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Home My WebLink About20181108 Ver 3_Denial_20221117ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Director NORTH CAROLINA Environmental Quality November 17, 2022 DWR # 20181108 v3 Beaufort County CERTIFIED MAIL: 7021 0350 0000 4420 0781 RETURN RECEIPT REQUESTED Mr. Steve Trowell 102 East Watson Street Windsor, North Carolina 27983 Mr. Steve Trowell via email <stevejtrowell@gmail.com> Subject: DENIAL of 401 Water Quality Certification TJ's Transient Marina — Expansion of Marina Dear Mr. Trowell: On July 21, 2022, the Division of Water Resources (Division) received your CAMA Major application requesting a 401 Water Quality Certification from the Division for the subject project. As presented in the application, the project proposes the expansion of the existing waterway around TJ's Marina in Belhaven, NC by excavation into areas previously and not previously dredged and excavation landward of the water's edge with additional activities proposed. The waters adjacent to the current footprint of the marina are designated by the North Carolina Marine Fisheries as a Primary Nursery Area (PNA waters) which carry the standards set out in 15A NCAC 02B .0220 (SC) which are labeled as Boat Harbor Canal, Baker's Creek, and Battalina Creek (also classified as SC, HQW, NSW waters). On September 15, 2022, the Division put this project on -hold and sent a Request for Additional Information. As of the date of this letter, the Division has not received information addressing items 1 and 2 of the September 15, 2022 Request for Information Letter (attached), and therefore, the Division cannot certify that the subject project will comply with Sections 301, 302, 303, 306, and 307 of the federal Clean Water Act. In accordance with 15A NCAC 02H .0507(e) your application for a 401 Water Quality Certification is hereby denied. The Division's decision 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 D_E NORTH CAROLINA Department of Environmental Quality North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 for filing a Petition and Petition forms may be accessed at http://www.ncoah.com/ or by calling the OAH Clerk's 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 recipient of this denial, then the party must also serve the recipient of this denial in accordance with N.C.G.S 150B-23(a). Please be aware that the applicant can resubmit the application with the additional information requested or with a modified project application at a later date. The concerns with the present project are dredging in PNA waters, waters flushing from the canal system, potential for contaminated soils, and the buffer authorization as proposed. Additionally, potential changes in project design and/or scope may help enable the project proceed through the regulatory approval process. Please be aware that you have no authorization under Section 401 of the Clean Water Act for this activity and any work done within waters of the State or riparian buffers may be a violation of North Carolina General Statutes and Administrative Code. Further correspondence is pending regarding buffer authorization and riparian buffer regulation exemption requests. Please contact Robert Tankard at 252- 948- 3921 or robert.tankard@ncdenr.gov if you have any questions or concerns. Sincerely, Rl chal4 E Rogers, ] Richard E. Rogers, Jr., Director Division of Water Resources Electronic cc: Tobin Tetterton, TJ Land Develpment (tobin@rsnet. org) Steve Trowell, (stevejtrowell@gmail.com) Raleigh Bland, USACE Washington Field Office (via e- mail) Gregg Bodnar, DCM Morehead City (via e- mail) Kelly Spivey, DCM WaRO (via e- mail) Maria Dunn, NC WRC — WaRO (via e- mail) Jimmy Harrison, NC DMF — WaRO (via e- mail) DWR Files/ Laserfiche Filename: 20181108v3_TJsMarina_DENIAL_(Beaufort) D_E Q?„). NORTH CAROLINA Department of Environmental Quality North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 919.707.9000 DocuSign Envelope ID: 42DOE2FC-8570-4421-9554-A257D20CD405 ROY COOPER Governor ELIZABETH S. BISER Secretary RICHARD E. ROGERS, JR. Director NORTH CAROLINA Environmental Quality September 15, 2022 DWR # 2018-1108 v3 Beaufort County Mr. Steve Trowell 102 East Watson Street Windsor, North Carolina 27983 Subject: REQUEST FOR ADDITIONAL INFORMATION TJ's Transient Marina — Expansion of Marina Dear Mr. Trowell: On July 21, 2022, the Division of Water Resources (Division) received a copy of your CAMA Major application requesting a 401 Water Quality Certification and a Buffer Authorization from the Division for the subject project. The Division has determined that your application is incomplete and cannot be processed. The application is on -hold until all the following information is received: 1. Avoidance and Minimization: The project proposes to expand Boat Harbor Canal, Baker Creek, Battalina Creek and the Sargent Canal by excavating uplands and the bottom substrate of the canal system. Excavation is proposed within and outside of the existing federal channel location. Existing maintenance excavation adjacent to the proposed development within the man-made canal system is authorized to a final depth of -6 feet at NLW. The project proposes to expand the existing dredge footprint to include significant portions of the high ground increasing the channel width of the man-made canal system. The DWR has concerns regarding purpose and need for expanded excavation. It is unclear if connecting depths downstream can support this expansion without creating create hypoxic conditions at the terminus of the canal system that could result in a significant adverse impact to the aquatic resources and a violation of water quality standards. During the scoping meeting on September 6, 2017, and May 31, 2022, the DWR expressed concerns regarding the flushing of the man-made canal system to meet North Carolina water quality standards for dissolved oxygen (DO) levels. The standards state that DO shall be "Not less than 5.0 mg/I, except that swamp waters, poorly flushed tidally influenced streams or embayment's, or estuarine bottom waters may have lower values if caused by natural conditions" 15A NCAC 02B .0220 (5). The DO standard of 5.0 mg/I is based on a daily average. The project must demonstrate that it will not violate the DO standard or other water quality standards. Failure to do so could result in denial of a 401 Certification for a proposed marina. DWR believes that the DO standard may be difficult for many man-made canal systems to achieve NORTH CAROLINA Department M Environmental Quality North Carolina Department of Environmental Quality Division of Water Resources Washington Regional Office - 943 Washington Square Mall - Washington, North Carolina, 27889 252-946-6481 DocuSign Envelope ID: 42DOE2FC-8570-4421-9554-A257D20CD405 because reduced water circulation favors stagnation and oxygen demands can cause DO inside poorly flushed basins to be lower than in adjacent waters. The DWR requires a Flushing Model and Dissolved Oxygen Model for the proposed expansion of the man- made canal system. The models are necessary to demonstrate the project will not result in a violation of water quality standards. Please note that it is necessary for this Office to review and approve sampling sites before model sampling is conducted. Please provide a proposed sampling sites and proposed modeling plan that meets these requirements. 2. The adjacent land uses include marine industry services including mooring, haul out, boat repairs, bottom cleaning, painting, etc. In most cases these land uses predate the state regulatory requirements to control run-off to adjacent surface waters. Several of the adjoining developed parcels lack vegetated buffers, stormwater treatment and best management practices to reduce surface run off to the adjacent surface waters. The heavy industry activity adjacent to the surface waters may have discharged pollutants to the canal system waters. The canal channel bottom and sediments proposed to be excavated in association with this project may contain high levels of pollutants. The DWR is concerned that these pollutants will be disturbed during excavation and present within the dredge spoil material. Constituents such as heavy metals, inorganic and organic volatile compounds could be released into surface waters through mechanical excavation of the soft bottom substrate. The release of these pollutants into the waters could result in a significant adverse impact to aquatic resources and in a violation of the applicable water quality standards; [15A NCAC 02B .0220]. Please demonstrate how downstream waters will be protected. The DWR recommends, at a minimum, an initial evaluation of the dredge material as described in the EPA/USACE's Upland Testing Manual' . Depending on the results of the evaluation, a sediment sampling plan may be required. 3. Please provide a complete Riparian Buffer Authorization application as required by [15A NCAC 02B .0611 (b)]. Applications are available on the DWR's website and there is no application fee. The Tar - Pamlico Buffer Rules require that the riparian buffer must remain in an undisturbed, vegetated state except for those uses allowed in the Table of Uses in the rule. [15A NCAC 02B .0734 (8)] In your application and supporting materials, please ensure you demonstrate how stormwater runoff through the buffer will meet conditions of the rule [15A NCAC 02B .0734 (9)] and how the project meets the allowable uses under the Table of Uses [15A NCAC 02B .0734 (11)]. The Division believes the project may not fit in any allowable uses provided for in the Tar -Pamlico Buffer Rules' Table of Uses [15A NCAC 02B .0734 (11)]. If the project does not meet an allowable use, the only way it could proceed is if it were granted an Authorization Certificate with Exception. The requirements for an Authorization Certificate with Exception can be found in [15A NCAC 02B .0611 (c)]. Pursuant to 15A NCAC 02H .0502 (e), the applicant shall furnish all the above requested information for the proper consideration of the application. Please respond in writing within 30 calendar days of receipt of this letter by submitting all of the above requested information through this link: https://edocs.deq.nc.gov/Forms/Supplemental-Information-Form (note the DWR# requested on the link is referenced above). ' U.S. Army Corps of Engineers. 2003. "Evaluation of dredged material proposed for disposal at island, nearshore, or upland confined disposal facilities - Testing Manual," Technical Report ERDC/EL TR-03-1, U.S. Army Engineer Research and Development Center, Vicksburg, MS. Available online at: https://clu-in.orq/download/contaminantfocus/sediments/evaluation-dredged- Islandtre103-1. pdf £ D_E NORTH NA Department of or Environmental Duality North Carolina Department of Environmental Quality Division of Water Resources Washington Regional Office - 943 Washington Square Mall - Washington, North Carolina, 27889 252-946-6481 DocuSign Envelope ID: 42DOE2FC-8570-4421-9554-A257D20CD405 If all the requested information is not received within 30 calendar days of receipt of this letter, the Division will be unable to approve the application and it will be denied as incomplete. The denial of this project will necessitate reapplication to the Division for approval, including a complete application package and the appropriate fee. Please be aware that you have no authorization under the Section 401 of the Clean Water Act for this activity and any work done within waters of the state may be a violation of North Carolina General Statutes and Administrative Code. Please contact Robert Tankard at 252-948-3921 or robert.tankard@ncdenr.gov if you have any questions or concerns. Sincerely, DocuSigned by: PAvUi4 '-2749BC61EE134BA... David May, Supervisor Water Quality Regional Operation Section Division of Water Resources, NCDEQ Washington Regional Office cc: Tobin Tetterton, TJ Land Develpment (tobin@rsnet.org) Steve Trowell, (stcvcjtrowell@gmail.com) Raleigh Bland, USACE Washington Field Office (via e-mail) Gregg Bodnar, DCM Morehead City (via e-mail) Kelly Spivey, DCM WaRO (via e-mail) Maria Dunn, NC WRC — WaRO (via e-mail) Jimmy Harrison, NC DMF — WaRO (via e-mail) DWR Files/Laserfiche D_E NORTHCAROLINA Department of Environmental Duel North Carolina Department of Environmental Quality Division of Water Resources Washington Regional Office - 943 Washington Square Mall - Washington, North Carolina, 27889 252-946-6481