20170555 Ver 1_Denial_20170824

Water Resources
ENVIRONMENTAL QUALITY
August 24, 2017
CERTIFIED MAIL: 70081300 00001124 4511
RETURN RECEIPT REQUESTED
Mr. Frank Fortescue
865 Sladesville Road
Scranton, NC 27875
ROY COOPER
Gokvrnor
MICHAEL S. REGAN
Secretary
S. JAY ZIMMERMAN
Director
DWR # 17-0555
Hyde County
Subject: DENIAL OF 401 WATER QUALITY CERTIFICATION and BUFFER AUTHORIZATION
Smith Creek Canal Maintenance
Dear Mr. Fortesque:
On May 5, 2017, the Division of Water Resources (Division) received your application dated May
2, 2017, requesting a 401 Water Quality Certification and Buffer Authorization Certificate from the
Division for the subject project, with subsequent information received on June 28, 2017.
Pursuant to 15A NCAC 02H .0506, a certification shall be issued when the Director determines that
water quality standards are met, including protection of existing uses. The project has not met
the following requirements:
• 15A NCAC 02H .0506(d)(1)(A)
"has no practical alternative as described in Paragraph (f) of this Rule"'
There are practical alternatives available utilizing other construction methodologies that
would avoid or result in less adverse impact to coastal wetlands (Class SWL).
• 15A NCAC 02H .0506(c)(2)
"does not result in the degradation of groundwater or surface waters"
There would be a degradation of surface waters as the wetland system proposed to be
impacted is a riparian wetland, which serves as a buffer to protect water quality of Smith
Creek.
1 15A NCAC 02H .0506(f) states "A lack of practical alternatives may be shown by demonstrating that considering
the potential for a reduction in size, configuration or density of the proposed activity and all alternative designs the
basic project purpose cannot be practically accomplished in a manner which would avoid or result in less adverse
impact to surface waters or wetlands."
State of North Carolina I Environmental Quality I Water Resources
1617 Mail Service Center I Raleigh, North Carolina 27699-1617
919 807 6300

SMITH CREEK CANAL MAINTENANCE
DWR# 17-0555
401 WQC Denial
Page 2of3
Pursuant to 15A NCAC 02B .0259(8), a buffer authorization certificate shall be granted upon a "no
practical alternatives" determination. The project has not met the following requirements:
• 15A NCAC 02B .0259(8)(a)(i)
"The basic project purpose cannot be practically accomplished in a manner that would
better minimize disturbance, preserve aquatic life and habitat, and protect water quality."
The basic project purpose can be practically accomplished by utilizing other construction
methodologies that would avoid or result in less adverse impact to the riparian buffer.
• 15A NCAC 02B .0259(8)(a)(ii)
"The use cannot practically be reduced in size or density, reconfigured or redesigned to
better minimize disturbance, preserve aquatic life and habitat, and protect water quality."
The use can be practically reconfigured or redesigned by utilizing other construction
methodologies that would avoid or result in less adverse impact to the riparian buffer.
In accordance with 15A NCAC 02H .0507(e), your application for a 401 Water Quality Certification is
hereby denied. In accordance with 15A NCAC 02B .0259(8)(b), your application for a Tar -Pamlico
Buffer Authorization Certificate is also hereby denied.
This decision can be contested as provided in General Statute 150B by filing a written petition for
an administrative hearing to the Office of Administrative Hearings (hereby known as OAH) within
sixty (60) calendar days.
A petition form may be obtained from the OAH at http://www.ncoah.com/ or by calling the OAH
Clerk's Office at [phone] for information. 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:OOam and S:OOpm, excluding official state
holidays).
The petition may be faxed to the OAH at [phone], provided the original and one copy of
the petition along with any applicable OAH filing fee is received by the OAH within five (5) business
days following the faxed transmission.
Mailing address for the OAH:
If sending via US Postal Service
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
If sending via delivery service (UPS,
FedEx, etc):
Office of Administrative Hearings
1711 New Hope Church Road
Raleigh, NC 27609-6285

SMITH CREEK CANAL MAINTENANCE
DWR# 17-0555
401 WQC Denial
Page 3 of 3
One (1) copy of the petition must also be served to DEQ:
William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
This completes the review of the Division under section 401 of the Clean Water Act. Please be
aware that you have no authorization under Section 401 of the Clean Water Act for this activity
and any work done within waters of the state would be a violation of North Carolina General
Statutes and Administrative Code. Contact Anthony Scarbraugh at 252-948-3924 or
[e-mail] or Karen Higgins at 919-807-6360 or [e-mail]
if you have any questions or concerns.
Sincerely,
S. Jay Zimmerman, Director
Division of Water Resources
cc: Roland Tooley, Tooley Farms, Inc., 725 Lynnsburg Rd, Scranton, NC 27875
Raleigh Bland, USACE Washington Regulatory Field Office (via email)
Todd Bowers, EPA (via email)
Doug Huggett, DCM Morehead City (via email)
Steve Trowell, DCM WaRO
DWR WaRO 401 file
Laserfiche