20050785 Ver 12_Approval Letter_20090220 (2)

ARMCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretarv
February 20, 2009
Dr. Greg Thorpe, PhD., Manager
Project Development and Environmental Analysis Branch
North Carolina Department of Transportation
1548 Mail Service Center
Raleigh, North Carolina, 27699-1548
Subject: Modification to the 401 Water Quality Certification Pursuant to Section 401 of the Federal Clean
Water Act and Tar-Pamlico River Buffer Authorization with ADDITIONAL CONDITIONS for
Proposed improvements to US 17 from south of SR 1 149 (Price Rd) to north of SR 1509 (Springs
Rd) in Beaufort County, Federal Aid Project No. MAF-75-3 (26), TIP R-251013.
DWQ Project No. 20050785 v.11, v.12
Dear Dr. Thorpe:
Attached hereto is a modification of Certification No. 3527 issued to The North Carolina Department of
Transportation dated September 6, 2005. This modification is applicable only to the additional activities in
R-2510 section B. All the authorized activities and conditions associated with the original Water Quality
Certification dated September 6, 2005 and subsequent modifications still apply except where superceded by
this certification.
If we can be of further assistance, do not hesitate to contact us.
Sincerel ,
-L. ?-
F Coleen H. Sullins
Director
Attachments
cc: Mr. William Wescott, Corps of Engineers, Washington Field Office
Mr. Jay Johnson, Division 2 Environmental Officer, PO Box 1587, Greenville, NC 27835
Mr. Steven Sollod, NCDENR- DCM, 2728-168 Capital Blvd., Parker Lincoln Bldg., Raleigh, NC 27604
Mr. Stephen Lane, DCM, Morehead City
Mr. Roger Rochelle, NC DOT, Transportation Program Management, 1595 Mail Service Center
Raleigh, NC 27699
Mr. Travis Wilson, NCWRC, 1142 I-85 Service Rd, Creedmoor, NC 27522
Mr. Louis Daniel, NCDMF, P.O. Box 679, Morehead City, NC 28557
Ms. Sonia Gregory, NCDWQ, 401/Wetlands Unit
File Copy
North Carolina Division of Water Quality Internet: www.ncwateraualitv.ore
943 Washington Square Mall Phone: [phone]
Washington, NC 27889 FAX [phone]
No One
hCarolina
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Page 2 of 3
Modification to the 401 Water Quality Certification Pursuant to Section 401 of the Federal Clean
Water Act and Tar-Pamlico River Buffer Authorization with Additional Conditions
THIS CERTIFICATION 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 15 NCAC 2H .0500 and 15A NCAC.0259 for the Tar-Pamlico Basin. This Certification
modifies condition 8 of the original Water Quality Certification issued September 6, 2005, prohibiting in-
water work from February 15 through June 15 of any year. This modification authorizes the NCDOT and
their contractor Flatiron/United to conduct in-water work in the Tar River in Beaufort County on a limited
basis during the moratorium period. No additional wetland or stream impacts are authorized with this
modification. The project shall be constructed pursuant to the modification requests dated January 27,
2009 and February 19, 2009. The conditions of this certification are described below.
The applications provide adequate assurance that the discharge of fill material into the waters of the Tar
River Basin in conjunction with the proposed development will not result in a violation of applicable Water
Quality Standards and discharge guidelines. Therefore, the State of North Carolina certifies that this
activity will not violate the applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL
95-217 if conducted in accordance with the application and conditions hereinafter set forth.
This approval is only valid for the purpose and design that you submitted in your modified applications
dated January 27, 2009 and February 19, 2009. All the authorized activities and conditions associated with
the original Water Quality Certification dated September 6, 2005, and all subsequent modifications still
apply except where superceded by this certification. Should your project change, you are required to notify
the DWQ and submit 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 the conditions. If any
additional wetland impacts, or stream impacts, for this project (now or in the future) exceed one acre or 150
linear feet, respectively, additional compensatory mitigation may be required as described in 15A NCAC
2H .0506 (h) (6) and (7). For this approval to remain valid, you are required to comply with all the
conditions listed below. In addition, you should obtain all other federal, state or local permits before
proceeding with your project including (but not limited to) Sediment and Erosion control, Coastal
Stormwater, Non-discharge and Water Supply watershed regulations. This Certification shall expire on the
same day as the expiration date of the corresponding Corps of Engineers Permit.
Condition(s) of Certification:
1. The only modifications to the design of the project authorized by this certification are those submitted
in your applications dated January 27, 2009 and February 19, 2009. All authorized activities and
conditions associated with the original Water Quality Certification dated September 6, 2005 and all
other corresponding modifications still apply except where superceded by this certification.
2. The permittee shall conduct a study to determine the effects of in-water pile driving on anadromous
fishes. The study shall be designed and implemented by an independent third parry and approved by
the North Carolina Division of Water Quality in coordination with the appropriate resource agencies.
3. The study plan shall be submitted to NCDWQ no later than March 6, 2009. NCDWQ will provide
approval within one week of receipt of the study plan. The study plan must be implemented (testing
begins) before any in-water pile driving work can begin. However, the removal of stumps and other
obstructions at the bent locations can proceed upon receipt of this modification. The study will
continue throughout the time that NCDOT/Flatiron is conducting in-water work during the
moratorium.
4. Upon implementation of the approved study plan, NCDOT shall be allowed to continue in-water pile
driving work 1 day out of every 7 consecutive calendar days through April 30, 2009. Total pile driving
time shall not exceed 4 hours per 24 hr period without prior approval from NCDWQ. Should
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additional time for in-water work be needed beyond April 30, 2009, NCDOT shall submit a
modification request to extend the variance.
If mortality of any of the following fish species with respective numbers is observed, then all in-water
work shall cease pending further evaluation by NCDWQ.
• Sturgeon - 1 fish for the entire in-water work period
• 25 fish per bent installation in any combination of the following species:
i. River herring
ii. Hickory shad
iii. American shad
iv. Striped bass
6. The permittee and its authorized agents shall conduct its 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 NCDWQ
determines that such standards or laws are not being met (including the 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, NCDWQ may reevaluate and modify this certification.
7. A copy of this Water Quality Certification shall be posted on the construction site at all times. In
addition, the Water Quality Certification and all subsequent modifications, if any, shall be maintained
with the Division Engineer and the on-site project manager.
Violations of any condition herein set forth may result in revocation of this Certification and may result in
criminal and/or civil penalties. This Certification shall become null and void unless the above conditions
are made conditions of the Federal 404 and/or Coastal Area Management Act Permit. This Certification
shall expire upon the expiration of the 404 or CAMA permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon written
request within sixty (60) days following receipt of this Certification. This request must be in the form of a
written petition conforming to Chapter 150B of the North Carolina General Statutes and filed with the
Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714. If modifications
are made to an original Certification, you have the right to an adjudicatory hearing on the modifications
upon written request within sixty (60) days following receipt of the Certification. Unless such demands are
made, this Certification shall be final and binding.
This the 20th day of February 2009
D VISION OF WATER QUALITY
?'Coleen . Sullins,
fok Director
Modification to WQC No. 3527