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HomeMy WebLinkAbout20230935 IP approval letterDocuSign Envelope ID: 32118304-2EF3-4EOB-A4B7-6A9FBA864E8A ROY COOPER Governor ELIZABETH S. BISERSecretary J RICHARD E. ROGERS, JR. NORTH CAROLINA Director Environmental Quality October 20, 2023 Mr. Michael Turchy Environmental Coordination and Permitting Group Leader Environmental Analysis Unit North Carolina Department of Transportation 1598 Mail Service Center Raleigh, North Carolina, 27699-1598 Subject: 401 Water Quality Certification Pursuant to Section 401 of the Federal Clean Water Act with ADDITIONAL CONDITIONS for the Proposed replacement of the Lindsay C. Warren Bridge (Bridge No. 7) over the Alligator River on U.S. 64 in Tyrrell and Dare Counties, Federal Aid Project No. NHPB-0001, TIP HB-0001. NCDWR Project No. 20230935 Dear Mr. Turchy: Attached hereto is a copy of Certification No. WQC006059 issued to The North Carolina Department of Transportation (NCDOT) dated October 20, 2023. This approval is for the purpose and design described in your application. The plans and specifications for this project are incorporated by reference as part of this Water Quality Certification. If you change your project, you must notify the Division and you may be required to submit a new application package with the appropriate fee. If the property is sold, the new owner must be given a copy of this Certification and is responsible for complying with all conditions. [15A NCAC 02H .0507(d)(2)]. This Certification does not relieve the permittee of the responsibility to obtain all other required Federal, State, or Local approvals before proceeding with the project, including those required by, but not limited to, Sediment and Erosion Control, Non -Discharge, Water Supply Watershed, and Trout Buffer regulations. If we can be of further assistance, do not hesitate to contact us. Sincerely, DocuSigned by: Richar E. ��24[.a rector Division of Water Resources cc: Kyle Barnes, USACE, Washington Field Office Greg Daisey, NC Division of Coastal Management Cathy Brittingham, NC Division of Coastal Management Paul Williams, NC Department of Transportation, Division One Gary Jordan, US Fish and Wildlife Service Travis Wilson, NC Wildlife Resources Commission Jason Elliott, NCDOT, Natural Environment Section Beth Harmon, Division of Mitigation Services Garcy Ward, NC Division of Water Resources, Washington Regional Office File Copy E 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: 32118304-2EF3-4EOB-A4B7-6A9FBA864E8A 401 Water Quality Certification Pursuant to Section 401 of the Federal Clean Water Act 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. This certification authorizes the NCDOT to impact 14.1acres of jurisdictional wetlands, and 0.45 acres of open water in Tyrrell and Dare Counties. The project shall be constructed pursuant to the application dated received June 27, 2023. The authorized impacts are as described below: Wetland Impacts in the Pasquotank River Basin Site Fill (ac) Excavation (ac) Mechanized Clearing (ac) Hand Clearing (ac) Total Wetland Impact (ac) 1 0.036 -- 0.048 -- 0.084 2 0.061 -- 0.057 0.282 0.4 3 0.142 -- -- 0.052 0.194 4 0.512 -- 0.095 0.145 0.752 5 2.770 -- 0.533 0.840 4.143 6 0.257 -- 0.076 -- 0.333 7 0.002 -- 0.021 -- 0.023 8 1.498 -- 0.291 0.210 1.999 9 -- -- -- 0.345 0.345 10 -- -- -- 0.621 0.621 11 1.361 -- 0.283 0.452 2.096 12 2.082 -- 0.293 0.235 2.61 13 0.324 -- 0.073 0.086 0.483 14 -- -- -- -- -- 15 -- 0.023 -- -- 0.023 16 -- 0.002 -- -- 0.002 17 0.004 -- 0.004 -- 0.008 18 -- -- -- -- -- 19 0.008 -- -- -- 0.008 Total 9.057 0.025 1.774 3.268 14.124 Total Wetland Impact for Project: 14.1 acres. North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NOPrHCA IN. o.n.m..M.r 919.707.9000 DocuSign Envelope ID: 32118304-2EF3-4EOB-A4B7-6A9FBA864E8A Open Water Impacts in the Pasquotank River Basin Site Permanent Fill in Open Waters (ac) Temporary Fill in Open Waters (ac) Total Fill in Open Waters (ac) 1 -- 0.018 0.018 3 0.009 0.010 0.019 12 0.139 0.012 0.151 14 0.011 0.010 0.021 17 0.008 0.017 0.025 18 0.010 0.006 0.016 19 0.198 -- 0.198 Total 0.375 0.073 0.448 Total Open Water Impact for Project: 0.45 acres. The application provides adequate assurance that the discharge of fill material into the waters of the Pasquotank River Basin in conjunction with the proposed development 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 application dated received June 27, 2023. Should your project change, you are required to notify the 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 perennial stream impacts, for this project (now or in the future) exceed one tenth of one acre or 300 linear feet, respectively, additional compensatory mitigation may be required as described in 15A NCAC 2H .0506 (c). 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. 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. Dff Q_1� North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NQRTI� 0MOUNA o,P. mnorammmem�i0 Ity 919.707.9000 DocuSign Envelope ID: 32118304-2EF3-4EOB-A4B7-6A9FBA864E8A Condition(s) of Certification: The permittee will need to adhere to all appropriate in -water work moratoria (including the use of pile driving or vibration techniques) prescribed by the NC Wildlife Resources Commission (WRC), the US Fish and Wildlife Service (USFWS), the National Marine Fisheries Service (NMFS) and the NC Division of Marine Fisheries (DMF). No in -water work is permitted in the entire river between July 15 and September 30 of any year. Additionally, no in -water work is allowed in the deepwater channel from February 15 through June 30 of any year. Exceptions to this require prior approval from the NC Division of Water Resources and the resource agency responsible for the given moratorium. Compensatory mitigation for impacts to 10.86 acres of wetlands is required. This total includes 10.81 acres of riparian wetlands and 0.05 acres of coastal wetlands. We understand that you have chosen to perform compensatory mitigation for impacts to wetlands through the North Carolina Division of Mitigation Services (DMS), and that the DMS has agreed to implement the mitigation for the project. DMS has indicated in a letter dated April 27, 2023 that they will assume responsibility for satisfying the federal Clean Water Act compensatory mitigation requirements for the above -referenced project, in accordance with DMS's Mitigation Banking Instrument signed July 28, 2010. [15A NCAC 02H .0506(c)] Additional on -site mitigation is also proposed. This involves removing causeway fill material from the abandoned transportation corridor and subsequent grading and reforestation which will result in the restoration of approximately 8.25 acres of wetlands. The mitigation shall be conducted in accordance with the `Onsite Wetland Mitigation Plan' dated June 16, 2023 that was submitted with the application. All on -site mitigation shall be protected in perpetuity by a conservation easement or other similar mechanism. Rolled Erosion Control Products (RECP) or other construction materials that contain nylon or plastic mesh, which has been found to be harmful to wildlife, is not allowed in the wetland mitigation area. Monitoring of the site shall be conducted annually for a minimum of 5 years after construction/planting to assess and ensure that the hydrological and vegetation success criteria are met. The final determination of the amount of mitigation will depend upon the successful completion of the monitoring requirements and meeting of the performance standards. Final credit quantities will be approved upon project close-out. [15A NCAC 02H .0506(c)] 4. Adherence to The Guidelines for Avoiding Impacts to the West Indian Manatee: Precautionary Measures for Construction Activities in North Carolina Waters will be required throughout construction. [15A NCAC 02H .0506(b)(1)] 5. The issuance of this certification does not exempt the Permittee from complying with any and all statutes, rules, regulations, or ordinances that may be imposed by other government agencies (i.e. local, state, and federal) having jurisdiction, including but not limited to applicable buffer rules, stormwater management rules, soil erosion and sedimentation control requirements, etc. 6. The Permittee shall ensure that the final design drawings adhere to the permit and to the permit drawings submitted for approval. [15A NCAC 02H .0507(c) and 15A NCAC 02H .0506 (b)(2)] 7. The outside buffer, wetland or water boundary located within the construction corridor approved by this authorization, including all non-commercial borrow and waste sites associated with the project, shall be clearly marked by highly visible fencing prior to any land disturbing activities. Impacts to areas within the fencing are prohibited unless otherwise authorized by this certification. [15A NCAC 02H.0506(b)] 8. During the construction of the project, no staging of equipment of any kind is permitted in waters of the U.S., or protected riparian buffers. [15A NCAC 02H.0506(b)(2)] 9. If concrete is used during construction, a dry work area shall be maintained to prevent direct contact between curing concrete and stream water. Water that inadvertently contacts uncured concrete shall not be discharged to surface waters due to the potential for elevated pH and possible aquatic life and fish kills. [I 5A NCAC 02B.0200] 10. No rock, sand or other materials shall be dredged from the stream channel except where authorized by this certification. [I5ANCAC 02H.0506(b)(3)] D QNorth Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 NORTI� OMOUNA oeP.�.e 0 emm� _J 0_1 919.707.9000 DocuSign Envelope ID: 32118304-2EF3-4EOB-A4B7-6A9FBA864E8A 11. The dimension, pattern and profile of the stream above and below the crossing shall not be modified. Disturbed floodplains and streams shall be restored to natural geomorphic conditions. [15A NCAC 02H.0506(b)(2)] 12. All mechanized equipment operated near surface waters must be regularly inspected and maintained to prevent contamination of stream waters from fuels, lubricants, hydraulic fluids, or other toxic materials. [15A NCAC 02H.0506(b)(3)] 13. All fill slopes located in jurisdictional wetlands shall be placed at slopes no flatter than 3:1, unless otherwise authorized by this certification. [15A NCAC 02H.0506(b)(2)] 14. When applicable, all construction activities shall be performed and maintained in full compliance with G.S. Chapter 113A Article 4 (Sediment and Pollution Control Act of 1973). Regardless of applicability of the Sediment and Pollution Control Act, all projects shall incorporate appropriate Best Management Practices for the control of sediment and erosion so that no violations of state water quality standards, statutes, or rules occur. [ 15A NCAC 02H.0506(b)(3) and (c)(3) and 15A NCAC 02B .0200] a. Design, installation, operation, and maintenance of all sediment and erosion control measures shall be equal to or exceed the requirements specified in the most recent version of the North Carolina Sediment and Erosion Control Manual, or for linear transportation projects, the NCDOT Sediment and Erosion Control Manual. b. All devices shall be maintained on all construction sites, borrow sites, and waste pile (spoil) sites, including contractor -owned or leased borrow pits associated with the project. Sufficient materials required for stabilization and/or repair of erosion control measures and stormwater routing and treatment shall be on site at all times. c. For borrow pit sites, the erosion and sediment control measures shall be designed, installed, operated, and maintained in accordance with the most recent version of the North Carolina Surface Mining Manual. Reclamation measures and implementation shall comply with the reclamation in accordance with the requirements of the Sedimentation Pollution Control Act and the Mining Act of 1971. d. If the project occurs in waters or watersheds classified as Primary Nursery Areas (PNAs), SA, WS-1, WS-11, High Quality Waters (HQW), or Outstanding Resource Waters (ORW), then the sedimentation and erosion control designs shall comply with the requirements set forth in 15A NCAC 04B .0124, Design Standards in Sensitive Watershed. [15A NCAC 02H.0506(b)(3) and (c)(3); GC 4135] 15. Sediment and erosion control measures shall not be placed in wetlands or surface waters or within 5 feet of the top of bank without prior approval from DWR. [15A NCAC 02H.0506(b)(3)] 16. Erosion control matting in riparian areas shall not contain a plastic or nylon mesh grid which can impinge and entrap small animals. Matting should be secured in place by staples, stakes, or wherever possible live stakes of native trees. Riparian areas are defined as a distance 25 feet from top of stream bank. [15A NCAC 02B.0201] 17. If placement of sediment and erosion control devices in wetlands and waters is unavoidable, then design and placement of temporary erosion control measures shall not be conducted in a manner that may result in dis- equilibrium of wetlands, stream beds, or banks, adjacent to or upstream and downstream of the above structures. All sediment and erosion control devices shall be removed from wetlands and waters and the natural grade restored within two (2) months of the date that the Division of Energy, Mining and Land Resources (DEMLR) or locally delegated program has released the specific area within the project. [15A NCAC 02H.0506(b)(3)] 18. As a condition of this 401 Water Quality Certification, the bridge demolition and construction must be accomplished in strict compliance with the most recent version of NCDOT's Best Management Practices for Construction and Maintenance Activities. [15A NCAC 02H .0507(d)(2) and 15A NCAC 02H .0506(b)(1)] 19. Bridge deck drains are not allowed where there is less than 12 feet of clearance from the deck drain to the water or wetland surface. Stormwater from this section of the bridge shall be directed across the deck and pre-treated through site -appropriate means (grassed swales, pre -formed scour holes, vegetated buffers, etc.) where possible before entering the stream. To meet the requirements of NCDOT's NPDES permit NCS0000250, please refer to the most recent version of the North Carolina Department of Transportation Stormwater Best Management Practices Toolbox manual for approved measures. [15A NCAC 02H .0506(b)] RE ��� North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center Raleigh, North Carolina 27699-1617 NORTH CAROL3NA o.w'n.. A V �mm.m.m.i u..1 919.707.9000 DocuSign Envelope ID: 32118304-2EF3-4EOB-A4B7-6A9FBA864E8A 20. All bridge construction shall be performed from the existing bridge, temporary work bridges, temporary causeways, or floating or sunken barges. If work conditions require barges, they shall be floated into position and then sunk. The barges shall not be sunk and then dragged into position. Under no circumstances should barges be dragged along the bottom of the surface water. [15A NCAC 02H .0506(b)(3)] 21. Bridge piles and bents shall be constructed using driven piles (hammer or vibratory) or drilled shaft construction methods. More specifically, jetting or other methods of pile driving are prohibited without prior written approval from the NCDWR first. [I 5A NCAC 02H.0506(b)(2)] 22. A turbidity curtain will be installed in the stream if driving or drilling activities occur within the stream channel, on the stream bank, or within 5 feet of the top of bank, or during the removal of bents from an old bridge. This condition can be waived with prior approval from the NCDWR. [15A NCAC 02H .0506(b)(3)] 23. The use of rip -rap above the Normal High Water Mark shall be minimized. Any rip -rap placed for stream stabilization shall be placed in stream channels in such a manner that it does not impede aquatic life passage. [15A NCAC 02H.0506(b)(2)] 24. Any rip -rap required for proper culvert placement, stream stabilization, or restoration of temporarily disturbed areas shall be restricted to the area directly impacted by the approved construction activity. All rip -rap shall be placed such that the original streambed elevation and streambank contours are restored and maintained and shall consist of clean rock or masonry material free of debris or toxic pollutants. Placement of rip -rap or other approved materials shall not result in de -stabilization of the stream bed or banks upstream or downstream of the area or be installed in a manner that precludes aquatic life passage. [15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)] 25. Any rip -rap used for stream or shoreline stabilization shall be of a size and density to prevent movement by wave, current action, or stream flows, and shall consist of clean rock or masonry material free of debris or toxic pollutants. Rip -rap shall not be installed in the streambed except in specific areas required for velocity control and to ensure structural integrity of bank stabilization measures. [15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0201] 26. Native riparian vegetation must be reestablished in the riparian areas within the construction limits of the project by the end of the growing season following completion of construction. [ 15A NCAC 02H.0506(b)(2)] 27. Discharging hydroseed mixtures and washing out hydroseeders and other equipment in or adjacent to surface waters is prohibited. [15A NCAC 02H.0506(b)(3)] 28. NCDOT shall be in compliance with the NCS00250 issued to the NCDOT, including the applicable requirements of the NCGO 1000. 29. The permittee and its authorized agents shall conduct its activities in a manner consistent with State water quality standards (including any requirements resulting from compliance with §303(d) of the Clean Water Act) and any other appropriate requirements of State and Federal law. If the NCDWR determines that such standards or laws are not being met (including the failure to sustain a designated or achieved use) or that State or federal law is being violated, or that further conditions are necessary to assure compliance, the NCDWR may reevaluate and modify this certification. [ 15A NCAC 02B.0200] 30. The Permittee shall report any violations of this certification to the Division of Water Resources within 24 hours of discovery. [I 5A NCAC 02B.0506(b)(2)] 31. The NCDOT will conduct a pre -construction meeting with all appropriate staff to ensure that the project supervisor and essential staff understand the permit conditions and any potential issues at the permitted site. NCDWR staff shall be invited to the pre -construction meeting. [15A NCAC 02H.0506(b)(2) and (b)(3)] 32. Upon completion of the project (including any impacts at associated borrow or waste sites), the NCDOT Division Engineer shall complete the "Certification of Completion Form" to notify the NCDWR when all work included in the 401 Certification has been completed. [ 15A NCAC 02H.0502(f)] RE Q �� North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center Raleigh, North Carolina 27699-1617 NOMIH OAROUNA De rh..edamm^ _J0_1 919.707.9000 DocuSign Envelope ID: 32118304-2EF3-4EOB-A4B7-6A9FBA864E8A 33. 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. 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 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 permittee, then the party must also serve the recipient of the Certification in accordance with N.C.G.S 15013-23(a). This the 20th day of October 2023 DIVISION OF WATER RESOURCES Dgned by: 4F4DD2F21 EA846E... Richard E. Rogers, Jr., Director WQC No. 006059 RE Q �� North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617 oaa.nmc�i or enriunmemai u�.uq 919.707.9000