20201654 Ver 1_USACE Correspondence_20210413

April 13, 2021

Regulatory Division
Re: Request for Time Extension: Mulberry Gap Farm – Madison LLC (DWR # 2020-
1654) Madison County

Mr. Jeffrey Poupart
North Carolina Department of Environmental Quality
Division of Water Resources
Water Quality Permitting Section
217 West Jones Street
Raleigh, North Carolina 27603

Dear Mr. Poupart:

Please reference the March 30, 2021 e-mail from Mr. Andrew Moore requesting an
extension of time to review the subject project for the required individual 401 Water
Quality Certification (WQC). Based on a follow-up conversation with
Ms. Sue Homewood earlier today, DWR is requesting that the review period for the 401
application to be 150 days from the issuance date of the Corps’ Public Notice for this
project (issued on March 4, 2021).

As you are aware, the Corps of Engineers issued Regulatory Guidance Letter (RGL)
No.19-02 titled: Timeframes for Clean Water Act Section 401 Water Quality
Certifications and Clarification of Waiver Responsibility. Within that guidance, it is stated
that the Corps may consider a 401 certification waived if the certifying agency fails or
refuses to act on a request for certification within 60-days after receipt of such a request
unless the District Engineer determines that a shorter or longer period of time is
reasonable for the certifying agency to act. It also states that “any additional time
granted should be the minimum amount of time necessary for the certifying agency to
act on a 401 WQC request and should not default to one year from receipt of such
request” as defined in 33 CFR 325.2 (b)(1)(ii).

We have thoroughly reviewed the information contained in your request and
understand that the proposed project contains elements that are unique including the
magnitude of potential impacts to aquatic resources and that a large portion of these
impacts are associated with Beaver Dam Analog (BDA) structures which have not been
authorized previously in North Carolina or the region. Evaluating the appropriateness
and function of these non-typical structures within the proposed topographic and

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
151 PATTON AVENUE
ROOM 208
ASHEVILLE, NORTH CAROLINA 28801-5006
-2-

ecological setting as well as understanding their effect on designated stream and
wetland uses provided in state rule is complex. We have considered the time frame you
have proposed and believe that a more reasonable time for consideration of the 401
application is 5 months. Accordingly, a final decision on the application for the WQC
should be made on or before August 2, 2021 or we would have no choice but to
consider the WQC waived (unless the Division denies the certification beforehand).

If you have any questions regarding this correspondence please do not hesitate to
contact me by phone at: 828-271-7980, extension 4222, or by email at:
[e-mail].

Sincerely,

Scott Jones, PWS
Chief
Asheville Regulatory Field Office
Wilmington District

cc (via e-mail):

Mr. Todd Bowers
US EPA, Region 4
Water Protection Division
[e-mail]