20051457 Ver 1_Court Case Correspondence_20130903

PLEASE PRINT CLEARLY OR TYPE
STATE OF NORTH CAROLINA RECEIVED IN THE OFFICE OF
COUNTY OF (1) Cleveland
Office, of ih® Secretc-ay ADMINISTRATIVE HEARINGS
(2) American Rivers. r= P
) �_I 3 2013
)
)
PETITIONER, 6n- ortment of Environment
cii :J :i\1c,:urul 'QSau: _es PETITION
V. ) FOR A
CONTESTED CASE HEARING
(3) Department of Environment and Natural Resources Division of )
Water Resources. )
RESPONDENT. )
I hereby ask for a contested case hearing as provided for by North Carolina General Statute § 150B -23 to challenge the actions of the Department of
Environment and Natural Resources (Division of Water Resources, formerly the Division of Water Quality) in affirmatively allowing Cleveland
County, an applicant for Section 401 Certification in connection with the proposed First Broad River Reservoir, to proceed with the proposed project
in contravention of the requirements of state law (see letter from Director Thomas Reeder to Cleveland County Manager Clyde Smith, attached),
including:
1. Failing to comply with the requirements of the North Carolina Environmental Policy Act, NCGS Ch. 113A;
2. Exceeding the Department's statutory authority by purporting to allow the proposed activity without a state permit under NCGS 143 - 215.1;
3. Purporting to allow the project to proceed without a certification as required under 15A NCAC 2H.0501;
4. Arbitrarily, capriciously, and in bad faith, purporting to waive the certification requirements for the benefit of this applicant;
5. Purporting to waive the certification requirement despite not having received a complete application or information necessary to review the
application or, in the alternative, finding without substantial evidence that the application was complete; and
6. Failing to provide the required public notice and purporting to allow the project to proceed without complying with the requirements of
15A NCAC 2H.0503.
(4) Amount in controversy N/A
(5) Because of these facts, the State agency or board has: (check at least one from each column)
deprived me of property; X exceeded its authority or jurisdiction;
ordered me to pay a fine or civil penalty; or X acted erroneously;
X otherwise substantially prejudiced my rights; AND __X _failed to use proper procedure;
X acted arbitrarily or capriciously; or
-_A _failed to act as required by law or rule.
(6) Date: August 29, 2013
(7) Your phone number: (828) 258 -2023
(8) Print your full address: 22 South Pack Square Suite 700 Asheville NC 28801
(9) Print your name: Austin DJ Gerken. Southern Environmental Law Center, for American Rivers
(10) Your signature:
You must mail or deliver a COPT' of this Petition to the State agency or board named on line (3) of this form. You should contact the agency or
board to determine the name of the person to be served.
CERTIFICATE E OF SERVICE
I certify that this Petition has been served on the State agency or board named below by depositing a copy of it with the United States Postal Service
with sufficient postage affixed OR by delivering it to the named agency or board:
(11) Lacy Presnell, General Counsel (12) Department of Environment and Natural Resources
(13) 1601 Mail Service Center Raleigh NC 27699 -1601
(14) This the 29th day �ofAu ust, 2013
(15) �1 /r �_ �-
- (your signature) -
H -06 (05/10)

WMEENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Pat McCrory Thomas A. Reeder John E. Skvarla, III
Governor Acting Director Secretary
July 2, 2013
CERTIFIED MAIL: 7003 2260 0005 5380 8962
RETURN RECEIPT REQUESTED
Cleveland County Water
Attn: Clyde Smith, Manager
439 Casar Lawndale Road
Lawndale, NC 28090
DWQ # 05 -1457
Cleveland County
Subject: WAIVER OF REQUIREMENT FOR A 401 WATER QUALITY CERTIFICATION
Cleveland County Water First Broad River Reservoir
Dear Mr. Smith:
On May 2, 2013, the Division of Water Quality (Division) received your application dated April 30, 2013,
requesting a 401 Water quality Certification from the Division for your project.
Pursuant to Title 15A NCAC 02H .0507, if final action is not taken within 60 calendar days, the
requirement for certification is waived. Therefore, the Division has waived the requirement for a 401
Water Quality Certification at the subject property as described in your application package.
If additional impacts occur and /or your site plans change, this waiver is no longer valid and a 401
Water quality Certification will be required. This waiver does not relieve you of the responsibility to
obtain all other required federal, state or local approvals.
Please contact Karen Higgins at 919 - 807 -6360 or karen.higigns @ncdenr.gov if you have any questions or
concerns.
Sincerely,
Thomas . Reeder.
cc: Pamela M. Boaze, Fish and Wildlife Associates, Inc., .PO Box 241, Whittier, NC 28789
Jennifer Frye, USACE, Wilmington District, 69 Darlington Ave., Wilmington, NC 28403 -1343
Todd Bowers, EPA, Sam Nunn Federal Center, 61 Forsyth Street SW, Atlanta, GA 30303
DWQ MRO 401 files
DWQ Webscape Unit
Filename: 051457CIevelandCountyWaterFirstBroadRiverReservoir (Cleveland)_401_Waiver
1617 Mail Service Center, Raleigh, North Carolina 276994,617
Location: 512 N. Salisbury St, Raleigh, North Carolina 27604
Phone: 919 - 807.63001 FAX: [phone]
Internet: www.ncwateraualitv.ora
An Equal Opportunity 1 Affirmative Action EmpQer

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