20141150 Ver 2_Denial of Modification Request_20170209

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February 9, 2017
Biogen •-
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P.O. Box 14627
RTP, NC 27709
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S. JAY ZIMMERMAN
DWR # 14-1150 v2
Durham and Wake Counties
Subject: DENIAL of 401 Water Quality Certification Modification Request
Biogen Idec Infrastructure Project
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On November 14, 2016, the Division of Water Resources (Division) received a request on behalf
of Biogen Realty, LLC ("Biogen") from Soil & Environmental Consultants, PA to modify the 401
Water Quality Certification & Jordan Lake Watershed Riparian Buffer Authorization issued to
Biogen on December 1, 2014 for the subject project.
The request asked for a modification of condition #3, to omit the intermittent stream mitigation
requirement. Cited in Biogen's request was Section 4.31 of Session Law 2015-286, which added
a new section 143-214,70 to the General Statutes. in pertinent part, that section provides that
the Department "shall not require mitigation for impacts to an intermittent stream," Session
Law 2015-286 became effective on October 22, 2015.
The only provisions for modification in Section .0500 of Subchapter 2H applies to revocation or
modification in cases of
1. violation of conditions of Sections 301, 302, 303, 306 and 307 of the Clean Water Act; or
2. a determination that information contained in the application or presented in support
thereof is incorrect; or
3. a change in the conditions under which the certification was made.
15A NCAC 2H .0507(d).
It is well settled law in North Carolina that legislation applies prospectively only, unless the
General Assembly clearly indicates an intent for retrospective application. No such indication
or instruction regarding retrospective application was included in Session Law 2015-268. The
401 Water Quality Certification was issued to Biogen prior to October 22, 2015. Under North
Carolina law, the prospectively applicable § 143-21430 cannot constitute a change in the
conditions under which the certification was made.
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Biogen Idec infrastructure Project
Modification Request Denial
Page 2 of 2
This decision can be contested as provided in N.C. Gen. Stat. § 1508-23, by filing a written petition
for an administrative hearing in the Office of Administrative Hearings (OAH) within sixty (60)
calendar days of receipt of this decision.
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Clerk's Office at (9 19) 431-3000. A petition is considered filed when the original and one (1) copy
along with any applicable OAH filing fee is received in the OAH during normal office hours
(Monday through Friday between 8:00am and 5:00pm, excluding official state holidays).
Additional instructions for electronic filing are provided at N.C. Gen, Stat. § 150B-23.1
Mailing address for the OAH:
If sending via US Postal Service: If sending via delivery service (UPS, FedEx, etc):
Office of Administrative Hearings Office of Administrative Hearings
6714 Mail Service Center 1711 New Hope Church Road
Raleigh, NC 27699-6714 Raleigh, NC 27609-6285
One (1) copy of the petition must also be served to Department of Environmental Quality:
Craig A. Bromby, Acting General Counsel
Department of Environmental Quality
1601 Mail Service Center
This completed the review of the Division under Section 401 of the Clean Water Act. Contact
Craig Bromby, Deputy General Counsel at 919-707-8656 or if You
have any questions regarding your rights to contest this decision,
Sincerely,
S. Jay rnmerman
Director, Division of Water Resources
cc: Kevin Martin, S&EC, 8412 Falls of Neuse Road, Suite 104, Raleigh, NC 27615
U.S. Army Corps of Engineers; Raleigh Regulatory Field Office; 3331 Heritage Trade Dr.,
Ste. 105; Wake Forest, NC 27597
Todd Bowers; EPA, Sam Nunn Federal Center; 61 Forsyth St. SW, Atlanta, GA 30303
DWR RRO 401 file
Laserfiche
Fileiname: 14115M Biogen Idec Infrast ructu re(Durha rnWake)_.401._. Denial