20090176 Ver 1_No Written Concurrence_20090415

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NCDENR
North Carolina Department of Environment and
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
April 15, 2009
Mr. Steve Stone
Brunswick County Parks & Recreation
P.O. Box 249
Bolivia NC 28422
Natural Resources
Dee Freeman
Secretarv
Brunswick County
DWQ Project #: 09-0176
Subject Property: Ocean Isle Beach Park
NO WRITTEN CONCURRENCE NEEDED
Dear Mr. Stone:
You have our approval, in accordance with the attached conditions to permanently impact 0.03
acres of 404 wetlands to construct a recreational park as described in your application received
by DWQ on February 19, 2009. After reviewing your application, we have decided these
impacts are below the threshold for written authorization as long as all conditions of General
Water Quality Certification Number 3705 (GC3705) are met. This certification may also be
viewed on our website at http://h2o.enr.state.nc.us/ncwetlands. This Certification allows you to
use the Nationwide 39 Permit when issued by the US Army Corps of Engineers.
This approval is only valid for the purpose and design that is described in your application. If
you change your project, you must notify us and you may be required to send us a new
application. If the property is sold, the new owner must be given a copy of this Certification and
approval letter and is thereby responsible for complying with all conditions. If total wetland fills
for this project (now or in the future) exceed one acre, compensatory mitigation may be required
as described in 15A NCAC 21-1.0506 (h) (6) and (7). This approval shall expire when the
corresponding Nationwide Permit expires or as otherwise provided in the General Certification.
For this approval to be valid, you must follow the conditions listed in the attached certification
and any additional conditions listed below.
Conditions of Certification:
1) Upon completion of the project, the applicant shall complete and return the enclosed
"Certification of Completion Form" to notify DWQ that all the work included in the 401
Certification has been completed. The responsible party shall complete the attached form
and return it to the 401 /Wetlands Unit of the Division of Water Quality.
Violations of any condition herein set forth may result in revocation of this Certification and may
result in criminal and/or civil penalties.
oy
NthCra lff
North Carolina Division of Water Quality 127 Cardinal Drive Extension Phone [phone] Customer Servicel-877-623-67 ?/?/at!{rQlll?
Wilmington Regional Office Wilmington, NC 28405-3845 FAX [phone] Internet: h2o.enr.state. nc.us
An Equal Opportunity/Affirmative Action Employer-50% Recycled/10% Post Consumer Paper
2
Ocean Isle Beach Park
Brunswick County
2009-0176
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory
hearing. You must act within 60 days of the date that you receive this letter. To ask for a
hearing, send a written petition, which conforms to Chapter 150B of the North Carolina General
Statutes to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C.
27699-6714. This certification and its conditions are final and binding unless you ask for a
hearing.
This letter completes the review of the Division of Water Quality under Section 401 of the Clean
Water Act. If you have any questions, please telephone Ian McMillan at [phone] or
myself at our Wilmington Regional Office at [phone].
Sincerely,
ot4? Alt?
Chad Coburn
Senior Environmental Specialist
Enclosures: GC 3705
Certification of Completion
cc: Ian McMillan - DWQ 401 Oversight Unit
Kim Garvey- Corps of Engineers Wilmington
Ashley Futral - Land Management Group, Inc., P.O. Box 2522, Wilmington, NC 28402
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Certification of Completion
DWQ Project No.:
Applicant:
Project Name:
Date of Issuance of Wetland Permit:
County:
Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification and Buffer Rules, and any
subsequent modifications, the applicant is required to return this certificate to the 401 Oversight/Express Permitting Unit,
North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC, 27699-1650. This form may be
returned to DWQ by the applicant, the applicant's authorized agent, or the project engineer. It is not necessary to send
certificates from all of these.
Applicant's Certification
I,
used in the observation of the
compliance and intent of the 401
and other supporting materials.
Signature:
Agent's Certification
Date:
I, , hereby state that, to the best of my abilities, due care and diligence was
used in the observation of the construction such that the construction was observed to be built within substantial
compliance and intent of the 401 Water Quality Certification and Buffer Rules, the approved plans and specifications,
and other supporting materials.
Signature:
Date:
If this project was designed by a Certified Professional
I, , as a duly registered Professional (i.e., Engineer,
Landscape Architect, Surveyor, etc.) in the State of North Carolina, having been authorized to observe (periodically,
weekly, full time) the construction of the project, for the Permittee hereby state that, to the best of my abilities, due care
and diligence was used in the observation of the construction such that the construction was observed to be built within
substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the approved plans and
specifications, and other supporting materials.
, hereby state that, to the best of my abilities, due care and diligence was
construction such that the construction was observed to be built within substantial
Water Quality Certification and Buffer Rules, the approved plans and specifications,
Signature: Registration No. Date
Water Quality Certification No. 3705
GENERAL CERTIFICATION FOR PROJECTS ELIGIBLE
FOR U.S. ARMY CORPS OF ENGINEERS NATIONWIDE PERMIT
NUMBERS 18 (MINOR DISCHARGES), 29 (RESIDENTIAL DEVELOPMENT).
39 (COMMERCIAL AND INSTITUTIONAL DEVELOPMENTS),
41 (RESHAPING EXISTING DRAINAGE DITCHES), 42 (RECREATIONAL FACILITIES),
44 (MINING ACTIVITIES), AND 46 (DISCHARGES IN DITCHES).
AND RIPARIAN AREA PROTECTION RULES (BUFFER RULES)
Water Quality Certification Number 3705 is issued in conformity with the requirements of Section
401, Public Laws 92-500 and 95-217 of the United States and subject to the North Carolina
Division of Water Quality (DWQ) Regulations in 15A NCAC 2H, Section .0500 and 15A NCAC 2B
.0200 for the discharge of fill material to waters and adjacent wetland areas or to wetland areas
that are not a part of the surface tributary system to interstate waters or navigable waters of the
United States () as described in 33 CFR 330 Appendix A (B.) (18, 29, 39, 41, 42, 43, 44, and 46)
of the Corps of Engineers regulations (i.e., Nationwide Permit No. 39) and for the Riparian Area
Protection Rules (Buffer Rules) in 15A NCAC 2B.0200.
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 the conditions hereinafter set forth.
Activities meeting any one (1) of the following criteria require written approval from the
Division of Water Quality (the "Division"):
1. Stream and/or buffer impacts:
a. Any impacts to perennial waters (as depicted on the most recent USGS 1:24000
topographic map or as otherwise determined by the local government,) and their
associated riparian buffers in Water Supply (WS), High Quality Water (HQW), or
Outstanding Resource Water (ORW) watersheds. Only water-dependent activities, public
projects, and structures with diminimus increases in impervious surfaces will be allowed as
outlined in those rules [15A NCAC 2B .0212 through .0215]. All other activities require a
variance from the delegated local government and/or the NC Environmental Management
Commission before the application for the 401 Water Quality Certification can be
processed.
b. Any impacts to streams and buffers in the Neuse, Tar-Pamlico, Randleman and Catawba
River Basins (or any other basins with Riparian Area Protection Rules [Buffer Rules] in
effect at the time of application [in accordance with 15A NCAC 2B .0200]), unless the
activities are listed as OEXEMPT from these Rules-
c. Any impacts to streams involving excavation or dredging.
d. Total stream impacts equal to or greater than 150 linear feet of intermittent and/or perennial
stream to be filled, culverted, rip rapped, or relocated, including temporary and/or
permanent impacts.
11. Impacts (temporary and/or permanent) to waters:
a. Equal to or greater than one-third (113) of an acre East of Interstate 95 (1-95).
b. Equal to or greater than one-tenth (1/10) acre West of Interstate 95 (1-95).
III. Wetland impacts (temporary and/or permanent):
a. Equal to or greater than one-third (1/3) acre East of Interstate-95.
b. Equal to or greater than one-tenth (1/10) acre West of Interstate-95.
c. Any impacts to wetlands adjacent to waters designated as: ORW, SA, WS-I, WS-II, or
Trout, or wetlands contiguous to waters designated as a North Carolina or National Wild
and. Scenic River.
d. Any impacts to coastal wetlands [15A NCAC 7H .0205)], or Unique Wetlands (UWL) [15A
NCAC 2H.0506].
Water Quality Certification No. 3705
Water Quality Certification No. 3705
IV. If the activity is associated with or in response to a Notice of Violation or an enforcement
action initiated by the Division and/or the Division of Land Resources.
In accordance with North Carolina General Statute Section 143-215.3D(e), written approval for a
401 Water Quality General Certification must include the appropriate fee. If a project also
requires a CAMA Permit, then one payment to both agencies shall be submitted and will be the
higher of the two fees.
Activities that are below the thresholds, or otherwise do not meet the criteria listed above
in this General Certification do not require written approval from the Division of Water
Quality as long as they comply with the Conditions of Certification listed below, including
the Stormwater Management Plan condition. If the project requires a Stormwater
Management Plan, but is otherwise below the written approval thresholds, the applicant
may provide a courtesy copy of the Pre-Construction Notification along with a copy of the
Stormwater Management Plan (and approval letter from the appropriate locally delegated
state program where applicable). If any of these Conditions cannot be met, then written
approval from the Division is required.
Conditions of Certification:
1. No Impacts Beyond those Authorized in the Written Approval or Beyond the Threshold of Use
of this Certification
No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas
beyond the footprint of the impacts depicted in the Pre-Construction Notification and
authorized in the written approval from the Division, including incidental impacts. All
construction activities, including the design, installation, operation, and maintenance of
sediment and erosion control Best Management Practices, shall be performed so that no
violations of state water quality standards, statutes, or rules occur.
2. Standard Erosion and Sediment Control Practices
Erosion and sediment control practices must be in full compliance with all specifications
governing the proper design, installation and operation and
maintenance of such Best Management Practices:
a. Design, installation, operation, and maintenance of the sediment and erosion control
measures must be such that they equal, or exceed, the requirements specified in the
most recent version of the North Carolina Sediment and Erosion Control Manual. The
devices shall be maintained on all construction sites, borrow sites, and waste pile (spoil)
projects, including contractor-owned or leased borrow pits associated with the project.
b. For borrow pit sites, the erosion and sediment control measures must be designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Surface Mining Manual.
c. Reclamation measures and implementation must comply with the reclamation in
accordance with the requirements of the Sedimentation Pollution Control Act and the
Mining Act of 1971.
d. Sufficient materials required for stabilization and/or repair of erosion control measures
and stormwater routing and treatment shall be on site at all times.
e. If the project occurs in waters or watersheds classified as Primary Nursery Areas (PNAs),
Trout Jr), SA, WS-I, WS-II, High Quality (HQW), or Outstanding Resource (ORW)
waters, then the sediment and erosion control requirements contained within Design
Standards in Sensitive Watersheds (15A NCAC 04B.0124) supercede all other sediment
and erosion control requirements.
Water Quality Certification No. 3705
Water Quality Certification No. 3705
3. No Sediment and Erosion Control Measures in Wetlands or Waters
Sediment and erosion control measures should not be placed in wetlands or waters without
prior approval by the Division. If placement of sediment and erosion control devices in
wetlands and waters is unavoidable, then design and placement of temporary erosion control
measures shall not be conducted in a manner that may result in dis-equilibrium of wetlands or
stream beds or banks, adjacent to or upstream and down stream of the above structures. All
sediment and erosion control devices shall be removed and the natural grade restored within
two (2) months of the date that the Division of Land Resources or locally delegated program
has released the project.
4. Construction Stormwater Permit NCG010000
Upon the approval of an Erosion and Sedimentation Control Plan issued by the Division of
Land Resources (DLR) or a DLR delegated local erosion and sedimentation control program,
an NPDES General stormwater permit (NCG010000) administered by the Division is
automatically issued to the project. This General Permit allows stormwater to be discharged
during land disturbing construction activities as stipulated by conditions in the permit. If your
project is covered by this permit [applicable to construction projects that disturb one (1) or
more acres], full compliance with permit conditions including the sedimentation control plan,
self-monitoring, record keeping and reporting requirements are required. A copy of this
permit and monitoring report forms may be found at
http://h2o.enr.state,nc.uslsu/Forms Documents.htm.
5. Construction Moratoriums and Coordination
If activities must occur during periods of high biological activity (i.e. sea turtle or bird nesting),
then biological monitoring may be required at the request of other state or federal agencies
and coordinated with these activities. This condition can be waived through written
concurrence on a case by case basis upon reasonable justification.
All moratoriums on construction activities established by the NC Wildlife Resources
Commission (WRC), US Fish and Wildlife Service (USFWS), NC Division of Marine Fisheries
(DMF), or National Marine Fisheries Service (NMFS) to lessen impacts on trout, anadromous
fish, larval/post-larval fishes and crustaceans, or other aquatic species of concern shall be
implemented. This condition can be waived through written concurrence on a case by case
basis upon reasonable justification.
Work within the twenty-five (25) designated trout counties or identified state or federal
endangered or threatened species habitat shall be coordinated with the appropriate WRC,
USFWS, NMFS, and/or DMF personnel.
6. Work in the Dry
All work in or adjacent to stream waters shall be conducted in a dry work area. Approved
best management practices from the most current version of the NC Sediment and Erosion
Control Manual, or the NC DOT Construction and Maintenance Activities Manual, such as
sandbags, rock berms, cofferdams, and other diversion structures shall be used to minimize
excavation in flowing water. Exceptions to this condition require submittal to, and approval
by, the Division of Water Quality.
Water Quality Certification No. 3705
Water Quality Certification No. 3705
7. Riparian Area Protection (Buffer) Rules
Activities located in the protected 50-foot wide riparian areas (whether jurisdictional wetlands
or not), within the Neuse, Tar-Pamlico, Catawba, or Randleman (or any other basin with
buffer rules), shall be limited to "uses" identified within and constructed in accordance with
15A NCAC 2B .0233, .0259, .0250 and .0243, and 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. All buffer rule requirements,
including diffuse flow requirements, must be met.
8. Water Supply Watershed Buffers
The 30-foot wide vegetative buffer (low-density development) or the 100-foot wide vegetative
buffer (high-density development) shall be maintained adjacent to all perennial waters except
for allowances as provided in the Water Supply Watershed Protection Rules [15A NCAC 26
.0212 through .0215].
9. If concrete is used during the construction, then a dry work area should be maintained to
prevent direct contact between curing concrete and stream water. Water that inadvertently
contacts uncured concrete should not be discharged to surface waters due to the potential for
elevated pH and possible aquatic life/fish kills.
10. Compensatory Mitigation
In accordance with 15A NCAC 2H .0506 (h), compensatory mitigation may be required for
losses of 150 linear feet or more of streams and/or one (1) acre or more of wetlands. For
linear, public transportation projects, impacts equal to or exceeding 150 linear feet per stream
shall require mitigation.
Compensatory stream mitigation shall be required at a 1:1 ratio for all perennial and
intermittent stream impacts in watersheds classified as ORW, HQW, Trout, WS-1 and WS-II.
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
General Water Quality Certification for this Nationwide Permit. Design and monitoring
protocols shall follow the US Army Corps of Engineers Wilmington District Stream Mitigation
Guidelines (April 2003), or its subsequent updates. Compensatory mitigation plans shall be
submitted for written Division approval as required in those protocols. Alternatively, the
Division will accept payment into an in-lieu fee program or credit purchase from a mitigation
bank.
Finally, the mitigation plan must be implemented and/or constructed before any permanent
building or structure on site is occupied. In the case of public road projects, the mitigation
plan must be implemented before the road is opened to the public. Proof of payment to an
in-lieu fee program or mitigation bank must be provided to the Division to satisfy this
requirement.
Water Quality Certification No. 3705
Water Quality Certification No. 3705
11. For all activities requiring re-alignment of streams, a stream relocation plan must be included
for written Division approval. Relocated stream designs should include the same dimensions,
patterns and profiles as the existing channel (or a stable reference reach if the existing
channel is unstable), to the maximum extent practical. The new channel should be
constructed in the dry and water shall not be turned into the new channel until the banks are
stabilized. Vegetation used for bank stabilization shall be limited to native woody species,
and should include establishment of a 30-foot wide wooded and an adjacent 20-foot wide
vegetated buffer on both sides of the relocated channel to the maximum extent practical. A
transitional phase incorporating appropriate erosion control matting materials and seedling
establishment is allowable. Rip-rap, A-Jacks, concrete, gabions or other hard structures may
be allowed if it is necessary to maintain the physical integrity of the stream; however, the
applicant must provide written justification and any calculations used to determine the extent
of rip-rap coverage. Please note that if the stream relocation is conducted as a stream
restoration as defined in the US Army Corps of Engineers Wilmington District, April 2003
Stream Mitigation Guidelines (or its subsequent updates), the restored length can be used as
compensatory mitigation for the impacts resulting from the relocation.
12. Stormwater Management Plan Requirements
A. For applicants other than the North Carolina Department of Transportation, a Stormwater
Management Plan in accordance with the version of Stormwater Management Plan (SMP)
Requirements for Applicants other than the North Carolina Department of Transportation
posted on the Division web site at the time of application shall be provided for any project that
meets both of the following two criteria:
i. Requires a 404 Permit or Isolated Wetlands Permit (regardless of
whether written authorization is required by the Division), AND
ii. Contains one or more drainage areas that are anticipated to have
impervious surface cover of equal to or greater than 24 percent. When
drainage areas are difficult to delineate or when a pocket of high density
exists within a drainage area, the Division shall use best professional
judgment to apply the SMP requirement as appropriate.
B. For the North Carolina Department of Transportation, compliance with NCDOT's Individual
NPDES permit NCS000250 shall serve to satisfy this condition.
13. Placement of Culverts and Other Structures in Waters and Wetlands
Culverts required for this project shall be designed and installed in such a manner that the
original stream profiles are not altered and allow for aquatic life movement during low flows.
Existing stream dimensions (including the cross section dimensions, pattern, and longitudinal
profile) must be maintained above and below locations of each culvert. Placement of culverts
and other structures in waters and streams must be placed below the elevation of the
streambed by one foot for all culverts with a diameter greater than 48 inches, and 20 percent
of the culvert diameter for culverts having a diameter less than or equal to 48 inches, to allow
low flow passage of water and aquatic life.
Installation of culverts in wetlands must ensure continuity of water movement and be
designed to adequately accommodate high water or flood conditions. Additionally, when
roadways, causeways or other fill projects are constructed across FEMA-designated
floodways or wetlands, openings such as culverts or bridges must be provided to maintain
the natural hydrology of the system as well as prevent constriction of the floodway that may
result in destabilization of streams or wetlands.
Water Quality Certification No. 3705
Water Quality Certification No. 3705
If site-specific topographic constraints preclude the ability to bury the culverts as described
above and/or the applicant can demonstrate that burying the culvert would result in
destabilization of the channel and head-cutting upstream, the Division will consider
alternative design proposals.
Any riprap required for normal pipe burial and stabilization shall be buried such that the
original stream elevation is restored and maintained.
The establishment of native, woody vegetation and other soft stream bank stabilization
techniques must be used where practicable instead of riprap or other bank hardening
methods.
14. Additional site-specific conditions may be added to the written approval letter for projects
proposed under this Water Quality Certification in order to ensure compliance with all
applicable water quality and effluent standards.
15. If an environmental document is required under the National or State Environmental Policy
Act (NEPA or SEPA), then this General Certification is not valid until a Finding of No
Significant Impact (FONSI) or Record of Decision (ROD) is issued by the State
Clearinghouse.
16. If this Water Quality Certification is used to access building sites, then all lots owned by the
applicant must be buildable without additional impacts to streams or wetlands. The applicant
is required to provide evidence that the lots are buildable without requiring additional impacts
to wetlands, waters or buffers if required to do so in writing by the Division. For road
construction purposes, this Certification shall only be utilized from natural high ground to
natural high ground.
17. Deed notifications or similar mechanisms shall be placed on all retained jurisdictional
wetlands, waters and protective buffers in order to assure compliance for future wetland,
water and buffer impact. These mechanisms shall be put in place at the time of recording of
the property, or of individual lots, whichever is appropriate. A sample deed notification can
be downloaded from the 401/Wetlands Unit web site at http://h2o.enr.state.nc.us/ncwetlands.
The text of the sample deed notification may be modified as appropriate to suit to a specific
project.
18. When written authorization is required for use of this certification, upon completion of all
permitted impacts included within the approval and any subsequent modifications, the
applicant shall be required to return the certificate of completion attached to the approval.
One copy of the certificate shall be sent to the DWQ Central Office in Raleigh at 1650 Mail
Service Center, Raleigh, NC, 27699-1650.
19. This General Certification shall expire three (3) years from,the date of issuance of the written
letter from the Division or on the same day as the expiration date of the corresponding
Nationwide Permit The conditions in effect on the date of issuance of Certification for a
specific project shall remain in effect for the life of the project, regardless of the expiration
date of this Certification. If the construction process for approved activities will overlap the
expiration and renewal date of the corresponding 404 Permit and the Corps allows for
continued use of the 404 Permit, then the General Certification shall also remain in effect
without requiring re-application and re-approval to use this Certification for the specific
impacts already approved.
Water Quality Certification No. 3705
Water Quality Certification No. 3705
20. The applicant/permittee and their authorized agents shall conduct all activities in a manner
consistent with State water quality standards (including any requirements resulting from
compliance with §303(d) of the Clean Water Act), and any other appropriate requirements of
State and Federal Law. If the Division determines that such standards or laws are not being
met, including failure to sustain a designated or achieved use, or that State or Federal law is
being violated, or that further conditions are necessary to assure compliance, then the
Division may reevaluate and modify this General Water Quality Certification.
Non-compliance with or violation of the conditions herein set forth by a specific fill project may
result in revocation of this General Certification for the project and may also result in criminal
and/or civil penalties.
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, if it is determined
that the project is likely to have a significant adverse effect upon water quality including state or
federally listed endangered or threatened aquatic species 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: November 1, 2007
DIVISION OF WATER QUALITY
By
Coleen H. Sullins
Director
History Note: Water Quality Certification Number 3705 replaces Water Quality Certification
Numbers 3106 and 3108 issued on February 11, 1997, Water Quality Certification Number 3287
issued on June 1, 2000, Water Quality Certification Number 3362 issued March 18, 2002, Water
Quality Certification Number 3402 issued March, 2003, and Water Quality Certification Number
3631 issued March 19, 2007. This Water Quality Certification is rescinded when the Corps of
Engineers re-authorizes Nationwide Permits 18, 29, 39, 41, 42, 43 or 44 or when deemed
appropriate by the Director of the Division of Water Quality.
Water Quality Certification No. 3705