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Home My WebLink About20181598 v.7 approval letter.docx ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Director April 1, 2022 Mr. Philip S. Harris, III, P.E., CPM Natural Environment Section Head Project Development and Environmental Analysis North Carolina Department of Transportation 1598 Mail Service Center Raleigh, North Carolina, 27699-1598 Subject: Modification of 401 Water Quality Certification Pursuant to Section 401 of the Federal Clean Water Act and Neuse Buffer Authorization with ADDITIONAL CONDITIONS for the proposed construction of the Havelock Bypass in Craven County, TIP R-1015. NCDWR Project No. 20181598 v.7 Dear Mr. Harris: Attached hereto is a modification of Certification No. WQC004178 issued to The North Carolina Department of Transportation (NCDOT) dated April 3, 2019. If we can be of further assistance, do not hesitate to contact us. Sincerely, Richard E. Rogers, Jr., Director Division of Water Resources cc: Tom Steffens, US Army Corps of Engineers, Washington Field Office Jay Johnson, Division 2 Environmental Officer Chris Rivenbark, NC Department of Transportation Stephen Lane, NC Division of Coastal Management Cathy Brittingham, NC Division of Coastal Management Beth Harmon, Division of Mitigation Services Garcy Ward, NC Division of Water Resources, Washington Regional Office File Copy North Carolina Department of Environmental Quality Division of Water Resources 512 North Salisbury Street 1617 Mail Service Center Raleigh, North Carolina 27699-1617 919.707.9000 Modification to the 401 Water Quality Certification Pursuant to Section 401 of the Federal Clean Water Act and Neuse Buffer Authorization with ADDITIONAL CONDITIONS THIS CERTIFICATION 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 Division of Water Resources (NCDWR) Regulations in 15 NCAC 2H .0500 and 15A NCAC 2B.0714. This certification authorizes the NCDOT to permanently impact an additional 0.28 acres of wetlands in Craven County. The project shall be constructed pursuant to the revised modification request dated received March 4, 2022. The authorized impacts are as described below: Previously approved Wetland Impacts at Sites 3, 5, and 35B in the Neuse River Basin Wetland Fill Fill Excavation Mechanized Hand Total Site Type (ac) (temporary) (ac) Clearing Clearing Wetland (ac) (ac) (ac) Impact (ac) 3 29.42 non-riparian 26.03 -- 0.32 3.07 -- 5 0.31 non-riparian 0.10 -- 0.06 0.07 0.08 35B 0.82 non-riparian 0.71 -- -- 0.11 -- Total 26.84 -- 0.38 3.25 0.08 30.55 Wetland Impacts at Sites 3, 5, and 35B in the Neuse Basin approved with this Modification Total Fill Mechanized Hand Wetland Fill Excavation Wetland Site (temporary) Clearing Clearing Type (ac) (ac) Impact (ac) (ac) (ac) (ac) 3 non-riparian 26.14 -- 0.32 3.08 -- 29.54 5 non-riparian 0.10 0.13 0.17 0.11 -- 0.51 35B non-riparian 0.71 -- 0.01 0.11 -- 0.83 Total 26.95 0.13 0.50 3.30 -- 30.88 Difference +0.11* +0.13 +0.12* +0.05* -0.08 +0.33 *additional permanent wetland impacts = 0.28 acres The application provides adequate assurance that the discharge of fill material into wetlands and waters of the Neuse River Basin in conjunction with the proposed activity will not result in a violation of applicable Water Quality Standards and discharge guidelines. Therefore, the State of North Carolina certifies that this activity will not violate the applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if conducted in accordance with the application and conditions hereinafter set forth. This approval is only valid for the purpose and design that you submitted in your modified application dated received March 4, 2022. Should your project change, you are required to notify NCDWR and submit a new application. If the property is sold, the new owner must be given a copy of this Certification and approval letter, and is thereby responsible for complying with all the conditions. If any additional wetland impacts, or stream impacts, for this project (now or in the future) exceed one acre or 150 linear feet, respectively, additional compensatory mitigation may be required as described in 15A NCAC 2H .0506 (h) (6) and (7). Additional buffer impacts may require compensatory mitigation as described in 15A NCAC 2B .0611(b)(2). For this approval to remain valid, you are required to comply with all the conditions listed below. In addition, you should obtain all other federal, state or local permits before proceeding with your project including (but not limited to) Sediment and Erosion control, Coastal Stormwater, Non-discharge and Water Supply watershed regulations. This Certification shall expire on the same day as the expiration date of the corresponding Corps of Engineers Permit. North Carolina Department of Environmental Quality Division of Water Resources 512 North Salisbury Street 1617 Mail Service Center Raleigh, North Carolina 27699-1617 919.707.9000 This Water Quality Certification neither grants nor affirms any property right, license, or privilege in any lands or waters, or any right of use in any waters. This Water Quality 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 Water Quality 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 Water Quality 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, the Division may inspect the property. Condition(s) of Certification: 1. This modification is applicable only to the additional proposed activities. All of the authorized activities and conditions associated with the original Water Quality Certification dated April 3, 2019 and subsequent modifications dated May1, 2020, January 8, 2021, April 22, 2021, July 9, 2021, and October 11, 2021 still apply except where superseded by this certification. 2. This modification results in an additional 0.28 acres of permanent wetland impacts. Therefore, compensatory mitigation for an additional 0.28 acres of non-riparian wetlands is required. We understand that you have chosen to perform compensatory mitigation for impacts to wetlands through the North Carolina Division of Mitigation Services (DMS) (formerly NCEEP), and that the DMS has agreed to implement the mitigation for the project. DMS has indicated in a letter dated March 2, 2022 that they will assume responsibility for satisfying the federal Clean Water Act compensatory mitigation requirements for the above-referenced project, in accordance with DMSÓs Mitigation Banking Instrument signed July 28, 2010. 3. Due to the possibility that compaction and/or other site alterations might prevent the temporary wetland impact area from re-attaining jurisdictional wetland status; the permittee shall provide an update on the wetland areas temporarily impacted at Site 5. This update shall be conducted two growing seasons after completion of the work at Site 5 and shall consist of photographs and a brief report on the progress of the areas in re-attaining wetland jurisdictional status. Upon submission of this update to the NCDWR, the permittee shall schedule an agency field meeting with the NCDWR to determine if the wetland areas temporarily impacted by this project have re-attained jurisdictional wetland status. If the wetland areas temporarily impacted by this project have not re-attained jurisdictional wetland status, the NCDWR shall determine if compensatory wetland mitigation is to be required. \[15A NCAC 02H.0506(c)(2)\] 4. A copy of this Water Quality Certification shall be maintained on the construction site at all times. In addition, the Water Quality Certification and all subsequent modifications, if any, shall be maintained with the Division Engineer and the on-site project manager. \[15A NCAC 02H .0507(c) and 15A NCAC 02H .0506 (b)(2) and (c)(2)\] This Certification shall become null and void unless the above conditions are made conditions of the Federal 404 and/or Coastal Area Management Act Permit. This Certification shall expire upon the expiration of the 404 or CAMA permit. Please be aware that impacting waters without first applying for and securing the issuance of a 401 Water Quality Certification violates Title 15A of the North Carolina Administrative Code (NCAC) 2H .0500. Title 15A NCAC 2H .0500 requires certifications pursuant to Section 401 of the Clean Water Act whenever construction or operation of facilities will result in a discharge into navigable waters, including wetlands, as described in 33 Code of Federal Regulations (CFR) Part 323. It also states any person desiring issuance of the State certification or coverage under a general certification required by Section 401 of the Federal Water Pollution Control Act shall file with the Director of the North Carolina Division of Water Quality. Violations of any condition herein set forth may result in revocation of this Certification and may result in criminal and/or civil penalties. Pursuant to G.S. 143- 215.6A, these violations and any future violations are subject to a civil penalty assessment of up to a maximum of $25,000.00 per day for each violation. North Carolina Department of Environmental Quality Division of Water Resources 512 North Salisbury Street 1617 Mail Service Center Raleigh, North Carolina 27699-1617 919.707.9000 This approval and its conditions are final and binding unless contested \[G.S. 143-215.5\]. Please be aware that impacting waters without first applying for and securing the issuance of a 401 Water Quality Certification violates Title 15A of the North Carolina Administrative Code (NCAC) 2H .0500. Title 15A NCAC 2H .0500 requires certifications pursuant to Section 401 of the Clean Water Act whenever construction or operation of facilities will result in a discharge into navigable waters, including wetlands, as described in 33 Code of Federal Regulations (CFR) Part 323. It also states any person desiring issuance of the State certification or coverage under a general certification required by Section 401 of the Federal Water Pollution Control Act shall file with the Director of the North Carolina Division of Water Quality. Pursuant to G.S. 143-215.6A, these violations and any future violations are subject to a civil penalty assessment of up to a maximum of $25,000.00 per day for each violation. This Certification can be contested as provided in Chapter 150B of the North Carolina General Statutes by filing a Petition for a Contested Case Hearing (Petition) with the North Carolina Office of Administrative Hearings (OAH) within sixty (60) calendar days. Requirements for filing a Petition are set forth in Chapter 150B of the North Carolina General Statutes and Title 26 of the North Carolina Administrative Code. Additional information regarding requirements for filing a Petition and Petition forms may be accessed at http://www.ncoah.com/ or by calling the OAH ClerkÓs Office at (919) 431-3000. A party filing a Petition must serve a copy of the Petition on: William F. Lane, General Counsel Department of Environmental Quality 1601 Mail Service Center Raleigh, NC 27699-1601 If the party filing the Petition is not the permittee, then the party must also serve the recipient of the Certification in accordance with N.C.G.S 150B-23(a). st This the 1 day of April, 2022 DIVISION OF WATER RESOURCES Richard E. Rogers, Jr., Director WQC No. 004121 North Carolina Department of Environmental Quality Division of Water Resources 512 North Salisbury Street 1617 Mail Service Center Raleigh, North Carolina 27699-1617 919.707.9000