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Home My WebLink About20061804 Ver 3_Modifications_20130412HCDETIR North Carolina Department of Environment and Natural Resources Division of Water Quality Pat McCrory Charles Wakild,. P. E.' John E. Skvarla, III Governor birector Secretary April 12, 2013, Lacy H. Reaves Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. 150 Fayetteville Street, Suite 2300 Raleigh, NC 27601 Dear Mr. Reaves, Thank you for your letter dated March 11, 2013 requesting the Division of Water Quality (Division) to modify Water Quality Certification NoA766 (DWQ project,# 2006 -1804 v3). After review and consideration of the information presented in your letter by Division and Attorney General's Office staff, the Division has determined that the Certification issuedori March 15, 2010 will remain in effect In its current form. Your request to modify the Certification was made based on two grounds. Please see our response below to each. 1. Absence of Authorisation for Condition. Your letter states that the stormwater condition (#9) was not subject to rule - making proceeding and as such there is,no legal basis for the Inclusion of thq Condition in the Certification referenced above. Response: The Division has a legal basis to include conditions when issuing a Water Quality Certification. rtle 15A NCAC 02H.0507 (c) states "Conditions of Certification. Any certification issued pursuant to this Rule may contain such conditions as the Director shall deem necessary to insure compliance with Sections 301, 302, 303, 306, and 307 of the Federal Water Pollution Control Act Amendments." Further, Title 15A NCAC 02H.0506 (b) states "The Director shall issue a certification upon determining that existing uses are not removed or degraded by a discharge to. classified surface waters for an activity which: (5) provides for protection of downstream water quality standards through the use of on site stormwater control measures;'°. 2. Vested Rights Exempt Ms. Flowers and River Dell Company, Inc. from the Requirements of the Condition. In your letter, you state that your client has a vested right with regaid to` the. real estate development and a Vested Rights Certification was approved by the Johnston County Commissioners in 1997. You further state that Flowers Plantation has common law vested rights under North Carolina case law. Response: The Vested Rights Certification issued by the Johnston County Commissioners on May 20, 1997 has no impact on stormwater management obligations imposed by a Water Quality Certification and does not exempt Flowers Plantation from complying with the conditions of the Water Quality Certification. Any potential common law vested rights that Flowers Plantation may have are not applicable to Condition R9 of the Certification and do not exempt or otherwise invalidate stormwater management plan obligations included as part of the 401 Certification. Lacy H. Reaves Response to March 22, 2013 letter Page 2 of 3 The 401 Water Quality Certification Rules (15A NC'+4C 02H .0500), which includes the authority for the Director to issue a certification which provides for protection of downstream water quality standards through the use of on -site stormwater control measures, came Into effect on October 1, 1996, prior to the Vested Rights Certification being issued by Johnston County. As stated in your letter, a NPDES Wastewater Discharge Permit was approved for the entire flowers Plantation in 1996. However, the issuance of the NPDES Wastewater Discharge Permit is unrelated to and has no impact on stormwater management obligations imposed by a Water Quality Certification. The Division notes that a vested rights exemption was not included in the application for a Water Quality Certification during any phase of this project Attached is page 91 of the application submitted to the Division on May 1, 2008 for a Water Quality Certification. This page of the application specifically requested a condition in the Water Quality Certification that would allow the review and approval of the stormwater management plans to be submitted on a phase by phase basis to either the Division or Johnston County. The Division agreed to this request and included Condition #9, which allows for the stormwater management plans to be submitted in phases, This indicates that your client expected to be required to md'rlage stormwater. For these reasons, the Division has determined that it will not modify or reissue the tertification based upon the information presented in your letter and that the Certification issued on March 15, 2010 remains in effect. We note that these concerns were not addressed during the 30-day period for administrative appeal after issuance of the Certification on March 15, 2010, nor were these concerns included in the initial application materials. If you have any questions or wish to discuss this matter further, please contact Karen Higgins at 919- 807 -6360 or Cyndl Karoly at 919 -807 -6380. Sincerely, Charles Wakild CW /kah Attachment: Page 91 of the application submitted to the Division on May 1, 2008 cc: Mitch Gillespie, DENR Assistant Secretary of the Environment Karen Higgins, Webscape Unit File Copy 1 THE VILLAGE AT FLOWERS PLANTATION -MAY 2008 Stormwater Management & Diffuse Flaw Calculations fl F, Pape 91 of 1 m The proposed project, The Village at Flowers Plantation, entails the infrastruclure (Le. roads) that will support the future residential and commercial development of property and excludes the existing developed areas as Identified and depicted on the overall she Because plan. only the roads can be designed at this time and the project is located within the Neuse River Basin, the project engineer has provided and we have included level spreaders an the impact exhibits and diffuse flow calculations to meet the diffuse flow requirements. Additionally, the percent impervious for some portions of the ' residential and /or commercial phases of this Master Planned community is expected to be greater than 249 and would drerefore require a stonnwater management plan to meet the NGDWQ stonmwater management requirements. However, at this time the ' specific development plans for the residential and commercial phases that are to be designed are unknown. As such. we would like to request a conditional approval from the NCDWQ that would allow the review and approvals of the stomrwater management ' plans to be submitted on a phase by phase basis to either the 401 /Express Permitting Unit or to Johnston County, an NCDWQ delegated municipality with a local stomrnwater management program. fl F, Pape 91 of 1 m