20190731 Ver 1_Email_20190627

Strickland, Bev
From: Mairs, Robb L
Sent: Thursday, June 27, 2019 4:15 PM
To: Spears, Courtney
Subject: 20190731 -Nancy thomason-304 Empire Ave. Topsail Beach
Attachments: 15a ncac 02h .0506.pdf, 15a ncac 02b .0201.pdf
Hey Courtney,
This follows our discussion on this application earlier this week. As proposed, the application states the proposed new
bulkhead along southern property would average approximately 4 feet waterward of existing deteriorating bulkhead,
which would incorporate approximately 300 sq. ft. coastal wetlands. The application does not demonstrate the purpose
and need for this amount of this coastal wetlands impact, and as proposed appears to be inconsistent with our current
under rules: 15A NCAC 0213 .0201 ANTIDEGRADATION POLICY (f) Activities regulated under Section 404 of the Clean
Water Act (33 U.S.C. 1344) which require a water quality certification as described in Section 401 of the Clean Water
Act (33 U.S.C. 1341) shall be evaluated according to the procedures outlined in 15A NCAC 2H .0500. Activities which
receive a water quality certification pursuant to these procedures shall not be considered to remove existing
uses. The evaluation of permits issued pursuant to G.S. 143-215.1 that involve the assimilation of wastewater or
stormwater by wetlands shall incorporate the criteria found in 15A NCAC 2H .0506 (c)(1)-(5) in determining the
potential impact of the proposed activity on the existing uses of the wetland per 15A NCAC 2H .0231.
Thanks and feel free to let me know if need any further assistance.
Robb Mairs
Environmental Specialist II
Division of Water Resources
North Carolina Department of Environmental Quality
910 796.7303 office
robb.mairs(a)ncdenr.gov
https://deg.nc.gov/about/divisions/water-resources/water-resources-permits/wastewater-branch/401-wetlands-buffer-
ep rmits
127 Cardinal Drive Extension
Wilmington, NC 28405
ri
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Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties

SECTION .0200 - CLASSIFICATIONS AND WATER QUALITY STANDARDS APPLICABLE TO SURFACE
WATERS AND WETLANDS OF NORTH CAROLINA
15A NCAC 02B.0201 ANTIDEGRADATION POLICY
(a) It is the policy of the Environmental Management Commission to maintain, protect, and enhance water quality within the
State of North Carolina. Pursuant to this policy, the requirements of 40 CFR 131.12 are hereby incorporated by reference
including any subsequent amendments and editions. This material is available for inspection at the Department of
Environment, Health, and Natural Resources, Division of Water Quality, Water Quality Section, 512 North Salisbury Street,
Raleigh, North Carolina. Copies may be obtained from the U. S. Government Printing Office, Superintendent of Documents,
Washington, DC 20402-9325 at a cost of thirteen dollars ($13.00). These requirements shall be implemented in North
Carolina as set forth in Paragraphs (b), (c), (d), (e) and (f) of this Rule.
(b) Existing uses, as defined by Rule .0202 of this Section, and the water quality to protect such uses shall be protected by
properly classifying surface waters and having standards sufficient to protect these uses. In cases where the Commission or its
designee determines that an existing use is not included in the classification of waters, a project which shall affect these waters
shall not be permitted unless the existing uses are protected.
(c) The Commission shall consider the present and anticipated usage of waters with quality higher than the standards,
including any uses not specified by the assigned classification (such as outstanding national resource waters or waters of
exceptional water quality) and shall not allow degradation of the quality of waters with quality higher than the standards below
the water quality necessary to maintain existing and anticipated uses of those waters. Waters with quality higher than the
standards are defined by Rule .0202 of this Section. The following procedures shall be implemented in order to meet these
requirements:
(1) Each applicant for an NPDES permit or NPDES permit expansion to discharge treated waste shall
document an effort to consider non -discharge alternatives pursuant to 15A NCAC 2H .0105(c)(2).
(2) Public Notices for NPDES permits shall list parameters that would be water quality limited and state
whether or not the discharge shall use the entire available load capacity of the receiving waters and may
cause more stringent water quality based effluent limitations to be established for dischargers downstream.
(3) The Division may require supplemental documentation from the affected local government that a proposed
project or parts of the project are necessary for important economic and social development.
(4) The Commission and Division shall work with local governments on a voluntary basis to identify and
develop appropriate management strategies or classifications for waters with unused pollutant loading
capacity to accommodate future economic growth.
Waters with quality higher than the standards shall be identified by the Division on a case-by-case basis through the NPDES
permitting and waste load allocation processes (pursuant to the provisions of 15ANCAC 211.0 100). Dischargers affected by
the requirements of Paragraphs (c)(1) through (c)(4) of this Rule and the public at large shall be notified according to the
provisions described herein, and all other appropriate provisions pursuant to 15ANCAC 211.0109. If an applicant objects to
the requirements to protect waters with quality higher than the standards and believes degradation is necessary to
accommodate important social and economic development, the applicant may contest these requirements according to the
provisions of General Statute 143-215.1(e) and 15013-23.
(d) The Commission shall consider the present and anticipated usage of High Quality Waters (HQW), including any uses not
specified by the assigned classification (such as outstanding national resource waters or waters of exceptional water quality)
and shall not allow degradation of the quality of High Quality Waters below the water quality necessary to maintain existing
and anticipated uses of those waters. High Quality Waters are a subset of waters with quality higher than the standards and
areas described by 15A NCAC 213.0101(e)(5). The procedures described in Rule .0224 of this Section shall be implemented
in order to meet the requirements of this part.
(e) Outstanding Resource Waters (ORW) are a special subset of High Quality Waters with unique and special characteristics
as described in Rule .0225 of this Section. The water quality of waters classified as ORW shall be maintained such that
existing uses, including the outstanding resource values of said Outstanding Resource Waters, shall be maintained and
protected.
(f) Activities regulated under Section 404 of the Clean Water Act (33 U. S.C. 1344) which require a water quality certification
as described in Section 401 of the Clean Water Act (33 U.S.C. 134 1) shall be evaluated according to the procedures outlined
in 15A NCAC 2H .0500. Activities which receive a water quality certification pursuant to these procedures shall not be
considered to remove existing uses. The evaluation ofpermits issued pursuant to G.S. 143-215.1 that involve the assimilation
of wastewater or stormwater by wetlands shall incorporate the criteria found in 15A NCAC 2H .0506(c) (1)-(5) in determining
the potential impact of the proposed activity on the existing uses of the wetland per 15A NCAC 2H .0231.

History Note: Authority G.S. 143-214.1; 143-215.1; 143-215.3(a)(1);
Eff. February 1, 1976;
Amended Eff. October 1, 1995; August 1, 1995; February 1, 1993; April 1,1991; August 1, 1990;
RRC Objection Eff. July 18, 1996 due to lack of statutory authority and ambiguity;
Amended Eff. October], 1996.

15A NCAC 0211.0506 REVIEW OF APPLICATIONS
(a) In evaluating requests for certification based on the procedures outlined in Paragraphs (b) through (e) of this Rule, the
Director shall determine if the proposed activity has the potential to remove or degrade those significant existing uses which
are present in the wetland or surface water. Activities which would not remove or degrade existing uses shall be reviewed
according to the procedures found in Subparagraph (c)(2)-(5) of this Rule. Those activities covered by general certifications
[I 5A NCAC 2H .0501(c)(2)] which do not require written concurrence from the Division shall be deemed certified if the
conditions of the certification are followed and may proceed without the review procedures outlined in Paragraphs (b) through
(e) of this Rule. An applicant may also demonstrate that designated uses are not present at a particular site using a wetland
evaluation procedure approved by the Director according to the criteria found in 15A NCAC 2B .0103(c); otherwise the
designated uses as outlined at 15A NCAC 2B .0231(a)(1)-(6) are assumed to exist in all classes of wetlands, and the
appropriate review procedures shall be undertaken. Certification shall be issued where the Director determines water quality
standards are met, including protection of existing uses.
(b) The Director shall issue a certification upon determining that existing uses are not removed or degraded by a discharge to
classified surface waters for an activity which:
(1) has no practical alternative under the criteria outlined in Paragraph (f) of this Rule;
(2) will minimize adverse impacts to the surface waters based on consideration of existing topography,
vegetation, fish and wildlife resources, and hydrological conditions under the criteria outlined in Paragraph
(g) of this Rule;
(3) does not result in the degradation of groundwaters or surface waters;
(4) does not result in cumulative impacts, based upon past or reasonably anticipated future impacts, that cause
or will cause a violation of downstream water quality standards;
(5) provides for protection of downstream water quality standards through the use of on-site stormwater control
measures; and
(6) provides for replacement of existing uses through mitigation as described at Subparagraphs (h)(1) of this
Rule.
(c) The Director shall issue a certification upon determining that sufficient existing uses are not removed or degraded by a
discharge to Class WL wetlands as defined at 15A NCAC 2B .0101(c)(8), for an activity which:
(1) has no practical alternative as described in Paragraph (f) of this Rule, or impacts less than three acres of
Class WL wetlands;
(2) will minimize adverse impacts to the wetland based on consideration of existing topography, vegetation,
fish and wildlife resources, and hydrological conditions under the criteria outlined in Paragraph (g) of this
Rule; or impacts less than one acre of wetland within 150 feet (including less than 1/3 acre of wetland
within 50 feet), of the mean high water line or normal water level of any perennial or intermittent water
body as shown by the most recently published version of the United State Geological Survey 1:24,000 (7.5
minute) scale topographical map or other site specific data;
(3) does not result in the degradation of groundwaters or surface waters;
(4) does not result in cumulative impacts, based upon past or reasonably anticipated future impacts, that cause
or will cause a violation of downstream water quality standards;
(5) provides protection for downstream water quality standards through the use of on-site stormwater control
measures; and
(6) provides for replacement of existing uses through wetland mitigation under U.S. Army Corps of Engineers
requirements or as described in Subparagraph (h)(1)-(8) of this Rule.
(d) The Director shall issue a certification upon determining that significant existing uses are not removed or degraded by a
discharge to Class SWL wetland as defined at 15A NCAC 2B .0 10 1 (d)(4),wetlands that are contiguous to waters designated
as ORW, HQW, SA, WS -I, WS -II or Trout, or wetlands that are contiguous to rivers designated as a North Carolina or
National Wild and Scenic River for an activity which satisfies Subparagraphs (c)(2)-(5) of this Rule, and:
(1) for wetlands classified as coastal wetlands pursuant to 15A NCAC 7H .0205:
(A) has no practical alternative as described in Paragraph (f) of this Rule; and
(B) is water dependent and requires access to water as a central element of its basic function,
although, projects funded by government agencies maybe exempted from this requirement; and
(2) provides for replacement of existing uses through wetland mitigation under U.S. Army Corps of Engineers
requirements, or as described in Subparagraphs (h)(1)-(7) and (9) of this Rule.
(e) The Director shall issue a certification upon determining that significant existing uses are not removed or degraded by a
discharge to wetlands of exceptional state or national ecological significance including but not limited to Class UWL
wetlands, and wetlands that have been documented to the satisfaction of the Director as habitat essential for the conservation

of state or federally listed threatened or endangered species, provided that the wetlands have been so classified or designated
prior to the date of application for certification or a draft environmental impact statement has been submitted to the Director,
for an activity which satisfies Subparagraphs (c)(2)-(5) and (d)(1)-(2) and:
(1) the wetland impacts are necessary for the proposed project to meet a demonstrated public need; and
(2) provides for replacement of existing uses through wetland mitigation under U.S. Army Corps of Engineers
requirements, or as described in Subparagraphs (h)(1)-(7) and (10) of this Rule.
(f) A lack of practical alternatives may be shown by demonstrating that, considering the potential for a reduction in size,
configuration or density of the proposed activity and all alternative designs the basic project purpose cannot be practically
accomplished in a manner which would avoid or result in less adverse impact to surface waters or wetlands.
(g) Minimization of impacts may be demonstrated by showing that the surface waters or wetlands are able to continue to
support the existing uses after project completion, or that the impacts are required due to:
(1) The spatial and dimensional requirements of the project; or
(2) The location of any existing structural or natural features that may dictate the placement or configuration of
the proposed project; or
(3) The purpose of the project and how the purpose relates to placement, configuration or density.
(h) Replacement or mitigation of unavoidable losses of existing uses shall be reviewed in accordance with the following
guidelines:
(1) The Director shall coordinate mitigation requirements with other permitting agencies that are requiring
mitigation for a specific project. Mitigation required by the U.S. Army Corps of Engineers shall be
considered to constitute the mitigation required by the certification unless the Director determines that the
mitigation proposal does not meet the criteria established in Subparagraph (6) of this Paragraph.
(2) Mitigation shall not be required for impacts to Class WL wetlands of less than one acre.
(3) Participation in wetland restoration programs coordinated by the Department of Environmental, Health, and
Natural Resources shall be preferred to individual project mitigation whenever the Director finds that such
participation is available and satisfies the other requirements of this Paragraph, unless the applicant can
demonstrate that participation in these restoration programs is not practical. Mitigation sites approved by
the U.S. Army Corps of Engineers shall be deemed to be consistent with the Department's restoration plan.
(4) Acceptable methods of wetlands mitigation are listed below in the order of preference:
(A) Restoration: the re-establishment of wetland hydrology and vegetation in an area where it
previously existed.
(B) Creation: the construction of a wetland in an area where wetlands did not exist in the recent past.
(C) Enhancement: increasing one or more of the functions of an existing wetland by manipulation of
vegetation or hydrology.
(D) Preservation: protection of wetlands through purchase, donation or conveyance of a conservation
easement to an appropriate government or non-profit agency for management.
(5) Restoration is the preferred method of wetlands mitigation. The other methods may be utilized if the
applicant can demonstrate that restoration is not practical or that the proposed alternative is the most
ecologically viable method of replacing the lost functions and values.
(6) All mitigation proposals shall provide for the replacement of wetland acres lost due to the proposed activity
at a minimum of a 1:1 ratio through restoration or creation prior to utilizing enhancement or preservation to
satisfy the mitigation requirements, unless the Director determines that the public good would be better
served by other types of mitigation.
(7) Wetlands mitigation shall be conducted based on the following ratios (acres mitigated to acres loss); 4:1,
for wetlands located within 150 feet of the mean high water line or normal water level of any perennial or
intermittent water body as shown by the most recently published version of the United States Geological
Survey 1:24,000 (7.5 minute) scale topographical map; 2:1, for wetlands located between 150 feet and
1,000 feet from the mean high water line or normal water level of any perennial or intermittent water body
as shown by the most recently published version of the United States Geological Survey 1:24,000 (7.5
minute) scale topographical map; and 1:1, for all other wetlands. For linear projects which impact less than
3 acres of wetlands the ratio shall be 2:1 regardless of the distance from surface waters. The above ratios
apply only to restoration. The acres of required mitigation for the other types of mitigation shall be
determined by multiplying the above ratios by 1.5 for creation, 2 for enhancement, and 5 for preservation.
The above ratios do not apply to approved mitigation sites where the state and federal review agencies have
approved credit/debit ratios. This Subparagraph shall not apply to general certifications until the
Department has established a wetlands restoration program or until January 1, 1997, whichever occurs first.

(8) Mitigation for impacts to wetlands designated in Paragraph (c) of this Rule shall be conducted within the
same river basin and physiographic province when practical. Unavoidable losses of wetlands adjacent to
waters classified as WS -III shall be replaced within the water supply watershed when practical.
(9) Mitigation for impacts to wetlands designated in Paragraph (d) of this Rule shall be of the same wetland
type and located within the same river sub -basin when practical. Mitigation for impacts to wetlands
adjacent to waters classified as WS -I or WS -II shall be replaced within the water supply watershed when
practical.
(10) Mitigation for impacts to wetlands designated in Paragraph (e) of this Rule shall be of the same wetland
type and within the same watershed when practical.
(i) The Director shall not duplicate the site-specific application of any guidelines employed
by the United State Army Corps of Engineers in evaluating permit applications under 33
U.S.C. 1344 and applicable federal regulations.
History Note: Authority G.S. 143-215.3(a)(1); 143-215.3(c); 143B -282(1)(u);
RRC Objection Eff. July 18, 1996 due to lack of statutory authority and ambiguity;
Eff. October 1, 1996.