20180119 Ver 2_Army Corps Response_20190315

Price, Zan (George)
From:
Brown, David W CIV USARMY CESAW (US) <[e-mail]>
Sent:
Friday, March 15, 2019 11:55 AM
To:
Howard Brown CAROLINA MOUNTAIN
Cc:
Price, Zan (George); Mitchell, Robert K; Leslie, Andrea J
Subject:
[External] Corps Response to January 28, 2019, Letter - Action ID No. SAW -2017-00911
(UNCLASSIFIED)
Attachments:
HydroEcoLitReview1.pdf; Mierau_et_al-2018_diversions and percent of flow.pdf;
Recommendations -for -Maintaining -Flows -FINAL 2013-10-30.pdf; Refernece List Stream
Flow -Stream Biology Relation.pdf; Richter etal_2011_presumptive
standard_sustboundappr.pdf; USEPA USGS final-aquatic-life-hydrologic-alteration-
report.pdf; RE: Draft (UNCLASSIFIED)
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CLASSIFICATION: UNCLASSIFIED
C.R. Brown Enterprises, Inc.
Andrews, NC 28901
Howard Brown,
On January 31, 2019, Ms. Debra Sloan of the North Carolina Department of Agricultural and Consumer Services
submitted a letter on your behalf to the Corps via email. The letter was dated January 28, 2019, and included a request
that the Corps delay its resolution of your earlier request to modify the Nationwide Permit (NWP) verification issued to
you on September 13, 2018 (Action ID SAW -2017-00911), until the North Carolina Division of Water Resources (DWR)
makes a decision on whether or not to modify the Water Quality Certification (WQC) associated with your project. DWR
drafted a modified WQC on November 19, 2018. The Corps reviewed this draft and provided comments to DWR on
November 27, 2018 (reference attachment).
Our comments to DWR stated that if you accept the draft WQC as written, then the Corps will not require you to
conduct site specific information including a hydrology assessment and an aquatic life survey and inventory which was
initially described to you in correspondence dated November 1, 2018. The Corps will re -issue the NWP verification,
including modified special conditions for withdrawal rates and minimum flow passage rates noted in condition #3 of the
draft WQC. If you do not accept the draft WQC and still wish to modify the NWP verification, then you will need to
submit the site specific hydrology assessment and aquatic life survey and inventory as described.
The Corps is aware that you currently operate two trout farms in close vicinity to the proposed facility (339 Cold Springs
Creek Road). The existing facilities are located at Sandy Davis Road (PIN 6526-19-3009) and 224 Baldwin Road (PIN 6526-
26-9969). The operational facilities and the proposed facility are all located within the Whiteoak Creek watershed. The
watershed above the water intakes for the operating facilities is approximately 0.5-0.6 square miles larger than the
watershed above the water intake location of the proposed Cold Springs Creek Road facility. Since the two operational
facilities withdraw water from the same watershed as the proposed facility and the watershed size for the proposed
facility is similar to that of the proposed facility's intake location, the Corps would accept hydrology assessment and
aquatic life survey and inventory information from these facilities as an alternative to the requested site specific
information at the Cold Springs Creek Road facility. If you decide to conduct the requested studies at the operating
facilities then submit the following:

1) Hydrology assessment data should be recorded at the following locations while the facility is operating: 1) within 100
feet upstream of the water intake; 2) 75 feet downstream of the water intake; and, 3) within 75 feet downstream of the
facility's discharge back into the receiving stream. The assessment should include the amount of water withdrawals
necessary to operate the facility(ies), stream flow amount upstream of the facility's intake structure, the flow amount in
the bypass channel downstream of the facility's intake and prior to the facility's discharge point back into the stream,
any contributing flow amounts from other tributaries flowing into the bypassed channel reach (reach of stream between
the intake and discharge points), and the facility's discharge flow rate back into the stream.
2) Aquatic life survey and inventory (presence, identification, and number of bryophyte, benthic invertebrate,
amphibian, and fish species) of each of the operating facility's by-passed stream reach and of a similar length stream
reach (to the by-passed reach) upstream of each of the water intake locations.
The NWP verification previously issued to you on September 13, 2018, remains in effect and includes a special condition
authorizing you to take as much as 100% of the stream flow, if you return all the diverted flow to Cold Springs Creek
adjacent to the intake structure, resulting in no significant de -watering of the stream reach below the water intake
structure.
Your January 28th letter also asked what evidence supports the Corps' conclusion that stream withdrawal flow rates
noted in the DWR memorandum dated October 13, 1992 (1992 Memo), do not meet NWP general conditions 2 (Aquatic
Life Movements) and 9 (Management of Water Flows). Attached to this communication are five separate reports and a
list of related references which supports the Corps' position.
An impetus behind the 1992 Memo was an interagency effort to develop a Regional General Permit (RGP) for new trout
production facilities. This RGP was never issued by the Wilmington District due to many of the reasons discussed with
you previously. The push for a RGP at that time followed the District's implementation of discretionary authority on April
13, 1989, to override the use of certain NWPs and limit the use of other NWPs through regional conditions for projects
located in NC designated trout waters, their headwaters, and upstream tributaries. Before the RGP could be developed,
regional conditions were added to the authorized NWPs such that many of them could be used.
The character of the communications you have submitted to the Corps since your request to modify the issued NWP
verification, have been trending more toward the withdrawal flows rates noted in the 1992 Memo and less to the
specific details of your proposed Cold Springs Creek Road trout farm facility. If you and/or others wish to represent the
NC trout production industry in an effort to establish withdrawal rates parameters for trout production facilities in
western NC, then the Corps is open to having those discussions. However, such a dialogue will need to occur apart from
your effort to modify the NWP verification previously issued to you. The Corps' assessment of the 1992 Memo as it
pertains to your proposed project was previously provided to you in our November 1, 2018, correspondence.
If you have any questions, please feel free to contact me.
Sincerely,
David Brown, PG
Regulatory Specialist/Geologist
USACE Wilmington District -Asheville Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, NC 28801-5006
828-271-7980, ext. 4232
[e-mail]
CLASSIFICATION: UNCLASSIFIED