20141150 Ver 2_401 Modification Request_20170111

Strickland, Bev
From:Zimmerman, Jay
Sent:Wednesday, January 11, 2017 4:31 PM
To:Poupart, Jeff; Higgins, Karen
Subject:FW: Biogen-401 Modification Request
Fyi and discussion. Let’s see if we can wrap this up in the next couple of weeks ideally.

S. Jay Zimmerman, P.G.
Director
Division of Water Resources
1617 Mail Service Center, Raleigh, NC 27699-1617
Ph# [phone]
web page: http://www.ncwater.org/

Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the

content is exempt by statute or other regulation.

From: Zimmerman, Jay
Sent: Wednesday, January 11, 2017 4:29 PM
To: 'Kevin Martin' <[e-mail]>
Cc: Bromby, Craig A <[e-mail]>
Subject: RE: Biogen-401 Modification Request

Thanks Kevin for the additional information and extension of time. I will discuss with Craig and staff now that we better
understand your clients concerns.

Jay

S. Jay Zimmerman, P.G.
Director
Division of Water Resources
1617 Mail Service Center, Raleigh, NC 27699-1617
Ph# [phone]
web page: http://www.ncwater.org/

Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the

content is exempt by statute or other regulation.

From: Kevin Martin \[mailto:[e-mail]\]
Sent: Wednesday, January 11, 2017 4:11 PM
To: Zimmerman, Jay <[e-mail]>
Cc: Bromby, Craig A <[e-mail]>
Subject: RE: Biogen-401 Modification Request

1

Jay per our discussion today, we will voluntarily extend the normal 60 day review
period for a reasonable amount of time so that DWR may more fully consider our
request to modify the 401 certification for this project.
Today you asked if there were reasons the applicant would prefer not to reapply
for a new 401 & Corps 404 permit once the current one expires In mid march
2017. The following are a few but possibly not all reasons that doing so is not in
the best interest of the applicant:
(1)Our 404 Nationwide permit does not actually expire in mid march, the

Corps grants a one year extension to complete work under the permit for
a year if the project has “commenced”. Commencing does not require
breaking ground, The Corps considers expenditure of funds on designs and
permit applications in reliance on the permit to meet this criteria. The
Corps does not require that you request such an extension for it to apply,
however we often do so just for the record. I confirmed my understanding
of this with the Corps agent (Eric Alsmeyer) who issued this permit today.
(2)The applicant would prefer not to have to reapply for a new Corps permit

because (a) a new agent now handles this area and she is unfamiliar with
the site and project (b) The permitted impacts included impacts for
parking and a building, and while we may be able to repermit such
impacts, there is no guarantee that the Corps would approve them and
that is an unacceptable risk for the client.
(3)Most importantly, the engineer will be applying for the erosion control

and site permits next week which will involve impacts to both intermittent
and perennial streams and plans to commence site work as soon as those
permits are issued. All mitigation required by the 401 certification and /or
Corps permit must be paid for before those impacts occur. Therefore
waiting for the Corps permit to expire (Even if it were March 2017) and
then reapplying to the both the state and the Corps for a new nationwide
permit and waiting for that application to be processed would ultimately
cause project delays of a couple months or more.
(4)Finally, as I have said before, I still contend that since the impacts

authorized under the request have not occurred and since the revised 401
would be dated after the effective date of the session law that prohibits
such a requirement, this should not be construed as a retroactive
application of the law. The fact that other permittees did not request a
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formal decision on a 401 certification revision, should not be held against
my client.

Thanks and let me know if you have questions or require additional information to
figure out how to process this unique request.

Kevin C. Martin

Principal
Soil & Environmental Consultants, PA
We’ve moved to:

North Quarter Office Park
8412 Falls of Neuse Road, Suite 104
Raleigh, NC 27615

[phone] Office Phone

[phone] Fax

[phone] Mobile
[e-mail]
Visit us at SandEC.com!
This electronic communication, including all attachments, is intended only for the named addressee (s) and may contain confidential information. This electronic
communication may not have passed through our standard review/quality control process. Design data and recommendations included herein are provided as a
matter of convenience and should not be used for final design. Rely only on final, hardcopy materials bearing the consultant's original signature and seal. If you
are not the named addressee (s), any use, dissemination, distribution or copying of this communication is prohibited. If you have received this electronic

communication in error, please notify the sender by return e-mail and delete the original communication from your system. Thank you

From: Kevin Martin
Sent: Tuesday, January 10, 2017 6:13 PM
To: Zimmerman, Jay <[e-mail]>
Cc: Bromby, Craig A <[e-mail]>
Subject: RE: Biogen-401 Modification Request

I will be there.

Sent from my Verizon 4G LTE smartphone

-------- Original message --------
From: "Zimmerman, Jay" <[e-mail]>
Date: 1/10/17 5:47 PM (GMT-05:00)
To: Kevin Martin <[e-mail]>
Cc: "Bromby, Craig A" <[e-mail]>
Subject: RE: Biogen-401 Modification Request
Kevin,

Craig and I discussed together and with Sec. Ross. Let’s discuss tomorrow if you are at the WQC.

Jay

3

S. Jay Zimmerman, P.G.
Director
Division of Water Resources
1617 Mail Service Center, Raleigh, NC 27699-1617
Ph# [phone]
web page: http://www.ncwater.org/

Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the

content is exempt by statute or other regulation.

From: Kevin Martin \[mailto:[e-mail]\]
Sent: Tuesday, January 03, 2017 3:00 PM
To: Zimmerman, Jay <[e-mail]>
Cc: Reeder, Tom <[e-mail]>; Bromby, Craig A <[e-mail]>
Subject: RE: Biogen-401 Modification Request

We would not need a revised 404 because the impacts have not changed and because we
would be providing all the mitigation required by the Corps in their permit.

I do believe that staff had told others erroneously that they had to wait for their permit to
expire so they should notify those that they were wrong, however they do not need to track
down every 401 that was issued since the conditions stand unless a revision is requested.

Kevin C. Martin

Principal

Soil & Environmental Consultants, PA

We’ve moved to:

North Quarter Office Park

8412 Falls of Neuse Road, Suite 104

Raleigh, NC 27615

[phone] Office Phone

[phone] Fax

[phone] Mobile

[e-mail]

Visit us at SandEC.com!
This electronic communication, including all attachments, is intended only for the named addressee (s) and may contain confidential information. This electronic
communication may not have passed through our standard review/quality control process. Design data and recommendations included herein are provided as a
matter of convenience and should not be used for final design. Rely only on final, hardcopy materials bearing the consultant's original signature and seal. If you
are not the named addressee (s), any use, dissemination, distribution or copying of this communication is prohibited. If you have received this electronic

communication in error, please notify the sender by return e-mail and delete the original communication from your system. Thank you

From: Zimmerman, Jay \[mailto:[e-mail]\]
Sent: Tuesday, January 3, 2017 2:55 PM
To: Kevin Martin <[e-mail]>
Cc: Reeder, Tom <[e-mail]>; Bromby, Craig A <[e-mail]>
Subject: RE: Biogen-401 Modification Request

I think I just talked to Karen and didn’t send an email….. don’t recall but in either case you are correct on the substance
of the discussion and Tom believed we could modify the 401 (I believe you would still need Corp approval and a revised
404?). I tried to circle back with Craig as he had concerns that we might be treating folks differently under similar
circumstances. He raised these concerns when we first approached him and I do not know if Tom and Craig have spoken.
Craig and I did discuss the issue briefly before the December holiday but got distracted and I don’t recall making a
decision. I am looping in Craig at this point to facilitate getting an answer given the time that you and your client have
been waiting.
4

Craig,
Do you recall where we left this?

Jay

S. Jay Zimmerman, P.G.
Director
Division of Water Resources
1617 Mail Service Center, Raleigh, NC 27699-1617
Ph# [phone]
web page: http://www.ncwater.org/

Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the

content is exempt by statute or other regulation.

From: Kevin Martin \[mailto:[e-mail]\]
Sent: Tuesday, January 03, 2017 2:22 PM
To: Zimmerman, Jay <[e-mail]>
Cc: Reeder, Tom <[e-mail]>
Subject: RE: Biogen-401 Modification Request

Jay, my understanding was that you had sent an email to Karen stating that the Dept.
indicated that the 401 actually could be revised as I requested so I would think, if that is what
happened , you should follow up with Karen rather than Tom.

Kevin C. Martin

Principal

Soil & Environmental Consultants, PA

We’ve moved to:

North Quarter Office Park

8412 Falls of Neuse Road, Suite 104

Raleigh, NC 27615

[phone] Office Phone

[phone] Fax

[phone] Mobile

[e-mail]

Visit us at SandEC.com!
This electronic communication, including all attachments, is intended only for the named addressee (s) and may contain confidential information. This electronic
communication may not have passed through our standard review/quality control process. Design data and recommendations included herein are provided as a
matter of convenience and should not be used for final design. Rely only on final, hardcopy materials bearing the consultant's original signature and seal. If you
are not the named addressee (s), any use, dissemination, distribution or copying of this communication is prohibited. If you have received this electronic

communication in error, please notify the sender by return e-mail and delete the original communication from your system. Thank you

From: Zimmerman, Jay \[mailto:[e-mail]\]
Sent: Tuesday, January 3, 2017 2:20 PM
To: Kevin Martin <[e-mail]>
Subject: RE: Biogen-401 Modification Request

Kevin,

Just now getting to this………… I will followup with Tom and Craig B. and see what direction I can get to get you an
answer. Thanks for your patience.
5

Jay

S. Jay Zimmerman, P.G.
Director
Division of Water Resources
1617 Mail Service Center, Raleigh, NC 27699-1617
Ph# [phone]
web page: http://www.ncwater.org/

Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the

content is exempt by statute or other regulation.

From: Kevin Martin \[mailto:[e-mail]\]
Sent: Thursday, December 22, 2016 1:43 PM
To: Zimmerman, Jay <[e-mail]>
Subject: Biogen-401 Modification Request

Jay, when you return after Christmas can you check on the status of this 401 modification
request, last I heard it was agreed that the modification could be done, but I have not seen
anything on it yet. It has only been 41 days since I submitted but I just did not want it to slip
thru the cracks since my client needs to pay the revised mitigation amount so they can begin
work. Thanks

Kevin C. Martin

Principal

Soil & Environmental Consultants, PA

We’ve moved to:

North Quarter Office Park

8412 Falls of Neuse Road, Suite 104

Raleigh, NC 27615

[phone] Office Phone

[phone] Fax

[phone] Mobile

[e-mail]

Visit us at SandEC.com!
This electronic communication, including all attachments, is intended only for the named addressee (s) and may contain confidential information. This electronic
communication may not have passed through our standard review/quality control process. Design data and recommendations included herein are provided as a
matter of convenience and should not be used for final design. Rely only on final, hardcopy materials bearing the consultant's original signature and seal. If you
are not the named addressee (s), any use, dissemination, distribution or copying of this communication is prohibited. If you have received this electronic

communication in error, please notify the sender by return e-mail and delete the original communication from your system. Thank you

From: Kevin Martin
Sent: Friday, November 11, 2016 12:34 PM
To: '[e-mail]' <[e-mail]>
Cc: 'Zimmerman, Jay' <[e-mail]>; '[e-mail]' <[e-mail]>;
'[e-mail]' <[e-mail]>
Subject: Biogen-401 Modification Request

Karen, please find attached a formal request for a modification of conditions in the
attached 401 certification to remove the requirement for intermittent stream
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mitigation, by state law such a requirement is prohibited. Since the impacts
authorized under the request have not occurred and since the revised 401 would
be dated after the effective date of the session law that prohibits such a
requirement, this should not be construed as a retroactive application of the law.
Our client would like to commence work on this project before their 404 permit
expires but needs to have this 401 revised before doing so.

I realize there may have been some opinions rendered on this issue on the past,
but believe they were in error. Please contact me if you have questions or require
further information to process this request.

Kevin C. Martin

Principal

Soil & Environmental Consultants, PA

We’ve moved to:

North Quarter Office Park

8412 Falls of Neuse Road, Suite 104

Raleigh, NC 27615

[phone] Office Phone

[phone] Fax

[phone] Mobile

[e-mail]

Visit us at SandEC.com!
This electronic communication, including all attachments, is intended only for the named addressee (s) and may contain confidential information. This electronic
communication may not have passed through our standard review/quality control process. Design data and recommendations included herein are provided as a
matter of convenience and should not be used for final design. Rely only on final, hardcopy materials bearing the consultant's original signature and seal. If you
are not the named addressee (s), any use, dissemination, distribution or copying of this communication is prohibited. If you have received this electronic

communication in error, please notify the sender by return e-mail and delete the original communication from your system. Thank you

7