20201331 Ver 1_Project Withdrawn_20211118

Strickland, Bev
From: Cohn, Colleen M
Sent: Thursday, November 18, 2021 1:46 PM
To: Ian McMillan
Cc: [e-mail]; Sean Clark; Phillips, George L CIV USARMY CESAW (USA)
Subject: RE: [External] Hamlets Chapel Road, Chatham County
Attachments: GC4256 for NWP29.pdf
Ian,
I have attached a copy of Water Quality General Certification 4256, which corresponds with NWP 29. From the
information provided, it appears that the impacts requested qualify for coverage under this General Certification. The
project will need to abide by the conditions of the General Certification. As requested, your application for an Individual
401 Water Quality Certification from DWR has been withdrawn.
Thanks,
Colleen Cohn
Environmental Specialist II
North Carolina Department of Environmental Quality
Division of Water Resources
Raleigh Regional Office
380o Barrett Drive
Raleigh, NC 27609
Office: 919-791-4258
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: Ian McMillan [mailto:[e-mail]]
Sent: Thursday, November 18, 2021 12:33 PM
To: Cohn, Colleen M <[e-mail]>
Cc: [e-mail]; Sean Clark <[e-mail]>; Phillips, George L CIV USARMY CESAW
(USA) <[e-mail]>
Subject: Re: [External] Hamlets Chapel Road, Chatham County
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Hi Colleen,
Per our conversation today, please withdraw our PCN application for Hamlets Chapel Road/Chatham County
requesting written concurrence. We do not qualify for a written individual 401 Certification. Our wetland and
stream impacts are below the Individual Certification thresholds and Chatham County will be the delegated
authority to review the Jordan Buffers. We will instruct the applicant to operate under the applicable General
Certification. Please let me know if you need any additional information from us.
Best regards,
1

Ian
Ian McMillan, PWS, GISP, CPM
Sage Ecological Services, Inc.
919-608-3156
([e-mail]
From: Cohn, Colleen M <[e-mail]>
Sent: Tuesday, November 16, 2021 12:32 PM
To: Ian McMillan <[e-mail]>
Cc: [e-mail] <[e-mail]>; Sean Clark <[e-mail]>; Phillips,
George L CIV USARMY CESAW (USA) <[e-mail]>
Subject: RE: [External] Hamlets Chapel Road, Chatham County
Following up on this project. Has a Buffer Authorization been obtained from Chatham County? Would you like to
withdraw your application from DWR?
Colleen Cohn
Environmental Specialist II
North Carolina Department of Environmental Quality
Division of Water Resources
Raleigh Regional Office
380o Barrett Drive
Raleigh, NC 27609
Office: 919-791-4258
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: Ian McMillan [mailto:[e-mail]]
Sent: Friday, October 1, 2021 10:26 AM
To: Cohn, Colleen M <[e-mail]>
Cc: [e-mail]; Sean Clark <[e-mail]>
Subject: Re: [External] Hamlets Chapel Road, Chatham County
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to
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Understood. Thanks Colleen and Drew
Get Outlook for iOS
From: Cohn, Colleen M <[e-mail]>
Sent: Friday, October 1, 2021 10:23 AM
To: Ian McMillan
Cc: [e-mail]
Subject: RE: [External] Hamlets Chapel Road, Chatham County
2

I've spoken with Drew Blake. It appears these impacts are covered under GC4256. I have attached a copy of the
referenced General Certification. The project will need to abide by the conditions of the General Certification. You will
still need to get a Buffer Authorization from Chatham County before work commences.
Colleen Cohn
Environmental Specialist II
North Carolina Department of Environmental Quality
Division of Water Resources
Raleigh Regional Office
380o Barrett Drive
Raleigh, NC 27609
Office: 919-791-4258
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: Cohn, Colleen M
Sent: Friday, October 1, 2021 9:43 AM
To: Ian McMillan <[e-mail]>
Cc: [e-mail]
Subject: RE: [External] Hamlets Chapel Road, Chatham County
Thanks, Ian.
Broadly speaking, if a local delegated authority is performing your buffer determination, they would also the entity that
the buffer authorization certificate would come from. In this case, Chatham County would be the locally delegated
authority. I believe there are instructions on page 2 of the Buffer Determination Report (attachment 8 from your prior
email) to contact Drew Blake if impacts require a Riparian Buffer Authorization. I've CC'ed Drew on this email. Drew,
please let me know if I misspoke.
It appears that these impacts may be covered under GC4256 once a Buffer Authorization Certificate is issued by the
delegated local government. The Buffer Authorization Certificate must be issued prior to using the General Certification.
Colleen Cohn
Environmental Specialist II
North Carolina Department of Environmental Quality
Division of Water Resources
Raleigh Regional Office
380o Barrett Drive
Raleigh, NC 27609
Office: 919-791-4258
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: Ian McMillan [mailto:[e-mail]]
Sent: Thursday, September 30, 2021 6:46 AM
To: Cohn, Colleen M <[e-mail]>
Subject: Re: [External] Hamlets Chapel Road, Chatham County
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Hi Colleen, I am so sorry. I am attaching those docs now. As far as the buffer authorization, we have a buffer
determination letter from Chatham County which I have attached. We have received the 404 and were hoping
3

to get the 401 from you. Do we need to provide documentation of the buffer authorization before we can get
the 401? Thanks, Ian
Ian McMillan, PWS, GISP, CPM
Sage Ecological Services, Inc.
919-608-3156
([e-mail]
From: Cohn, Colleen M <[e-mail]>
Sent: Tuesday, September 28, 2021 4:42 PM
To: Ian McMillan <[e-mail]>
Subject: RE: [External] Hamlets Chapel Road, Chatham County
Hello Ian,
I had a few moments to take a peek at this application, but it appears that most of the attachments to the PCN did not
upload. However, I can see that the location of the project indicates that the buffer impacts fall under the jurisdiction of
Pittsboro. Can you please provide a Jordan Buffer Authorization Certificate from the local delegated authority?
Thanks,
Colleen Cohn
Environmental Specialist II
North Carolina Department of Environmental Quality
Division of Water Resources
Raleigh Regional Office
380o Barrett Drive
Raleigh, NC 27609
Office: 919-791-4258
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: Ian McMillan [mailto:[e-mail]]
Sent: Wednesday, September 1, 2021 11:42 AM
To: Cohn, Colleen M <[e-mail]>
Subject: Re: [External] Hamlets Chapel Road, Chatham County
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to
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Hi Colleen,
I've attached the NW29 docs from James Lastinger. Please let me know if you need anything else.
Thanks,
Ian
Ian McMillan, PWS, GISP, CPM
4

Sage Ecological Services, Inc.
919-608-3156
([e-mail]
From: Cohn, Colleen M <[e-mail]>
Sent: Wednesday, September 1, 2021 11:17 AM
To: Ian McMillan <[e-mail]>
Subject: RE: [External] Hamlets Chapel Road, Chatham County
Hi Ian,
DWR processes and reviews applications in the order that they are received. I have not gotten to this application yet.
Can you please forward me the copy of the NWP 29 from James Lastinger? It did not come through when Rick forwarded
your message.
Thanks!
Colleen Cohn
Environmental Specialist II
North Carolina Department of Environmental Quality
Division of Water Resources
Raleigh Regional Office
380o Barrett Drive
Raleigh, NC 27609
Office: 919-791-4258
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: Trone, Rick V
Sent: Wednesday, September 1, 2021 11:06 AM
To: Ian McMillan <[e-mail]>; Cohn, Colleen M <[e-mail]>
Subject: Re: [External] Hamlets Chapel Road, Chatham County
Ian,
It's assigned to Colleen at the RRO.
Thanks,
Get Outlook for iOS
From: Ian McMillan <[e-mail]>
Sent: Wednesday, September 1, 2021 10:37:04 AM
To: Trone, Rick V <[e-mail]>
Subject: [External] Hamlets Chapel Road, Chatham County
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Report Spam.
5

Hi Rick,
Hope all is well. We received the NW29 (attached) from James Lastinger and although the impacts are below
DWR thresholds I didn't know whether we can expect something back from the state?
Thanks,
Ian
Ian McMillan, PWS, GISP, CPM
Sage Ecological Services, Inc.
919-608-3156
[e-mail]
6

STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION OF WATER RESOURCES
WATER QUALITY GENERAL CERTIFICATION NO. 4256
GENERAL CERTIFICATION FOR PROJECTS ELIGIBLE FOR US ARMY CORPS OF ENGINEERS
NATIONWIDE PERMIT NUMBER 29 (RESIDENTIAL DEVELOPMENT)
Water Quality General Certification Number 4256 is issued in conformity with the requirements
of Section 401, Public Laws 92-500 and 95-217 of the United States and subject to the North
Carolina Regulations in 15A NCAC 02H .0500 and 15A NCAC 02B .0200 for the discharge of fill
material to surface waters and wetland areas as described in 33 CFR 330 Appendix A (B) (29) of
the US Army Corps of Engineers regulations.
The State of North Carolina certifies that the specified category of activity will comply with
water quality requirements and applicable portions of Sections 301, 302, 303, 306 and 307 of
the Public Laws 92-500 and 95-217 if conducted in accordance with the conditions hereinafter
set forth.
Effective date:
Signed this day: December 18, 2020
S. Daniel Smith
Director

GC4256
GENERAL CERTIFICATION COVERAGE:
Activities that are eligible for US Army Corps of Engineers Nationwide Permit 29 qualify for
coverage under this General Certification unless they meet one of the thresholds listed
below. Activities meeting any one (1) of the thresholds or circumstances listed below are not
eligible for coverage under this General Certification and require an Individual 401 Water
Quality Certification from the Division of Water Resources (DWR):
a) If any of the conditions of this General Certification cannot be met; or
b) Total temporary and permanent impacts to streams greater than 150 feet; or
c) Total temporary and permanent impacts to wetlands or open waters equal to or greater
than one -tenth (1/10) acre; or
d) Any impacts to streams from excavation or dredging other than excavation that is
conducted as preparation for installing permanent fill or structures; or
e) Any stream restoration or relocation other than stream relocations that are conducted
for the purpose of proper culvert installation, alignment, protection, repair or
maintenance where the relocation length is equal to or less than 50 feet in length and
the relocated stream is designed and installed based on current natural channel
techniques; or
f) Complete dewatering and drawdowns to a sediment layer related to pond/dam
maintenance or removal unless the dewatering activity has been designed to ensure no
discharge of sediment will occur into downstream waters AND has been covered by a
Sediment and Erosion Control Plan Approval from the Division of Energy, Mineral, and
Land Resources (DEMLR) or a delegated local program; or
g) Any high -density project, as defined in 15A NCAC 02H .1003(3) and by the density
thresholds specified in 15A NCAC 02H .1017, which:
i. Disturbs one acre or more of land (including a project that disturbs less than one
acre of land that is part of a larger common plan of development or sale); and
ii. Has permanent wetland, stream or open water impacts; and
iii. Is proposing new built -upon area; and
iv. Does not have a stormwater management plan reviewed and approved under a
state stormwater program' or a state -approved local government stormwater
program'.
Projects that have vested rights, exemptions, or other legacy rights or exemptions from
state or locally -implemented stormwater programs and projects that satisfy state or
locally -implemented stormwater programs through use of community in -lieu fee
programs require an Individual 401 Certification; or
h) Any permanent impacts to waters, or to wetlands adjacent to waters, designated as:
ORW (including SAV), HQW (including PNA), SA, WS-I, WS-II, Trout, or North Carolina or
National Wild and Scenic River; or
1 e.g. Coastal Counties, HQW, ORW, or state -implemented Phase II NPDES
2 e.g. Delegated Phase II NPDES, Water Supply Watershed, Nutrient -Sensitive Waters, or Universal Stormwater
Management Program
Page 2 of 18

GC4256
i) Any permanent impacts to coastal wetlands [15A NCAC 07H .0205], or Unique Wetlands
(UWL) [15A NCAC 02B .0231]; or
j) Any impacts to subject water bodies and/or state regulated riparian buffers along
subject water bodies in the Neuse, Tar -Pamlico, or Catawba River Basins or in the
Randleman Lake, Jordan Lake or Goose Creek Watersheds (or any other basin or
watershed with State Regulated Riparian Area Protection Rules [Buffer Rules] in effect
at the time of application) unless:
i. The activities are listed as "EXEMPT" or "DEEMED ALLOWABLE" from these rules;
or
ii. A Buffer Authorization Certificate is issued by the NC Division of Coastal
Management (DCM); or
iii. A Buffer Authorization Certificate, Certificate with Exception, or Minor Variance
is issued by a delegated or designated local government implementing a state
riparian buffer program pursuant to 143-215.23.
In accordance with 15A NCAC 02H .0503(f), the Director of the North Carolina Division of Water
Resources may require submission of a formal application for Individual Certification for any
project if it is deemed in the public's best interest or determined that the project is likely to
have a significant adverse effect upon water quality, including state or federally listed
endangered or threatened aquatic species, or will degrade the waters so that existing uses of
the waters or downstream waters are precluded.
This General Certification does not relieve the permittee of the responsibility to obtain all other
required Federal, State, or Local approvals before proceeding with the project, including those
required by, but not limited to, Sediment and Erosion Control, Non -Discharge, Water Supply
Watershed, and Trout Buffer regulations.
This General Certification neither grants nor affirms any property right, license, or privilege in
any waters, or any right of use in any waters. This General Certification does not authorize any
person to interfere with the riparian rights, littoral rights, or water use rights of any other
person and does not create any prescriptive right or any right of priority regarding any usage of
water. This General Certification shall not be interposed as a defense in any action respecting
the determination of riparian or littoral rights or other rights to water use. No consumptive
user is deemed by virtue of this General Certification to possess any prescriptive or other right
of priority with respect to any other consumptive user regardless of the quantity of the
withdrawal or the date on which the withdrawal was initiated or expanded.
Upon the presentation of proper credentials, DWR may inspect the property.
This General Certification shall expire on the same day as the expiration date of the
corresponding Nationwide Permit. The conditions in effect on the date of issuance of
Certification for a specific project shall remain in effect for the life of the project, regardless of
the expiration date of this General Certification. This General Certification is rescinded when
the US Army Corps of Engineers reauthorizes the corresponding Nationwide Permit or when
deemed appropriate by the Director of the Division of Water Resources.
Page 3 of 18

GC4256
Non-compliance with or violation of the conditions herein set forth by a specific project may
result in revocation of this General Certification for the project and may also result in criminal
and/or civil penalties.
I. ACTIVITY SPECIFIC CONDITIONS:
1. If this Water Quality Certification is used to access residential, commercial or industrial
building sites, then all parcels owned by the permittee that are part of the single and
complete project authorized by this Certification must be buildable without additional
impacts to streams or wetlands.
Citation: 15A NCAC 02H .0502(a);15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses, and
the water quality to protect such uses, are protected. In determining that the proposed
activity will comply with state water quality standards (including designated uses, numeric
criteria, narrative criteria and the state's antidegradation policy), the Division must evaluate if
the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards or would result in secondary or cumulative impacts.
2. For road construction purposes, this Certification shall only be utilized from natural high
ground to natural high ground.
Citation: 15A NCAC 02H .0502(a);15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses, and
the water quality to protect such uses, are protected. In determining that the proposed
activity will comply with state water quality standards (including designated uses, numeric
criteria, narrative criteria and the state's antidegradation policy), the Division must evaluate if
the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards or would result in secondary or cumulative impacts.
3. Deed notifications or similar mechanisms shall be placed on all lots/parcels with retained
jurisdictional wetlands, waters, and state regulated riparian buffers within the project
boundaries in order to assure compliance with NC Water Quality Certification Rules (15A
NCAC 02H .0500), NC Isolated Wetland Rules (15A NCAC 02H .1300), and/or State Regulated
Riparian Buffer Rules (15A NCAC 02B .0200). These mechanisms shall be put in place at the
time of recording of the property or individual parcels, whichever is appropriate.
Citation: 15A NCAC 02H .0502(a);15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the proposed
activity will comply with state water quality standards (including designated uses, numeric
criteria, narrative criteria and the state's antidegradation policy), the Division must evaluate
if the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards or would result in secondary or cumulative impacts.
Page 4 of 18

GC4256
4. For all dam removal projects meeting the definition under G.S. 143-215.25 and requirements
under G.S. 143-215.27 of a professionally supervised dam removal, the applicant shall provide
documentation that any sediment that may be released has similar or lower level of
contamination than sediment sampled from downstream of the dam in accordance with
Session Law 2017-145.
Citation: 15A NCAC 02H .0502; 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A
NCACO28.0200; S.L. 2017-145;
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the proposed
activity will comply with state water quality standards (including designated uses, numeric
criteria, narrative criteria and the state's antidegradation policy), the Division must evaluate
if the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards or would result in secondary or cumulative impacts.
5. If this Water Quality Certification is used for utility related impacts, then the following Activity
Specific Conditions shall apply to those impacts.
a. All sewer lines shall be designed, constructed and maintained in accordance with Title 15A
NCAC Chapter 02T, applicable Minimum Design Criteria (MDC), and/or Alternative Design
Criteria.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: The referenced Minimum Design criteria and 02T rules were adopted to
ensure that conditions of waters be suitable for all best uses provided for in state rule
(including, at minimum: aquatic life propagation, survival, and maintenance of biological
integrity; wildlife: secondary contact recreation: agriculture); and that activities must not
cause water pollution that precludes any best use on a short-term or long-term basis.
b. Any utility construction corridor that is parallel to a stream or open water shall not be
closer than 10 feet to the top of bank or ordinary high-water mark.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the
proposed activity will comply with state water quality standards (including designated
uses, numeric criteria, narrative criteria and the state's antidegradation policy), the
Division must evaluate if the activity has avoided and minimized impacts to waters,
would cause or contribute to a violation of standards or would result in secondary or
cumulative impacts.
c. Where there are temporary or permanent impacts from stream crossings, utility lines shall
cross the stream channel at a near -perpendicular direction (i.e., between 75 degrees and
105 degrees to the stream bank).
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Page 5 of 18

GC4256
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the
proposed activity will comply with state water quality standards (including designated
uses, numeric criteria, narrative criteria and the state's antidegradation policy), the
Division must evaluate if the activity has avoided and minimized impacts to waters,
would cause or contribute to a violation of standards or would result in secondary or
cumulative impacts.
d. Construction corridors in wetlands and/or across stream channels shall be minimized to
the maximum extent practicable and shall not exceed 40 feet wide for utility lines.
For construction corridors in wetlands and across stream channels, stumps shall be
grubbed only as needed to install the utility and remaining stumps shall be cut off at
grade level. The general stripping of topsoil within wetlands along the construction
corridor is prohibited.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the
proposed activity will comply with state water quality standards (including designated
uses, numeric criteria, narrative criteria and the state's antidegradation policy), the
Division must evaluate if the activity has avoided and minimized impacts to waters,
would cause or contribute to a violation of standards or would result in secondary or
cumulative impacts.
e. Permanent maintained access corridors in wetlands and across stream channels shall be
restricted to the minimum width practicable and shall not exceed 30 feet wide except at
manhole locations.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the
proposed activity will comply with state water quality standards (including designated
uses, numeric criteria, narrative criteria and the state's antidegradation policy), the
Division must evaluate if the activity has avoided and minimized impacts to waters,
would cause or contribute to a violation of standards or would result in secondary or
cumulative impacts.
f. For all utility lines constructed within wetlands, an anti -seep collar shall be placed at the
downstream (utility line gradient) wetland boundary and every 150 feet up the gradient
until the utility exits the wetland. Anti -seep collars may be constructed with class B
concrete, compacted clay, PVC pipe, or metal collars. Wetland crossings that are
directionally drilled, and perpendicular wetland crossings that are open cut and less than
150 feet long do not require anti -seep collars. The compacted clay shall have a specific
infiltration of 1 X 10-5 cm/sec or less. A section and plan view diagram is attached for the
anti -seep collars.
Page 6 of 18

GC4256
g•
The following specifications shall apply to class B concrete:
i. Minimum cement content, sacks per cubic yard with rounded coarse aggregate 5.0
ii. Minimum cement content, sacks per cubic yard with angular coarse aggregate 5.5
iii. Maximum water -cement ratio gallons per sack 6.8
iv. Slump range 2" to 4"
v. Minimum strength - 28-day psi 2,500
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the
proposed activity will comply with state water quality standards (including designated
uses, numeric criteria, narrative criteria and the state's antidegradation policy), the
Division must evaluate if the activity has avoided and minimized impacts to waters,
would cause or contribute to a violation of standards or would result in secondary or
cumulative impacts.
The permittee shall have a specific plan for restoring wetland contours to pre -construction
conditions. Any excess material will be removed to a high ground disposal area.
The mixing of topsoil and subsoils within the wetlands along utility corridors shall be
minimized to the greatest extent practical. During excavation, the soils shall be placed
on fabric to minimize impacts whenever possible. Topsoil excavated from utility
trenches will be piled separately from subsoils and will be backfilled into the trench only
after the subsoils have been placed and compacted.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. In determining that the
proposed activity will comply with state water quality standards (including designated
uses, numeric criteria, narrative criteria and the state's antidegradation policy), the
Division must evaluate if the activity has avoided and minimized impacts to waters,
would cause or contribute to a violation of standards or would result in secondary or
cumulative impacts.
II. GENERAL CONDITIONS:
1. The permittee shall report to the DWR Regional Office any noncompliance with, and/or any
violation of, stream or wetland standards [15A NCAC 02B .0200], including but not limited to
sediment impacts to streams or wetlands. Information shall be provided orally within 24
hours (or the next business day if a weekend or holiday) from the time the permittee became
aware of the non-compliance circumstances.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Timely reporting of non-compliance is important in identifying and minimizing
Page 7 of 18

GC4256
detrimental impacts to water quality and avoiding impacts due to water pollution that
precludes any best use on a short-term or long-term basis.
2. No waste, spoil, solids, or fill of any kind shall occur in wetlands or waters beyond the
footprint of the impacts (including temporary impacts); or beyond the thresholds
established for use of this General Certification and Nationwide Permit.
Citation: 15A NCAC 02H .0506; 15A NCAC 02H .0507(c)
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule (including, at minimum: aquatic life propagation,
survival, and maintenance of biological integrity; wildlife; secondary contact recreation;
agriculture); and that activities must not cause water pollution that precludes any best use
on a short-term or long-term basis.
3. All activities shall be in compliance with any applicable State Regulated Riparian Buffer
Rules in Chapter 2B of Title 15A in the North Carolina Administrative Code.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: The referenced Riparian Buffer rules were adopted to address water quality
impairments and further protect existing uses.
4. When applicable, all construction activities shall be performed and maintained in full
compliance with G.S. Chapter 113A Article 4 (Sediment and Pollution Control Act of 1973).
Regardless of applicability of the Sediment and Pollution Control Act, all projects shall
incorporate appropriate Best Management Practices for the control of sediment and
erosion so that no violations of state water quality standards, statutes, or rules occur.
Design, installation, operation, and maintenance of all sediment and erosion control
measures shall be equal to or exceed the requirements specified in the most recent version
of the North Carolina Sediment and Erosion Control Manual, or for linear transportation
projects, the North Caroline Department of Transportation Sediment and Erosion Control
Manual.
All devices shall be maintained on all construction sites, borrow sites, and waste pile (spoil)
sites, including contractor -owned or leased borrow pits associated with the project.
Sufficient materials required for stabilization and/or repair of erosion control measures and
stormwater routing and treatment shall be on site at all times.
For borrow pit sites, the erosion and sediment control measures shall be designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Surface Mining Manual. Reclamation measures and implementation shall
comply with the reclamation in accordance with the requirements of the Sedimentation
Pollution Control Act and the Mining Act of 1971.
If the project occurs in waters or watersheds classified as Primary Nursery Areas (PNAs), SA,
WS-I, WS-II, High Quality Waters (HQW), or Outstanding Resource Waters (ORW), then the
Page 8 of 18

GC4256
sedimentation and erosion control designs shall comply with the requirements set forth in
15A NCAC 04B .0124, Design Standards in Sensitive Watersheds.
Citation: 15A NCAC 02H .0506(b)(2); 15A NCAC 02H .0507(c); 15A NCACO2B .0200; 15A
NCAC 02B .0231
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. Activities must not cause water
pollution that precludes any best use on a short-term or long-term basis. As cited in Stream
Standards: (2) Oils, deleterious substances, or colored or other wastes: only such amounts as
shall not render the waters injurious to public health, secondary recreation, or to aquatic life
and wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the
waters for any designated uses; and (12) turbidity in the receiving water shall not exceed 50
Nephelometric Turbidity Units (NTU) in streams not designated as trout waters and 10 NTU
in streams, lakes, or reservoirs designated as trout waters; for lakes and reservoirs not
designated as trout waters, the turbidity shall not exceed 25 NTU; if turbidity exceeds these
levels due to natural background conditions, the existing turbidity level shall not be
increased. As cited in Wetland Standards: (1) Liquids, fill or other solids, or dissolved gases
shall not be present in amounts that may cause adverse impacts on existing wetland uses;
and (3) Materials producing color or odor shall not be present in amounts that may cause
adverse impacts on existing wetland uses.
5. Sediment and erosion control measures shall not be installed in wetland or waters except
within the footprint of temporary or permanent impacts otherwise authorized by this
Certification. If placed within authorized impact areas, then placement of such measures
shall not be conducted in a manner that results in dis-equilibrium of any wetlands,
streambeds, or streambanks. Any silt fence installed within wetlands shall be removed
from wetlands and the natural grade restored within two (2) months of the date that
DEMLR or locally delegated program has released the specific area within the project to
ensure wetland standards are maintained upon completion of the project.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCACO2B .0200; 15A NCAC
028 .0231
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. Activities must not cause water
pollution that precludes any best use on a short-term or long-term basis. As cited in Stream
Standards: (2) Oils, deleterious substances, or colored or other wastes: only such amounts as
shall not render the waters injurious to public health, secondary recreation, or to aquatic life
and wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the
waters for any designated uses; and (12) turbidity in the receiving water shall not exceed 50
Nephelometric Turbidity Units (NTU) in streams not designated as trout waters and 10 NTU
in streams, lakes, or reservoirs designated as trout waters; for lakes and reservoirs not
designated as trout waters, the turbidity shall not exceed 25 NTU; if turbidity exceeds these
levels due to natural background conditions, the existing turbidity level shall not be
increased. As cited in Wetland Standards: (1) Liquids, fill or other solids, or dissolved gases
shall not be present in amounts that may cause adverse impacts on existing wetland uses;
Page 9 of 18

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and (3) Materials producing color or odor shall not be present in amounts that may cause
adverse impacts on existing wetland uses.
6. Erosion control matting that incorporates plastic mesh and/or plastic twine shall not be
used along streambanks or within wetlands.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses
(including aquatic life propagation and biological integrity), and the water quality to protect
such uses, are protected. Protections are necessary to ensure any remaining surface waters
or wetlands, and any surface waters or wetlands downstream, continue to support existing
uses during and after project completion. The Division must evaluate if the activity has
avoided and minimized impacts to waters, would cause or contribute to a violation of
standards, or would result in secondary or cumulative impacts.
7. If the project is covered by NPDES Construction Stormwater Permit Number NCG010000 or
NPDES Construction Stormwater Permit Number NCG250000, full compliance with permit
conditions including the erosion & sedimentation control plan, inspections and
maintenance, self -monitoring, record keeping and reporting requirements is required.
The North Carolina Department of Transportation (NCDOT) shall be required to be in full
compliance with the conditions related to construction activities within the most recent
version of their Individual NPDES Stormwater Permit Number NCS000250.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02E3.0200; 15A NCAC
028 .0231
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. Activities must not cause water
pollution that precludes any best use on a short-term or long-term basis. As cited in Stream
Standards: (2) Oils, deleterious substances, or colored or other wastes: only such amounts as
shall not render the waters injurious to public health, secondary recreation, or to aquatic life
and wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the
waters for any designated uses; and (12) turbidity in the receiving water shall not exceed 50
Nephelometric Turbidity Units (NTU) in streams not designated as trout waters and 10 NTU
in streams, lakes, or reservoirs designated as trout waters; for lakes and reservoirs not
designated as trout waters, the turbidity shall not exceed 25 NTU; if turbidity exceeds these
levels due to natural background conditions, the existing turbidity level shall not be
increased. As cited in Wetland Standards: (1) Liquids, fill or other solids, or dissolved gases
shall not be present in amounts that may cause adverse impacts on existing wetland uses;
and (3) Materials producing color or odor shall not be present in amounts that may cause
adverse impacts on existing wetland uses.
8. All work in or adjacent to streams shall be conducted so that the flowing stream does not
come in contact with the disturbed area. Approved best management practices from the
most current version of the NC Sediment and Erosion Control Manual, or the NC
Department of Transportation Construction and Maintenance Activities Manual, such as
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sandbags, rock berms, cofferdams, and other diversion structures shall be used to minimize
excavation in flowing water.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. As cited in Stream
Standards: (2) Oils, deleterious substances, or colored or other wastes: only such amounts as
shall not render the waters injurious to public health, secondary recreation, or to aquatic life
and wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the
waters for any designated uses; and (12) turbidity in the receiving water shall not exceed 50
Nephelometric Turbidity Units (NTU) in streams not designated as trout waters and 10 NTU
in streams, lakes, or reservoirs designated as trout waters; for lakes and reservoirs not
designated as trout waters, the turbidity shall not exceed 25 NTU; if turbidity exceeds these
levels due to natural background conditions, the existing turbidity level shall not be
increased.
9. If activities must occur during periods of high biological activity (e.g. sea turtle nesting, fish
spawning, or bird nesting), then biological monitoring may be required at the request of
other state or federal agencies and coordinated with these activities.
All moratoriums on construction activities established by the NC Wildlife Resources
Commission (WRC), US Fish and Wildlife Service (USFWS), NC Division of Marine Fisheries
(DMF), or National Marine Fisheries Service (NMFS) shall be implemented. Exceptions to
this condition require written approval by the resource agency responsible for the given
moratorium.
Work within a designated trout watershed of North Carolina (as identified by the
Wilmington District of the US Army Corps of Engineers), or identified state or federal
endangered or threatened species habitat, shall be coordinated with the appropriate WRC,
USFWS, NMFS, and/or DMF personnel.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 048 .0125
Justification: In order to protect against impairment of water quality standards and best
usage of receiving and downstream waters, water quality based management practices
must be employed to protect against direct or indirect discharge of waste or other sources of
water pollution. Surface water quality standards require that conditions of waters be
suitable for all best uses provided for in state rule (including, at minimum: aquatic life
propagation, survival, and maintenance of biological integrity, wildlife, secondary contact
recreation, agriculture), and that activities must not cause water pollution that precludes
any best use on a short-term or long-term basis.
10. In -stream structures installed to mimic natural channel geomorphology such as cross -vanes,
sills, step -pool structures, etc. shall be designed and installed in such a manner that allow
for continued aquatic life movement.
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Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. Ensuring that in -stream
structures are installed properly will ensure that surface water quality standards are met
and conditions of waters are suitable for all best uses.
11. Culverts shall be designed and installed in such a manner that the original stream profiles
are not altered and allow for aquatic life movement during low flows. The dimension,
pattern, and profile of the stream above and below a pipe or culvert shall not be modified
by widening the stream channel or by reducing the depth of the stream in connection with
the construction activity. The width, height, and gradient of a proposed culvert shall be
such as to pass the average historical low flow and spring flow without adversely altering
flow velocity. If the width of the culvert is wider than the stream channel, the culvert shall
include multiple boxes/pipes, baffles, benches and/or sills to maintain the natural width of
the stream channel. If multiple culverts/pipes/barrels are used, low flows shall be
accommodated in one culvert/pipe and additional culverts/pipes shall be installed such that
they receive only flows above bankfull.
Placement of culverts and other structures in streams shall be below the elevation of the
streambed by one foot for all culverts with a diameter greater than 48 inches, and 20% of
the culvert diameter for culverts having a diameter less than or equal to 48 inches, to allow
low flow passage of water and aquatic life. If the culvert outlet is submerged within a pool
or scour hole and designed to provide for aquatic passage, then culvert burial into the
streambed is not required.
For structures less than 72" in diameter/width, and topographic constraints indicate culvert
slopes of greater than 2.5% culvert burial is not required, provided that all alternative
options for flattening the slope have been investigated and aquatic life
movement/connectivity has been provided when possible (e.g. rock ladders, cross -vanes,
sills, baffles etc.). Notification, including supporting documentation to include a location
map of the culvert, culvert profile drawings, and slope calculations, shall be provided to
DWR 30 calendar days prior to the installation of the culvert.
When bedrock is present in culvert locations, culvert burial is not required, provided that
there is sufficient documentation of the presence of bedrock. Notification, including
supporting documentation such as a location map of the culvert, geotechnical reports,
photographs, etc. shall be provided to DWR a minimum of 30 calendar days prior to the
installation of the culvert. If bedrock is discovered during construction, then DWR shall be
notified by phone or email within 24 hours of discovery.
Installation of culverts in wetlands shall ensure continuity of water movement and be
designed to adequately accommodate high water or flood conditions. When roadways,
causeways, or other fill projects are constructed across FEMA-designated floodways or
wetlands, openings such as culverts or bridges shall be provided to maintain the natural
Page 12 of 18

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hydrology of the system as well as prevent constriction of the floodway that may result in
destabilization of streams or wetlands.
The establishment of native woody vegetation and other soft stream bank stabilization
techniques shall be used where practicable instead of rip -rap or other bank hardening
methods.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. Ensuring that in -stream
structures are installed properly will ensure that surface water quality standards are met
and conditions of waters are suitable for all best uses.
12. Bridge deck drains shall not discharge directly into the stream. Stormwater shall be
directed across the bridge and pre-treated through site -appropriate means to the maximum
extent practicable (e.g. grassed swales, pre -formed scour holes, vegetated buffers, etc.)
before entering the stream.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. Ensuring that in -stream
structures are installed properly will ensure that surface water quality standards are met
and conditions of waters are suitable for all best uses.
13. Application of fertilizer to establish planted/seeded vegetation within disturbed riparian
areas and/or wetlands shall be conducted at agronomic rates and shall comply with all
other Federal, State and Local regulations. Fertilizer application shall be accomplished in a
manner that minimizes the risk of contact between the fertilizer and surface waters.
Citation: 15A 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028 .0231
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. Activities must not cause water
pollution that precludes any best use on a short-term or long-term basis. As cited in Stream
Standards: (2) Oils, deleterious substances, or colored or other wastes: only such amounts as
shall not render the waters injurious to public health, secondary recreation, or to aquatic life
and wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the
waters for any designated uses.
14. If concrete is used during construction, then all necessary measures shall be taken to
prevent direct contact between uncured or curing concrete and waters of the state. Water
that inadvertently contacts uncured concrete shall not be discharged to waters of the state.
Citation: 15A 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028 .0200
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. Activities must not cause water
Page 13 of 18

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pollution that precludes any best use on a short-term or long-term basis. As cited in Stream
Standards: (2) Oils, deleterious substances, or colored or other wastes: only such amounts as
shall not render the waters injurious to public health, secondary recreation, or to aquatic life
and wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the
waters for any designated uses.
15. All proposed and approved temporary fill and culverts shall be removed and the impacted
area shall be returned to natural conditions within 60 calendar days after the temporary
impact is no longer necessary. The impacted areas shall be restored to original grade,
including each stream's original cross -sectional dimensions, planform pattern, and
longitudinal bed profile. All temporarily impacted sites shall be restored and stabilized with
native vegetation.
Citation: 15A NCAC 02H.0506(b); 15A NCAC 02H .0507(c)
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. Protections are necessary to
ensure any remaining surface waters or wetlands, and any surface waters or wetlands
downstream, continue to support existing uses after project completion.
16. All proposed and approved temporary pipes/culverts/rip-rap pads etc. in streams shall be
installed as outlined in the most recent edition of the North Carolina Sediment and Erosion
Control Planning and Design Manual or the North Carolina Surface Mining Manual or the
North Carolina Department of Transportation Best Management Practices for Construction
and Maintenance Activities so as not to restrict stream flow or cause dis-equilibrium during
use of this General Certification.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. Ensuring that in -stream
structures are installed properly will ensure that surface water quality standards are met
and conditions of waters are suitable for all best uses.
17. Any rip -rap required for proper culvert placement, stream stabilization, or restoration of
temporarily disturbed areas shall be restricted to the area directly impacted by the
approved construction activity. All rip -rap shall be placed such that the original streambed
elevation and streambank contours are restored and maintained and shall consist of clean
rock or masonry material free of debris or toxic pollutants. Placement of rip -rap or other
approved materials shall not result in de -stabilization of the stream bed or banks upstream
or downstream of the area or be installed in a manner that precludes aquatic life passage.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. The Division must evaluate if
Page 14 of 18

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the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards, or would result in secondary or cumulative impacts.
18. Any rip -rap used for stream or shoreline stabilization shall be of a size and density to
prevent movement by wave, current action, or stream flows, and shall consist of clean rock
or masonry material free of debris or toxic pollutants. Rip -rap shall not be installed in the
streambed except in specific areas required for velocity control and to ensure structural
integrity of bank stabilization measures.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028.0201
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. The Division must evaluate if
the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards, or would result in secondary or cumulative impacts.
19. Rip -rap groins proposed in accordance with 15A NCAC 07H .1401 (NC Division of Coastal
Management General Permit for construction of Wooden and Rip -rap Groins in Estuarine
and Public Trust Waters) shall meet all the specific conditions for design and construction
specified in 15A NCAC 07H .1405.
Citation: 15A NCAC 02H .0507(c); 15A NCAC 07H .1400 et seq.
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. The Division must evaluate if
the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards, or would result in secondary or cumulative impacts.
20. All mechanized equipment operated near surface waters shall be inspected and maintained
regularly to prevent contamination of surface waters from fuels, lubricants, hydraulic fluids,
or other toxic materials. Construction shall be staged in order to minimize the exposure of
equipment to surface waters to the maximum extent practicable. Fueling, lubrication, and
general equipment maintenance shall be performed in a manner to prevent, to the
maximum extent practicable, contamination of surface waters by fuels and oils.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028.0200
Justification: A project that affects waters shall not be permitted unless the existing uses,
and the water quality to protect such uses, are protected. Activities must not cause water
pollution that precludes any best use on a short-term or long-term basis. As cited in Stream
Standards: (2) Oils, deleterious substances, or colored or other wastes: only such amounts as
shall not render the waters injurious to public health, secondary recreation, or to aquatic life
and wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the
waters for any designated uses.
21. Heavy equipment working in wetlands shall be placed on mats or other measures shall be
taken to minimize soil disturbance and compaction.
Page 15 of 18

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Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0231
Justification: Wetland standards require maintenance or enhancement of existing uses of
wetlands such that hydrologic conditions necessary to support natural biological and
physical characteristics are protected; populations of wetland flora and fauna are
maintained to protect biological integrity of the wetland; and materials or substances are
not present in amounts that may cause adverse impact on existing wetland uses.
22. In accordance with 143-215.85(b), the permittee shall report any petroleum spill of 25
gallons or more; any spill regardless of amount that causes a sheen on surface waters; any
petroleum spill regardless of amount occurring within 100 feet of surface waters; and any
petroleum spill less than 25 gallons that cannot be cleaned up within 24 hours.
Citation: 15A NCAC 02H .0507(c); N.C.G.S 143-215.85(b)
Justification: Person(s) owning or having control over oil or other substances upon notice of
discharge must immediately notify the Department, or any of its agents or employees, of the
nature, location, and time of the discharge and of the measures which are being taken or
are proposed to be taken to contain and remove the discharge. This action is required in
order to contain or divert the substances to prevent entry into the surface waters. Surface
water quality standards require that conditions of waters be suitable for all best uses
provided for in state rule (including, at minimum: aquatic life propagation, survival, and
maintenance of biological integrity; wildlife; secondary contact recreation; agriculture); and
that activities must not cause water pollution that precludes any best use on a short-term or
long-term basis.
23. The permittee and their authorized agents shall conduct all activities in a manner consistent
with State water quality standards (including any requirements resulting from compliance
with §303(d) of the Clean Water Act), and any other appropriate requirements of State and
Federal Law.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Surface water quality standards require that conditions of waters be suitable
for all best uses provided for in state rule, and that activities must not cause water pollution
that precludes any best use on a short-term or long-term basis. The Division must evaluate if
the activity has avoided and minimized impacts to waters, would cause or contribute to a
violation of standards, or would result in secondary or cumulative impacts.
24. The permittee shall require its contractors and/or agents to comply with the terms and
conditions of this permit in the construction and maintenance of this project, and shall
provide each of its contractors and/or agents associated with the construction or
maintenance of this project with a copy of this General Certification. A copy of this General
Certification shall be available at the project site during the construction and maintenance
of this project.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
Justification: Those actually performing the work should be aware of the requirements of
this 401 Water Quality General Certification to minimize water quality impacts.
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History Note: Water Quality Certification (WQC) Number 4256 issued December 18, 2020
replaces WQC 4139 issued December 1, 2017 for activities eligible for USACE NWP29; WQC 4092
issued March 3, 2017; WQC 3890 issued March 19, 2012; WQC 3821 issued April 6, 2010; WQC
3631 issued March 19, 2007; WQC 3402 issued March 28, 2003; WQC 3362 issued March 18,
2002; WQC 3287 issued June 1, 2000; WQCs 3106 and 3108 issued February 11, 1997.
Page 17 of 18

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ANTI -SEEP COLLAR
1 foot
i___
+
6 inches
—to-
6 inches
18
inches
rench Width
Utility Line
(Diameter Varies)
Class B Concrete
or Compacted Clay
6 inches
4
Not to exceed 40 feet
SECTION
PLAN
Class B Concrete
or Compacted Clay
� fi finches
12
inches
Page 18 of 18

December 16t", 2020
Ronnie Smith
Acting Deputy Chief
US Army Corps of Engineers
Wilmington Regulatory Division Office
69 Darlington Avenue
Wilmington, North Carolina 28403-1393
Re: Request for EBCI 401 Water Quality Certification for proposed USACE 2020 NWPs
Dear Mr. Smith,
The Eastern Band of Cherokee Indians (EBCI) has reviewed the proposed Nationwide Permits
published in the Federal Register on September 15th, 2020.
We have determined that we can grant EBCI 401 Water Quality Certification for this action
subject to one condition: namely that certification will require all NWP applicants to follow the
proposed regional conditions as submitted by the USACE Wilmington, NC District Office to the
National Office for final review.
We appreciate your commitment to work with EBCI to protect water quality in this unique part
of North Carolina.
Sincerely,
Boer
Michael Bolt, EBCI 401 Water Quality Certification,
PO Box 1925,
Cherokee, North Carolina 28719

Cc Michael LaVoie, EBCI Natural Resources Program Manager
Joseph Owle, Secretary EBCI Division of Agriculture & Natural Resources

ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
BRAXTON C. DAVIS
Director
Via Email
NORTH CAROLINA
Environmental Quality
December 14, 2020
Benjamin A. Bennett
Colonel, U.S. Army
District Commander
Wilmington District, Corps of Engineers
69 Darlington Avenue
Wilmington, NC 28403-1343
SUBJECT: Consistency Concurrence regarding the proposed reissuance of the Draft
Nationwide Permits (NWPs), including draft regional conditions, in North
Carolina (DCM#2020043)
Dear Colonel Bennett:
The Division of Coastal Management (DCM) received the U.S. Army Corps of Engineers
(Corps) Coastal Zone Management Act (CZMA) federal consistency determination regarding the
reissuance of existing Nationwide Peiinits (NWPs), proposed new draft NWPs, and draft
corresponding regional conditions on September 30, 2020. The Corps federal consistency
determination granted a 90-day review period with a deadline of December 29, 2020. DCM
acknowledged this review period through an email dated October 20, 2020. DCM has reviewed
the proposed reissuance of the NWPs, new draft NWPs and draft regional conditions, and this
letter serves as the State's federal consistency concurrence.
North Carolina's coastal zone management program consists of, but is not limited to, the Coastal
Area Management Act, the State's Dredge and Fill Law, Chapter 7 of Title 15A of North
Carolina's Administrative Code, and the land use plan of the County and/or local municipality.
It is the objective of DCM to manage the State's coastal resources to ensure that proposed
Federal activities would be compatible with safeguarding and perpetuating the biological, social,
economic, and aesthetic values of the State's coastal waters.
Based upon comments received from the NC Division of Marine Fisheries (DMF, attached), and
based upon DCM's experience with expanding marine aquaculture activities in North Carolina,
DCM has concerns regarding the proposed NWP A and B for finfish and seaweed mariculture.
The NC General Assembly (NCGA) established standards and procedures in N.C.G.S. § 113-201
et seq. that provide for the leasing of public bottom for shellfish mariculture. The NC Marine
D.E CI?)
Department t of Environmental (W
North Carolina Department of Environmental Quality I Division of Coastal Management
Morehead City Office 1400 Commerce Avenue I Morehead City, North Carolina 28557
252.808.2808

Fisheries Commission (MFC) also established requirements and procedures in 15A NCAC 030
.0200 to ensure shellfish mariculture standards are being met, while considering other uses of the
public trust. State law requires that the DMF Director, through the authority delegated from the
Secretary of the Department of Environmental Quality, grant shellfish leases only if they are
compatible with utilization by the public of other marine and estuarine resources. To determine
compatibility, the minimum standards provided are used to discern suitable areas for shellfish
mariculture based on numerous factors, including water quality, ability to cultivate shellfish,
existing shellfish resources on the proposed area, and existing navigation, fishing and recreation.
Shellfish mariculture leases can often conflict with other public trust uses, which makes
balancing issues and determining compatibility challenging.
Currently, there are no finfish or seaweed mariculture operations in the estuarine or marine
waters of North Carolina's coastal zone and DMF does not have a permitting process for these
types of mariculture leases. However, in 2017, the NCGA passed N.C.G.S. § 113-215-218,
which similarly allows and defines marine aquaculture leases for cultivating marine aquatic
species other than molluscan shellfish (seaweed and finfish). Unlike the state shellfish
mariculture statutes (N.C.G.S. § 113-201 et seq.), these marine aquaculture statutes do not
provide for any additional rulemaking by the MFC to ensure the standards are being met, while
also considering other uses of the public trust.
NWPs are intended to streamline permitting for project types that have been previously
implemented, where there is a level of confidence in project specifications and conditions needed
to minimize risk of adverse environmental and economic impacts. Therefore, it seems premature
to streamline permitting of projects through NWPs for which state and federal agencies and the
public have no prior experience in North Carolina. In addition, the proposed NWP language
regarding geographic areas where finfish and seaweed mariculture can occur is unclear. NWP A
(seaweed) states "marine" waters, while NWP B (finfish) states "marine and estuarine."
However, both proposed the NWP A and B would generally authorize structures in "navigable
waters of the United States", and based on recent discussions with the Wilmington District, it is
our understanding that both are intended to apply anywhere within estuarine and marine waters.
While NWPs A and B require the permittee to submit a pre -construction notification (PCN) to
the district engineer, a more thorough coordinated review by state and federal resource agencies
is critical and a public notification process should also be required. Factors to consider when
considering seaweed or finfish mariculture facilities include anchoring impacts, water quality
impacts, user conflicts, introductions and accidental releases of cultured organisms, and the
introduction of pathogens and parasites that cause disease. Siting factors for consideration
include minimum water depth, adequate current, sufficient nutrients, wave exposure, impacts to
critical habitat, and minimum clearance below the surface and above the seafloor. For these
reasons, DCM strongly recommends that the Corps coordinate with DMF and other relevant
agencies to develop appropriate regional conditions for both of these new NWPs.
DCM also has significant concerns regarding the process exercised by the Corps for this federal
consistency review. The Corps and DCM mutually agreed to a review period of 90 days at the
outset of this review. However, on December 9, 2020, 71 days after entering into that agreement,
the Corps unexpectedly required DCM to conclude its review by December 14, 2020 —

unilaterally removing two weeks from the federal consistency review period and forcing DCM to
respond within three business days. This shortened timeframe for the State's review violates
CZMA regulations, which authorize federal agencies and states to mutually agree to a different
timeline from the default set out by regulation, and do not authorize federal agencies to
unilaterally change the review period (15 CFR § 930.36(b)(2)).
By changing the review process at the eleventh hour, the Corps also appears to have violated its
obligations under the federal Administrative Procedures Act (APA) to provide clear and reliable
notice of "the time, place, and nature of public rule making proceedings" (5 U.S.C. § 553(b)(1)).
DCM relied on the time period announced and mutually agreed upon with the District to
complete its analysis, and has not had adequate "opportunity to participate in the rule making
through submission of written data, views, or arguments" when its response must be rushed to
completion (5 U.S.C. § 553(c)).
Finally, the Corps submitted draft NWPs and regional conditions that, in our understanding, have
not yet been finalized. If the final NWPs or Regional Conditions are significantly modified from
those submitted for the State's review, or if further assessments reveal environmental effects
affecting any coastal use or resource substantially different than originally described, the Corps
will have a statutory obligation under the CZMA to submit a supplemental consistency
determination pursuant to 15 CFR 930.46 or new consistency determination pursuant to 15 CFR
930.36.
This entire process has been highly unusual and not in accordance with procedures outlined in
the federal CZMA, APA, and corresponding federal regulations described above. Given the lack
of time needed for further coordination and discussions between our agencies, along with the
potential implications that if the State does not respond by December 14, 2020, the Corps may
not make NWPs available to the public in the coastal counties of North Carolina or may treat our
response as a general objection, DCM must prematurely conclude that the proposed draft NWPs
and accompanying (draft) Regional Conditions are consistent with North Carolina's approved
coastal management program.
Thank you for your consideration of the North Carolina Coastal Management Program.
Daniel Govoni
Federal Consistency Coordinator
Cc: Braxton Davis, DCM Director
Sheila Holman, Assistant Secretary for the Environment, NCDEQ