HomeMy WebLinkAbout20201842 Ver 1_Denial_20210319
March 19, 2021
DWR # 20201842 Ver 1
Johnston County
KG Plaza, LLC
Jack Carlisle
8620 River Road
Wilmington, NC 28412
( Delivered via email to e85jack@gmail.com )
Subject: DENIAL of 401 Water Quality Certification
Cleveland Bluffs
Dear Mr. Carlisle,
On January 11, 2021, the Division of Water Resources (“Division”) received your application
requesting a 401 Water Quality Certification from the Division for the subject project; the fee
payment was received on January 19, 2021. On February 11, 2021, the Division notified you
that your application is incomplete and requested additional information. The Division
requested a response by March 11, 2021 and received a partial response on March 18, 2021. As
of the date of this letter, you have not provided a complete response to the Division’s request
for additional information.
Notwithstanding North Carolina regulations governing the timeline for the Division’s review of
401 Water Quality Certification applications, the U.S. Army Corps of Engineers recently re‐
interpreted its existing regulations and EPA has recently promulgated rules governing the
states’ 401 Water Quality Certification process.1 The U.S. Army Corps of Engineers has not
indicated that Division’s reasonable period of time for action on your application under section
401 of the Clean Water Act is more than 60 days. Therefore, the Division must act on your 401
certification application at this time.
Your application is incomplete and the Division has insufficient information to issue a 401
Water Quality Certification for the discharge from the proposed project. Therefore, in
accordance with 15A NCAC 02H .0507(e) and 40 CFR § 121.7, your application for a 401 Water
Quality Certification is hereby denied. Once you have addressed the items listed in the request
1 See U.S. Army Corps of Engineers Regulatory Guidance Letter, “Timeframes for Clean Water Act Section 401
Water Quality Certifications and Clarification of Waiver Responsibility, dated August 7, 2019; see Clean Water Act
Section 401 Certification Rule at 40 CFR § 121.1 et seq.
for additional information completely and the items below, at a minimum, you may reapply to
the Division including complete application package and appropriate fee.
1. You have proposed a Permittee Responsible Mitigation Plan (PRMP) to address a
portion of the mitigation required for the project. Please provide a complete PRMP to
address how the mitigation will be implemented. In the plan please describe, at a
minimum: the type of mitigation proposed (preservation, restoration, enhancement or
creation), how the mitigation project will be constructed, monitored, adaptively
managed, protected in perpetuity and reported to the Division. [15A NCAC 02H
.0506(c)].
2. Please provide detailed engineering plans, profile views, and cross‐sections of the
proposed sewer line at Site 8 [15A NCAC 02H .0502 (a) and (c)].
3. Please provide adequate justification as to why the road crossing over stream UT2 is
needed. [15A NCAC 02H .0506 (b)(1)].
4. Please provide the quantity, location and design of any proposed temporary impacts
associated with removing the unauthorized rip‐rap at the aerial sewer crossings. If the
rip‐rap is proposed to stay in the channel, please provide the same information and note
that they requested impacts are permanent. [15A NCAC 02H .0502 (a) and (c)].
The Division’s decision can be contested as provided in Chapter 150B of the North Carolina
General Statutes by filing a Petition for a Contested Case Hearing (Petition) with the North
Carolina Office of Administrative Hearings (OAH) within sixty (60) calendar days. Requirements
for filing a Petition are set forth in Chapter 150B of the North Carolina General Statutes and
Title 26 of the North Carolina Administrative Code. Additional information regarding
requirements for filing a Petition and Petition forms may be accessed at
http://www.ncoah.com/ or by calling the OAH Clerk’s Office at (919) 431‐3000.
One (1) copy of the Petition must also be served to the North Carolina Department of
Environmental Quality:
William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699‐1601
Please be aware that you have no authorization under Section 401 of the Clean Water Act for
this activity and any work done within waters of the state would be a violation of North
Carolina General Statutes and Administrative Code. Contact Rick Trone at 919‐707‐3631 or
rick.trone@ncdenr.gov if you have any questions or concerns.
Sincerely,
S. Daniel Smith
Director, Division of Water Resources
cc: David Syster, Southern Environmental Group, Inc. (via email)
Chris Hopper, USACE Raleigh Regulatory Field Office (via email)
Jessica Batten, Johnson County (via email)
Todd Bowers, US EPA Region 4 (via email)
Filename: 20201842 Ver 1_Cleveland Bluffs_Johnston_Denial