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Home My WebLink About20240422_MirrorLakeSedimentRemoval_DENIAL North Carolina Department of Environmental Quality | Division of Water Resources Asheville Regional Office | 2090 U.S. Highway 70 | Swannanoa, North Carolina 28778 828.296.4500 April 22, 2024 DWR #20230930 Macon County Mirror Lake Improvement Company Attn: Patrick Gleeson PO Box 106 Highlands, NC 28741 Delivered via email to: patrickgleeson@gmail.com Subject: DENIAL of 401 Water Quality Certification Application Mirror Lake Sediment Removal USACE Action ID. No. SAW-2023-01054 Dear Mr. Gleeson: On June 30, 2023, the Division of Water Resources (Division) received your application requesting an Individual 401 Water Quality Certification from the Division for the subject project. On August 28, 2023, and November 6, 2023, the Division notified you that your application was incomplete and requested additional information. The Division received a partial response to the first request on September 20, 2023, and has not received a response to the second request with the necessary information. Notwithstanding North Carolina law governing the timeline for the Division’s review of 401 Water Quality Certification applications, the U.S. Army Corps of Engineers has indicated that the Division’s deadline for action on your application under section 401 of the Clean Water Act is April 30, 2024. Therefore, the Division must act on your 401 Water Quality Certification application at this time. The Division has determined that your application is incomplete. As a result, the Division cannot determine if the proposed project will comply with in 15A NCAC 02H .0500, State water quality standards in 15A NCAC 02B (including antidegradation), and Sections 301, 302, 303, 306, and 307 of the federal Clean Water Act. Therefore, in accordance with 15A NCAC 02H .0507(e) and 40 CFR § 121.7, your application for a 401 Water Quality Certification is hereby denied. You may reapply to the Division including a complete application package and appropriate fee. Please be sure to address the items in the November 6, 2023, request for additional information (attached) in any future applications. DocuSign Envelope ID: 1B8F0613-05E4-4BF1-9971-5266A482D9CB North Carolina Department of Environmental Quality | Division of Water Resources Asheville Regional Office | 2090 U.S. Highway 70 | Swannanoa, North Carolina 28778 828.296.4500 Mirror Lake Sediment Removal DWR# 20230930 Denial Page 2 of 2 The Division’s decision can be contested as provided in Chapter 150B of the North Carolina General Statues 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. One (1) copy of the Petition must also be served to the North Carolina Department of Environmental Quality: 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 150B-23(a). This completes the review of the Division under section 401 of the Clean Water Act. Please be aware that you have no authorization under the Water Quality Certification Rules 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 Joey Winston at 828-296-4685 or joey.winston@deq.nc.gov if you have any questions or concerns. Sincerely, Andrew W. Moore, P.G. Regional Supervisor Water Quality Regional Operations Section Division of Water Resources, NCDEQ-ARO Electronic cc: John Bryant, River Sand, Inc. Shannon Healy, USACE, Asheville Regulatory Field Office Todd Bowers, EPA DWR 401 & Buffer Permitting Branch file DocuSign Envelope ID: 1B8F0613-05E4-4BF1-9971-5266A482D9CB 1 Winston, Joey From:Winston, Joey Sent:Monday, November 6, 2023 2:57 PM To:'John Bryant' Cc:Healy, Shannon CIV USARMY CESAW (USA); Leslie, Andrea J Subject:Second Request for Additional Information, Mirror Lake Sediment Removal, Macon County (DWR # 20230930) Attachments:NC Cerio Phase II_ Signed 1_21_11.pdf; DWR Certified Labs List.pdf Mr. Bryant, On June 30, 2023, the Division of Water Resources (Division) received your applicaƟon requesƟng a 401 Water Quality CerƟﬁcaƟon from the Division for the subject project. AddiƟonal informaƟon was received on September 20, 2023. The Division has determined that your applicaƟon is incomplete and cannot be processed. The applicaƟon is on‐hold unƟl all of the following informaƟon is received: 1. Thank you for providing addiƟonal informaƟon about the speciﬁc product proposed for use, including the Safety Data Sheet. The Safety Data Sheet does not contain enough informaƟon for the Division to determine whether the discharge will cause a violaƟon of water quality standards. Under SecƟon 12: Ecological InformaƟon, no data is provided about the chronic toxicity of the product. Also, the addiƟonal informaƟon provided in your September 20, 2023, response does not include dosage informaƟon that corresponds with the units in the Safety Data Sheet. Because this product has not been reviewed previously by the Division’s AquaƟc Toxicology Branch and is not included in the most recent List of Approved PAMS/Flocculants, toxicity tesƟng will be needed that demonstrates the product will not cause a violaƟon of water quality standards. A common procedure is to ﬁrst perform jar tests to determine an appropriate dosage rate using samples from the project site. Once the dosage rate has been determined, mulƟ‐diluƟon chronic Ceriodaphnia dubia tests are performed using a diluƟon series with diluƟons both above and below the determined dosage. The tests measure the survival and reproducƟve rates to determine whether the proposed dosage rate will preclude the best uses of the receiving waters. Please refer to the aƩached North Carolina Phase II Chronic Whole Effluent Toxicity Test Procedure for more informaƟon on a similar tesƟng procedure. Please also refer to the aƩached list of NCDWR CerƟﬁed Biological Laboratories, if needed. [15A NCAC 02H .0506(b)(2); 15A NCAC 02H .0211(1) & (2); 15A NCAC 02H .0215(1) & (2); 15A NCAC 02H .0202(58)] Pursuant to Title 15A NCAC 02H .0502(c), the applicant shall furnish all of the above requested informaƟon for the proper consideraƟon of the applicaƟon. Please provide your response by December 8, 2023. If all of the requested informaƟon is not received, the Division will be unable to approve the applicaƟon and it will be denied as incomplete. The denial of this project will necessitate reapplicaƟon to the Division for approval, including a complete applicaƟon package and appropriate fee. Please let me know if you have any quesƟons. Regards, Joey Joey Winston Environmental Specialist II, Division of Water Resources North Carolina Department of Environmental Quality DocuSign Envelope ID: 1B8F0613-05E4-4BF1-9971-5266A482D9CB 2 Office: (828) 296‐4685 | Cell: (828) 785‐9171 joey.winston@deq.nc.gov DocuSign Envelope ID: 1B8F0613-05E4-4BF1-9971-5266A482D9CB