20201654 Ver 2_USACE Time Ext Response_20220421

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
April 20, 2022
Regulatory Division
Re: Request for Time Extension: Mulberry Gap Farm — Madison LLC (DWR # 2020-
1654) Madison County
Mr. Jeffrey Poupart
Division of Water Resources -Water Quality Permitting Section
North Carolina Department of Environmental Quality
217 West Jones Street
Raleigh, North Carolina 27603
Dear Mr. Poupart:
Please reference the April 14, 2022, letter from Mr. Paul Wojoski requesting an
extension of time to review the subject project for the required individual 401 Water
Quality Certification (WQC). Based on the correspondence and a follow-up conversation
with Ms. Sue Homewood, DWR is requesting that the review period for the 401
application to be 185 days from the receipt of the revised application for this project
(January 27, 2022).
As you are aware, the Corps of Engineers issued Regulatory Guidance Letter (RGL)
No.19-02 titled: Timeframes for Clean Water Act Section 401 Water Quality
Certifications and Clarification of Waiver Responsibility. Within that guidance, it is stated
that the Corps may consider a 401 certification waived if the certifying agency fails or
refuses to act on a request for certification within 60-days after receipt of such a request
unless the District Engineer determines that a shorter or longer period of time is
reasonable for the certifying agency to act. It also states that "any additional time
granted should be the minimum amount of time necessary for the certifying agency to
act on a 401 WQC request and should not default to one year from receipt of such
request" as defined in 33 CFR 325.2 (b)(1)(ii).
We have thoroughly reviewed the information contained in your request and
understand that the proposed project does contain elements that are unique including
the magnitude of potential impacts to aquatic resources and that the applicant has
requested an extension to respond to previously issued comments (May 10, 2022).
Additionally, a portion of these impacts are associated with Beaver Dam Analog (BDA)
structures which have not been previously authorized in North Carolina or the region.
Evaluating the appropriateness and function of these non -typical structures within the
proposed topographic and ecological setting as well as understanding their effect on
designated stream and wetland uses provided in state rule is complex. We have

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considered the time frame you have proposed and believe that a more reasonable time
for consideration of the 401 application is 6 months. Accordingly, a final decision on the
application for the WQC should be made on or before July 31, 2022, or we would have
no choice but to consider the WQC waived (unless the Division denies the certification
beforehand).
If you have any questions regarding this correspondence, please do not hesitate to
contact me by phone at: 828-271-7980, ext. 4222, or by email at:
[e-mail].
Sincerely,
Scott Jones, PWS
Chief, Asheville Regulatory Field Office
Wilmington District
cc:
Mr. Todd Allen Bowers
US EPA Region 4
61 Forsyth Street, SW
Mail Code: 9T25
Atlanta, Georgia 30303-8960
[e-mail]