following conditions: The minimum release regime for the proposed reservoir will provide for significantly higher flows than the current minimum release regime during several months. In many cases the flows will be higher than would have occurred absent the dams. The minimum release regime for the proposed reservoir would be significantly higher in months that are important for fish reproduction. 10 DRAFT The proposed minimum release flows are based on a field study and modeling of downstream flows and aquatic habitat, and incorporate several differences in flow needs. • The minimum releases would be higher in 15 of 36 conditions (one for each month for each of 3 tiers [defined below]) and are never lower than the present regime. At build-out (water supply withdrawal of six mgd, which is not projected to occur until well after the year 2025), for days when the current reservoir is below full (and minimum releases are made), flows from the new reservoir will be higher than those from the current reservoir about 60 percent of the time. At no time will the release be less than that which would occur from the current reservoir. • During the worst two-three weeks of major droughts, flows from the new reservoir will be higher than those that would have occurred if there were no dams on the River. • The Town has agreed to re-design the outlet works of the proposed reservoir to allow releases of up to 20 cubic feet per second (cfs) to allow for pulse releases. • The Town will ensure there is a pulse release of 20 cfs for a 12-hour period every 30 days whenever the aggregate storage remaining in the two reservoirs is greater than 40 percent (Tiers 1 and 2.) (Tier 1 is less than full but more than 70 percent storage remaining; Tier 2 is less than 70 percent storage remaining but more than 40 percent storage remaining; Tier 3 is less than 40 percent storage remaining.) In the early years, the system will be in Tier 3 less than 2 percent of the time; even at full build-out, the reservoir will be in Tier 3 only 5 percent of the time. During drought years, the pulse release regime will provide twice as many pulses during the critical months of July through September as the current reservoir and 25 percent more than would occur if there were no reservoirs. Issue: The proposed dam will negatively impact endangered aquatic species downstream. Response: Freshwater fish sampling in the affected area was conducted at several locations within the proposed site and downstream of the proposed dam in July and August of 2000. A total of 26 species were collected and fully delineated in the Environmental Assessment (EA) prepared for this proposal. Most of the fish captured were typical of those found in Piedmont streams with good water quality. In addition, records from the North Carolina Wildlife Resource Commission (NC WRC) were reviewed to determine if there were any fish species of concern in the proposed site or immediately downstream of the proposed dam. No state or federally-listed endangered or threatened fish species were found in the site sampling or the WRC records. The Cape Fear Shiner (Notropis mekistocholas) is a federally endangered species known to exist in four populations in the lower reaches of the Cape Fear drainage in Randolph, Moore, Lee, Chatham, and Harnett Counties. Accordingly, US 11 DRAFT Fish & Wildlife Service (USFWS) critical habitats have been designated for the Cape Fear Shiner. According to the project EA, the nearest Cape Fear Shiner critical habitat in the Rocky River is approximately 15 miles downstream of the project site. Although this is a considerable distance from the proposed dam and reservoir, Cape Fear Shiner data was incorporated into the Instream Flow Incremental Methodology (IFIM), which was utilized to evaluate minimum release alternatives for the Rocky River Lower Reservoir. As detailed in the EA, this analysis showed that the flow regime within the approved minimum releases to be acceptable for the Cape Fear Shiner; however, it should be highlighted that no Cape Fear Shiners were found in the surveys associated with this proposal and this project is not within any Cape Fear Shiner critical habitat. Freshwater mussel surveys were also conducted in the proposed project area. According to the Environmental Assessment, freshwater mussel species appear to be fairly diverse and abundant within the project site. The following mussel species were observed in the project area during these surveys: Eastern Floater, Paper Pondshell, Carolina Lance, Eastern Elliptio, Carolina Slabshell, Variable Spike, and Eastern Creekshell. Of these, only the Eastern Creekshell carries any federal or state designation. The Eastern Creekshell is currently State-listed as a "Significantly-Rare" (SR) species. However, NC WRC records indicate the occurrence of the following freshwater mussel species in the area of the Rocky River below SR 1314 to the confluence of the Rock River and Bear Creek (approximately 23 miles): Brook Floater, which is a Federal Species of Concern (FSC) and a State Endangered Species; Atlantic Pigtoe, a FSC and State Endangered Species; Notched Rainbow, a State Species of Concern; the Creeper, a State Threatened Species; and the Carolina Creekshell, a FSC and State Endangered Species. Of these, the Carolina Creekshell is perhaps the most significant because in 1995 WRC Staff found one Carolina Creekshell above the US Highway 64 Bridge, south of the project site. However, the new minimum and pulse release schedule that would be contained in the operating procedures of the proposed new dam, which was detailed in the previous response, will improve the instream flow conditions that are currently experienced with the existing dam. As a result of this improvement, it is the opinion of DWQ Staff that the proposed dam's new flow regime will actually have a beneficial impact on the mussel habitat below the new Lower Reservoir. VI. ANALYSIS & RECOMMENDATION Water Quality Certification: The Water Quality Certification Rules for reviewing this project can be found in 15A NCAC 02H.0500. Listed below is the criteria for certification as described in 15A NCAC 02H.0506, comparison of this projects compliance with the criteria and my recommendations. (1) NO PRACTICAL ALTERNATIVE, CONSIDERING CHANGES IN DESIGN AND A POTENTIAL FOR REDUCTION IN SIZE, THE BASIC PURPOSE CANNOT PRACTICALLY BE ACCOMPLISHED TO AVOID 12 DRAFT LESS ADVERSE IMPACT TO SURFACE WATERS OR WETLANDS. The applicant has provided a significant amount of justification for the proposed alternative as discussed in the ISSUES section above, Environmental Assessment, 401 Permit Application, Public Notices and additional information and responses received during the Public Hearing process. As discussed previously, the DWQ relies upon the USACE to review the potential alternatives. Recommendation: I recommend that you accept the information provided by the applicant and the alternatives review performed by the USACE for this project and determine that this minimization and avoidance criteria has been satisfied. (2) MINIMIZES ADVERSE IMPACTS TO SURFACE WATERS BY SHOWING SUPPORT FOR EXISTING USES AFTER COMPLETION. The project proposes to construct a new dam 65 feet below the existing dam and approximately 12 feet higher than the existing dam. This impact will result in the inundation of approximately 9.19 acres of wetlands (7.67 acres of non-isolated, jurisdictional wetlands and 1.52 acres of isolated wetlands), 7,916 feet of perennial stream channel and 1,588 feet of intermittent stream channel. The only proposed discharge of fill to surface waters or wetlands is associated with the footprint of the dam and is less than 150 feet. The majority of the impacts are associated with the inundation of streams and do not result in the discharge of fill into surface waters. The DWQ does not consider the inundation of stream channels and subsequent transformation from a lotic dominated system to a lentic dominated system as a loss of existing uses. However, the DWQ does consider the inundation of the wetlands as a loss of existing uses. To minimize the adverse impacts to surface waters, the applicant has proposed to establish approximately two times the amount of wetlands within the full pull elevation of the expanded reservoir. Recommendation: It is my recommendation that you determine that this criteria has been satisfied in that the only loss of existing uses directly associated with the construction of the dam and inundation of streams and wetlands is associated with the footprint of the dam and equals less than 150 feet. As such, the applicant has demonstrated support for existing uses after completion. (3) THE PROJECT DOES NOT RESULT IN THE DEGRADATION OF GROUNDWATERS OR SURFACE WATERS. The Rocky River and its tributaries are already showing signs of degraded water quality. The DWQ and other cooperating agencies have worked with the applicant extensively since the Public Hearing and have developed a list of recommended conditions (including improved minimum releases, "pulse" releases, buffers, monitoring, etc.) for the Water Quality Certification to ensure for the protection of water quality within the proposed reservoir and downstream. A list of these recommended conditions is provided within the CONDITIONS section of this report. 13 DRAFT Recommendation: It is my recommendation that you determine that this criteria has been satisfied for the proposed project if the recommended conditions are included within the Water Quality Certification and accepted by the Town of Siler City. While not directly associated with the proposed project, there are concerns of the potential negative affects that the existing Siler City wastewater treatment plant is having on downstream water quality. As stated within the Report of Proceedings on the Proposed Reclassification, the Hearing Officers' recommendation specifically directs the staff of the Division of Water Quality to give careful consideration to the potential impact the, nutrients in Siler City's wastewater treatment plant effluent may be having on the water quality problems experienced in the main channel of the river. At the next NPDES permit renewal for the Siler City facility (expires 10/31/06), the staff should evaluate the facility's compliance record and the impact that nutrient discharges are having on the River's water quality. In addition and also not directly associated with the proposed project, an existing civil war era dam is located downstream of the proposed reservoir and just upstream of the U.S. Hwy 64 bridge. This dam may be causing some attenuation of flows released from the existing reservoir as well as the proposed reservoir. The DWQ should work with the Town on efforts to review this existing dam or to manage it near full pool to minimize its affects on downstream flows and water quality. (4) THE PROJECT SHOULD NOT RESULT IN CUMULATIVE IMPACTS THAT CAUSE DOWNSTREAM VIOLATION OF WATER QUALITY STANDARDS. The applicant has prepared a "Cumulative Impact Analysis" that is included in the file record. DWQ staff have reviewed this analysis and have determined that the applicant has adequately addressed any cumulative impacts associated with the proposed reservoir expansion. Recommendation: Based on the information provided within the "Cumulative Impact Analysis" and review performed by the DWQ staff, I recommend that you determine that this criteria has been satisfied. (5) PROVIDES FOR PROTECTION OF DOWNSTREAM WATER QUALITY STANDARDS THROUGH THE USE OF ON-SITE STORMWATER CONTROL MEASURES. This criteria is typically associated with development projects that have a significant increase in impervious area. There will be no significant increase in impervious area associated with this project. However, the applicant has modified their Unified Development Ordinance (UDO) to include additional stormwater control and buffers (as discussed within the ISSUES section of this report) within its entire Extra Territorial Jurisdiction (ETJ). Recommendation: I recommend that you determine that this criteria has been satisfied based on the modifications made to the Town's Unified Development Ordinance. 14 DRAFT (6) THE PROJECT PROVIDES FOR REPLACEMENT OF EXISTING USES THROUGH WETLAND MITIGATION UNDER U.S. ARMY CORPS OF ENGINEERS REQUIREMENTS. MITIGATION SHALL NOT BE REQUIRED FOR IMPACTS TO WETLANDS LESS THAN ONE ACRE. MITIGATION SHALL PROVIDE A MINIMUM OF A 1:1 RATIO. The proposed wetland impacts would equal 9.19 acres if approved. As such, the Water Quality Certification Rules require the applicant to provide at least 9.9 acres of wetland restoration or creation. The Draft Wetland & Stream Mitigation Plan once finalized and implemented will result in as much as 23.62 acres of wetland mitigation consisting of restoration, creation, enhancement and preservation. Of this at least approximately 21.5 acres will consist of restoration or creation of wetlands on-site. The DWQ will not be requiring mitigation for the inundation of streams as discussed above. However, the applicant has proposed to provide approximately 9,700 feet of stream mitigation consisting of restoration, enhancement and preservation to replace the approximately 9,500 feet of streams (perennial and intermittent) that would be inundated by the reservoir expansion. The bulk of the stream mitigation proposed consists of the purchase of 9,600 feet of stream channel mitigation credits generated by the Deep River Restoration project. The Deep River Restoration project involves the removal of the existing Carbonton Dam located on the Deep River that will restore flow to approximately 10 miles of the Deep River and its tributaries. Recommendation: The applicant has provided a draft mitigation plan that adequately meets the mitigation requirements of the Water Quality Certification Rules. I believe that this criteria would be satisfied if the Water Quality Certification is conditioned such that the applicant provide a final mitigation plan prior to construction of the project as described within the CONDITIONS section of this report. Isolated Wetland Permit: The proposed project would result in 1.52 acres of impacts to wetlands determined to be "isolated" by the USAGE. Isolated wetlands are not regulated by the USACE and are therefore not regulated under the Water Quality Certification Rules. However, these wetland impacts are regulated by the DWQ under the Isolated Wetland Rules, 15A NCAC 02H .1300. The Isolated Wetland Rules require that the proposed action meet similar criteria for approval as do the Water Quality Certification Rules. However, the proposed impacts to the isolated wetlands were initially associated with the flooding caused by the reservoir expansion. The impacts have since bee refined such that the isolated wetlands now exist within the area proposed for wetland restoration/creation. As such, the isolated wetlands will be enhanced by the project. In addition, the isolated wetlands will no longer be isolated and will fall under the Corps jurisdiction once the proposed project is complete. Conditions: Below is a list of recommended conditions to be included within the Water Quality Certification and Isolated Wetland Permit to satisfy the criteria required under the Water Quality Certification and Isolated Wetland Permit Rules. 15 DRAFT 1. Impacts Approved - The following impacts are hereby approved as long as all of the other specific and general conditions of this Certification (or Isolated Wetland Permit) are met. No other impacts are approved including incidental impacts: Amount Approved (Units) Perennial Stream 7,916 (feet) Intermittent Stream 1,588 (feet) 404 Wetlands 7.67 (acres) Isolated Wetlands 1.52 (acres) 2. Compensatory Mitigation (Final Plan Needed) - Mitigation must be provided for the proposed impacts as specified by the USACE and must include a minimum of 7.67 acres of wetland restoration and/or creation. A final compensatory mitigation plan (based on the Draft Wetland & Stream Mitigation Plan dated May 24, 2004) must be approved in writing by this Office before any of the impacts approved herein are conducted. Additionally, the compensatory mitigation plan must be completely constructed and implemented according to the plans approved by this Office. The mitigation must be maintained according to the approved plan and permanently protected by the use of conservation easements or similar protections. Any repairs or adjustments to the mitigation site must be made according to the approved plan or must receive written approval from this Office to make the repairs or adjustments; 3. Under the terms of condition for the approval of the expansion of the lower Rocky River Reservoir an adaptive management strategy (AMS) including a Cooperative Management Team (CMT) shall be adopted in an attempt to improve the Rocky River's water quality and aesthetics. The strategy will be to simulate storm events by releasing pulses of water from the new control structure with the intent to mimic natural flow and dislodge filamentous algal mats that occur along the river. The volume, velocity and duration needed to dislodge the mats will be determined by the CMT through studies undertaken while Siler City is drawing 4 mgd from the new control structure. Once the feasibility and effectiveness is determined by the CMT, an AMS shall be adopted to simulate the storm events sufficient to disperse filamentous algae during the months of July, August and September. When Siler City begins to pull more than 4 mgd, the AMS will be reviewed to determine if adjustments are needed under the new flow regime. The amount of water required to provide the pulses will be such that at least a 20 cfs pulse for a 12-hour period can be released from the dam and the number of pulses will be limited to one pulse every thirty (30) days. Pulses are only required when no natural events of similar magnitudes are observed or no problems have been reported. The CMT shall consist of representatives from at least the Division of Water Quality, Division of Water Resources, N.C. Wildlife Resources Commission and US Fish and Wildlife Service (unless the agencies decline to be represented on the CMT). 16 DRAFT 4. The outlet works of the proposed dam shall be designed to allow releases of up to 20 cubic feet per second (cfs). 5. The Town will ensure there is a "pulse" release of 20 cfs for a 12-hour period every 30 days whenever the aggregate storage remaining in the two reservoirs is greater than 40 percent (Tiers 1 and 2.) Pulses are only required when no natural events of similar magnitudes are observed or no problems have been reported. 6. Division of Water Resource Conditions incorporated as conditions of this Certification shall include: 6.1. Minimum Flow Regime - During development of the environmental assessment for this project, the Town agreed to a minimum release regime to maintain aquatic habitat downstream of the expanded reservoir. There are three tiers of minimum flows - depending on the combined volume of usable storage available in both the upper and lower reservoirs on the Rocky River. The triggers for each tier as follows: • Tier 1 - releases to be made when the combined usable storage of both the upper and lower reservoirs is greater than or equal to 70 percent of the combined total usable storage. • Tier 2 - releases to be made when the combined usable storage is less than 70 percent, but greater than or equal to 40 percent of the total usable volume. • Tier 3 - releases to be made when the combined usable storage is less than 40 percent of the total usable volume. 6.2. The quantity of the release varies by month and tier, and is shown in the table below. During initial filling of the new reservoir the minimum release should be made at tier 1 levels, rather than following the tiers in reverse order. Minimum Release in CFS Month Tier 1 Tier 2 Tier 3 JAN 6.0 3.5 0.5 FEB 6.0 3.5 0.3 MAR 6.0 3.5 0.3 APR 9.0 4.5 0.3 MAY 8.0 4.0 0.3 JUN 5.0 2.0 0.3 JUL 2.5 1.0 0.3 AUG 2.0 1.0 0.3 SEP 2.0 1.0 0.3 OCT 3.5 2.0 0.3 NOV 5.0 2.5 0.5 DEC 7.0 3.5 0.5- 17 DRAFT 6.3. Reductions in Withdrawals in Conjunction with Tier 2 or Tier 3 Minimum Releases - Water supply withdrawals from the Rocky River will be reduced by ten percent when the release is reduced from tier 1 to tier 2, and by another ten percent (20 percent total) when minimum releases are reduced from tier 2 to tier 3 levels. The amount of reduction in withdrawal will be based on the average daily withdrawal for the 60-day period immediately prior to the first reduction in minimum release. The water supply operator shall achieve each reduction in withdrawal within two weeks of each reduction in minimum release. The water system operator shall document reduction in water withdrawals by submitting reports of daily water withdrawals to the Department. The reports should also include daily readings from the minimum release metering system at the dam. These reports shall be submitted every two weeks for as long as the minimum release is reduced below tier 1 levels. 6.4. Water Quality and Minimum Release Design - The plans for the minimum release structure submitted by the. Town indicate that water would be drawn from a depth of 5 feet off the bottom of the impoundment. We consulted with staff from the Division of Water Quality (Diane Reed, DWQ) to see if there would be the potential for reservoir stratification and release of water with low levels of dissolved oxygen using the proposed design. After reviewing data for the upstream reservoir on Rocky River, DWQ concluded that there is a definite potential for stratification and low dissolved oxygen levels from the proposed depth of the release for minimum flows. The upstream reservoir has shown strong stratification and dissolved oxygen levels as low as 1 milligram per liter (mg/1) at depths of about 6 feet from the surface (the proposed design would be about 15 feet below the normal pool level). State water quality standards set the minimum level for dissolved oxygen at 4 mg/1 instantaneous and 5 mg/1 daily average. To avoid potential downstream water quality problems, outlet structure shall be designed so that the minimum release can be drawn from at least three levels in the impoundment. These levels should be: 2 feet below normal pool; 7 to 8 feet below normal pool; and from the currently planned level of 5 feet off the bottom. It is anticipated that under most circumstances the release would come from the uppermost level, with the others being used if impoundment levels are temporarily reduced. The consultant should work with DLR on options to accomplish the goal of being able to withdraw water from at least three levels (top, middle, and bottom) of the reservoir. 6.5. Downstream Gaging - The Town submitted plans for metering the minimum release at the outlet from the dam. These plans are acceptable as long as the metering system is calibrated with field measurements after the new reservoir has filled, and at least every two years thereafter. Calibration measurements should be provided to the Department within 30 days of completion. 18 DRAFT During review of the environmental assessment for this project, concerns were raised regarding downstream flows and habitat for aquatic species - including federally listed endangered species. It will be important to monitor flows in the Rocky River to ascertain if the minimum release is conveyed downstream without excessive channel loss, and to make sure that assimilative capacity flows in the vicinity of the confluence with Loves Creek are maintained. Because both the quantity and quality of water released downstream to the Rocky River are so critical, the Town - in cooperation with the USGS - shall install and maintain a continuous recording gage in the vicinity of U.S. Highway 64, upstream of Loves Creek. This gage shall be equipped to monitor both stream discharge and water quality. Water quality parameters to be monitored shall include dissolved oxygen, temperature, pH, and conductivity. After reviewing the water quality data collected over a 5-year period following filling of the new reservoir, the agencies and the CMT developed under Condition No. 3 above will evaluate if it will be necessary to continue monitoring water quality parameters. The gage shall remain in place at least until such time that the information required under Condition No. 3 above is provided. Plans for the gaging described above shall be submitted to the Department for approval prior to installation. 7. The Town of Siler City's Unified Development Ordinance shall include: • Minimum buffer requirements along the Rocky River, perennial tributaries and intermittent tributaries within the Town's ETJ to between 50 and 200 feet. A 200-foot buffer imposed along the entire reach of the Rocky River within the Town's planning area and along all perennial and intermittent streams within 2,500 feet of the Rocky River. Beyond 2,500 feet, the buffer requirement shall be 100 feet for perennial streams and 50 feet for intermittent streams within the Town's jurisdiction. Areas within the Town's jurisdiction but outside of the Rocky River subbasin are required to have 100-foot buffers on perennial streams and 50-foot buffers on intermittent streams. The definition of intermittent and perennial streams shall be similar to definitions used by the DWQ within the Neuse Buffer Rule, 15A NCAC 02B .0233; • All new developments shall limit impervious surfaces by limiting/discouraging the use of curb and gutter and requiring grassed swales where the slope is less than 5%; Stormwater controls shall be required for any new development exceeding 7 percent impervious surface area; The direct discharge of stormwater via ditches or pipes in or through buffer areas shall be prohibited unless otherwise treated through best management practices. Alternate stormwater discharge methods, such as infiltration practices, shall be encouraged over the use of detention ponds. 19 DRAFT • A fenced 100-foot vegetative buffer shall be maintained at a minimum around the expanded reservoir. All wetlands and stream channels within this buffer shall be preserved, enhanced or restored, as appropriate. 8. Erosion and sediment control practices must be in full compliance with all specifications governing the proper design, installation and operation and maintenance of such Best Management Practices in order to protect surface waters standards: a. The erosion and sediment control measures for the project must be designed, installed, operated, and maintained in accordance with the most recent version of the North Carolina Sediment and Erosion Control Planning and Design Manual. b. The design, installation, operation, and maintenance of the sediment and erosion control measures must be such that they equal, or exceed, the requirements specified in the most recent version of the North Carolina Sediment and Erosion Control Manual. The devices shall be maintained on all construction sites, borrow sites, and waste pile (spoil) projects, including contractor-owned or leased borrow pits associated with the project. 9. No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas beyond the footprint of the impacts depicted in the 404/401Permit Application. All construction activities, including the design, installation, operation, and maintenance of sediment and erosion control Best Management Practices, shall be performed so that no violations of state water quality standards, statutes, or rules occur; 10. Sediment and erosion control measures shall not be placed in wetlands or waters to the maximum extent practicable. If placement of sediment and erosion control devices in wetlands and waters is unavoidable, they shall be removed and the natural grade restored within six months of the date that the Division of Land Resources has released the project; 11. The Town of Siler City and its contractors shall conduct construction activities in a manner consistent with State water quality standards (including any requirements resulting from compliance with section 303(d) of the Clean Water Act) and any other appropriate requirements of State law and federal law. If the Division determines that such standards or laws are not being met (including the failure to sustain a designated or achieved use) or that State or federal law is being violated, or that further conditions are necessary to assure compliance, the Division may reevaluate and modify this Certification to include conditions appropriate to assure compliance with such standards and requirements in accordance with 15A NCAC 2H.0507(d). Before modifying the Certification, the Division shall notify the US Army Corps of Engineers, provide public notice in accordance with 15A NCAC 2H.0503 and provide opportunity for public hearing in accordance with 15A NCAC 2H.0504. Any new or revised conditions shall be provided to Director in 20 DRAFT writing, shall be provided to the United States Army Corps of Engineers for reference in any Permit issued pursuant to Section 404 of the Clean Water Act, and shall also become conditions of the 404 Permit for the project; 12. Certificate of Completion - Upon completion of all work approved within the 401 Water Quality Certification or applicable Buffer Rules, and any subsequent modifications, the applicant is required to return the attached certificate of completion to the 401/Wetlands Unit, North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC, 27699-1650; VII. CONCLUSION Boyd, This is where I envisioned that you would make your final conclusion and recommendation to the Director. I thought that you would want first crack at it. I only issue that does not appear to be addressed so far is Fayetteville's letter. 21