20140957 Ver 2_ACP_hearing officers rept_10112017_draft_20171011

[Type here]
January XX, 2018
MEMORANDUM
To: Linda Culpepper
Interim Director, Division of Water Resources
From: Brian Wrenn, Ecosystems Branch Supervisor
Division of Water Resources, Water Sciences Section
Subject: Hearing Officer's Report and Recommendations
Atlantic Coast Pipeline, LLC
Individual 401 Water Quality Certification and Riparian Buffer Authorization�[WBLI]
Northampton, Halifax, Nash, Wilson, Johnston, Sampson, Cumberland, and Robeson
Counties
I served as the Hearing Officer for the Subject Public Hearings held at the Fayetteville Technical
Community College in Fayetteville, NC on July 18, 2017 and at the Nash Community College in Rocky
Mount, NC on July 20, 2017. The public hearings were held under the authority of Title 15A NCAC
02H .0504. The purpose of these public hearings was to receive comment on the Division of Water
Resources' 401 Water Quality Certification (401 WQC) application submitted by Atlantic Coast
Pipeline, LLC (ACP). A 401 Water Quality Certification is needed to construct a natural gas pipeline
through Northampton, Halifax, Nash, Wilson, Johnston, Sampson, Cumberland, and Robeson
Counties.
In addition to listening to oral comments at the public hearings, I have reviewed all written comments
received prior, during and after the public comment period. In preparation of this report, I have
considered all of the public comments, the public record, discussions with Water Resources staff
related to the rules, and their review of the applications for the project.
The report has been prepared using the following outline:
1. Site History/ Background
11. July 18, 2017 Public Hearing Summary
Ill. July 20, 2017 Public Hearing Summary
IV. Comments
V. Recommendations
V1. Summary
VI 1. Attachments
1. History / Background
In November 2014, Green Meadow, LLC and Charah, Inc. submitted applications for mining
permit modifications and structural fill reuse permits to the Division of Energy, Mineral and Land
Resources (DEMLR) and the Division of Waste Management (DWM) as allowed under the Coal
Ash Management Act of 2014 (CAMA14). On Jan. 23, 2015, the state approved a request to
transfer mining permit #53-05 for the Colon Mine in Lee County, and permit #19-25 for the
Brickhaven #2 Tract A in Chatham County to Green Meadow, LLC. This was a needed first step in
moving the permitting process for these two sites forward.

These two projects must also obtain a 401 Water Quality Certification and Isolated Wetland
General Permit from the Division of Water Resources (DWR).
The following is a brief history of the proposed project locations and certification/perm its under
review:
Colon Mine - Mining Permit #53-05
On Oct. 3, 1972, the state granted mining permit #53-05 to Sanford Brick and Tile Co. to
conduct mining activities at the Colon mine site located in Lee County, five miles southeast
of the City of Sanford off Brickyard Rd. Between October 1972 and April 2005, mining permit
#53-05 was renewed three times, in adherence to the standard 10 -year mining permit
renewal cycle. During this same time period, mining permit #53-05 was modified nine times.
Three of the modifications were changes to the corporate name. On Jan. 23, 2015, mining
permit #53-05 was transferred from General Shale Brick, Inc. to Green Meadow, LLC.
The state mining program has issued an approval to Green Meadow to modify mining permit
#53-05. The modifications include redesigning the erosion and sedimentation control
measures throughout the site and reducing the affected acreaRe to 314 acres. The
modification also includes changing the method for r(
structural fill using coal combustion byproducts in z
CAMA14. Reclamation of the mine site using a structura
from the DWM, permit #5306-STRUCT-2015. Impacts to
and isolated wetlands also require a 401 water quality
general permit from the DWR (# 15-0041 & 15-0042).
Brickhaven No. 2 Mine Tract "A" Permit #19-25
Jaiming the mine by constructing
:cordance with the provisions of
fill also required a separate permit
urisclictional streams and wetlands
-ertification and isolated wetlands
On Aug. 30, 1985, the state granted mining permit #19-25 to Cherokee Brick Co. to conduct
mining activities at the Brickhaven No. 2 Mine Tract "A" site located in Chatham County, six
miles south of Moncure. Between August 1985 and October 2014, mining permit #19-25 was
renewed two times, in adherence to the standard 10 -year mining permit renewal cycle.
During this same time period, mining permit #19-25 was modified eight times. Three of the
modifications were changes to the corporate name. On Jan. 23, 2015, mining permit #19-25
was transferred from General Shale Brick, Inc. to Green Meadow, LLC.
The state mining program is currently reviewing a requestfrom Green Meadow, LLCto modify
mining permit #19-25. The proposed modification would include redesigning the erosion and
sedimentation control measures throughout the site and reducing the affected acreage to
267 acres. The modification also includes changing the method for reclaiming the mine by
constructing structural fill using coal combustion byproducts in accordance with the
provisions of CAMA14. Reclamation of the mine site using a structural fill also requires a
separate permit from the DWM, draft permit #1910-STRUCT-2015. Impacts to jurisdictional
streams and wetlands and isolated wetlands also require a 401 water quality certification and
isolated wetlands general permit from the DWR (# 15-0041 & 15-0042).
As part of the review of the 401 water quality certification and isolated wetland general permit
application, staff from DWR visited the Sanford (Colon) and Brickhaven Mine sites on Jan. 16,
PA

2015. DWR staff also conducted a pre -application meeting for the project and visited the
Brickhaven site on Jan. 27, 2015.
Under the authority of CAMA14, the Mining Act of 1971 and Title 15A NCAC 02H .0504, the
Department of Environment and Natural Resources (DENR) held a public comment period from
March 12, 2015 until May 16, 2015 to accept public input on the draft permits. The public
comment period included two public hearings held in the counties where the proposed projects
arelocated.
Notice of the public hearings and availability of the 401 water quality certification and isolated
wetlands general permit application was posted to the DENR website on March 12, 2015
(Attachment B), the first day of the public comment period. Additionally, notice was published
in The Chatham News and The Sanford Herald on March 12, 2015 (Attachment Q. The public
comment period ended on May 16, 2015.
11. �Iluly 18, 2017 Public Hearing [WBL2]
A public hearing was held July 18, 2017, at 6 p.m. at the Fayetteville Technical Community College
in Fayetteville, NC. The public hearing was held underthe authority of Title 15A NCAC 02H .0504.
This was a public hearing to receive public comment for the DWR 401 WQC application
(Attachment A) submitted by ACID in order to construct a natural gas pipeline through Northampton,
Halifax, Nash, Wilson, Johnston, Sampson, Cumberland, and Robeson Counties.
134 people attended the April 13 public hearing,
of 110 individuals signed the attendance sign -in s
The hearing officer provided opening remarks bE
32 individuals registered in advance of the heari
individuals made comments for a total of 40 SPE
initial presentations. Additional time was allowed
speak was finished. The list of speakers is incluc
spoke at the public hearing, none were in favor o-
uding 24 staff members from DENR. A total
�ts at the registration table (Attachment D).
e opening the hearing for public comment.
to provide comments, and eight additional
E!rs. Speakers were given three minutes for
r speakers after everyone that registered to
(Attachment F). Of the 40 individuals that
e certification being approved.
The public hearing transcript, including oral comments, is attached to this report (Attachment H).
DWR also received approximately 87 written comments during the public comment period from
local and state government agencies, citizens and citizen groups (Attachment J). Several of the
comments were written transcripts of the comments provided during the public hearings. A
summary of the comments for both hearings and the comment period, along with detailed
responses that have a direct impact on the certification decision making process are included in
Section V below.
111. �Iluly 20, 2017 Public Hearing[WBL3]
A second public hearing was held July 20, 2017, at 6 p.m. at the Nash Community College in Rocky
Mount, NC. The public hearing was held under the authority of Title 15A NCAC 02H .0504. This
was a public hearing to receive public comment for the DWR 401 WQC application (Attachment
A) submitted by ACID in order to construct a natural gas pipeline through Northampton, Halifax, Nash,
Wilson, Johnston, Sampson, Cumberland, and Robeson Counties.
3

137 people attended the April 16 public hearing, including 17 staff members from DENR. A total
of 120 individuals signed the attendance sign in sheets at the registration table (Attachment E).
The Hearing Officer provided opening comments before openingthe hearingfor public comment.
37 individuals registered in advance of the hearing to make comments and four additional
individuals made comments for a total of 41 speakers. Speakers were given three minutes for
initial presentations and an additional time of two minutes was provided after everyone that
registered to speak was finished. One speaker left the hearing prior to being recognized and five
speakers took the opportunity to comment a second time. The list of speakers is included
(Attachment G). Of the 40 individuals that spoke at the public hearing, none were in favor of the
certification being approved.
The public hearing transcript including oral comm
the public hearings, DWR received approximati
comment period from local and state govern
(Attachment J). Several of the comments were v
during the public hearings. A summary of the co
period, along with detailed responses that have
making process, are included in Section V below.
its is included (Attachment 1). In addition to
f 87 written comments during the public
ant agencies, citizens and citizen groups
tten transcripts of the comments provided
ments for both hearings and the comment
direct imoact on the certification decision
IV. General Comments
The following is a summary of the comments received during the July 18, 2017 and July 20, 2017
public hearings and emails and other written comments received by DWR during the public
comment period. Comments received outside of the public comment period were made part of
the public record. An overwhelming majority of the comments were in opposition to the pipeline
for a variety of reasons.
Many comments received expressed concerns about the continued use of fossil fuels,
specifically fracked natural gas, and their negative impact on climate change. Manythink
NC and the US should be moving toward the use of renewable energy sources.
Proponents of the project believe that natural gas is a "clean" fuel option to replace coal
and other fossil fuels.
Many comments received were skeptical of ACP's promotion of the project as a job
creation opportunity and economic stimulator for local communities. Several pointed
out that ACP's own job creation estimates are very low and that the economic benefits
to local communities are vague. Proponents of the project reiterated that the pipeline
would bring jobs and economic development to NC.
Many comments received expressed concerns about the cumulative impacts analysis
provided by ACP. Many believe that the analysis did not contain sufficient detail to
properly evaluate the cumulative impacts. Some comments indicated that the
temporary impacts from the project should be considered in the cumulative impact
analysis and that the sheer volume of temporary impacts should be calculated to equal
some level of permanent impacts.
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Many comments received questioned the purpose and need of the project. Many
pointed to evidence that the growth of natural gas markets was estimated to be
negligible and questioned the need to build such a large and expensive pipeline. Many
noted that the market demand was generated through companies owned or affiliated
with Duke and Dominion power companies and that the need was self-serving rather
than one identified through public interest. Furthermore, several commenters stated
that the purpose of economic benefit was misleading as ACP's own estimates predict
little permanent job growth as a result of the project.
Many comments received expressed concerns about environmental justice issues
associated with pipeline's construction and operation. Many believe that the pipeline will
have a disproportionate impact on low-income and minority communities. Many
commenters feel that ACP has not made significant efforts to coordinate with these
communities or to consider other routes that would reduce the impacts on these
communities. Specifically, several commenters mentioned ACP's lack of coordination
with state -recognized tribes such as the Lumbee and Haliwa-Saponi. Furthermore, they
do not believe ACP has adequately addressed potential impacts to cultural resources
along the pipeline route.
• Several commenters expressed opposition to ACP's use of eminent domain to obtain
right-of-way for the pipeline.
• Several commenters raised concerns about Duke Power's past record of non-compliance
with environmental regulations and permits.
• Several commenters raised concerns about living within the "blast zone" of the pipeline
and questioned ACP's liability response should an explosion occur. Others believe that
the pipeline is a safe and efficient way to transport natural gas.
• Many comments received expressed concerns over ACP's potential impacts to water
quality from erosion and sedimentation. Many commenters feel that ACP's erosion and
sedimentation control plan is inadequate and lacks sufficient detail. Others believe that
trenching through streams and wetlands will have a negative effect on stream stability
and threaten wildlife. Concerns over blasting effects were also raised.
• Many comments received expressed concerns over impacts to wildlife, specifically
threatened and endangered species. Many felt that the construction activities could
destroy critical habitat and primary nursery areas for a variety of terrestrial and aquatic
species. Others felt that the extensive coordination process with the US Fish and Wildlife
Service and NC Wildlife Resources Commission has adequately addressed any potential
impacts.
Many commenters believe that the 401 application was incomplete. They pointed to
the lack of erosion and sedimentation control plans and site-specific water body crossing
details as evidence that necessary information was missing from the application. In
contrast, some commenters believe that the ACP project has gone through an extensive
regulatory review process.
The overwhelming majority of comments received raised concerns overthe degradation
of ground and surface waters as a result of the construction and operation of the
pipeline. Many commenters mentioned the large number of streams and wetlands that
would be crossed by the pipeline and raised red flags regarding the large amount of
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temporary and permanent impacts. They connected these impacts with the degradation
of downstream uses including drinking water supply, aquatic life, primary and secondary
contact recreation, and fisheries. Furthermore, commenters spoke in detail of the loss
of wetlands through temporary impacts. Many felt the temporal and permanent
vegetation changes from temporary wetland impacts should be considered permanent
wetland impacts. Finally, many comments were made regarding potential impacts to
drinking water wells. A significant level of concern was present among the commenters
about impacts to wells from construction activities (mainly blasting activities) and
operation of the pipeline.
V. Certification Specific Comments and Recommendations
Based on the review of public comments, the application, the North Carolina General Statutes
and Administrative Code, and discussions with DWR staff, I offer the following comments and
recommendations on the criteria for issuance of a 401 Certification pursuant to 15A NCAC 02H
.0506(b) and the issuance of Neuse and Tar -Pamlico River Basin buffer authorization
certifications pursuant to 15A NCAC 02B .0233 and 15A NCAC 02B .0259, respectively.
15A NCAC 02H .0506(b)
(1) Has no practical alternative under the
Paragraph (f) states: "A lack of pract
that, considering the potential for a
proposed activity and all alternati%
practically accomplished in a manr
impact to surface waters or wetland
The project proposes to con.,
Pennsylvania through Virgi
proposed route would be cot
Sampson, Cumberland, and
Commission (FERC) Nationt
several alternatives to meet',
energy, energy conservatior
found that the build alternai
teria outlined in Paragraph (f) of this Rule.
Iternatives may be shown by demonstrating
ction in size, configuration or density of the
signs the basic project purpose cannot be
,hich would avoid or result in less adverse
truct a pipeline to transport natural gas from West Virginia and
iia and North Carolina. The North Carolina portion of the
structed through Northampton, Halifax, Nash, Wilson, Johnston,
Robeson Counties. As part of the Federal Energy Regulatory
/ Environmental Policy Act (NEPA) analysis, ACP investigated
he purpose and need of the project including no build, alternative
, and system alternatives. Of these alternatives, FERC and ACP
�ve best met the purpose and need of the project.
Next ACP, conducted an extensive alternatives analysis on potential route locations including
collocation of the ACP with existing pipelines as well as Eastern and Western route
alternatives. Ultimately, ACP chose the Eastern route on new location as the best option based
on an evaluation of a variety of criteria such as project length and human and natural
resources. ACP continued to refine the Eastern alternative balancing a variety of human and
natural environmental resources such as public lands, roads, conservation easements,
forested lands, streams and wetlands, known historical and cultural resources, and homes
and businesses. Development of the proposed pipeline route included the analysis of
seventeen major route alternatives and 37 minor adjustments in the North Carolina portion
of the project in an effort to avoid and minimize impacts to these resources. This analysis
11

included pre- and post -application communication with the Division and NC Wildlife Resources
Commission (NCWRC) on avoidance and minimization opportunities. ACP has continued to
refine the avoidance and minimization practices in response to additional information
requests from the Division and through environmental commitments. A more detailed
discussion of avoidance and minimization can befound below.
Recommendation: None. The applicant has sufficiently demonstrated that there is no
practical alternative that can accomplish the project's basic purpose with less adverse impact
to surface waters or wetlands.
(2) Will minimize adverse impacts to the surface waters based on consideration of
existing topography, vegetation, fish and wildlife resources, and hydrological
conditions under the criteria outlined in Parajeraph (R) of this Rule.
Paragraph (g) states: "Minimization of ir
the surface waters or wetlands are able
project completion, or that the impacts
(1) The spatial and dimensional require
(2) The location of any existing struCh
placement or configuration of the pi
(3) The purpose of the project and
configuration or density.
icts may be demonstrated by showing that
continue to support the existing uses after
! required due to:
nts of the project; or
or natural features that may dictate the
osed project; or
:)w the purpose relates to placement,
The applicant has minimized impacts to surface waters and wetlands to the greatest extent
practical. The permanent impacts will be 766 linear feet of streams and 0.80 acres of
wetlands. The permanent impacts related to streams and wetlands will be a result of
upgrading and improving access roads constructed for installation and maintenance of the
pipeline, not from the pipeline itself. All crossings of major rivers will be conducted using
horizontal directional drilling (HDD) to avoid open trenching. The magnitude of the temporary
impacts is very high but within reason considering the size and scope of the project. The
applicant would use a narrower construction corridor when crossing streams and wetlands
and construction techniques such as timber matting, temporary work bridges, and clean rock
over piping to minimize temporary impacts to streams and wetlands. Temporary impacts to
streambanks and wetland areas will be restored to the original contours and revegetated with
native plants. ACP will monitor any temporary impact areas in streams or wetlands to ensure
there is no permanent loss at these locations. The monitoring plan includes monitoring for a
minimum of two yearsforstreams and three yearsfor wetlands with stability, vegetation, and
hydrology requirements. Upon successful completion of the restoration and monitoring
activities, the stream and wetland impact areas will continue to support existing uses of
hydrology, vegetation, and aquatic and wildlife habitat.
The applicant has committed to a number of best management practices to avoid and
minimize impacts to streams and wetlands.
0 Demarcation of wetland boundaries with flogging and signs prior to start of
construction
Use of temporary work bridges, matting and pods to reduce the risk of soil compaction
7

• Trench backfilling using native material to prevent soil contamination and to
accelerate revegetation
• Limiting operation of construction equipment in wetlands to only that necessaryfor
clearing, excavation, pipe installation, backfilling, and restoration
• Installing trench breakers or plugs at the boundaries of wetlands to prevent draining
of wetlands
• Pump -out activities in the work area will be routed through an energy
dissipation/sedimentfiltration device prior to discharging to waterbodies
Use of a project -specific invasive plant species management plan
Stump removal, grading, and excavation will be limited to the area immediately over
the trench line to maintain native seed and rootstock
* Coating for concrete -coated pipe will be
waters and springs
* Prohibiting use of live concrete as a build
come in contact with surface waters
* Prohibiting storage of chemicals, fuels,
within 100feet of surface waters
* Voluntarily implementing the requiremen
Permit No. NCGO10000
at least 100 feet from surface
�ng material so that wet concrete does not
hazardous materials, and lubricating oils
ts of the Construction Stormwater General
Use of horizontal directional drilling for a// major river crossings
Implementation of a Spill Prevention, Control, and Countermeasure plan and a
Horizontal Directional Drill Drilling Fluid Monitoring, Operations, and Contingency
plan
ACP has completed formal consultation with US Fish and Wildlife Service (USFWS) on
threatened and endangered species along the corridor. In an October 16, 2017 biological
opinion, USFWS did not identify any threatened and endangered species or sensitive habitat
in NC along the proposed corridor. ACP has also coordinated extensively with the NCWRC.
This coordination began with the alternatives analysis and site-specific routing of the pipeline.
ACP worked with NCWRC to avoid threatened and endangered species and sensitive habitats
and to develop relocation protocolsforfish and mussels. ACP also conducted pre -construction
surveys for fish and mussels in the Neuse River at the proposed crossing location. These
surveys found that the mussel population was much more abundant and diverse than
previously known. This survey and the continued coordination with NCWRC resulted in ACP's
revised proposal to use HDD at the Neuse River instead of open trenching.
Recommendation: The applicant has sufficiently demonstrated that impacts to surface
waters and wetlands are required due to spatial considerations, natural features and the
purpose of the project. The 401 Certification should include requirements for monitoring of
temporary impact areas in accordance with the proposed restoration and monitoring plan.
The certification should also include reopener language in the event that temporarily
disturbed wetland areas do not return to wetland conditions as defined by the 1987 US Army
Corps of Engineers Wetland Manual. The reopener language should require a modification to
the 401 Certification to account for the additional permanent impacts and mitigation for G//
permanent wetland impacts should the permanent impacts exceed 1.0 acre. Furthermore,
A

the 401 Certification should be conditioned to comply with any work moratoriums suggested
by NCWRCfor the proposed project.
(3) Does not result in the degradation of groundwaters or surface waters.
The main risk to surface and groundwaterfrom the ACP project would be during construction
activities. These risks include sedimentation and turbidity in surface waters, breaches of
drilling fluids during HDD, and spills of petroleum products and hydraulic fluids from fueling
and equipment maintenance. In addition, some commenters raised concerns regarding
impacts to drinking water wells from trenching and blasting activities associated with the
pipeline installation andfrom possible contamination due to pipeline leaks during operation.
The applicant has committed to working in the dryfor a// stream and wetland crossings unless
site-specific conditions warrant working in wet conditions and the applicant obtains prior
written approval from DWR. Proper erosion and sedimentation control measures will be
required for the entire project in accordance with the Division of Energy, Mineral and Land
Resources (DEMLR) sedimentation and erosion control Certificate of Plan Approval. All
temporaryfill placed in surface waters related to construction of the pipeline will be removed
once installation of the pipeline is completed at the crossing and the stream banks or wetlands
will be restored to the original contours and revegetated with a native seed mix to prevent
erosion. Only in areas where vegetative stabilization is not successful will hardened
stabilization (rip -rap, geogrid, etc.) techniques be used. No hardening will be placed below
the ordinary high water mark. Furthermore, the applicant has voluntarily agreed to meet the
requirements of the NPDES Construction Activities General Permit No. NCGO10000.
The applicant will store chemicalsfuels, hazardous materials, and lubricating oils and conduct
a// equipment and vehiclefueling and maintenance at least 100feetfrom surface waters and
200feetfrom private drinking water wells. In situations where equipment must continue to
operate during fueling activities such as dewatering pumps near surface waters, secondary
containment structures will be used to prevent any spillagefrom reaching the surface waters.
The applicant has conducted a desktop survey to identify a// known drinking water wells within
150 feet of the pipeline construction corridor. Almost 50 private drinking water wells were
located in NC In FERCs Environmental Impact Statementfor the ACP project, the applicant
proposes to test each well prior to construction for a suite of parameters including pH, total
suspended solids, total dissolved solids, conductivity, alkalinity, acidity, sulfates, oillgrease,
phenolic, iron, manganese, aluminum, fecal coliform, copper, lead, nickel, silver, thallium,
zinc, chromium, arsenic, mercury, selenium, cyanide, calcium magnesium, hardness,
chlorides, antimony, cadmium, and beryllium as well as well yields. These tests will provide a
baseline of groundwater quality and quantity against which to measure any construction -
related impacts. The applicant also proposes to conduct post -construction well testing of the
some parameters to verify no adverse impacts have occurred. Furthermore, in the event that
adverse impacts do occur as a result of construction activity, ACP has committed to providing
temporary water supplies, andlor a new water treatment system or well.
Recommendation: The project is not expected to violate water quality standards if the
conditions in the 401 Water Quality Certification are fully implemented by the applicant (or
A

its successor). The 401 Certification should be conditioned to requirefull compliance with the
following permits:
o Certificate of Plan Approval No. Cumbe-2018-036, issued by DEMLR, Fayetteville Regional
Office
o NPDES Permit No. NCGO10000 issued by DEMLR
The 401 Certification should also be contingent on the issuance of a sedimentation and erosion
control Certificate of Plan Approval issued by DEMLR, Raleigh Regional Office and upon
issuance of appropriate state stormwater permits. FERC documentation indicates that the
applicant has agreed to conduct pre- and post -construction water quality testing for private
drinking water wells within 150 feet of the pipeline construction corridor. The 401
Certification should be conditioned to require ACP to conduct pre- and post -construction
testing a// wells within 150feet of the construction corridor. Should post -construction testing
indicate that a well has been impacted by the construction, ACP should be required to provide
temporary water supplies, andlor a new water treatment system or well. An independent,
qualified groundwater specialist should determine whether an impact has occurred or not.
(4) Does not result in cumulative impacts, based upon past or reasonably anticipated
future impacts, that cause or will cause a violation of downstream water quality
standards.
Cumulative impacts are those impacts that would result from the incremental effects of the
project added to other post, present and reasonably foreseeable future activities (15A NCAC
01C.0103). Impacts within the project boundaries include mine reclamation and "beneficial
use" in theform of structuralfill. Present andfuture development within the Cape Fear River
Sub -basin 03-06-07 is independent of this project.
Recommendation: The project is not expected to result in cumulative impacts that violate
water quality standards, if the conditions in the 401 Water Quality Certification and Isolated
Wetlands General Permit are fully implemented by the applicant (or its successor). The401
Certification and Isolated Wetlands General Permit should be conditioned to require full
compliance with the monitoring requirements in the Structural Fill Permits.�[WBL4]
(5) Provides for protection of downstream water quality standards through the use of on-
site stormwater control measures.
The vast majority of the proposed pipeline project will not result in new impervious surfaces.
However, some new impervious surfaces are proposed as part of the project. The impervious
surfaces include multiple improved access roads, eleven valve stations, a compressor station,
three metering and regulating (M&R) stations, and multiple contractor yards. The access
roads are existing unpaved roads that would be improved to allow construction and
maintenance equipment to safely pass. Improvements would include minor widening andlor
surface water crossing upgrades (e.g., minor pipelculvert extensions). The valve sites are
needed to segment the pipeline for safety, operation, and maintenance purposes. The
compressor station will be located in Northampton County, and the M&R stations will be
10

located in Johnston, Cumberland, and Robeson Counties. The contractor yard will be located
in Cumberland County. The applicant has indicated that storm water will be managed by using
existing drainage ditches and swales for access roads. No curb and gutter stormwater
conveyances are proposed for the compressor or M&R stations, and stormwater will be
managed through existing drainage ditches and swales.
Stormwater management for these impervious surfaces would be regulated through state
programs in Phase // communities or by local programs where applicable. Valve sites and
access roads in small portion of Nash County and access roads, valve sites, and a contractor
yard in Cumberland County would be regulated through the state -implemented Phase //
Stormwater Program. They would have to meet the requirements of SWG040000 — General
Permit To Construct A Linear Utility Line and Associated Incidental Built -Upon Area (SWG04)
or an individual state stormwater permit. SWG04 and individual state stormwater permits
require compliance with the conditions of the respective permits and with the provisions of
15A NCAC 2H .1000, S.L. 2006-246, and S.L. 2008-211 which ensure the protection of
downstream water quality standards through on-site stormwater control measures. Any
impervious surfaces built in areas covered by local storm water programs would have to meet
the requirements of the local stormwater program. The applicant proposes to build
impervious surfaces in areas where no state or local programs are applicable. Basedonthe
descriptions of stormwater best management practices proposed by the applicant,
storm water is not expected to violate downstream water quality standards in these areas.
Recommendation: The proposed project is not expected to impact downstream water quality
as long as the conditions of SWG04 or an individual state stormwater permit are met. The
401 Certification should be contingent on the issuance of the appropriate state stormwater
permit(s) for construction of a linear utility line and associated incidental built -upon area.
(6) Provides for replacement of existing uses through mitigation.
Both federal and state requirements allow for the purchase of in lieu fee credits to offset
unavoidable impacts to streams and wetlands. DWR requires mitigation [15A NCAC 02H
.0506(h)] at a 1:1 ratio for permanent perennial stream impacts above 300 linearfeet and a
2:1 ratio for permanent wetland impacts above one acre. Perennial stream and wetland
impacts for this project will not exceed the respective mitigation thresholds. Therefore, no
stream or wetland mitigation is required by DWR. Protected buffer mitigation is requiredfor
the uses identified in the Table of Uses of the Neuse and Tor -Pamlico River Basins Nutrient
Sensitive Waters Management Strategies [15A NCAC 02B .0233(6) and 15A NCAC 02B
.0259(6), respectively]. Buffer mitigation is discussed below in the buffer authorization
certification section.
Recommendation: No mitigation is required for stream or wetland impacts as a result of the
proposed project. The 401 Certification should be conditioned to include language requiring
mitigation should permanent impact changes occur that exceed mitigation thresholds.
The Neuse River Basin Nutrient Sensitive Waters Management Strategy and Tar -Pamlico River
Basin Nutrient Sensitive Waters Management Strategy have the exact same requirements [15A
NCAC 02B .0233 and 15A NCAC 02B .0259, respectively]. Furthermore, the mitigation
requirements for impacts to protected buffers are exactly the same for the Neuse and Tar -
11

Pamlico River Basins [15A NCAC 02B .0242 and 15A NCAC 02B .0260 respectively] and makes
reference to the buffer mitigation rules [15A NCAC 02B .02951. For the purposes of this report,
the buffer authorization recommendations will be combined in one discussion.
15A NCAC 02B .0233 and 15A NCAC 02B .0259
(5) DIFFUSE FLOW REQUIREMENT. Diffuse flow of runoff shall be maintained in the
riparian buffer by dispersing concentrated flow and reestablishing vegetation.
As discussed above in Section 5 of the 15A NCAC 02H.506 discussion, the vast majority of the
proposed project will not result in new impervious surfaces that would create concentrated
stormwaterflow. However, there will be improved temporary and permanent access roads,
andfive valve sites constructed and maintained in buffered basins as part of the project. The
access roads are existing unpaved roads that will be improved to allow construction and
maintenance equipment to safely pass. Upgrades will include minor widening andlor surface
water crossing upgrades (e.g., minor pipelculvert extensions). The valve sites will consist of
gravel pods around above ground valves with gravel driveways.
Stormwater from these areas will be manc
ditches and swales. Sheetflow from the ac
associated with the Neuse and To
Management Strategies [15A NCAC 02
ACP has committed to managing the exh
sediment, nutrients, and other pollution pri(
for the Neuse and Tor -Pamlico River Basins N
[15A NCAC 02B.0233(6) and 15A NCAC 02t
drainage ditches, roadside ditches, and sto,
minimize the sediment, nutrients, and other
from the riparian buffer rules. EXEMPT is de.
02B.0259(7)(a). resDectivelv.
by sheetflow or by using existing roadside
roads meets the diffuse flow requirements
iver Basins Nutrient Sensitive Waters
nd 15A NCAC 02B.0259(5), respectively].
roadside ditches and swales to minimize
entering surface waters. The Table of Uses
r) t Sensitive Waters Management Strategies
19(6), respectively] identifies use of existing
fter outfalls provided they are managed to
tion that convey to waterbodies as EXEMPT
in 15A NCAC 02B. 0233(7)(a) and 15A NCAC
r -Pamlico R
B.0233(5) a
u
The applicant proposes to locate the Smithfield M&R station in Johnston County and would
be subject to the Neuse Buffer Rules. This station is also subject to state stormwater
permitting requirements as part of the Phase // stormwater rules. Stormwater management
and diffuseflow requirements will addressed through the Phase // process.
Recommendation: The buffer authorizations should include conditions requiring that diffuse
flow conditions be maintained for a// stormwater from impervious surfaces flowing to or
within the protected buffers in accordance with the diffuseflow requirements stated above or
other applicable buffer clarification memos.
(6) TABLE OF USES.
Non -electric utility lines:
Impacts other than perpendicular crossings in Zone 2 — Allowable
Impacts other than perpendicular crossings in Zone I — Allowable with Mitigation
Non -electric utility lines:
12

• Perpendicular crossings that disturb greater than 40 linear feet but equal to or less than 150
linear feet of riparian buffer with a maintenance corridor greater than 10 feet in width -
Allowable with Mitigation
• Perpendicular crossings that disturb greater than 150 linear feet of riparian buffer —
Allowable with Mitigation
The proposed project is categorized as a non -electric utility line. The proposed project includes
perpendicular and non -perpendicular crossings of streams and other surface waters subject
to this rule. Due to the width of the maintenance corridor, 50feet, 0// buffer impacts would
be considered allowable with mitigation.
Recommendation: None. The proposed project is allowable with mitigation under the Table
of Uses.
(8) DETERMINATION OF -NO PRACTICAL
undertake uses designated as allowabl(
request for a "no practical alternative
delegated authority. The applicant shall
(8)(a) of this Rule are met. The Division i
Authorization Certificate upon a "no
procedure for making an Authorization I
ALTERNATIVES." Persons who wish to
or allowable with mitigation shall submit a
s" determination to the Division or to the
certify that the criteria identified in Sub -Item
)r the delegated local authority shall grant an
(a) For any request for an Authorization Certifi
authority shall review the entire pro
the following requirements have
alternatives" determination:
(i) The basic project purpose cannot
would better minimize the distui
protect water
redesigned to better minh
and protect water quality.
Best management oracticE
: life and �
reserve aq
be
and
ilternatives" determination. The
shall be as follows:
, the Division or the delegated local
ake a finding of fact as to whether
t in support of a "no practical
ie practically accomplished in a manner that
ance, preserve aquatic life and habitat, and
iced in size or density, reconfigured or
rbance, preserve aquatic life and habitat,
shall be used if necessary to minimize disturbance,
bitat, and protect water quality.
The project proposes to construct a pipeline to transport natural gas from West Virginia and
Pennsylvania through Virginia and North Carolina. The North Carolina portion of the
proposed route would be constructed through Northampton, Halifax, Nash, Wilson, Johnston,
Sampson, Cumberland, and Robeson Counties. The proposed project will permanently impact
521,430 squarefeet and 594,070 squarefeet of protected riparian buffers in the Neuse River
Basin and the Tor -Pamlico River Basin, respectively. As part of the FERC NEPA analysis, ACP
investigated several alternatives to meet the purpose and need of the project including no
build, alternative energy, energy conservation, and system alternatives. Of these alternatives,
the build alternative best met the purpose and need of the project.
Next ACP, conducted an extensive alternatives analysis on potential route locations including
collocation of the ACP with existing pipelines as well as Eastern and Western route
alternatives. Ultimately, ACP chose the Eastern route on new location as the best option based
13

on an evaluation of a variety of criteria such as project length and human and natural
resources. ACP continued to refine the Eastern alternative balancing a variety of human and
natural environmental resources such as public lands, roads, conservation easements,
forested lands, streams, wetlands, protected riparian buffers, known historical and cultural
resources, and homes and businesses. Development of the proposed pipeline route included
the analysis of seventeen major route alternatives and 37 minor adjustments in the North
Carolina portion of the project in an effort to avoid and minimize impacts to these resources.
This analysis included pre- and post -application communication with the Division and NCWRC
on avoidance and minimization opportunities. ACP has continued to refine the avoidance and
minimization practices in response to additional information requests from the Division and
through environmental commitments.
The applicant has demonstrated that the ba
accomplished in a manner that would better mit
and habitat, and protect water quality. The app)
practically be reduced in size or density, reco�
disturbance, preserve aquatic life and habitat, a,
proposed a number of best management proc
preserve aquatic life and habitat, and protect w
following:
;ic project purpose cannot be practically
imize the disturbance, preserve aquatic life
cant has demonstrated that the use cannot
ifigured or redesigned to better minimize
id protect water quality. The applicant has
-ices in an effort to minimize disturbance,
7ter quality including but not limited to the
Use of temporary work bridges, matting and pods to reduce the risk of soil compaction
Trench backfilling using native material to prevent soil contamination and to
accelerate revegetation
Pump -out activities in the work area will be routed through an energy
dissipation/sedimentfiltration device prior to discharging to waterbodies
Coating for concrete -coated pipe will be conducted at least 100 feet from surface
Jse of horizontal directional drilling for a// major river crossings
mplementation of a Spill Prevention, Control, and Countermeasure plan and a
4orizontal Directional Drill Drilling Fluid Monitoring, Operations, and Contingency
pion
Use of a project -specific invosive plant species management plan
Limiting operation of construction equipment in wetlands to only that necessaryfor
clearing, excavation, pipe installation, backfilling, and restoration
Stump removal, grading, and excavation will be limited to the area immediately over
the trench line to maintain native seed and rootstock
Voluntarily implementing the requirements of the Construction Stormwater General
Permit No. NCGO10000
Recommendation: The applicant has sufficiently demonstrated that there is no practical
alternative that can accomplish the project's basic purpose with less adverse impacts to
protected buffers. The buffer authorization certification should be conditioned to incorporate
the best management practices proposed by the applicant intended to minimize disturbance,
preserve aquatic life and habitat, and protect water quality. Furthermore, the buffer
14

authorization should require demarcation of protected buffer with flogging or signs prior to
the initiation of construction and limiting operation of construction equipment in buffers to
only that necessaryfor clearing, excavation, pipe installation, backfilling, and restoration
(10) Mitigation. Persons who wish to undertake uses designated as allowable with
mitigation shall meet the following requirements in order to proceed with their
proposed use.
(a) Obtain a determination of "no practical alternatives" to the proposed use
pursuant to Item (8) of this Rule.
(b) Obtain approval for a mitigation proposal pursuant to 15A NCAC 0213.0242 [.260].
15A NCAC 213.0242 and .260 have been repealed and replaced with 15A NCAC 0213.0295.
As discussed above the applicant has demonstrated that there is no practical alternative that
can accomplish the project's basic purpose with less adverse impacts to protected buffers.
Due to the fact that the maintenance corridor for the proposed pipeline will have a width of
greater than 10feet, a// of the buffer impacts are considered allowable with mitigation and
subject to the buffer mitigation requirements [15A NCAC 02B .02951. The applicant has
proposed to obtain a// buffer mitigation credits thro
Division of Mitigation Services (DMS). A letter addre.-
May 4, 2017 and renewed on October 6, 2017, states
for the buffer mitigation credits for the proposed proje
credits in accordance with the In -Lieu Fee program im
NCACO2B.0295.
Recommendation: The buffer authorization certificati
buffer mitigation in accordance with the table below:
i the in -lieu fee program with the
I to the applicantfrom DMS dated
t DMS is willing to accept payment
DMS will administer the mitigation
ment dated July 28, 2010 and 15A
include conditions requiring
River Basin
Zone 1 (square feet)
Zone 2 (square feet)
Total (square feet)
Neuse
460,005
209,093
669,098
Tor -Pamlico
418,596
175,134
593,730
Total
1,262,828
Environmental Justice
One of the most common topics of the commenters was environmental justice. As discussed
above in the General Comments Section, many comments received expressed concerns about
environmental justice issues associated with pipeline's construction and operation. FERC's Final
Environmental Impact Statement determined, "as a result of the project, no disproportionately
high and adverse impacts on environmental justice populations as a result of air quality impacts,
including impacts associated with the proposed Compressor Station 2, would be expected as a
result of ACP and SHP. Also, no disproportionately high and adverse impacts on environmental
justice populations as a result of other resources impacts would be expected." Many
commenters disagreed with this determination and requested that the 401 Certification be
denied based on the potential environmental justice impacts.
As discussed above, the Director evaluates a 401 Certification application based on six criteria
including a no practical alternatives analysis, minimization of adverse impacts to surface waters,
15

an analysis of the degradation of groundwaters or surface waters, a cumulative impacts analysis,
protection of downstream uses through on-site stormwater management, and replacement of
existing uses through mitigation. Environmental justice is not included in the criteria upon which
the Director must evaluate the application. Although environmental justice is not an evaluation
criteria, the North Carolina Department of Environmental Quality (Department) has been
intimately engaged with the stakeholders of North Carolina through the permitting process.
On March 23, 2017, the Department hosted a stakeholder meeting in Raleigh, NC to provide
information and receive feedback on the proposed pipeline project. Eight environmental
organizations, four government agencies, and a representative of the Commission of Indian
Affairs were in attendance.
On July 18 and 20, 2017, the Department hosted 401 Certification Application Public Hearings.
This was to allow the citizens of North Carolina to comment on the certification. Notification of
the public hearings was provided in accordance with 15A NCAC 02H.0506(d) and (e). Inaddition,
the Division of Water Resources provided notices through other channels such as churches, non-
government organizations, etc. �[WBL5]
On August 9, 2017, the Department participated in an Environmental Justice Forum hosted by
the Haliwa-Saponi Indian Tribe and the North Carolina Commission of Indian Affairs. The forum
allowed an opportunity for tribal leaders, commission members, state and federal regulators,
and other stakeholders to discuss information on the proposed Atlantic Coast Pipeline.
Between August 15 and 17, 2017, the Department hosted three listening sessions along the
proposed pipeline route to obtain additional public feedback on the project. In addition to the
Department, the NC Department of Commerce, NC Department of Natural and Cultural
Resources, and the US Army Corp of Engineers were present.
On October 20 and 21, 2017, the Department participated in the North Carolina Environmental
Justice Network's Summit. This allowed for the Department to provide a summary of the
permitting status of the project.
In addition to the various stak
transparent with citizens who r
well as meetings with the Comr
its review of the aoolications sul
V1. Summary
holder engagements listed above, the Department has been
quested to sign up for the email news feed on the project, as
ission of Indian Affairs. The Department has been thorough in
-nitted for the proposed Atlantic Coast Pipeline.
Public comments concerning the two public hearings focused on several major issue areas,
including the degradation of water quality, cumulative impacts, environmental justice,
sedimentation and erosion control, the permitting process, impacts on wildlife including
threatened and endangered species, and ground and surface water supply protection in the Cape
Fear River Basin. Due to the number of public comments, many of which expressed concerns on
the same issues, each comment is not addressed individually. Only comments that have direct
relevance to the certification decision have been addressed in the recommendations (Section V).
16

As stated above, a thorough review of all public comments received and the project record has
been conducted, and additional insight has been obtained through discussions with DWR staff.
Based on all of this information, it is my recommendation that the 401 Water Quality Certification
and Buffer Authorization Certificate be issued and subject to the conditions included in the
recommendations in Section V. It is further recommended that DWR include any additional
conditions necessary to ensure that the project will meet state water quality standards.
V11. Attachments (on CD)
A. May 8, 2017 401 Water Quality Certification Application
B. Notice of Public Hearings — DEQ website, March 12, 2015
C. Notice of Public Hearings —June 17, 2017 and June 18, 2017
D. Correction to Notice of Public Hearings —June 19, 2017
E. July 18, 2017 Non -speaker sign -in sheets
F. July 20, 2017 Non -speaker sign -in sheets
G. July 18, 2017 Speaker list
H. July 20, 2017 Speaker list
1. July 18, 2017 Public Hearing transcript, including oral comments
J. July 20, 2017 Public Hearing transcript, including oral comments
K. Written comments received during the comment period, including at the public
hearings
17