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Home My WebLink About20181249 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 ��c��ae�� or,r - 5 ��g 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