HomeMy WebLinkAbout20181249 Ver 1_Request for Public Hearing_20181005SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone 919-967-1450 601 WEST ROSEMARV STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
October 1, 2018
Va E-mail and U.S. Certified Mail
Eric Alsmeyer
Raleigh Regulatory Field Office
Army Corps of Engineers, Wilmington District
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
eric.c.alsmeyer@usace.army.mil
NCDWR Central Office
Attn.: Ms. Amy Chapman, Transportation Permitting Unit
1617 Mail Service Center
Raleigh, NC 27699-1617
amy.chapman@ncdenr.gov
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DENR. WATER
�OR'fA710N PERM�IxpT
Re: Request for Public Aearing on N.C. Department of Transportation's
Application for Federal Clean Water Act Section 404 Permit and Ciean
Water Act Section 401 State Water Quality Certitication for Complete 540
Project
Dear Mr. Alsmeyer and Ms. Chapman,
On behalf of Sound Rivers, Inc., Clean Air Carolina, and the Center for Biological
Diversity ("the Conservation Groups"), the Southern Environmental Law Center ("SELC")
requests that the U.S. Army Corps of Engineers (the "Corps") and the NoRh Cazolina
Department of Environmental Quality, Division of Water Resources ("DWR") hold at least one
public hearing on the North Cazolina Department of Transportatiods ("NCDOT") applications
to the Corps for a Clean Water Act dredge and fill permit pursuant to Section 404, 33 U.S.C.
§ 1344, and to DWR for a state water quality certification pursuant to Clean Water Act Section
401, 33 U.S.C. § 1341, and 15A N.C. Admin. Code 2H.0502, for the proposed Complete 540 toll
highway project.
The Corps has published a public notice of this application, although the notice does not
include a copy of the application itsel£ � The Conservation Groups received a copy only after
SELC requested the application materials directly from the Corps, and after SELC insisted that a
' PUBLIC NOTICE, U.S. ARMY CORPS OF ENG'as (Sept. 25, 2018),
http://www.saw.usace.army.mil/Missions/Re u�latory-Permit-Program/Public-Notices/ar[icle-
view-displav/Article/1644762/saw-2009-02240/.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
Eric Alsmeyer, U.S. Army Corps of Engineers
Amy Chapman, N.C. Division of Water Resources
October 1; 2018
Page 2
copy be provided promptly and outside of the burdensome Freedom of Information Act
("FOIA") process.
Public notice of NCDOT's Section 401 application was also flawed, resulting in an
arbitrarily abbreviated comment period. The joint notice, published by the Corps, does not state
when DWR will make a final deterinination on NCDOT's Section 401 application and therefore
violates the requirement that the notice include the "proposed date of final action to be taken by
the Director upon the application." 15A N.C. Admin. Code 02H.0503(b). The Conservation
Groups request that DWR identify the date of its final decision and extend the public comment
period to fifteen days before that date. �
The Corps and DWR must hold at least one public hearing before making their final
decisions. The Corps must provide "notice and opportunity for public hearing" before it may �
issue a Section 404 permit. 33 C.F.R. § 320:2(�. Similarly, North Carolina law provides that
DWR will hold a public hearing on a Section.401 application "[i]f the Director determines that it
is in the public interest that a public hearing for the purpose of reviewing public comment and
additional information be held prior to granting or denying certification ...." 15A N.C. Admin.
Code 2H.0504(a):
The Conservation Groups have serious concerns about NCDOT's applications and
identify substantial issues that warrant further review. The Complete 540 project would have
devastating human and environmental impacts that must be evaluated publicly. The
Conservation Groups detailed some of these impacts in a January 8, 2016 comment letter to the
Corps concerning the draft environmental impact statement ("DEIS") prepared by NCDOT, as
well as in a February 22, 2018 comment letter to NCDOT concerning the final environmental
impact statement ("FEIS"). The Conservation Groups intend to provide full written comments to
both DWR and the Corps concerning NCDOT's permit applications within the requisite
comment periods.
For the present purpose of indicating the need for a public hearing on the two permit
applications, the Conservation Groups here very briefly review some of the reasons that the
Corps cannot issue a permit for Complete 540 consistently with the mandate of the Section
404(b)(1) guidelines and statutory authority, see 33 C.F.R. § 323.6(a); 40 C.F.R. § 230.12(a)(3),
arid DWR cannot lawfully issue a Section 401 water quality certification, see 15A N.C. Admin.
Code 2H.0506. The project's inordinate cost renders it impracticable, and there are less
destructive practicable alternatives that have not been adequately reviewed largely as a result of a
flawed screening process. It would cause unprecedented destruction to the aquatic environment,
removing and degrading dozens of acres of wetlands, several miles of streams, and hundreds of
ponds, as well as jeopardizing the continued existence of aquatic species. NCDOT has not taken
adequate steps to minimize harm to the aquatic ecosystem, including to threatened and
endangered species. Finally, NCDOT has not provided sufficient information to support an
informed decision on its combined application.
m
Eric Alsmeyer, U.S. Army Corps of Engineers
Amy Chapman, N.C. Division of Water Resources
October 1, 2018
Page 3
A public hearing is necessary to help clarify these and other issues for the Corps' further
consideration. See 33 C.F.R. § 327.3. Furthermore, the volume of public comments submitted
during the NEPA review process indicates the public's strong interest in the Complete 540
project and the need for a public hearing. The DEIS generated comments from 1,476 '
individuals, plus local governments, federal agencies, and other stakeholders. Nearly a dozen
public interest groups commented- on the FEIS, including SELC, on behalf of Sound Rivers and
Clean Air Carolina; Regional Transportation Alliance; Triangle Greenways Council; Cary
Chamber of Commerce fhe Center forBiological Diversity; Defenders of Wildlife; NC League
of Conservation Voters; NC Conservation Network; NC Justice Center; Wildlands Network; and
WakeUp Wake County. Over 600 individuals commented on the FEIS expressing their
opposition, and 175 commented expressing support.
. Accordingly, the Conservation Groups request a public hearing on NCDOT's combined
application for a Section 404 permit and a Section 401 certification. If you have any questions
about the foregoing, please do not hesitate to contact me.
3
Best regards,
� � �
Kym Hunter
Senior Attorney
Southern Environmental Law Center