RPOT Extension Approval - SAW-2022-02311 & DWR Project #20230566 FINAL

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

August 9, 2023

Regulatory Division

Action ID Number: SAW-2022-02311

Re: Request for Time Extension
Bethel Park Stream Restoration Project (DWR #20230566)
Burke 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 August 7, 2023, correspondence from Mr. Joey Winston
requesting an extension 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 241 days from the receipt of the
application for this project (April 18, 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 DWR requested
additional information from the applicant on June 6th, August 4th, and August 7th to
determine whether the proposed activity will comply with North Carolina Water Quality
Standards, designated uses, and antidegradation policy. DWR has yet to receive the
requested information and continues to work with the applicant to resolve water quality
concerns. The project will address the bank erosion, sediment load, water quality, and
nuisance flooding issues on-site by restoring East Prong Hunting Creek and Fiddlers
-2-

Run at a lower floodplain elevation and developing riparian buffers for both project
streams. Additionally, bioretention swales will be constructed through Bethel Park to
convey and treat overbank and stormwater flows. East Prong Hunting Creek and
Fiddlers Run are classified Water Supply IV for drinking, culinary, or food processing
purposes and C for wading, boating, fishing, wildlife, fish consumption, agriculture, and
the survival and maintenance of biological integrity. Given the project’s potential to
affect the short-term and long-term uses established for these waters, overall water
quality, and impact extensive aquatic resource areas, we agree that the time frame you
have proposed provides a reasonable opportunity to receive and review the requested
information in consideration of the 401 application. Accordingly, a final decision on the
application for the WQC should be made on or before December 14, 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