HomeMy WebLinkAbout20051457 Ver 1_Re Cleveland County 2.msg_20130228Strickland, Bev
From: Reeder, Tom [tom.reeder @ncdenr.gov]
Sent: Thursday, February 28, 2013 1:33 PM
To: Jeff Warren (President Pro Tem's Office)
Cc: Gillespie, Mitch
Subject: Re: Cleveland County
Attachments: ncflagsmall[6].png; ncflagsmall[7].png; Sect 401 CWA.docx
Sorry, forgot the attachment on the first e -mail. Thanks.
Tom Reeder
Director, NC Division of Water Resources
Phone: 919 - 707 -9027
email: tom.reeder @ncdenr.gov
E -mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to
third parties.
From: <Reeder >, Tom Reeder <tom.reeder @ncdenr.gov>
Date: Thursday, February 28, 2013 1:32 PM
To: "Jeff Warren (President Pro Tem's Office)" <Jeff.Warren @ncleg.net>
Cc: "Gillespie, Mitch" <Mitch.Gillespie @ncdenr.gov>
Subject: Re: Cleveland County
Jeff Attached is the citation that I spoke of to Rep Moore yesterday. It is Section 401 of the Clean Water Act. The relevant
language is highlighted on the first page of the attachment. If I was writing the bill language, I would keep it very simple and
to the point. Something like:
In accordance with Section 401(a)(1) of the federal Clean Water Act, it is hereby recognized that the State of North Carolina
has waived its right to issue a Section 401 Certification for the proposed Cleveland County Water Reservoir on the First Broad
River in Cleveland County, NC. Therefore, no Section 401 Certification shall be required or issued with respect to the federal
application for this project.
I hope that is helpful. Just let me know if you need anything else. Thanks.
Tom Reeder
Director, NC Division of Water Resources
Phone: 919 - 707 -9027
email: tom.reeder @ncdenr.gov
E -mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to
third parties.
From: "Jeff Warren (President Pro Tern's Office)" <Jeff.Warren @ncleg.net>
Date: Thursday, February 28, 2013 1:02 PM
To: Tom Reeder <tom.reeder @ncdenr.gov>
Cc: "Gillespie, Mitch" <Mitch.Gillespie @ncdenr.gov>
Subject: Cleveland County
Tom,
I talked with Rep Tim Moore today and he mentioned his meeting with you and Mitch yesterday. I would like to get
either a summary or some draft language based to clarify the 401 permit issue and would like to prepare a bill ASAP (Sen
Daniel would be our sponsor over here). Thanks!
-Jeff
Jeffrey D. Warren, PhD
Senior Policy Advisor
Environment, Energy, Regulatory Affairs
Office of the President Pro Tempore
North Carolina Senate
Legislative Building room 1408B
(919) 301 -2008
Clean Water Act, Section 401 Certification
(a) Compliance with applicable requirements; application; procedures; license suspension
(1) Any applicant for a Federal license or permit to conduct any activity including, but not
limited to, the construction or operation of facilities, which may result in any discharge into
the navigable waters, shall provide the licensing or permitting agency a certification from the
State in which the discharge originates or will originate, or, if appropriate, from the interstate
water pollution control agency having jurisdiction over the navigable waters at the point
where the discharge originates or will originate, that any such discharge will comply with the
applicable provisions of sections 301, 302, 303, 306, and 307 of this title. In the case of any
such activity for which there is not an applicable effluent limitation or other limitation under
sections 301(b) and 302 of this title, and there is not an applicable standard under sections
306 and 307 of this title, the State shall so certify, except that any such certification shall not
be deemed to satisfy section 51 1(c) of this title. Such State or interstate agency shall
establish procedures for public notice in the case of all applications for certification by it
and, to the extent it deems appropriate, procedures for public hearings in connection with
specific applications. In any case where a State or interstate agency has no authority to give
such a certification, such certification shall be from the Administrator. If the State, interstate
agency, or Administrator, as the case may be, fails or refuses to act on a request for
certification, within a reasonable period of time (which shall not exceed one year) after
receipt of such request, the certification requirements of this subsection shall be waived with
respect to such Federal application. No license or permit shall be granted until the
certification required by this section has been obtained or has been waived as provided in
the preceding sentence. No license or permit shall be granted if certification has been denied
by the State, interstate agency, or the Administrator, as the case may be.
(2) Upon receipt of such application and certification the licensing or permitting agency shall
immediately notify the Administrator of such application and certification. Whenever such a
discharge may affect, as determined by the Administrator, the quality of the waters of any
other State, the Administrator within thirty days of the date of notice of application for such
Federal license or permit shall so notify such other State, the licensing or permitting agency,
and the applicant. If, within sixty days after receipt of such notification, such other State
determines that such discharge will affect the quality of its waters so as to violate any water
quality requirements in such State, and within such sixty -day period notifies the
Administrator and the licensing or permitting agency in writing of its objection to the
issuance of such license or permit and requests a public hearing on such objection, the
licensing or permitting agency shall hold such a hearing. The Administrator shall at such
hearing submit his evaluation and recommendations with respect to any such objection to
the licensing or permitting agency. Such agency, based upon the recommendations of such
State, the Administrator, and upon any additional evidence, if any, presented to the agency at
the hearing, shall condition such license or permit in such manner as may be necessary to
insure compliance with applicable water quality requirements. If the imposition of conditions
cannot insure such compliance such agency shall not issue such license or permit.
(3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the
construction of any facility shall fulfill the requirements of this subsection with respect to
certification in connection with any other Federal license or permit required for the operation
of such facility unless, after notice to the certifying State, agency, or Administrator, as the
case may be, which shall be given by the Federal agency to whom application is made for
such operating license or permit, the State, or if appropriate, the interstate agency or the
Administrator, notifies such agency within sixty days after receipt of such notice that there is
no longer reasonable assurance that there will be compliance with the applicable provisions
of sections 301, 3029 3039 306, and 307 of this title because of changes since the
construction license or permit certification was issued in (A) the construction or operation of
the facility, (B) the characteristics of the waters into which such discharge is made, (C) the
water quality criteria applicable to such waters or (D) applicable effluent limitations or other
requirements. This paragraph shall be inapplicable in any case where the applicant for such
operating license or permit has failed to provide the certifying State, or, if appropriate, the
interstate agency or the Administrator, with notice of any proposed changes in the
construction or operation of the facility with respect to which a construction license or
permit has been granted, which changes may result in violation of section 301, 3029 3039
306, or 307 of this title.
(4) Prior to the initial operation of any federally licensed or permitted facility or activity which
may result in any discharge into the navigable waters and with respect to which a
certification has been obtained pursuant to paragraph (1) of this subsection, which facility or
activity is not subject to a Federal operating license or permit, the licensee or permittee shall
provide an opportunity for such certifying State, or, if appropriate, the interstate agency or
the Administrator to review the manner in which the facility or activity shall be operated or
conducted for the purposes of assuring that applicable effluent limitations or other
limitations or other applicable water quality requirements will not be violated. Upon
notification by the certifying State, or if appropriate, the interstate agency or the
Administrator that the operation of any such federally licensed or permitted facility or activity
will violate applicable effluent limitations or other limitations or other water quality
requirements such Federal agency may, after public hearing, suspend such license or permit.
If such license or permit is suspended, it shall remain suspended until notification is received
from the certifying State, agency, or Administrator, as the case may be, that there is
reasonable assurance that such facility or activity will not violate the applicable provisions of
section 301 , 3029 3039 306, or 307 of this title.
(5) Any Federal license or permit with respect to which a certification has been obtained
under paragraph (1) of this subsection may be suspended or revoked by the Federal agency
issuing such license or permit upon the entering of a judgment under this chapter that such
facility or activity has been operated in violation of the applicable provisions of section 301,
3029 3039 306, or 307 of this title.
(6) Except with respect to a permit issued under section 402 of this title, in any case where
actual construction of a facility has been lawfully commenced prior to April 3, 1970, no
certification shall be required under this subsection for a license or permit issued after April
39 1970, to operate such facility, except that any such license or permit issued without
certification shall terminate April 3, 1973, unless prior to such termination date the person
having such license or permit submits to the Federal agency which issued such license or
permit a certification and otherwise meets the requirements of this section.
(b) Compliance with other provisions of law setting applicable water quality requirements
Nothing in this section shall be construed to limit the authority of any department or agency
pursuant to any other provision of law to require compliance with any applicable water
quality requirements. The Administrator shall, upon the request of any Federal department
or agency, or State or interstate agency, or applicant, provide, for the purpose of this section,
any relevant information on applicable effluent limitations, or other limitations, standards,
regulations, or requirements, or water quality criteria, and shall, when requested by any such
department or agency or State or interstate agency, or applicant, comment on any methods
to comply with such limitations, standards, regulations, requirements, or criteria.
(c) Authority of Secretary of the Army to permit use of spoil disposal areas by Federal
licensees or permittees
In order to implement the provisions of this section, the Secretary of the Army, acting
through the Chief of Engineers, is authorized, if he deems it to be in the public interest, to
permit the use of spoil disposal areas under his jurisdiction by Federal licensees or
permittees, and to make an appropriate charge for such use. Moneys received from such
licensees or permittees shall be deposited in the Treasury as miscellaneous receipts.
(d) Limitations and monitoring requirements of certification
Any certification provided under this section shall set forth any effluent limitations and other
limitations, and monitoring requirements necessary to assure that any applicant for a Federal
license or permit will comply with any applicable effluent limitations and other limitations,
under section 301 or 302 of this title, standard of performance under section 306 of this
title, or prohibition, effluent standard, or pretreatment standard under section 307 of this
title, and with any other appropriate requirement of State law set forth in such certification,
and shall become a condition on any Federal license or permit subject to the provisions of
this section.