RPOT Extension Approval - SAW-2023-00348 & DWR Project #20230215 SIGNED

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
ASHEVILLE REGULATORY FIELD OFFICE
151 PATTON AVENUE, ROOM 208
ASHEVILLE, NORTH CAROLINA 28801-5006

May 19, 2023

Regulatory Division

Action ID Number: SAW-2023-00348

Re: Request for Time Extension: Lake Lure Dam Gate & Test Borings Project
(DWR# 20230215)
Rutherford County

Ms. Katie Merritt
Division of Water Resources-401 & Buffer Permitting Unit
North Carolina Department of Environmental Quality
217 West Jones Street
Raleigh, North Carolina 27603

Dear Ms. Merritt:

Please reference the May 18, 2023, correspondence from Mr. Joey Winston
requesting an extension of time to review the subject project for the required individual
401 Water Quality Certification (WQC). Based on the correspondence DWR is
requesting that the review period for the 401 application to be 240 days from the receipt
of the application for this project (February 7, 2023).

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 evaluated Mr. Winston’s request and understand that the applicant is
working to provide additional information regarding the proposed operational guidelines
and practices of the dam’s drain gate. This work is necessary to avoid unintentional
water quality standard violations, sedimentation violations downstream, and
substantiate appropriate sediment transport downstream of the dam. The proposed
project is located at and downstream of the Lake Lure dam. Lake Lure upstream of the
dam is classified B, Trout and the Broad River downstream of the dam is classified C.
-2-

The Broad River downstream of the dam is a listed Section 303(d) impaired waterbody
for benthos due to a fair, poor, or severe bio-classification. Given the project’s potential
to affect sediment transport, turbidity, flow rates, and aquatic organism passage
throughout the stream reach, we agree that the time frame you have proposed provides
a more reasonable opportunity to receive and review the requested information in
consideration of the 401 application. This information may also support the applicant’s
effort to comply with Regulatory Guidance Letter 05-04 Guidance on the Discharge of
Sediments From or Through a Dam, for Purposes of Section 404 of the Clean Water
Act. Accordingly, a final decision on the application for the WQC should be made on or
before October 5, 2023, 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

Copy Furnished:

Mr. Todd Allen Bowers (via e-mail)
US EPA Region 4
Water Protection Division
61 Forsyth Street, SW
Atlanta, Georgia 30303-8960

Blind copy furnished:

CESAW-RG-A/Boggs
CESAW-RG-A/Davis