20071809 Ver 1_Waived Project_20081021

Town of Southern Shores
Attn: Mike Hejduk
5375 North Virginia Dare Trail
Southern Shores, NC 27949
Subject: Waiver of the Modified 40 1 Certification
Dear Mr. Hejduk:
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Chuck Wakild, Deputy Director
Division of Water Quality
October 21, 2008
DWQ # 07-1809
Dare County
On January 14, 2008 the Division of Water Quality (DWQ) issued a letter of denial of the application by the
Town of Southern Shores (the Town) for a Federal Clean Water Act 401 Water Quality Certification (401). You
will recall that the Town's application requested that a 401 Certification be issued to allow the dredging of
approximately 2.3 miles of open waters of the Currituck Sound, Jean Guite Creek, and the Town of Southern
Shores canal system. DWQ reviewed the project and determined that the request to dredge the project area is a
"Removal of Best Use" as described in 15A NCAC 2B.0220(1)(2) and prohibited by 15A NCAC 2H.0506.
The Town disagreed with DWQ's decision and filed a petition for a contested case hearing in the Office of
Administrative Hearings on March 13, 2008.
Since that time, DWQ has determined that the notification of the denial of the application was not received by the
Town until after the expiration of the 60 day time limit for final action on the Certification Application as required
by 15A NCAC 2H.0507. Therefore, DWQ's ability to issue a Modified Water Quality Certification under
Section 401 of the Federal Clean Water Act has been waived with respect to the activity identified in the above-
referenced application. This waiver of the Modified 401 Certification requirements due to DWQ's allowing the
time for administrative decision to expire does not preclude the Town from complying with the associated
General Water Quality Certification, WQC 43642 attached. DWQ hereby reiterates the correctness of its
technical review of the Town's application, acknowledges the waiver of the Modified 401 Certification
requirements and the applicability of WQC #3642 to the activity identified in the above-referenced application.
Thank you for your attention to this matter. Please direct any comments or questions regarding this waiver to Ms.
Cyndi Karoly at 919-733-9721, or Mr. Al Hodge at our Washington Regional Office at 252-948-3844
Sincerely,
Coleen H. Sullins
Eric: see attachment
cc: Cyndi Karoly
Al Hodge
Central Files
File Copy )12
N iCarolina
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North Carolina Division of Water Quality 1617 Mail Service Center Raleigh, NC 27699-1617 Phone [phone] Customer Service
Internet: y_ :, •_ .n ogrc uati[ .(,r- Location: 512 N. Salisbury St. Raleigh, NC 27604 Fax [phone]
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WQC #3642
LAMA PERMIT CERTIFICATION
This General Certification is issued in conformity with requirement of Section 401, Public
Laws 92-500 and 95-217 of the United States and subject to the North Carolina Division of Water
Quality Regulations in 15 NCAC 2H, Section .0500 and 15 NCAC 2B .0200 for the discharge of
fill material as described in General Permit 198000291 and for the Riparian Area Protection Rules
(Buffer Rules) in 15A NCAC 2B .0200. This Certification replaces Water Quality Certification
Number 3025 issued on September 6, 1995, Water Quality Certification Number 3112 issued on
February 11, 1997, Water Quality Certification Number 3274 issued June 1, 2000 and Water
Quality Certification Number 3371 issued March 18, 2002 and WQC Number 3400 issued March
18, 2002. This WQC is rescinded when the Corps of Engineers re-authorizes any of these
Nationwide or Regional General Permits or when deemed appropriate by the Director of DWQ.
The State of North Carolina certifies that the specified category of activity will not violate
applicable portions of Sections 301, 302, 303, 306 and 307 of the Public Laws 92-500 and 95-217
if conducted in accordance with conditions hereinafter set forth.
Conditions of Certification:
1. Activities authorized by CAMA major permits require written concurrence from the
Division of Water Quality as well as compliance with all conditions of this General
Certification;
2. Activities authorized by Coastal Area Management Act (CAMA) Minor or General
Permits do not require written authorization from the Division of Water Quality as long
as they comply with all other conditions of this General Certification;
3. In accordance with North Carolina General Statute Section 143-215.3D(e), any
request for written concurrence for a 401 Water Quality Certification must include the
appropriate fee. If a project also requires a CAMA Permit, one payment to both
agencies shall be submitted and will be the higher of the two fees. The fee shall be
collected and distributed between the two agencies in accordance with agreements
reached between the Division of Water Quality and the Division of Coastal
Management;
In accordance with 15A NCAC 2H.0506 (h) compensatory mitigation may be
required for impacts to 150 linear feet or more of streams and/or one acre or more of
wetlands. In addition, buffer mitigation may be required for any project with Buffer
Rules in effect at the time of application for buffer impacts resulting from activities
classified as "allowable with mitigation" within the "Table of Uses" section of the
Buffer Rules or require a variance under the Buffer Rules. A determination of buffer,
wetland and stream mitigation requirements shall be made for any Certification for
this Nationwide Permit. The most current design and monitoring protocols from DWQ
shall be followed and written plans submitted for DWQ approval as required in those
protocols. When compensatory mitigation is required for a project, the mitigation
plans must be approved by DWQ in writing before the impacts approved by the
Certification occur. The mitigation plan must be implemented and/or constructed
before any permanent building or structure on site is occupied. In the case of public
NATIONWIDE PERMIT NUMBERS 3, 12,14,18, 2T. 29, 33, 35, 39, and 43, WHEN APPLIED
TO CAMA PERMITS, AND RIPARIAN AREA PROTECTION RULES (BUFFER RULES)
WQC #3642
road projects, the mitigation plan must be implemented before the road is opened to
the travelling public;
5. Compensatory stream mitigation shall be required at a 1:1 ratio for not only perennial
but also intermittent stream impacts that require application to DWQ in watersheds
classified as ORW, HQW, Tr, WS-1 and WS-II unless the project is a linear, publicly-
funded transportation project, which has a 150-foot per-stream impact allowance;
6. Impacts to any stream length in the Neuse and Tar-Pamlico River Basins (or any
other major river basins with Riparian Area Protection Rules [Buffer Rules] in effect at
the time of application) requires written concurrence from DWQ in accordance with
15A NCAC 2B.0200. New development activities located in the protected 50-foot
wide riparian areas (whether jurisdictional wetlands or not) within the Neuse and Tar-
Pamlico River Basins shall be limited to "uses" identified within and constructed in
accordance with 15A NCAC 2B .0200. All new development shall be located,
designed, constructed, and maintained to have minimal disturbance to protect water
quality to the maximum extent practicable through the use of best management
practices. Activities listed as "exempt" from these rules do not need to apply for
written concurrence under this Certification;
7. All sediment and erosion control measures placed in wetlands or waters shall be
removed and the original grade restored after the Division of Land Resources has
released the project;
8. If an environmental document is required, this Certification is not valid until a Finding
of No Significant Impact (FONSI) or Record of Decision (ROD) is issued by the State
Clearinghouse;
9. That appropriate sediment and erosion control practices which equal or exceed those
outlined in the most recent version of the "North Carolina Sediment and Erosion
Control Planning and Design Manual" or the "North Carolina Surface Mining Manual"
whichever is more appropriate (available from the Division of Land Resources (DLR)
in the DENR Regional or Central Offices) shall be in full compliance with all
specifications governing the proper design, installation and operation and
maintenance of such Best Management Practices in order to assure compliance with
the appropriate turbidity water quality standard;
10. Measures shall be taken to prevent live or fresh concrete from coming into contact
with freshwaters of the state until the concrete has hardened;
11. Additional site-specific conditions may be added to projects which have applied for
CAMA major permits which are proposed under this Certification in order to ensure
compliance with all applicable water quality and effluent standards;
12. When written concurrence is required, the applicant is required to use the most
recent version of the Certification of Completion form to notify DWQ when all work
included in the 401 Certification has been completed;
13. Concurrence from DWO that this Certification applies to an individual project shall
expire three years from the date of the cover letter from DWQ or on the same day as
the expiration date of the corresponding General Permit 198000291, whichever is
sooner.
Non-compliance with or violation of the conditions herein set forth by a specific fill project
shall result in revocation of this Certification for the project and may result in criminal and/or civil
penalties.
WQC #3642
The Director of the North Carolina Division of Water Quality may require submission of a
formal application for individual certification for any project in this category of activity that requires
written concurrence under this certification, if it is determined that the project is likely to have a
significant adverse effect upon water quality or degrade the waters so that existing uses of the
wetland or downstream waters are precluded.
Public hearings may be held for specific applications or group of applications prior to a
Certification decision if deemed in the public's best interest by the Director of the North Carolina
Division of Water Quality.
Effective date: 19 March 2007
DIVISION OF WATER QUALITY
By
0-4??
Alan W. Klimek
Director
WQC # 3642
3