19951145 Ver 1_COMPLETE FILE_19960521

FEB 01 1% 10:22 KCLH 874 P02
NatiomBank Trust
Charlotte. NG 2821M
Tel 704 3R8-.. x111
NadomOmk
7anuary 31, 1996
North Carolina Division of Environmenal Management
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Attention: Mr. John R. Dorney
Reference: HuntersvWe Business Park/Kincey Avenue Extension;
Hunteraville, Mecklenburg County, North Carolina
Request for Certification Pursuant to Clean Water Act $ 401
Dear Mr. Dorney:
In a recent telephone conversation regarding the referenced matter, Mr. Greg Price of
your office asked for NationsBank, N.A., as Trustee for The NationsBank Pension Plan
("NationsBank"), the owner of Huntersville Business Park, to place obstructions in two pipes that
are kxcated in wetlands near the proposed alignment of Kincey Avenue and that cross Reese
Boulevard. The purpose of the obstructions is to enhance creation of additional wetlands near the
proposed alignment of Kincey Avenuo.
NadonsBank does not object to DEM's request. It proposes to create the requested
obstructions in a manner that ensures that they appear "natural." Specifically, NatlonsBank
proposes to create a chock dam built with rip rap stone overlain with mesh fabric, soil, and
vegetation. If this does not obstruct the pipes, NationsBank will replace the check dam with a
concrete wall. , ?n ?6 ?? .
Mm ks again for working with NadonsBank to amicably resolve this matter. Please let us
know if additional information would facilitate your review of NationsBank's request or if you
have A Cher questions.
cc: Mr. Greg W. Price, DEM
Mr. William G. Monroe, III
Sincerely,
NATION:
TIM,W9
N.A., as Trustee for
INK PENSION PLAN
a ...,Yu .....,J-
Senior Vice-President
301581.1
FEB 01 1% 10:22 KCLH
874 P01
KENNEDY COVINGTON LOBDELL & HICKMAN, L.L.P.
ATroRMS AT !Aw
NationsBank Corpomte Center
Suite 4200
100 North Tryon Street
Charlotte, North Carolina 28202-4006
David A. Franchina
704/331-7543
PL&!SE DEL WM ME FOUT.OWING PAGES TO
Facsimile 704/331-7593
DATE• February o 1996
COMPANY: North gerltent
FAX NUMBER: 919/733.-9M
FIZE NUMBER: 16_K2(tLlt67
TOTAL PAM (Including 71ds One): 2
COMMENTS OR SPECUL TAMUC77ONS:
Ifyou do not mcdw the total nwnher ofpages indkated on this tmnomlon sheet, Please call us at
(704) 331-75910.
This 11 Zvi atiou may eontAin emadcatial or legally privileged infon nation aad b intended only for the
am of ft individual or entity named above. N you are not the intended recipient, you are hereby notified
that any dimmhution, distribution, copying or other use of this ca unicadon or any information contained
perdu is strictly prohibited. it you have r+adved this cammuoicafion in error, please notify us immediately
by telephone tolled aad return the original mewne to us at the above addren via the U. S. Portal Service.
We aW be glad to reimburse you for postage. Tank you.
Nn1 iow,k;m1, 'I ru :?
Ch.iihmc. N('
of iO I :Nli 10011
HafionsBank
N, K
JAN 2 9
WETLANDS G('0?
WATER UALITYSU,, °i
January 26, 1996
North Carolina Division of Environmental Management
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Attention: Mr. John R. Dorney
Reference: Huntersville Business Park/Kincey Avenue Extension;
Huntersville, Mecklenburg County, North Carolina
Request for Certification Pursuant to Clean Water Act § 401
Dear Mr. Dorney:
Thank you for meeting with Mr. William Monroe of WGM Design Inc., Mr. David
Franchina of Kennedy Covington Lobdell and Hickman, and me on January 23, 1996 to
discuss the referenced matter. NationsBank, N.A., as Trustee for The NationsBank Pension
Plan ("NationsBank"), the owner of Huntersville Business Park, is pleased that we were able
to discuss and resolve the matter in an informal and amicable manner. We very much
appreciate your willingess to work with us in addressing our concerns.
This letter memorializes our meeting and provides you with the information you
requested during our meeting. In addition, it also provides Department of Environmental
Management ("DEM") with NationsBank's comments on DEM's proposed denial of
NationsBank's request for the State certification of the referenced project under Section 401
of the Clean Water Act and 15A NCAC 213.0109 and 2H.0500 et sea. During our recent
meeting, you indicated that DEM intended to issue the requested certification on the basis of
the information provided. NationsBank supports this proposed regulatory action. The public
notice published in The Charlotte Observer on January 10, 1996 did, however, state that
DEM intended to deny NationsBank's request. To the extent that DEM may deny such a
request at this point (which we believe unlikely), NationsBank opposes such a regulatory
action.
The goal of our January 23 meeting was to review the field survey and elevation data
you requested in your December 22, 1995 letter. As we described to you during our
meeting, compiling these data was delayed because of the holidays and because of the
inclement weather in Charlotte earlier this month.
300622.1

North Carolina Department
of Environmental Management
Attention: Mr. John R. Dorney
January 26, 1996
Page 2
During our meeting, we presented to you an actual field survey prepared by R.B.
Pharr and Associates identifying the limits and elevation of the wetlands in the alignment of
Kincey Avenue. We also presented to you drawings depicting the three alternatives for the
alignment of Kincey Avenue set out in your December 22 letter. We provided you with a
copy of these drawings during our recent meeting, and enclose herewith another copy for
your further review.
As we discussed, with the actual field survey, we were able to determine that the
current alignment of Kincey Avenue is further south than previously anticipated. Instead of
roughly bisecting the wetland, as suggested by earlier drawings provided to DEM, the
roadway skirts the southern border of the wetland. To the south of the road is an approxi-
mately 0.42 acre area that was designated wetlands under 1989 federal wetlands guidelines.
Under current law, this area no longer qualifies as wetlands. The U.S. Army Corps of
Engineers has confirmed this in its 1995 delineation of wetlands at Huntersville Business
Park.
We demonstrated to you that the current alignment of Kincey Avenue was consistent
with the alignment proposed by DEM in your December 7 and 22 letters and the January 10
Charlotte Observer public notice. In each of the foregoing, DEM viewed such an alignment
as an acceptable practical alternative to an alignment that bisected the wetland. DEM also
believed that the alignment would minimize construction in wetlands areas. On the basis of
this new information, you concurred in our assessment that the alignment of Kincey Avenue
was acceptable to DEM (subject, of course, to confirmatory study) and told us that you were
inclined to grant the 401 Certification that NationsBank is requesting.
We next discussed the potential of recreating 0.42 acre of wetlands previously
delineated as such as an accommodation to DEM and to replace 0.40 acre of wetlands
disturbed by the Kincey Avenue extension. Given the elevations noted on the attached plans
and the elevations of the culvert under Kincey Avenue, we believe that the 0.42 acre area
formerly containing wetlands will regenerate itself as a wetland. To further facilitate this
regeneration, we propose to seal off the 15 inch culvert which extends from this 0.42 acre
area under Reece Boulevard to Torrence Creek. This will allow the area to flood and will
send the water from this 0.42 acre area through the culvert under Reece Boulevard (which is
virtually flat) into a wetland to the north of Kincey Avenue extension. After flowing through
the wetland this water will flow through the double culvert under Reece Boulevard and into
the water detention lake.
300622.1
North Carolina Department
of Environmental Management
Attention: Mr. John R. Dorney
January 26, 1996
Page 3
The drainage basin area that serves this wetland will include all the immediate
surrounding property and land to the north of Kincey Avenue. This land includes a large
retail site and land across Gilead Road from Huntersville Business Park.
Based on the foregoing and other information provided to you at the meeting, you
advised us that DEM would issue NationsBank the 401 Certification it had requested. You
also indicated that the Certification might be subject to certain conditions, such as requiring
runoff from Building IX to drain into the wetlands at issue and ensuring that the elevation of
the culvert under Kincey Avenue would facilitate wetlands regeneration. We did not oppose
the conditions you discussed at our meeting.
We are pleased that we were able to amicably resolve this matter with you and thank
you for working with us on this matter. We will await your final decision prior to proceed-
ing with construction activities on the Kincey Avenue extension.
Finally, my lawyers have advised me that because DEM published a notice to deny
NationsBank's request for a 401 Certification, NationsBank should provide DEM with formal
comments opposing its proposed action to protect the interest of NationsBank and the
NationsBank Employee Pension Trust Fund in the event that a 401 Certification is not issued
by DEM. Accordingly, I enclose NationsBank's comments in opposition to DEM's proposal
to deny NationsBank's request for a 401 Certification. NationsBank will withdraw
these comments in the event that a satisfactory 401 Certification is granted.
Sincerely,
NATIONSBANK, N.A., as Trustee for
THE NATIONSBANK PENSION PLAN
oy oyce
Senior Vice-President
cc: Mr. Greg W. Price, Environmental Biologist
Water Quality Section
Division of Environmental Management
300622.1

COMMENTS OF NATIONSBANK, N.A., AS TRUSTEE FOR THE
NATIONSBANK EMPLOYEE PENSION TRUST FUND ("NATIONSBANK"),
OPPOSING THE PROPOSED DENIAL BY THE NORTH CAROLINA
DIVISION OF ENVIRONMENTAL MANAGEMENT ("DEM") OF NATIONSBANK'S
REQUEST FOR A CLEAN WATER ACT SECTION 401 CERTIFICATION
<^_f ` TO FILL CERTAIN WETLANDS ALONG KINCEY AVENUE
4 4 AT HUNTERSVILLE BUSINESS PARK
.11UNTERSVILLE, MECKLENBURG COUNTY, NORTH CAROLINA
z^ ?y O>
r

January 26, 1996
INTRODUCTION
In October 1995, NationsBank applied to DEM for certification under Section 401 of
the Clean Water Act ("401 Certification") to conduct wetlands fill activities in the
alignment of Kincey Avenue at Huntersville Business Park, Huntersville, Mecklen-
burg County, North Carolina (copy enclosed). The U.S. Army Corps of Engineers
did not object to NationsBank's request to conduct these activities under the Corps'
Nationwide Permit program.
Initially, NationsBank's proposed alignment of Kincey Avenue roughly bisected
certain wetlands adjacent to Reece Boulevard. In November 1995, a DEM official
recommended that a 401 Certification be issued, see enclosed Wetland Staff Report
and Recommendations, November 16, 1995, and advised NationsBank of this
recommendation. In December 1995, DEM's position changed. It told NationsBank
that it believed that "practical alternatives" to NationsBank's proposed alignment
existed and should be evaluated. It suggested an alignment that crossed the wetlands
near their southernmost boundary. Se Letter from John R. Dorney, DEM, to Floyd
T. Boyce, NationsBank, December 7, 1995 (copy enclosed). Representatives of
NationsBank worked feverishly with DEM in December and January to evaluate
DEM's proposed alternative and other alternatives advanced by DEM in subsequent
correspondence (copies of relevant correspondence enclosed).
On January 10, 1996, public notice of DEM's proposed intent to deny NationsBank's
request for 401 Certification was published in The Charlotte Observer (copy en-
closed).
After conducting surveys of the actual alignment of Kincey Avenue, NationsBank has
since determined that such alignment is substantially the same as that identified by
DEM as a practical alternative. enclosed field surveys. For this reason and the
reasons outlined below, NationsBank opposes DEM's proposed action. NationsBank
urges DEM to issue a 401 Certification for the proposed activity.
300829.1
1. NationsBank's proposed alignment Kincey Avenue is consistent with that
identified by DEM as a "practical al ernative" to NationsBank's initial alignment
proposal.
2.
Consistent with DEM's December 1991
the alignment of Kincey Avenue. As
NationsBank has discovered that the ali
identified by DEM in its December 7,
NationsBank's initial alignment of Kinc
offered to create 0.42 acres of addition
ensure that a significant amount of store
directed toward the proposed wetlands.
ment of Kincey Avenue is substantially
the other reasons outlined above, DEM
401 Certification.
requests, NationsBank has recently surveyed
-flected in the enclosed field survey drawings,
;nment is within 65 feet of the alignment
995 letter as a practical alternative to
;y Avenue. In addition, NationsBank has
l wetlands adjacent to Kincey Avenue and
lwater in the vicinity of Kincey Avenue be
Because the NationsBank's proposed align-
he same as that proposed by DEM, and for
hould not deny NationsBank's request for a
Avenue is Consistent with DEM's
NationsBank's Proposed Alignment of
Rules.
are to be utilized when evaluating requests
e that "no discharge of dredged or fill
ticable alternative to the proposed
eria further provide that "[a]n alternative
f being done after taking into consider-
s in light of overall project purposes." Id.
to DEM in its December 27, 1995, letter
(copy enclosed) that DEM's alternative ro ing of Kincey Avenue was not "capable of
being done after taking into consideration st ... and logistics in light of overall
project purposes." In its December 27 Lett r, NationsBank demonstrated to DEM the
following:
40 C.F.R. part 230, subparts A through
for 401 Certification. Those criteria prov d
material shall be permitted if there is a pr c
discharge." 40 C.F.R. 230.10(a). The c 't
is practicable if it is available and capable
ation cost, existing technology, and logisti
§ 230.10(a)(2). NationsBank demonstrat
NationsBank's proposed alignment of Ki ey Avenue is consistent with DEM
regulations. Under those regulations, alt rnatives proposed by DEM must be
practicable. Specifically, 15A NCAC 2B 0109 provides that the criteria set forth in
Realigning the road would expose NationsBank to great cost by restrict-
ing significantly property av lable for development along Kincey Road.
Depending on the alternative elected, such costs could approach or
even exceed $500,000;
The planned Kincey Avenue/Reece Boulevard intersection was designed
based on requirements of the prospective tenants and property owner
for the intersection to take full advantage of the scenic vista across the
2 300829.1
existing man-made pond and changing the intersection would affect
dramatically logistics in light of overall project purposes;
Access, frontage and site-specific constraints associated with adjacent
parcel tenant requirements necessitate the placement of the roadway as
planned; and
Vehicular staging, safety issues and roadway engineering design re-
quirements necessitate the placement of the intersection of Kincey Road
with Reese Boulevard in the planned location. Realignment of the road
along the lines suggested by DEM would complicate NationsBank's
efforts to ensure that the road that will carry certain Huntersville
Business Park traffic parallel to I-77 will comply with North Carolina
Department of Transportation safety guidelines.
3. NationsBank's Proposed Alignment of Kincey Avenue Is Consistent with DEM's
Proposed Rules, which often are used as guidance by DEM for evaluating
requests for 401 Certification.
DEM's proposed 401 Certification rules (copy enclosed) often are used as guidance
by DEM for evaluating requests for 401 Certification. Under those rules, DEM must
issue a 401 Certification for this project because it meets all the criteria established by
DEM for review of requests for 401 Certification, which are set forth in proposed
15A NCAC 2H.0506(c)(1) - (6):
15A NCAC 2H.0506(c)(1) -- The impact of the activity proposed by
NationsBank is 0.40 acres. Accordingly, the impact is less than 3
acres, and analysis of practical alternatives is not required. Even if
such an analysis were required, however, the current alignment of
Kincey Avenue is substantially similar to that identified by DEM as a
practical alternative.
15A NCAC 2H.0506(c)(2) -- The impact of the activity proposed by
NationsBank is 0.40 acres. As reflected on the enclosed field surveys,
all of the impact is located more than 150 feet from the nearest stream.\ ,
Thus, because wetlands are less than one acre of land and are located ) 4
more than 150 feet from the nearest stream, minimization review is not
required.
NA' ^as
15A NCAC 2H.0506(c)(3) -- No degradation of surface or ground- rS
waters are anticipated, because the affected area discharges into an
`
existing water quality lake.
3 300829.1
• 15A NCAC 2H.0506(c)(4) -- No violations of downstream water
quality standatds are reasonably anticipated.
• 15A NCAC 2".0506(c)(5) -- Downstream water quality standards are
protected throogh existing on-site stormwater control measures.
• 15A NCAC 2N.0506(c)(6) -- The impact of the activity proposed by
NationsBank is0.40 acres. Mitigation requirements do not apply
because activity is less than one acre. Sgg 15A NCAC 2H.0506(h)(2).
4. DEM already has issued a 401 Certification for the activity proposed by
NationsBank.
The initial 401 Certification for this project is enclosed. Issued in 1987, it provides
that NationsBank may fill in 4,1 acres of wetlands at Huntersville Business Park.
NationsBank already has filled', 3.7 acres. See DEM's Public Notice of Intent to
Deny. The Kincey Avenue activity is 0.4 acres, making it consistent with the 1987
limit.
The 401 Certification does not,i, on its terms, expire. Indeed, it states that Nations-
Bank will need 10 years to conduct fill activities. Neither federal nor state regula-
tions provide for the expirationl,of a 401 Certification.
5. DEM lacks legal authority to deny NationsBank's request for a 401 Certification
on the grounds that practical alternatives to its proposed alignment of Kincey
Avenue exists.
Under Section 401 of the Clean Water Act, water quality certification may be denied
by a State only if the State findsl, that water quality standards or effluent limitations
approved by the United States Ebvironmental Protection Agency will be violated if an
activity is allowed to move forward. Clean Water Act § 401(a).
DEM's proposed denial is based on the alleged availability of a practical alternative to
NationsBank's proposed alignment of Kincey Avenue. The proposed denial is not
related to any asserted failure of NationsBank's project to comply with water quality
standards or effluent limitations. '',Indeed, NationsBank has demonstrated to DEM that
the Kincey Avenue extension wily meet all such standards and limitations. Accord-
ingly, DEM lacks legal authority to deny NationsBank's request for a 401 Certifica-
tion on the grounds that a practical alternative exists.
4 300829.1
6. DEM lacks legal authority to use criteria set forth in 40 C.F.R. part 230,
subparts A through H in determining whether to issue its 401 Certification.
The criteria set forth in 40 C.F.R. Part 230 are guidelines under Section 404(b)(1) for
specification of disposal sites for dredged or fill material. DEM's authority to review
NationsBank's request for 401 Certification is limited to an analysis of matters
addressed in Section 401 of the federal Clean Water Act. See Point 5, above. Guide-
lines established under Section 404(b)(1) clearly may not be used by DEM to perform
its obligations under Section 401. Accordingly, DEM's regulation purporting to
adopt these guidelines as criteria to evaluate requests for 401 Certification, = 15A
NCAC 2B.0109, is invalid. So too are DEM decisions and proposed decisions based
upon that regulation.
CONCLUSION
For the reasons outlined above, NationsBank respectfully requests that DEM issue a
401 Certification for NationsBank's proposed wetlands fill activity.
5 300829.1
P. 2/5
VAR JAN 2 . g
State of North Carolina
Urpartment of Natural Resources and Community Development
DiviuUn of Environmental Management
SI) North Salisbury Street a RakiO, North Carolina 27611
JdrnM G. Martin, Covemor June 29. 1987 R. Paul Wilms
S. Tliomas Rhode, SecTmry Dim-tor
Mr, F. T. Boyce, sr. Vice-ties. ..
NCNB, as Truetcc
North Carultna Real Estate
Investment Services
T--10-6
Charlotte, NC 28255
Subject: Certt.fieation Pursuant to Section
401 of the Federal Cluan Water ACE,
Proposed Fill in Wetlands Areas
Huntersville BUStness Park
NcNR
'Torrence Creek
Mecklenburg County
Dear Mr. Boyce;
Attached hereLu are two (2).,eopies of Certification No. 2104
issued co NCNB dated June 29, 1987.
If we can be of further aeeiitance. do not hesiLaLe ro contact: us.
.....Sincert:ly..yy' 4r.sOriginal Signed By ........
William C. Mills
For
R. Paul Wilms
cc: Wilmington Diatrict Corp* of•Enginrers "
Mooresville Regional Offico L f
Mr. William Hills(. Ci
Mr. David Owens FGC
?? .. ....4....?A i
Ynllutran YYi1'!nIlm! YAYX l
I
P. -7;/S

_NORTH CAROLINA
Mecklenburg County
CERTIFICATION
THTS CERTIFICATION is issued in conforailty with the raquiremente of
Section 401 Public LawN 92-500 and 95-21% of the Unitcd Statcs and
subject to the North Carolina Division of Environmental Management
Regulations in 15 NCAC. 2H, Section .0900 to NCNB pursuant to au
application filed on the 1st day of June. 1987 to fill various wetland
areas associated wit11 the development of Huntersville Dueiness Park.
The AppliC41.ion provides adequate aasuranec that the discharge of
fill mArerial into a wetlands area adjaceaC en the waters of Torrence
Crack in conjunction with rho proposed busincs3 park dcvelopntttL in
Mecklenburg County 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 Sections
301, 302, 303, 306, 907 of PL 92-500 and PL 95-217 it conducted in
accordance with the application and conditions heroinafter cat forth.
Condition(s) of Certification:
1. That the activity be conducted in such a manner
as to prevenr significant increase in turbidity
outside the area of construction nr construction-
related discharge (increases Guch that the
turbidity in the Scream; is 50 NT11'c or less
are not considered significant).
2. That appropriate sedimentation and erosion Control
measures shall be employed to minimize turbidity
and siltation impacts.
Viulnrians of any eond;tion herein set forth shall result in
revocation of this Certification.
This Certification shall become null. and void unless the above
ConditiunH Are made conditions of the cederal PerlalC.
This the 29th day of June. 1987.
DIVISION OF'ENVIRONMENTAL MANAGFNFNT
1UrIgil1.91 SiR,;C,'$ C3Y
Williaul C. Mills
fivr R. Paul Wilds, DiCacWr'
wqC# 2104
P.4 /5
AXtsCATION
lost
PiWT TO EXCAVATE M 0,JCR FILL WATtA CAJAlm CIATIFICATION
LA_U , LKT IN t ANOS COVERED aY WAT•[A CAAA P%AM17 FOR MA10A 04YV60ftMNT
CS 1 tl&ett AM a~Iw Shea M tafHl CrtM+ p+m-trewe M the 8111111
(C! onm (Ai12) I`fDt w,rf } x'Ittrrwer twel C.T+*%-%1 AO 11 l(33 CP 4?Oe0.1b OrrKt
rleseaa 11t9e tK tlei+tt 71td fW M iM bliniltl II tellaefl+atinl la flit ipIpIlCiAlat, >a Ir.dicils by et+e? N/A M Matra.
?, Agglksnl lAl ZQCNB as '1r1,]stee f Attention; Mr. F. T. Dovice, Senior Vice'-president
Middy
LL,? iltt
D Addret, 7` - 10 6 1`T fth Catolirla & F l state- Two-st'm?nt Services
Street, r 0 80• nt Route
CJ'larlotte, North Carolina 28255 704/374-8851
C.lv nt ro-A Stec 21p Cede Phpne
IL LmAtWx of lero?lm tot.
A. C mmy
L 1. GAY, t4wd% CQMMQAi%V 01 14Admut u terSV' 1, 9 - --
2. It pfoadSb WWj wllhlA city unlit-.? Yes - Nd --1---
0, Criteria, n vv. Iwnd Of bAr moon which ptottti 11 ItXAled Of ntArest AAm-d b?v d1 wAlet to 0.0jset Th '' . +:?_
i1L D"ittipdoe a/ hojrrtt
RaadS r 1dlYt
45? Parking y
A. 1. M4inom4me of tarulnt Aftimi 7. New wort ?
1. PUnMIA of UCAV441091 Or IIIi
.1. Atutt 04nM1 len(Ift ?..+.?w,dth depth
2. Eat bA/%n IfAtth ...doh depth
3, Fill xte Ientlh.. ?,. width dtrdln
4. Olnee len{th? „???dth a.olh
1. SmIkhaad 1er111h Arna{e dilunte MJlIroLtd Of MMW (SAFfeUA91
o Of 0UlYhfJd COMHULUpn IMIWIAll
' 2
t
.
yp
0. G4A4tcd maimetal (lulu for pmemI
2 e of m4terul
T
.
1. Cubic v+tdl yp
E. Fill mAtplel to be al tg 1 below MMW (tot 41%o V 1 A)
1. Cubic y+tdt -..?..?._2. Tvol OI malrrul
IY. Land YVON. Ditrto a ArM And CAAIUUCIMA E444104,ent .'
A. 0019%theAru W be (eiAVettU'IrILlUdC InV m41%AIInd. 1wAMO%.nt other -411AA45 Yt1 X NO
A. Dorf the d,/pnul 004 rMlUde +AV m+nhlamd, 1.4mai qt ulna +,ctiAnd' Ytt . X _ No
C. 0hDoW AM 1. LocuMA Various 1 t._t,,onr5 wit.ll i n pmxrcy boundaries. _
1 DO ruU C111M MW t0 QIIaOW I1e1! --- yez
0. fill mAtCrl4l b.UILe of ill( 11 IU be tn,Liod A N -A
L HQ- .-dl t??w?1cJ m+I;ntl be MIr.PpcJ AnU CIOU11A 10nttnlledl Tn SCCW'('D'r' - With Erosion Control
Plans approved by Meckla.-llburc County.
F. Typc AI cQ,,-ament I., he mxd varies
G. Will MAI%MAAd he Ctmud .A IfAA%Adi16A9 tau,pnNnt Iti prOleGt Nlt' 11 vet. 1.01AIR (WX in?y t0
distu L*_- l .
DAF41
R". l on e
P. 5/5
Y. 60mmw 1111 of r.,;.Q,? "
A. 1. m..at
Z cameo dd_ Fiu'lert is a r7161.)".7ness par

Lt1}Ct' ctrl( rJ1-t'eft 3rCi]s fls atYt+=luT.i@S.
JA otow
IL I. L0141wal varic:, -- 5 to 20 arras
2. V Mtlbt of Roth) &b0.4 +•~ A40 le Varies; - 1 to 70 feat above 100 Ye. fil
3. Soil 1.m tttad ttnttur.
d. Tyra at b"41nj fa,lyttm ;, ?1rwcalan Various of f'ice and Wmreh0uge
S 5tw40 ditooaal 3Ad10? w3?a3 04A4r tl%4LM..41 A. Esitunl X M4nnerd
IL o4sarlb. C tl<?rlrtte Mccklr_nbur IJz .t 1 it Oc ?rttnent fx ?l l plant
IL LAr.d t;I1 W1CAtlrln leuel. ? rl Ot;VELOreO R.t,..r_, ftr_jhA ; C03eMUlvITY RURAL
'
4C
-NSZ AVATKN. 07MttR f5et CAMA. t.o4d LuW Uw m
VC ?eRaMiA4 a pill ArW Wm" QuAlrly ap syft",w.l
A- 0031 th4 "U'SQ I! Ornlftt IR+04Vt th. PIACV" At AI fill -4krr4a hett,- ...t?„ !..=h .44tr1 YA 100 yeax
IL I. Will AM MAOdfw 4,whar.t tma AaN!!At wauM L a rttutt of pror?cCt 4411Yity e1 piAAAOd ut. Of M.e I' lord
4ru rO trwins twuset eo.no4tliant Yt1?F+v_
I Type o/ 4iych4r%tt
1 Lew?on at diwb." t.t
VIL hs.ent na er *-W"" «e,'im (if k fW .A 1
VUL Ls prtpk nltetbett Ar•d irw cult, of pr"ie.,l Orsanment of Alttty CA.pt of EApttrn W Scan prw4u far
*Wk low madmet mna, it 4*okablt: hone
LIL L"el Ot Of dlt.tt !*,ojk W to 4o."gkw me6mtl: 10 Y°t-n'r'--, (a9 trarjc d@VC ULxC l
X In tddw" Ie the oaA4s 41.4 ..Wk.Mkm Mint, the We Joel l4t.rt1 RWW be p...:dta{t •••
A. Aaioch A Walt Of LAW dyad (-4h SYte AtrdicuidA aMyl oI gthwr )n.uwnenl Wulff r*WA 441WWb"A
l:W-
hl
4 I
e to the AllKad a?ortY. OR It 4e.ol46e4 6 rot titiimiAl to be the o"rter GJ turd property
,
tt" f-viva A cony of Utt deed or gtlttl (tll1lTtam.4 Wide *Mom the Q...er 413,m, lids plul wt11t4TA
Prr^iNivn ham (at a.
r
?rw
to Corry out M4 trpisct on hi114nd.
L A41A,411 an #QLW,t* -,wil 8134 er&
"
w., 1a 1014 On !% Y I f
Whllt pa~ tun low/union ho"et for
4etarltl. Nett: Cr.g. 4?7.rlnft mvierr.d - en4y h.-M OuAlky Coon
, 444ea46d.
G A coot of tht 44944uuon 4^d 01-14 rnwt ye f.r.ed utlon 3di4t
3nt rrearran lu lvwnve ev rtywutd v
4MIA04,n4r) rN by YvOliiJ11nn((3.S. 113.729 (d)) EIIICI --- tthed
0. Lill AAra.q -4 cam0lete Adar014et Of Iht rr04rt3M 14NOwntr? •.rlh Nto+rty WiaiftA% Avej, Ant"
SWA
"'n
.
7
o" AAw )C d4r? to vouch t0 tuamrl uo11r*4nh to annc,n hit.d
XL Caruflauiae 1 Cntl/y that to lht !}tll o/ . ttrrawltd We r
a' P Qadltd uu.rty 6enlOrret
aNw &'* Sr444 of North GAaolr4Ah tawo-ed 4o+aaat m •
wr..t
ML4n - 4-titrent Vol" Latfl pra1tr3m M tro-crtm and wlll Pm ca..4u4wd -n a
. "
kiL Any p.nn.t t,wed pj,."4.v la tni4 aaolletlinA -ill Alfa" 6.1y
C3Nrr4 Aoo4ic.in tA. daw.lo4menl arxnt>.d 1. this agpli
a^d 4134. u fhayld thertlart drwriy4 in
h
_
t
e Aue4i4A4r..? a.•d p1u Att AAll4)palt4 Orreb
aM?l Aeirr,t,.t, rnelwlin( c.Am4rt ctlan. Lar;.aettlQlt, fltl/Af
AAd 13rtd Cl
,
ean in (, -,
OA7L . .
Aealic>,nt'1 SiNt4tAn
aA IF-4Q
r.. 3!! AEVFR<tC trrte rn.......-.-
DE,%1 ID: ACTION ID:
Nationw-idc Permit Requested (Provide NationA-ide Permit #): Nt-1P 26
JOINT FORM FOR
Nationwide permits.that require notifidation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MANAGEMENT
NC DEPARTMENT OF ENVIRONMENT, HEALTH,
AND NATURAL RESOURCES
P.O. Boy. 29535.
Raleigh, NC 27626-0535
ATTN: MR. JOHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DIVISION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name: NationsBank (Carolinas) N.A. as Trustee
2. Owners Address: NCNB Real Estate Funds 1 NationsBank Plaza, -Charlotte 28255, 'ir.n Loyd Boyce
3. Owners Phone Number (Home): (Work):- [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number.
Barrett Kays & Associates, P.A.
224 Fayetteville St. Mall stp. 100
Raleigh. NC 27601
5. Location of work (MUST ATTACH MAP). County: Mecklenburg County, -NC
Nearest Town or City: IlunterGvi 11 e, NC
Specific Location (Include road numbers, landmarks, etc.):Take I-85 to 1-77, to Huntersville, get off
at Huntersville exit. Take Gilead Road west 0.02 mi io entrance of Huntersyille Business
Park. Take left onto Kincey Road and park at end.
6. Name of Closest Stmarn/River. Torrence Creek off Rock, Creek
7. River Basin: Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS II? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this propert y? YES i J
If yes, explain. :SrAY?2? - 88 -10? Cl;56W - C02-3 - 2-- OHO ) SA W 26 - 89 - (o J
10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: 0.84 acres
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Fill ed: ^' 4.4
Drained:
Flooded:
Excavated:
Total Impacted: " ®.4

NWP 26 cont.-
12. Description of proposed work (Attach PLAN'S-8.1/2"X 11" drawings ordy):
see attached map
13 Purpose of proposed work: road crossing cut through waters of U. S. BMP's will be used
to minimize impacts.
14. State reasons why the applicant believes that this activity must be carried min wetlands. Also note res
taken to minimize wetland impacts. road crossing w 1 cross area o haters o U. S . 1s
used to minimized impacts.
15. You are required to contact the U.S. Fish and Wildlife Service (USFWS) and/or National Marine Fisheries Service
(NWS) regarding the presence or any Federally listed orproposed for listing endangered or threatened species or critic:-
habitat in the permit area that may be affected by the proposed project. Have you done so? . YES [X) NO[
)
RESPONSES FROM THE USFWS AND/OR NMFS SHOULD BE FORWARDED TO CORPS.
16. You are required to contact the State Historic Preservation Officer (SHPO) regarding the presence of histo is
properties in the permit area which may be affected by the proposed project? Have you done so? YES ( x) NO[ RESPONSE FROM THE SHPO SHOULD BE FORWARDED TO CORPS.
17. Additional information required by DEM:
A. Wetland delineation map showing all wetlands, streams, and lakes on the property.
B. If available, representative photograph of wetlands to be impacted by project.
C. If delineation was performed by a consultant, include all data sheets relevant to the placement of the
delineation line.
D. If a stormwater management plan is required for this project, attach copy.
E. What is land use of surrounding property? rural farmland, 1-77, business development surcoundi
F. If applicable, what is proposed method of sewage disposal? town sewer system

v, .P: 0 23 95
is Si - ..,=Date: .
Barrett Kays and Associates, P.A.
"224 -Fayefteville -?E: -IrTall
Suite 100
Raleigh, NC 27601
(as agents. for Nationsbank (.Carolinas) N.A. as Trus
DEINI ID:
ACTION ID:
Nationwide Permit Requested (Provide Nationwide Permit #): _ NW #33
JOINT FORM FOR
Nationwide permits. that require notifidation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATM: CESAW-CO-E
Telephone [phone] .
WATER QUALITY PLANNING
DMSION OF ENVIRONMENTAL MANAGEMENT
NC DEPARTMENT OF ENVIRONMENT, HEALTH,
AND NATURAL RESOURCES
P.O. Box 29535
Raleigh, NC 27626-0535
ATTN: MR. JOHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DMSION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name, NationsBank (Carolinas) N.A. as Trustee
Attn
2. Owners Address: NCNB Real Estate Fund, 1 NationsBank Plaza, •Charlotte 28255, Mr. hoyd Boyc
3. Owners Phone Number (Home):
(Work): _ [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number.
Barrett Kays & Associates, P.A.
224 Fayetteville St. Mall ,StP 100
Raleigh. NC 27601
5. Location of work (MUST ATTACH MAP). County: Mecklenburg County, -NC
Nearest Town or City: Huntersvi ll NC
Specific Location (Include'road numbers, laridmarks,,etc.):Take . Z-85 to 1-77,- to Huntersville, • get off
at Huntersville exit. Take Gilead Road west 0.02.mi to entrance of Huntersyille Business
Park. Take left onto Kincev Road and park at end
6. Name of Clos; st St vam/River. _ Torrence Creek of £ Rocky Creek
7. River Basin' Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS H? YES [ ] NO [x]
9. Have any Section 444 permits been previously requested for use on this property? YES [ 1
If yes, explain. 5H W Leo - 2S$
- I 'I 1 T- .- I
10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: Q. ac--s
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Filled: 0.10 Acres
Drained:
Flooded:
Excavated:
Totallmpacted: 0.10 Acres -
NWP 33 cont.
12. Description of proposed work (Attach PLANS-8 1/2" X l 1" drawings only):
SEE ATTACHED MAP
13 Purpose of proposed work: to facilitate site grading
14. State reasons why the applicant believes that this activity must be carrie-d out in wetlands. Also. note measures
taken to minimize wetland impacts. parcel 4and lockedCiy'§t'ream'_and wetland. Original
grade will be returned to site, or permitted by N14P 26, as per S. .Lund, ACOE.
15. You are required to contact the U.S. Fish and Wildlife Service (USFWS) and/or National Marine Fisheries Service
(NMFS) regarding the presence or any Federally listed orproposed for listing endangered or threatened species or critical
habitat in the permit area that may be affected by the proposed project. Have you done so? . YES [ X] NO[
)
RESPONSES FROM THE USFWS AND/OR NNIFS SHOULD BE FORWARDED TO CORPS.
16. You are required to contact the State Historic Preservation Officer (SHPO) regarding the presence of histo=c
properties in the permit area which may be affected by the proposed project? Have you done so? YES f ] NO [ ]
RESPONSE FROM THE SHPO SHOULD BE FORWARDED TO CORPS.
17. Additional information required by DEM:
A. Wetland delineation map showing all wetlands, streams, and lakes on the property.
B. If available,, representative photograph of wetlands to be impacted by project.
C. If delineation was performed by a consultant, include all data sheets relevant to the placement of the
delineation line.
D. If a stormwater management plan is required for this project, attach copy.
E. What is land use of surrounding property? rural farmland, 1-77, business development surroundi
F. If applicable, what is proposed method of sewage disposal? town sewer system

:.....::_...,_,..,_,.,.,. -. -Barrett-Kays-land--Associates.i...p.:A.....
224.Ea?etteville St. Mall
.Suite 100
Raleiglny`_:NCa2?60.1. ;? : '
,(as agents for.Na.tionsbank (Carolinas)N.A. as Trust
is w

i

ti
r
w
o ^+
r ?
%
? a

a
a
Fd
.1 J ' 1
w 9?
z „
V 7
Sa
z
k ?r
v
•t-' '
m
W
w OIL
- - - - - - - - - - - - - - -
N
M V d
~V .
-lb
-?`
40
pa
LIJ
IL
w
m
Q w ?
w ?.
W
W y?
- ct \
0
L f L-ej
o?

?r

i Z
I
1 .?
III
1
1 i
I!
j`.
?I
I •1

.

DATA-FORM
ROUTINE WETLAND'DETSWINATION
0 987 COE Wetlands Delinoation Manual)
Projectisite: _ '??LIV???rSy???? ?????Si?1?'SS
- ???- Date: O rj
AppGcant/Owner.
-?? hC?? i? ' 1 CountyK ?4
Investigator: ?Lv State: N (' , 0
Do Normal Circumstances exist on the site? ( No Community 10:
Is the site sign'if'icantly disturbed (Atypical Situation)? Yes (ITSP Transect I0:
Is the area a potential Problem Area? Yeses? Plot ID:
(If needed, explain on reverse.)
VEGETATION
rnlnem 11= Spec gy rr, Indleator
r v,
7.
8.
P*fftM of Don inert Speaks the Awt+ O-K XAC1f -wl•
lexaWk p FAG).
p2miment Plant Soe4;ee Strettrm Ind;cator
t.
11.
12.
13.
14.
15.
1 s.
R.rrtarks:
HYDROLOGY
Recorded Daft (Qeseri* in Rarnarks): Weds Flydrotocy lndoatnrs:
.... 6t»ant, Lake, or ride Gaur Primary b4olz n:
_ AerW Photogr*w. _Inunclatsd
Ottw
? ,,,?[lat ewl in Upper 1.2 inches
..
o Recanted Deta AvsUb(e L.,* Marks
L IM$
Dop*sits
Feld Obaervatfons: 'nape Prater In Wayland.
5e00ndary ndlaators (2 or more required):
Depth of Surface Water. ? ( ,rQrtJ Flout Channda in Upper 12 Inch*$
Wate -SWned U+Y"
Depth to Free Wear In Ph: 7 1 QnJ _
Local Sca Survey Data
FAC-Nvrtral Test
Depot to Saturated Sal: Qn.) r, Od»r (amain In Fiernae")
Fternarks:

SOILS
Mao Unit Noma
(Series and Phssa): _i . "
Draina4a Ciaaa; G/
-
Taxonomy (SUbOrallpi Feld abvorvationa
: ?? 1 1 1 A r r .,
Cotrfirm Mapped Typ.?
Proft14 L' Yap .'No
D4aatiDtian-
Depth
Matrix Color Motto Colon Mottle Texture C
L^?F,ee!„ Hnrfzan jL1un4?i Moirt! fmurt?g{I Me7et) A un ce t s oncrottons,

F WAC Soil Ir4cuto v:
Iifstosol
•?__. M#stlo Epipadgrt
Stdfldie Odot
Moisture R.ginw
• '? '='??'????'0r'La+?-Ctstxtw'Caton •
Ft«nwks:
HCh OMenlo Content in Suttsas Lvor In Sandy Sops
a Strsaidnp in Sandy Sorts
--w on IAOd Hyddo Soria Ust
listed an Mcdorr Hydro Sei4 List
. ` oaw. (>5?(.ir,. En Raet+.rkal . " .

WET1AlYD DIE I M1NATWN
Hydt"hytc Vert Pro..trt7 M (Card.)
Wed&W HydrdoW Prumn? ., No (Graf.)
Hyd& $d(s Prw,#M7 «
Is this S&TgAm Point Wtfiin a W.t ww? No
A.twks:

DATA FORM
ROUTINE WETLAND DETERMINATION
(1987 COE Wetlands Delineation Manual)
f

ProjecVSite: Qr {- rS?1: P ? ?`?i t 1 P SS i?c> (1< Date: 7 9,5
Applicant/Owner. .
County 1?J1 ?r?
Investigator: ?
State; WC,
Do Normal Circumstances exist on the site? ? No Community ID:
Is the site significantly disturbed (Atypical Situation)? Yes 14- Transact ID:
is the area 3 potential Problem Area? Yes o Plot ID: ,q
( if needed, explain on reverse.)
VEGETATION
04minam Pleat soecioe Sim IndlGmr Qqrninnnt Plant Spades Stratvrfl Ind;eetor

.5. 13.
e. 14.
7. 15.

8. _
Is.

Psrornt of Doman rtt Speo6s that Apt, O!M.xAC -w crftc
(exaiudirq FAC-).
Ranarks: 1(?Q
HYDROLOGY _
Reawtied Data Meserii? In Rwnsrks): Wsttand Hydrow" Indcstmn:
.? Strtsrrt, Lasts, or Tide Gauge Primary h+dlcaton:
_ Aaiai Rwftgrsphs Inundstsd
Other Seum"Od in Upper 12 h+dt.s
?
ed Dsta Avsitabts _ Water Merles
L Drttt Uses
Sediment Dspoths
R
0b**rvv6an*: Lv;vinape Pstte., In Wetlands
Secondary Indicators t2 or Mom required):
Depth of Surfmo Water. ?,\ on.) _ Crddasd Rout Charnels 10 Upper 12 Inches
Water-Stained Lsavw
Depth to Fres Wsar In Ptt: 1 ? ? 0 Rna V Load Sol) Survey Data
FAC-Neutral Test
Depth to Saturated Soil: C? Q on.) r Other Gain In Remarks)
Remark::

7 Qnu n
vv ?w
W-o Untt Name
(Series and Phase): I I.. C Drainace cleft: ?r?
I ?- Feld Obaervabon,
?- l
Taxonomy (Subgroup): 1 t Id T- Confirm Mapped Typ.) Yes ' do
ProfU9 Dill tien-
Depth Matrix Color Moue Colors Mottle Texture, Concretions,
he Horizon IMunsall Mo;g) (Mu"e{( Motet) A?unaance/Gomraet qtructyro. Ztc
?l
Hydrio Soil Indicaton•
Hstosoi Cor+ontfoe+s
_ Hlstlo Epipedon Hlph Orasnlo Canftm In 3utface Layer in Sandy Sofas
_,.,SWIdic Odot
Aquic Mo4wro Roginw _ Organic Stx.aklnp in Sandy Scat
Reducing Condldone .?? on Loosl Hyddo Sacs Ust
G"y*d wLaw•CNWMtdon llsurd on tiatlort+i Hydrlo Sails Wt _
Odw. (> *Min.In Rrnsrks) .
Rornafks:
WETUMD DETMOAMAT10N
Hycimphytio VaQ.twtian Pro",, t YM rde)
Wsd+rd Hydrology Pro"" Yee (Circle)
Hydtla Solis PnseatT Yee Is tHs Sampling Point Within a Wad 4m? Yss No
Remarks.

DATA-FORM
ROUTINE WETLAND DETERIMIINATION
0 987 COE Wetlands OelineIIVon Manual)
Project/Site: ??iS??\Css I>> <I? Date: lU
Applicant/Owner; c?Sl I?1? i ?? County: ,C [It -71 1
Investigator; ?vJ State; Q
Do Normal Circumstances exist on the site? No Community ID:
Is the site sign'if'icantly disturbed (Atypical Situation)? Yes (jq3-_) Transect 10:
Is the area a pctential Problem Area? Yes o Plot ID:
(If needed, explain on reverse.)
VEGETATION
Dprninaftt rut Speclee r*+ l f r Dgr,nimant P1ent S0e2iee Stratum Ind;cator
10.

4.1, 12-
b. 13.
a. 14.
7. 15. '
8. 1 e.

Ptroem of CkxWntftt Species *.A w 0!K. XACY ct'1= '
("*I% ino FAC-1. -
R.rruvict:
1.1 onant nay
Oarr? IDaycrit e in R.m.cal: Wetland HydroioQy gtdiaatnrs:
Strut, Lake, or Tide G& Qt Prlrrwry
AwW Rwtogrq)1W.
Otter
F Inundsttd
?sutrttsd In Upper 12 ifldm
ded Diu Avail"
ZN* - Waw Mtrks
y7? Unes

Field Obe*rvttiOrse: y?edGttsfit Deposits

neQe Pstterna in Wetlands
5eaondary )ndlostors (2 or more required):
Depth of Surface Water On-) Root Channels in Upper 12 Inch"
Wetw-SWned Law"
Depth to Free Water In Pit: U (In.) _
Local Sod Survey Data
FAC-Neutral Tact
Depth to Saturratod So'!: 0, Otter (C*ain In Rarnaria)
aerrtariu: ? .?•

SOILS
_ MAP U ntt Nome
(Series and Phsse): `? 1 ' l?-_ Dralnepe Clw: y "
Feld Obeervetiona '. V
Tsxonorny (Subgroup): O t.I V r't n 1 C4OMrm MapQed Type? Yet , No
Prvfu'p Description
Depth Matrix Color WCle Colors Mottle Textures Coneret cns,
rn h," Heriton Wuneoll_ Moittl (MuMell Moiet) Abundence/Contreet Structuro. wtc.

Hydrio S«I Indlcstors:
HMlo Eaipedon
Sultid)e Odor
??taduolrq Condlelona
???1'+d Law Ctrrwna tdoes
Rernwks:
... •- /caesorrtlons
Vim. ah Orpsnio Content In Swtsae L.yer In Sandy Solis
a Straak)no in Bandy Sale
7tlrftW on Loud "do Sala L)st
Llstsd on Nm6ond Wydr)o SaRe List _
Ottw. ()rY u1n.to R.rnarks).
WETL"D aETERMl UTMN
IMMUNE
Hydrophytio V.Qstatden Praas W t No (arde)
WatLed HYdrok y Pra+arttt No
Hydtia SaUs Praaant? ee No
Rwrwks:
(Circle)
Is ttris Sarrtp&v Point Within a Wetland? Yas No

U .
/i
p 10
O /f
o ? ? 1
u
Un ,
11
7
1 I
` I
>
I
a ? II
Il
11
.. ?-r I p
p 79 iI u
II
1
9
77 : s
36
h
% - 716 O • 7h-'
dr,
Ir / loo /i - -= ..I
C
n
\j O L °;( Y > u v
II 0 ,r /. sun O (C C
i---?/ )qa O I /' 0 1176
77
ubsta onj ? / °ry'? `\
P ? 1
ni 21u ?? gi
. ??o- a?` ^• 1 99 t Q C
ILI
Figure 1 BARRETT KAYS & ASSOCIATES
site Location Map Civil Engineering / Environmental
(not to scale) Engineering / Environmental Assessment
304 East Jones Street / Raleigh. North Carolina 27601 / 919-828-19,
s°
a " V
?\ u1
? f

State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
December 7, 1995
REGISTERED MAIL
Mr. Floyd Boyce
NationsBank (Carolinas)
NCNB Real Estate Fund
1 Nations Bank Plaza
Charlotte, N.C. 28255
N.A. as Trustee
Project # 951145
Dear Mr. Boyce:
X1F7_9;AVA
r7e
C) F= F=1
b
N
r
DERrii? ?
??IZSZSZ'dZrvt'
The Division of Environmental Management, Water Quality Section has reviewed your
plans for the discharge of fill material into an additional 0.4 acres of waters and/or wetlands
(a total of 3.71 acres of wetlands was filled previously) located at Reese Boulevard and
Kincey Road in Huntersville Business Park in Mecklenburg County for road crossing and
sewer line installation. Based on this review, we have identified significant uses which would
be removed by this project. These uses are water storage, streambank stabilization, pollutant
removal, wildlife habitat and aquatic life habitat. Furthermore, insufficient evidence is
present in our files to conclude that your project must be built as planned in waters and/or
wetlands. Therefore, we are moving toward denial of your 401 Certification as required by
15A NCAC 2B.0109. Until we receive additional information, we are requesting (by copy of
this letter) that the U.S. Army Corps of Engineers place your project on administrative hold.
Please provide us with information supporting your position that your project must be
constructed as planned and that you have no practicable alternative to placing fill in these
waters and/or wetlands. Specifically can you construct Kincey Road by realigning it to skirt
the edge of the wetland and then curving to intersect with Reese Boulevard (see attached
sketch)? Alternatively, could the existing gravel service road in the back of the wetland be
used as an alignment for Kincey Road? It is likely that removal of this fill and restoration of
the wetland to its original grade will be required by DEM. Any documentation such as maps
and narrative that you can supply to address alternative designs for your project may be
helpful in our review of your 401 Certification. Please respond within two weeks of the date
of this letter by sending a copy of this information to me and one copy to Mr. Todd St. John
at the Mooresville Regional Office at 919 North Main Street, Mooresville, N.C. 27115.
P.O. Box 29535, Poleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunrty Affirmative Action Employer 50% recycled/ 10% pcst-consumer paper
Page 2
Mr. Boyce
We are also concerned that the wetlands were filled before the 404 Permit and 401
Certification were issued. As you know, these approvals are needed before wetlands are
filled as described in the Clean Water Act. At our first site visit on 13 November, the larger
area had not been filled. On our recent visit on 6 December, both wetlands had been filled
before approvals were obtained. Please inform us as to when the fill was placed in the larger
wetland near Reese Boulevard. This application was discussed with your consultant (Mr. Jim
Spangler) on 27 November and 29 November to arrange a site visit and at that time I
discussed concerns we had with the design for the road. The fact that some fill occurred
before the Certification and Permit were issued in spite of our repeated conversations and site
visits is of concern. I can be reached at 919-733-1786 if you have any questions.
Si c rely,
Jon R. Dorney
Water Quality Certi n Program
cc: Mooresville DEM Regional Office
Wilmington Office Corps of Engineers
Central Files
Jim Spangler; Barrett Kays and Associates
Stephen Lineberger, WGM Design, Inc.
Owen Anderson; WRC
Steve Lund; Asheville COE
951145.nty
I?•? spa ??
.s
' W
X cc
0
?Z(7`
\ !•, I
;.:
Co
W Q,(
V 1
.17
P
o
,p y LL I
u Q N
W Al
min
V \
0
/Y 1I •.1
? j

J

f•\
i
J-
I . 1 ',
• swr • t
ENVIRONMENTAL MANAGEMENT COMMISSION
David H. Moreau
Chairman
Charles H. Peterson
Vice Chairman
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary

NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES
Chaves L Baker
Daniel V. Besse
Douglas S. Boykin
Moses Carey, Jr.
Franklin S. Clark, III, M.D.
Carla E. DuPuy
Robert Epiing
Will B. Fowler
Alice D. Garland
Dennis C. Loftin
• Edwin S. Melvin
Jeffrey V. Morse
Ryan D. Tumor
Richard V. Watkins
Lawrence R.Zucchino
TO: EMC MEMBERS
FROM: 'AN BESSE%Z?
BOB EPTING
DENNIS LOFLIN
LARRY ZUCCH NO
DATE: DECEMBER 8, 1995
SUBJECT: HEARING OFFICERS' RECORD OF PROCEEDINGS
PROPOSED WETLAND RULES
Enclosed is the Record of Proceedings from the public hearings
on the proposed wetlands rules which were held in January, 1995.
This proposal will be an inform ation item. on the December 14, 1995
Commission agenda. This issue will be discussed during the meeting,
however, a vote on whether to adopt these rules will not be taken at
the December meeting.
We feel that this proposal represents a reasonable compromise
based on the information and comments that have been presented to
us during the past year. These rules represent one component of an
overall wetlands management strategy that is being developed by
the Division for consideration by the Commission. We look forward
to discussing this proposal with you at the December, meeting.
An Equal Opportunity Affirmative Action Employer
a?
STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT,
HEALTH AND NATURAL RESOURCES
REPORT OF PROCEEDINGS FOR THE
PROPOSED RULE AMENDMENTS AND ADOPTIONS RELATING
TO THE CLASSIFICATION"-'OF WETLANDS AND REVIEW
PROCEDURES FOR 401 WATER QUALITY CERTIFICATIONS FOR
ACTIVITIES WHICH INVOLVE THE DISCHARGE OF FILL
MATERIAL INTO WATERS AND WETLANDS
VOLUME I
SUMMARY AND RECOMMENDATIONS
DECEMBER, 1995
PUBLIC HEARINGS
JANUARY 9, 1995 JANUARY 11, 1995 JANUARY 12, 1995
RALEIGH, NC ASHEVILLE, NC JAMESTOWN, NC
JANUARY 18, 1995 JANUARY 19, 1995
GREENVILLE, NC WILMINGTON, NC
ENVIRONMENTAL MANAGEMENT COMMISSION
RALEIGH, NORTH CAROLINA
V,
TABLE OF CONTENTS
VOLUME 1 - SUMMARY AND RECOMMENDATIONS
PAGE
SUMMARY AND RECOMMENDATIONS 1
V.
?
.
INTRODUCTION 1
SYNOPSIS OF MAJOR CHANGES SINCE PUBLIC HEARING 9
MAJOR COMMENTS RECEIVED AND STAFF RESPONSES 10
ATTORNEY GENERAL'S ADVISORY OPINION 1 - 1
SUMMARY TABLE 2-1
RULES AS RECOMMENDED FOR ADOPTION 3-1
NOTICE OF PUBLIC HEARING 4-1
NOTICE OF EXTENSION OF PUBLIC COMMENT PERIOD 5-1
DESIGNATION OF HEARING OFFICERS 6-1
RULES AS PROPOSED FOR PUBLIC HEARINGS 7-1
r
SUMMARY AND RECOMMENDATIONS
INTRODUCTION
As a result of increased awareness of the relationship between wetlands and
the protection of water quality, the North Carolina Division of Environmental
Management (DEW is proposing to adopt rules and amendments to 15A NCAC 2B
.0100, 15A NCAC 2B .0200, and 15A NCAC 2H .0500. These rules and
amendments were published on December 1, 1994 in the North Carolina Register,
Volume 9, Issue 17. The proposed rules rill establish classifications for wetlands,
define wetlands that will be classified, designate uses for wetlands, establish
narrative standards to protect the designated uses of wetlands, and also provide
greater detail on the procedures used to review requests for 401 Water Quality
Certifications.
Five public hearings were held on these proposed rules and amendments. The
hearings were held in Raleigh, Asheville, Jamestown, Greenville and Wilmington on
January 9, 11, 12, 18, and 19, 1995 respectively. Approximately 1,000 people
attended these hearings with 250 people making verbal comments. The hearings
were tape recorded and persons interested in listening to any one or all of the
hearings may contact the Ecological Assessment Group of DEM's Water Quality
Section. Approximately 1500 written comments were received during the comment
period which closed on March 20, 1995. The majority of the verbal and written
comments addressed the proposed review procedures for 401 water quality
certifications found at 15A NCAC 2H .0506. The written comments are presented
in chronological order in Volume II. Approximately two thirds of the verbal and
written comments expressed support for the proposed rules. The major issues that
were raised are discussed below.
The review process has been a lengthy one, but not without a purpose. The
Hearing Officers and the Division felt that it was prudent to assimilate and address
the major comments and concerns. This was accomplished through several forums.
There was input from the public hearings, from the General Assembly, and from the
Wetlands Task Force convened by Secretary Howes of the Department of
Environment, Health, and Natural Resources. The outcome is a set of rules that
considered all the information and have balanced environmental and developmental
concerns. In other words, the rules attempt to address the need for environmental
protection with sustainable economic growth. This is accomplished by placing
greater emphasis on those wetlands most important to water quality protection
and, at the same time, reducing the regulatory burden on those wetlands with
1
V
minimal water quality benefits. The rules, as proposed, will codify these review
procedures increasing the predictability of the process for most parties involved. In
addition, the Hearing. Officers believe that the establishment of a wetlands
restoration program within the Department is an essential component of an overall
strategy to protect the aquatic resources of North Carolina. The wetlands
restoration program would also ease the burden on applicants of complying with the
proposed mitigation requirements.
N
SYNOPSIS OF MAJOR GE
CHA S TO PROPOSED RULES
SINCE T HE PUBLI C HEARINGS
As a result of the comments received during and after the public hearings, the
Hearing Officers have proposed making the following changes to the rules as
presented at the hearings and published in the December 1, 1994 edition of the
North Carolina Register.
.0101(e)(6)
DELETED: "but are not limited to wetlands contiguous to waters designated as
ORW and"
EXPLANATION: The UWL designation was intended only for those "wetlands of
exceptional state or national ecological significance which require
special protection to maintain existing uses." Including all wetlands
within 575 feet of waters designated as ORW resulted in many acres of
wetlands that did not contain unique attributes being automatically
included in this supplemental classification.
.0103(c)
DELETED: "and published by the North Carolina Department of Environment,
Health and Natural Resources as outlined in `North Carolina Division
of Environmental Management Wetland Rating System' or subsequent
versions. Copies of the NCDEM Wetland Rating system "
EXPLANATION: Due to the evolving nature of wetlands evaluation methods, there
is little agreement on what is the most appropriate methodology to use
r to evaluate wetland values and functions of wetlands. Because of the
2
V
inability of the scientific and regulatory communities to agree on a
specific methodology, and the numerous concerns expressed with the
North Carolina Division of Environmental Management Wetland
Rating System, it was decided not to cite a specific methodology. Any
method approved by the Director may be used by an applicant to
demonstrate that the designated uses are not present.
.0201(f)
ADDED: "Activities which receive a water quality certification pursuant to these
procedures will not be considered to remove existing uses."
EXPLANATION: This phrase was inserted to clarify that the procedures outlined
in 15A NCAC 2H .0506 were consistent with the antidegradation
policy. If these procedures are followed, the Division has determined
that the activity is in compliance with the antidegradation policy.
.0220(a)(6)
DELETED: "Recreational, educational and scientific uses."
EXPLANATION: Deleted to emphasize that the primary focus of the 401 water
quality certification for impacts to wetlands is on the role wetlands
play in the protection of the water quality of other surface waters.
Wetlands should be protected for their ecological role in the protection
of the uses of surface waters. For example, water quality certification
for impacts to wetlands would not be denied solely because the area
has a high value for recreational activities. However, if the same area
was performing functions such as water storage and nutrient removal
which were contributing to the protection of other surface waters, the
certification could be denied.
.0502(a)
ADDED: "Submission of an application to the Division of Coastal Management
for permits to develop in North Carolina's coastal area shall suffice as
an application for certification."
EXPLANATION: Clarifies that an application for a Division of Coastal
Management permit is also an application for a 401 Water Quality
3

Certification.
.0506(a)
DELETED: "the significant existing uses present in the wetlands or surface waters
in question and"
ADDED: "An applicant may also demonstrate that designated uses are not
present at a particular site using a wetland ecological evaluation
method approved by the Di;ector; otherwise the designated uses as
outlined at 15A NCAC 2B ?220(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."
EXPLANATION: As with surface waters, designated uses are assumed to exist in
all wetlands unless it is demonstrated that those uses are not present
or attainable in a particular wetland. An applicant may demonstrate
that existing uses are not present by using a wetlands evaluation
method that has been approved by the Director.
.0506(b)(6), (c)(6), (d)(3), and (e)(2)
ADDED: "under U.S. Army Corps of Engineers requirements, or"
EXPLANATION: Compensatory mitigation required by the U.S. Army Corps of
Engineers shall be sufficient to satisfy the compensatory mitigation
requirements found at 2H .0506(h) unless the Director determines that
the mitigation proposal is not sufficient to ensure replacement of
existing uses that would be removed by a proposed activity.
.0506(c)(1)
ADDED: "or impacts less than 3 acres of class WL wetlands."
EXPLANATION: Clarifies that the Division will not require an applicant to
demonstrate that alternative sites are not available if the proposed
impact to Class WL wetlands is less than 3 acres.
4
V
.0506(c)(2)
ADDED: "or impacts less than one acre of wetland within 150 feet (including
less than one-third 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
States Geological Survey 1:24,000 (7.5 minute) scale topographical
map, or other site-specific data;"
EXPLANATION: The intent of this c4ange is to encourage minimization of
impacts to those wetlands that have been determined to be the most
important for the protection of water quality. Applicants that
voluntarily minimize impacts to meet the above acreage and distance
thresholds may proceed with the proposed activity without undergoing
the minimization review procedures found at 2H.0506(g).
.0506(d):
ADDED: "ORW
EXPLANATIOJ',1: ORW has been deleted from the definition of UWL. Wetlands
contiguous to waters designated as ORW play an important role in
protecting the uses of ORW's, therefore these wetlands should receive a
higher level of protection than Class WL wetlands. The additional
protection provided for these wetlands is limited to the compensatory
mitigation requirements. Mitigation proposals must be of the same
wetlands type and located within the same river sub-basin.
.0506(d)(1)
ADDED: "for wetlands classified as coastal wetlands pursuant to 15A NCAC
7H .0205, has no practical alternative as described.in Paragraph (f) of
this Rule, and;"
EXPLANATION: Clarifies that the review procedures for coastal wetlands have
not been changed. These review procedures are consistent with the
procedures used by the Division of Coastal Management.
5

.0506(d)(2)
ADDED: "for wetlands classified as coastal wetlands pursuant to 15A NCAC
7H .0205,"
EXPLANATION: Clarifies that the review procedures for coastal wetlands have
not been changed. These review procedures are consistent with the
procedures used by the Division of Coastal Management.
.0506(f):
dr
DELETED: "The basic project purpose cannot be accomplished using other
reasonably available sites in the same general area as the proposed
activity that would avoid or result in less adverse impact to surface
waters or wetlands"
EXPLANATION: Removing this clause clarifies that the focus of the alternatives
analysis is on the on-site minimization of impacts to wetlands. Only
when the impacts cannot be minimized to an acceptable level will the
applicant be required to examine off-site alternatives.
.0506(g):
ADDED: "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"
EXPLANATION: Addition of this phrase increases the flexibility of the review
procedures. If the applicant can demonstrate that the wetland does not
have significant existing uses, or that the activity, such as a utility line,
does not remove the existing uses, then the minimization review is not
required.
.0506(h): DELETED
EXPLANATION: Significant uses are assumed to exist unless the applicant
demonstrates that the uses are not present in the wetland in question
using a wetlands evaluation methodology that has been approved by
the Director. Please refer to the changes to 2B .0103 for further
discussion.
6
V
.0506(i): BECOMES (h)
.0506(h)(1)
ADDED: "Mitigation required by the U.S. Army Corps of Engineers shall be
considered to constitute the mitigation required by that certification
unless the Director determines that existing uses would not be
replaced."
EXPLANATION: Clarifies that the"bivision will not require additional
compensatory mitigation requirements unless the Director determines
that the U.S. Army Corps of Engineers approved mitigation proposal
would not result in the replacement of existing uses. The Hearing
Officers have directed the staff to negotiate an agreement with the U.S.
Army Corps of Engineers to ensure that the compensatory mitigation
requirements of the two agencies are consistent.
.0506(h)(2)
ADDED: "Mitigation shall not be required for impacts to Class WL wetlands of
less than 1 acre."
EXPLANATION: Provides relief from the compensatory mitigation requirements
for small projects. The intention of this provision is to encourage
applicants to minimize impacts prior to applying for the 401 water
quality certification and to allow reasonable use of private property.
When wetland impacts exceed one acre, all impacts, including impacts
less than one acre, are subject to the compensatory mitigation
requirements found at 211.0506(h)(7).
.0506(h)(3)
ADDED: "Participation in wetland restoration programs coordinated by the
Department of Environment, 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 the banking program is not practical."
7
EXPLANATION: The Department is in the process of establishing a wetlands
restoration program that will involve the development of wetlands
restoration plans for each river basin. The development of the
restoration plans will involve mapping the wetlands.in each river basin
and identifying potential restoration sites. The restoration plans will
focus on the restoration of wetlands within a watershed context to
address specific water quality and habitat related concerns. The
Hearing Officers believe that compensatory mitigation that is
consistent with these plans will have a greater potential to replace the
functions and values that-were lost through the permitted activity.
-or
.0506(h)(6)
Proposed language replaced with the following:
"Wetlands mitigation shall be conducted based on the following ratios
(acres mitigated to acres lost); 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 1000 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. 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. This subparagraph shall not apply to general
certifications until the Department has established a mitigation
banking program or until January 1, 1997, whichever occurs first."
EXPLANATION: These compensatory mitigation requirements are intended to
discourage development in the wetlands that are within 150 feet of
surface waters. Wetlands in close proximity to surface waters are the
most important for the protection of water quality and therefore have
higher mitigation ratios. The Hearing Officers have determined that
mitigation for those activities that qualify for a general certification
will not be subject to these mitigation requirements until the
Department has established a wetlands restoration program. This
8
I
decision was based on the fact that mitigation is not required today for
most activities that qualify for a general certification. Mitigation will
be required for those activities which impact over one acre upon
establishment of the restoration program.
.0506(i)
ADDED: "The Director shall not duplicate the site-specific application of any
guidelines employed by the United States Army Corps of Engineers in
evaluating permit applications under 33 U.S.C. 1344 and applicable
federal regulations." ,
.ac
EXPLANATION: This subparagraph was added to address the concern that the
proposed rules established a process that duplicates the procedures
used by the United States Army Corps of Engineers. The Division will
not duplicate any of the review procedures that are used on a specific
project. In general, this provision will restrict the use of the review
procedures to those projects which impact less than three acres of
wetlands and qualify for coverage under a Nationwide Permit issued by
the United States Army Corps of Engineers.
MAJOR COMMENTS RECEIVED AND STAFF RESPONSES
1. Comment: The Division lacks the statutory authority to promulgate and
implement the proposed rules and review procedures.
Response: The Attorney General's advisory opinion dated March 21, 1995,
which begins on page 1-1, states "the wetland standards and the Section 401
water quality certification review procedures proposed for rule adoption by the
EMC are adequately authorized by the North Carolina General Statutes and
consistent with federal law." The Division is acting within existing authority.
2. Comment: The proposed review procedures duplicate the procedures used by
the USACOE.
Response: The review procedures are designed to focus the state's
regulatory review on those aspects of the program that receive only
perfunctory review by the United States Army Corps of Engineers (USACOE).
Basically, for manpower reasons, the USACOE has implemented an
9
expedited review procedure for the majority of projects that impact less than
3 acres. The emphasis of the review procedures is on projects that impact less
than 3 acres of wetland and are located within 150 feet of surface waters.
The USACOE relies on the Division to provide a more careful review of these
projects to determine potential impacts to water quality.
The riparian headwater wetlands (wetlands located adjacent to streams with
an average flow of less than 5 CFS) are an example of a type of wetland that
is generally eligible for the USACOE expedited review. These wetlands are
some of the most valuable wetlands from a water quality perspective due to
their position in the landscape and their ability to remove pollutants,
including nutrients and sediments, prior to entering surface waters.
3. Comment: Proposed review procedures are unnecessary. The Federal
regulatory program is sufficient to protect wetlands.
Response: The federal program focuses its efforts on large projects that
result in the loss of large amounts of wetlands or wetlands located adjacent to
large streams and rivers. Scientific research indicates that wetlands
associated with smaller streams are important in protecting water quality.
Since small streams comprise most of the total stream miles in a watershed,
they intercept the greatest portion of eroded sediments from uplands before
they reach waters downstream.
Although the rate of wetland loss has decreased under the federal program,
North Carolina continues to lose wetlands through the federal program.
Without the state's involvement there would be little attention paid to the
quality of the wetlands lost in projects less than 3 acres in size.
4. Comment: The state needs to increase the protection for wetlands.
Response: The review procedures and mitigation requirements as proposed
will increase the protection of the wetlands most important for the protection
of water quality. In recognition of the potential importance of wetlands
located greater than 150 feet from surface waters, the mitigation
requirements are designed to encourage minimization of impacts to wetlands
greater than 150 feet from surface waters.
10
5. Comment: There are concerns with the proposed rules instituting fixed ratios
for various compensatory mitigation strategies. Fixed ratios may
underestimate fish and wildlife habitat and negate current flexibility.
Response: The Hearing Officers understand that fixed mitigation ratios are
not the ideal solution. However, fixed ratios do provide the predictability that
the regulated community requested. The Hearing Officers feels that this
increased predictability outweighs the loss of current flexibility. The Hearing
Officers are confident that the fixed ratios outlined in the rules will replace all
losses of fish and wildlife habitat.
.st
6. Comment: Recommendations were made to remove references to the Wetland
Rating System. One concern expressed was that many of the general water
quality standards at 2B .0220 (a)(1)-(7) would not be protected by the current
rating system. Another concern was using the rating system without taking it
through formal rule making process, public participation, and/or peer review.
Response: Due to the evolving nature of wetlands evaluation methods, there
is little agreement on what is the most appropriate methodology to use to
evaluate wetland values and functions of wetlands. Because of the inability
of scientific and regulatory communities to agree on a specific methodology
and the numerous concerns expressed with the North Carolina Division of
Environmental Management Wetland Rating System, it was decided not to
cite a specific methodology. Any method approved by the Director may be
used by an applicant to demonstrate that the designated uses are not
present.
7. Comment: The 401 Water Quality Certification applies to instream water
quality only.
Response: The EPA issued guidance in 1989 encouraging states to use the
401 Water Quality Certification process as -a mechanism for wetlands
protection. The 401 Water Quality Certification is a finding that all water
quality standards are protected. Wetlands are included in both federal and
state definitions of waters, therefore it is appropriate to apply the 401 Water
Quality Certification to wetlands.
8. Comment: The Clean Water Act states that 401 certifications can only be
denied if the proposed activity does not comply with Sections 301, 302, 303,
11
306, and 307 of the Clean Water Act. The 404 guidelines cannot be used to
deny certification.
Response: The proposed review procedures are used to determine compliance
with Section 303, Water Quality Standards. - The Division utilizes the review
procedures to determine compliance with Section 303. The only basis for the
denial of a 401 Water Quality Certification is a determination that the
proposed activity will result in the violation of water quality standards,
including the protection of existing uses. The proposed review procedures are
the mechanism that the Division will use to determine if the activity can be
conducted without a violation of the water quality standards.
Furthermore, the EPA supports the use of the 404 (b)(1) guidelines as a basis
for the 401 review process and recommends the use of the guidelines in its
guidance on administering the 401 Water Quality Certification program. Use
of these guidelines minimizes public confusion by establishing state and
federal wetland review procedures that are similar in nature.
9. Comment: Creation of wetland standards goes beyond the authority given in
the Clean Water Act. Only wetlands adjacent to surface waters are subject to
the Clean Water Act. The Clean Water Act has wetland classifications as a
supplemental classification and not a separate classification.
Response: Numerous court cases have established that non-adjacent
wetlands are waters of the United States. Although supplemental
classifications have been used to assign varying classifications to surface
waters, due to the signifcant differences in the uses of surface waters and
wetlands the water quality staff felt it was more appropriate to establish
separate classifications for wetlands: The Hearing Officers concur with staffs
position on this matter. The Attorney General's staff has reviewed the
proposed classification scheme and believes that it is consistent with the
state's authority to classify waters including wetlands.
10. Comment: "Contiguous" must be based solely on hydrology of the site and not
on an arbitrary distance.
Response: Although it would be preferable to use hydrology rather than
distance, it is not practical in most cases. A set distance provides a degree of
predictability that is currently lacking in the program.
12
11. Comment: The use of USGS maps to determine perennial streams is not
accurate in that they are field checked only once, at mapping.
Response: The Hearing Officers have determined that USGS maps are the
best source of information that is widely available to the public. Rule 2H
.0506(c)(2) was revised to allow the use of site-specific data in those areas
where field observations indicate that the USGS maps are not accurate.
12. Comment: The rules would create a lengthy and prohibitively expensive new
permitting process/program. ' .
. C.
Response: The rules do not create a new permitting program. The Division is
currently required by the Clean Water Act to use the 401 water quality
certification to determine if federally permitted activities comply with state
water quality standards. The rules as proposed do, however, reduce the scope
of the current review procedures by applying these procedures only to those
wetlands within 150 feet of surface water. This modification should reduce
the overall processing time and simplify the process for most applicants by
establishing thresholds where review procedures apply. Estimates from
Division staff based on a random sampling of applications for 401 water
quality certification from 1995 indicated that approximately the same
number of certifications would be issued under the proposed rules.
Although the rules do not establish a new program, they do codify the 401
review process followed by DEM. This is "new" in that DEM's review
procedures will be set down in formal rule resulting in greater predictability
in the process by providing a legal basis for administrative appeals of
arbitrary departures from the requirements of the rule.
13. Comment: Wetland protection programs in North Carolina have been
successful, and there is no need for additional protection.
Response: Wetland protection programs in North Carolina have had success,
especially in curtailing loss of coastal wetlands. However, wetland protection
programs currently are not focused on those wetlands deemed most important
for protecting water quality in North Carolina. For instance, the riparian
headwater wetlands (wetlands located adjacent to streams with an average
flow of less than 5 CFS) are the very important to water quality protection.
Because of their position in the landscape, these wetlands intercept the
13
greatest portion of eroded sediments and nutrients before these pollutants
can enter waters downstream.
Over 50% of the permitted wetland loss during 1991-1993 was allowed under
NWP 26, which allows up to 10 acres of fill-Although the Division does not
support the elimination of NWP 26, it does feel that projects that utilize
NWP 26 should be subject to more stringent review procedures than provided
by the USACOE in order to protect these headwater wetlands. The proposed
rules do increase the protection for those wetlands most important for the
protection of water quality (wetlands within 150 feet of surface waters).
Concurrently, requirements have *&en reduced for wetlands that are not as
important for the protection of water quality. The result is a focused wetland
protection program in North Carolina.
14. Comment: The rules would seriously jeopardize North Carolina's economic
development and industrial recruitment efforts.
Response: The Hearing Officers believe that the proposed rules would have a
positive effect on economic development and recruitment. The revised rules,
as proposed by the Hearing Officers, would focus the review procedures on the
wetlands which are the most important for the protection of water quality. In
general, these are wetlands that are located within 150 feet of surface waters.
This modification should both reduce overall processing time and simplify the
process for most applicants. The proposed rules will increase predictability
by codifying review procedures. Moreover, estimates from Division staff,
based on a random sampling of applications for 401 water quality
applications from 1995, indicated that approximately the same number of
certifications would be issued under the proposed rules as are issued today.
Finally, the North Carolina 401 program is similar to adjacent states and,
consequently, should not be considered a threat to industrial recruitment.
15. Comment: It is unclear if the rules protect existing "normal farming" and
"normal forestry" exemptions.
Response: Rule 15A 1`TCAC 2H .0501(a) specifically states that activities
described in Section 404(f)(1)(A)-(F) of the Clean Water Act are exempt from
the review procedures. This includes "normal farming" and "normal forestry"
as determined by the USACOE and EPA
14
17. Comment: The rules will increase the cost of or eliminate affordable housing
in many areas by encompassing the smallest of projects and non-beneficial
and questionable wetlands.
Response: The rules have been revised to focus review efforts only on those
wetlands that are most essential for the protection of water quality. The
reduction in the scope of the rules should reduce or eliminate the potential
financial impact for homebuilders. In addition, the increased predictability
should enable a developer to better predict and manage the costs associated
with complying with these rules.
18. Comment: The rules should require DEM to distribute copies of 401
certifications to appropriate agencies for review.
$es onse: Rule 2H .0512 requires an applicant to submit seven copies of an
application for a 401 Water Quality Certification. It has been and will
continue to be the policy of the Division to distribute copies to all interested
review agencies.
19. Comment: The rules should not allow wastewater or stormwater into
wetlands.
Response: The proposed rules do not automatically allow the discharge of
wastewater into wetlands. However, the designation of water quality
standards for wetlands allow the Division to investigate the feasibility of
utilizing some types of wetlands for the assimilation of wastewater and
stormwater. The Division believes that the use of some types of wetlands for
this purpose may be preferable to the direct discharge to surface waters. No
discharges will be allowed until the Division has determined that the wetland
can assimilate the wastewater without removing or degrading existing uses.
20. mm : The proposed rules are insufficient and merely slow degradation.
Response: The proposed mitigation requirements are intended to replace the
loss of significant wetland uses.
21. Comment: Because wetlands are waters of the state, and recognizing that
water and air resources of the state belong to the people, the state will claim
possession of millions of acres of privately owned lands.
15
Response: Although wetlands are waters of the state, they are not designated
public trust waters. Because wetlands are not public trust waters, the state
cannot claim possession of areas designated as wetlands.
22. Comment: Is it possible to fill a class WL wetland while protecting the uses
which are stated in the rules?
Response: A class WL wetland that has significant existing uses can be filled
only if mitigation is required to replace these uses. Based on
recommendations by the water uality staff, the Hearing Officers have
determined that mitigation will no be required for smaller projects that may
only result in minimal loss of uses.
23. Comment: Protection of wetlands on intermittent streams is at least as
important to water quality and habitat integrity as protection of those on
perennial streams.
Response: Review procedures focus on protection of all wetlands adjacent to
surface waters, including intermittent streams.
Based on the information presented above and the comments received during the
public hearing process, the hearing officers and the Director recommend that final"
revisions to the wetlands and 401 water quality certification procedure rules be
adopted as presented below. Proposed additions are underlined and proposed
deletions are indicated by strike-throughs. Language that is the same as the
existing rules is shown in normal type.
16
sr^R N
State of North Carolina
.HAEL F. EASLEY Department of Justice
ATTORNEY GENER-L P. n. BON M9
R.-I-SIGH
27602-0(Y29
REPLY TO: Daniel C. Oakley
Environmental Division
[phone]
[phone] FAX
March 21; 4995
3
Mr. Richard B. Whisnant, General Counsel
North Carolina Department of Environment,
Health and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
RE: Advisory Opinion: EMC "Wetlands" Rulemaking Authority;
N.C.G.S. 143-214.1 and 143-215.3(c)
gear Mi. Whisnant:
You have asked for advice on whether the Environmental Management Commission
("EMC") has authority to promulgate proposed rules related to the classification of wetlands and to
state water quality certifications in federal permitting actions under Section 401 of-the Clean Water
Act. While we researched your inquiry, Senator Beverly Perdue sought an opinion on closely related
issues, the EMC has gone to public notice with the rules packet, and Secretary Howes has
established a separate. Wetlands Task Force to advise him in this area. During discussions in the
public comment period for the rules and in the Task Force, additional questions of statutory authority
have also been raised. We felt it prudent to listen to those concerns and to address as many of the
statutory authority questions as possible in this Advisory Opinion. Thus, it may be more
comprehensive than you had anticipated.
The Division of Environmental Management ("DEM") of the Department of Environment,
Health and Natural Resources ("DEHNR") has published an "Information Package-Wetland Rules
Hearings" that describes in detail the proposed rules and their intended purpose. Thus, a lengthy
recitation of the rules is unnecessary. However, for purposes of our response, we have summarized
the proposed rules and the DEM's stated rationale in requesting their adoption.
An Equal 0Pfx)r1un0y / Affirmative Action Employer
1-1
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 2
The Enviror*nental Management Commission ("EMC") has proposed amendments to its
water quality protection rules, at 15A NCAC 2B .0100, 2B .0200 and 2H .0500. The stated intent of
the rules proposal is twofold: (1) to establish classifications and water quality standards for wetlands
as waters of the State; and (2) to establish separately a review process of the DEM in considering
requested water quality certifications under Section 401 of the federal Clean Water Act. Section 401
of the federal Clean Water Act requires the State to ertify that any federally permitted activity that
impacts North Carolina waters, including wetlands, will not result in a violation of state water
quality standards. See 33 U.S.C. § 1341(a)(1).
The proposed North Carolina water quality standards for wetlands are set out in rule 15A
NCAC 2B .0220. These proposed standards "are designed to protect, preserve, restore and enhance
the quality and use of wetlands and other waters of the state influenced by wetlands." (emphasis
supplied); 15A NCAC 2B .0220(a).
The proposed Section 401 review process, separately set out in rule 15A NCAC 2H .0506,
applies not only to wetlands, but to all North Carolina surface waters. We understand that these
view procedures are not intended to be additional water quality standards applicable to certain
asses of state waters. Rather, they describe how the DEM will apply the state's water quality
standards, including the proposed standards for wetlands, in making required Section 401
certification decisions. Most of the questions concerning rulemaking authority focus on the
proposed procedure for verifying water quality standards in Section 401 certifications. '
I. Does the Environmental Management Commission have the requisite statutory
authority to adopt the wetland standards proposed in 15A NCAC 2B .0220, and
the Section 401 Certification review procedures proposed in 15A NCAC 2H
.0506?
We believe some of these questions on rulemaking authority result from a misunderstanding
about the scope of the proposed rules. Specifically, some citizens seem to be under the impression
that the proposed 401 certification procedures set forth in 15A NCAC 2H .0506 also include
proposed water quality standards or additional criteria. To avoid further confusion, the EMC can
clarify that rule 2H .0506 contains only procedures for 401 certifications. We will submit to the
EMC suggested changes to the text of the proposed rule to accomplish this.
1-2
. Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 3
II. Do the proposed rules conflict with federal law by operating to place non-water
quality related restrictions on projects that require a Section 401 Certification
from the State?
III. Do the proposed rules establish a separate, duplicative permitting program
without the requisite statutory authority?
IV. Will the proposed rules operate to halt any elimination of wetlands areas, in
light of the antidegradation pAcy of the Environmental Management
Commission?
For the reasons which follow, we conclude that (1) the EMC possesses adequate statutory
authority for the proposed rules in Chapter 143, Articles 21 and 21 A of the General Statutes; (2) the
EMC is not attempting to place non-water quality restrictions on activities needing federal permits
within the State; (3) the proposed rules do not establish a separate, duplicative, wetlands permitting
program; and (4) wetlands use protection under the State's antidegradation policy does not preclude
reasonable quantities of fill in wetlands nor insignificant wetlands degradation.
I. Does the Environmental Management Commission Have the Requisite
Statutory Authority to Adopt the Wetland Standards Proposed in 15A
NCAC 2B .0220, and the Section 401 Certification Review Procedures
Proposed in 15A NCAC 2H.0506?
As noted, the proposed wetlands rules fall into two general categories. The first sets out
proposed wetlands classifications and the standards applicable to each class of wetlands. The second
contains permit review procedures intended to ensure, through the Section 401 water quality
certification process, that state surface water quality standards are adequately considered and
enforced when federal permitting actions occur.
A. The Federal Clean Water Act Imposes the Responsibility for
Developing Water Quality Standards on the States, Subject to
Approval by the Environmental Protection Agency.
The federal Clean Water Act, 33 USC §§ 1251 et seq., establishes a water quality program
under which both federal and state governments have responsibilities. Section 303 delegates to the
states the initial obligation to establish the water quality standards which will be applicable to waters
within the state, subject to federal approval: "[a state] water quality standard shall consist of the
designated uses of the navigable waters involved and the water quality criteria for such waters based
uses." 33 USC ; 1313(c)(2)(A). "States establish star dards under Section 303 by fast
1-3
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 4
designating the uses of the waters they wish to assure; they then adopt water quality standards which
will allow the designated uses to be actual uses., Arnold Irrigation District v. DEQ, 717 P. 2d 1274,
1277 (Or. App. 1986).2 The United States Supreme Court.has recently spoken to the meaning
of Section 303 in the context of state water quality certifications under Section 401 of the Clean
Water Act. The Court stated:
The text [of Section 303(c)(2)(A)] makes it plain that water quality standards contain
two components. We think the language of § 303 is most naturally read to require that
a project be consistent with both componentsxtamely the designated use and the water
quality criteria. Accordingly, under the literal terms of the statute, a project that does
'I not comply with a designated use of the waters does not comply with the applicable
water quality standards. (emphasis supplied)
PUD No. 1 at 1910. In explaining its rationale, the Court continued:
Water quality standards, however, apply to an entire class of water, a class which
contains numerous individual water bodies..... While enforcement of criteria will in
general protect the uses of those diverse waters, a complementary requirement that
activities also comport with designated uses enables the States to ensure that each
activity--even if not foreseen by the criteria--will be consistent with the specific uses
and attributes of a particular body of water.... [C]riteria cannot reasonably be
expected to anticipate all the water quality issues arising from every activity which
can affect the State's hundreds of individual water bodies.
Id. at 1911. Under PUD No. 1, then, it is clear that in performing its
functions, a state must establish both designated uses of its waters
pertaining to those uses, and ensure that both are adequately protected.
water quality classification
and water quality criteria
Under Section 303, these
uses and criteria will be submitted to EPA and, upon approval, will become enforceable under
federal law. See, 33 U.S.C. § 1313(c).
2 In order to achieve the goals of the Clean Water Act to protect and restore the quality of the
nation's waters, Section 303 also imposes an antidegradation requirement upon states; i.e., it requires
that a state's water quality standards be sufficiently strong to protect existing uses of its waters and to
prevent their further degradation. See, 33 U.S.C. § 1313(d)(4)(B); see also PUD No. 1 of Jefferson
Co. v. Washington Dept. of Ecology, 114 S.Ct. 1900, 1911 (1994). As a result, the regulations of the
U.S. Environmental Protection Agency ("EPA") implementing the Clean Water Act require that the
water quality standards of each state include an "antidegradation policy" to achieve the mandate of
Section 303. See, 40 CFR § 131.12 (1992).
1-4
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 5
B. The Proposed Rules Are Being Promulgated Pursuant to State Law.
The slate statutes respecting water quality protection are found in Chapter 143, Articles 21
and 21A of the General Statutes, at N.C.G.S. §§ 143-211 et seq. Under Chapter 143 of the N.C.
General Statutes, the EMC has the clear duty to protect state waters, and broad rulemakigng authority
to achieve that goal. See, N.C.G.S. §§ 143-211; 143-214.1; 143-215.3(a)(1); see also, Art. ),-'TV,
Sec. 5, N.C. Constitution. Pursuant to N.C.G.S. § 143-214.1, the EMC has specific statutory
authority to develop and adopt classifications of ther"waters of the State, as well as the statutory
authority to develop and adopt water quality standards applicable to each such classification.
I4.C.G.S. § 143-214.1(a)(1). Moreover, the EMC has the statutory authority to classify all waters of
the State pursuant to N.C.G.S. § 143-214.1(a)(2), and under that provision, the EMC has discretion
to determine which state waters it deems sufficiently important to classify and regulate.
Previously, the Environmental Division of the Attorney General's Office has advised the
DEM that the definition of "waters" of the State, found in N.C.G.S. § 143-212(6), reasonably
includes wetlands. Moreover, freshwater wetlands have expressly been treated as waters of the State
by the EMC since at least October 1, 1989, when EMC rule 15A NCAC 213 .0109 was adopted.
That rule states that in determining whether projects that affect state freshwater wetlands
tpermissibly degrade the wetlands by removing existing uses, the DEM "will be guided by 40 CFR
:rt 230, Subparts A through F" (more commonly known as the "Section 404(b)(1) Guidelines").
15A NCAC 2B .0109. Since wetlands are waters of the State, and since the EMC has the statutory
authority to adopt classifications and standards applicable to North Carolina waters, the EMC has the
statutory authority to adopt the classifications and standards for wetlands.
The EMC has previously adopted water quality standards for all North Carolina surface
waters in 15A NCAC 2B .0200, and in this rulemaking proposes additional standards, specifically
pertaining to wetlands, under that section. The wetland standards proposed in rule 15A NCAC 2B
.0220 will become part of the water quality standards of the State upon adoption, and will then be
submitted to the EPA for approval as required under Section 303 of the federal Clean Water Act.
The water quality standards--uses and criteria--contained in those rules are exactly the type of
standards required by Section 303(c)(2)(A) of the Clean Water Act, and thus are expressly
referenced as appropriate certification denial criteria in Section 401(a) of the Act. As such, we
believe there is no valid legal basis for challenging the EMC's authority to adopt the proposed rule or
to challenge the use of the standards contained in the proposed rule in making state Section 401
water quality certifications.
Proposed rule 15A NCAC 2H .0506 sets out the procedures that the DEM will employ in
tviewing federally permitted projects affecting state surface waters under Section 401 to ensure that
the activities would not violate state water quality standards. North Carolina law auL?orizes the
_r7°-cify - -quireme.!:s and r--ccdure:..or the Section 401 certification process. i\I.C.G.S. §
1-5
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 6
143-211.3(a) gives the EMC the statutory authority to adopt rules implementing the Water and Air
Act, and N.C.G.S. § 143-215.3(c) provides the statutory authority for the EMC to administer any
federal-related matter in water and air quality. Thus, the EMC has the statutory authority to adopt
procedural rules for Section 401 water quality certifications since: (1) the State is required to make
Section 401 water quality certifications, (2) the EMC has specific rule making authority in water
quality matters, and (3) the EMC is specifically authorized to act as the entity to carry out federal
directives under the Clean Water Act. Thus, just as the authority to adopt a wetlands classification
and applicable water quality standards is found iri state law, the authority to promulgate the rules
implementing Section 401 water quality certificatior''review procedures comes from state, rather
than federal, law.
i
H. Do the Proposed Rules Conflict With Federal Law by Placing Non-Water
Quality Related Restrictions on Projects That Require a Section 401
Certification From the State?
Under Section 401(a)(1), a state reviewing a proposed, federally permitted project that may
result in a discharge into state waters for compliance with its water quality standards must certify
"that any such discharge will comply with the applicable provisions of Sections 301, 302, 303, 306,
-nd 307 of [the Clean Water Act]." 33 U.S.C. § 1341(a)(1). If the EMC rules are adopted as
)posed, the substantive criteria upon which future Section 401 water quality certification decisions
.4ould be made by the Director of the DEM are: (1) in the case of wetlands, those set out in
proposed rule 15A NCAC 2B .0220, and existing EMC rule 15A NCAC 213 .0201; and (2) in the
case of other classes of state surface waters, those standards found in rules 15A NCAC 2B .0201, 213
.0208, 2B .0211, 213 .0214 and 2B .0216.
A. Appropriate Distinction is Made Within the Proposed Rules Between
the Substantive Water Quality Standards to be Applied, and the
Review Procedures Used, in Making Section 401 Determinations.
A question has been raised whether the EMC, through rule 15A NCAC 2H .0506, is
attempting to apply non-water quality related restrictions to projects during the DEM Section 401
certification review. We agree that state Section 401 certification procedures may be concerned only
with water quality considerations.
Those cases which have interpreted the scope and breadth of ... authority that was
divested to the states by Section 401 ... have construed the divestiture narrowly and
have consistently held that a [state's] authority extends only to consideration of the
proposed project's impact on the applicable water quality standards implemented by
the State, in conformity with the Act.
1-6
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 7
Fourth Branch Assn. v. New York Dept. of Envtl. Conservation, 550 N.Y.. S. 2d 769, 773 (N.Y.
Sup. Ct. 1989). We do not find that the procedural rules proposed at 15 NCAC 2H .0506 violate this
principle.
Consistent with Fourth Branch, the EMC proposes to authorize the DEM to determine a
project's impact on the applicable state surface water quality standards through the use of the review
procedures found at 15A NCAC 2H .0506. As discussed previously, state surface water quality
standards are found in rules 15A 2B .0201, 2B .0208, 213 .0211, 2B .0214, 2B. 0216; and proposed
rule 15A NCAC 2B .0220. These standards are the su.Estantive criteria for Section 401 certifications.
The water quality certification review procedures set out in proposed rule 15A NCAC 2H .0506 are
certification review procedures. They are not substantive Section 401 decision-making criteria. 3
Specifically, proposed rule 15A NCAC 2H .0506 describes a sequencing process by which
an applicant whose project would not normally be allowed under applicable state water quality
standards may obtain state certification by demonstrating that the project: (1) has no practical siting
alternative; (2) will minimize adverse project environmental impacts that may result in water quality
degradation, so that the activity will not result in unacceptable degradation of state waters either
considered alone or in conjunction with other activities affecting the water body under consideration;
and (3) provides for replacement of lost or degraded uses of state waters through mitigation. The
'MC proposes, through this evaluative process, to balance these three demonstrations against
-tlands elimination to achieve an overall water quality goal, while allowing reasonable
development affecting state waters. To achieve this goal, the EMC must be guided by water quality
considerations. However, it is the EMC's responsibility to determine the manner and method by
which the State performs this balancing function.
Further, proposed rule 15A NCAC 2H .0506 permits a proposed project that is determined
not to violate any applicable state water quality standard either because (1) the activity is covered by
a general certification under 15A NCAC 2H .0501(c)(2), or (2) the Director's initial review of the
project indicates that it "would not remove or degrade existing uses," to go forward without meeting
the full sequencing requirements set out in the rule. See, 15A NCAC 2H .0506(a). Other projects
Some rule commenters argue that the rule 2H .0506 review procedures are unlawful because
they consider the water quality impacts of a proposed project as a whole, and that under Section 401
state water quality certification may only be denied if the discharge from the project would violate a
state water quality standard. Assuming, arguendo, that to be a correct statement of the federal law,
we reiterate that rule 2H .0506 contains no substantive criteria for certification denial, but only
defines the process the DEM will use to determine whether the discharge would violate the
substantive criteria that are applicable to the affected waters. Consequently, under the proposed
rules, regardless of the type of project proposed, the State would deny a Section 401 water quality
certification only where t:e discharge associated wit'; the proposed activity was found to violate
- 'girth Carolina's water c _1?dity st includir,b reTiiuval of a significant use of state waters.
1-7
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 8
would undergo a full analysis according to rule review procedures. In essence, as discussed further
in Section IV., by enacting the rule 15A NCAC 2H .0506 review process, the EMC is proposing to
establish as state policy that projects that can make the showings required by the applicable Section
401 water quality certification review procedures will be deemed to comport with state water quality
standards, including state antidegradation requirements.
B. North Carolina Wetlands are Waters Within the Meaning of the Clean
Water Act, and are Thus Appropriately Considered for Section 401
Water Quality Certifications.
Some rule commenters have sought to distinguish between wetlands and other state surface
waters in terms of the ability of North Carolina to make a Section 401 water quality certification
determination for projects that would affect wetlands. The question is whether, under federal law,
the Section 401 certification process may only be used to protect existing water quality in streams or
other flowing state waters. Those taking this view rely on the language of the EPA regulation
codified at 40 CFR. § 131.12 (1982) as a portion of that agency's antidegradation policy
implementing regulations, which states, -in pertinent part: "[e]xisting instream water uses and the
level of water quality necessary to protect the existing uses shall be maintained and protected"
(emphasis supplied): We believe a state's 401 certification responsibilities are not limited to
-otecting instream water uses for two reasons.
First, in interpreting its own rules, EPA treats wetlands and other United States waters
synonymously, expressly stating that the federal antidegradation policy applies to wetlands, just as it
does to the other waters of the nation:
...EPA interprets § 131.12(a)(1) of the antidegradation policy to be satisfied with
regard to fills in wetlands if the discharge did not result in "significant degradation"
to the aquatic ecosystem as defined under ... the Section 404(b)(1) guidelines. If any
wetlands were found to have better water quality than 'fishable/ swimmable'; the
State would be allowed to lower water quality to the no significant degradation level
as long as the requirements of Section 131.12(a)(2) were followed. As for the
ONRW provision of antidegradation ...., there is no difference in the way it applies
to wetlands and other water bodies (emphasis supplied).
EPA Questions & Answers on: .4ntidegradation 5 (1983). This interpretation of regulations must
be accorded deference by a reviewing court. See, e.g., PUD No. 1, supra, 114 S.Ct at 1909.
Secondly, the United States Supreme Court has previously held that wetlands, even if flooded
by groundwater and not by adjacent flowing waters, are navigable waters within the regulatory
purview of Section 404 of the Clean Water Act. U.S. v. Riverside Bayview Homes, 474 U.S. 121
(1985). Consequently, since (1) wetlands are navigable waters under Section 404 jurisdiction, (2)
la8
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 9
the EMC'_ proposed wetlands water quality standards are expressly applicable to these Section 404
jurisdictional wetlands, and (3) Section 401 requires that a state certify that any project requiring a
Section 404 permit meets the state's water quality standards,. it is clear that the Section 401
certification process anticipates that federally permitted activities occurring in wetlands must
undergo the Section 401 certification process. Consequently, we believe that there can be no serious
question that the Section. 401 certification process would lawfully include the wetland water quality
standards and uses established under the proposed EMC rules.
M. Do the Proposed Rules Establish.,$-Separate, Duplicative Permitting Program
Without the Requisite Statutory Authority?
The EMC has, at least since the 1989 adoption of rule 15A NCAC 2B .0 109, used the federal
Section 404(b)(1) Guidelines to determine whether a federally permitted activity in wetlands will
result in a violation of state water quality standards. During the public hearing process, the issue has
been raised whether the use of the Guidelines in making water quality certification decisions for
projects that affect wetlands would operate to establish an unauthorized "Section 404 permitting
program" for the State. As discussed below, adoption of the proposed rules would not necessarily
result in a duplication of the Corps' Section 404 review process, and would not constitute de facto
assumption of the federal Section 404 dredge-and-fill permitting process by the DEM. As the
ivironmental Division has previously advised the DEHNR, there would need to be additional
stutory authority from the General Assembly for assumption of the Section 404 permitting
program.
The Section 404(b)(1) Guidelines have been used by the U.S. Army Corps of Engineers
("Corps") and the EPA for more than a decade in reviewing the impact of proposed activities on
wetlands. The Section 401 review procedures proposed to be adopted by the EMC in rule 15A
NCAC 2H .0506 are very similar to the federal Guidelines. Despite that similarity, our analysis of
the rule leads to the conclusion that they will not necessarily be duplicative of federal review.
Further, we know of no provision in state or federal law that automatically precludes the potential
application of similar review procedures by state and federal permitting agencies contemplating the
same project.
Where the purposes of the state and federal agencies in applying similar procedures differ
substantially, as the DEM has indicated is the case here, the review process is likely to also differ
significantly. The Corps' use of the Section 404(b)(1) Guidelines is aimed at preventing net loss of
the nation's wetlands under federal policy directives. However, Corps' regulations provide that in the
case of proposed projects that will affect isolated and headwater wetlands, the Section 404(b)(1)
Guidelines will not be applied across the board in project evaluation, but will be applied, if at all,
only on a case-by-case basis. DEM has stated its primary goal in applying proposed rule 15A NCAC
.0506 is to ensure that all projects affecting state wetlanLls, especial]; those s. ch as isolated and
headwater w--:?ands, which ire not evaluated by the Corps under -_`ie fcu::.-a'. Guidelines, are
1-9
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 10
thoroughly examined for their effects on state water quality. Consequently, it is unlikely that any
actual duplication in permit analysis will result. In addition, the State and the Corps could, through a
State Programmatic General Permit, provide for analysis of federally permitted projects in such a
way as to preclude even any potential duplication of process.
Similarly, some comments on the proposed rules have suggested that consideration of matters
reflected in the Section 404(b)(1) Guidelines are exclusively within the purview of the Corps and the
EPA in making decisions related to Section 404 of the Clean Water Act, because the Guidelines are
aimed at protecting against wetlands loss, and have.Wle to do with protecting water quality per se.
It should be noted, perhaps, that one purpose of the Section 404(b)(1) guidelines is to "maintain the
ighemical, physical, and biological integrity of waters of the United States...." 40 CFR § 230.1(a).
Proposed rule 15A 213.0506 articulates a policy of (1) avoidance of impacts to state waters, (2)
minimization of impacts that do occur, and (3) requiring mitigation for degradation of state waters,
and the EMC has determined that policy is related to a goal of protecting state water quality.
Moreover, in the case of projects proposed for Indian tribal lands, the EPA itself uses the Section
404(b)(1) Guidelines to make the required Section 401 water quality certification compliance
determination in lieu of a state water quality certification. See, 20 January 1995 memorandum from
Thomas C. Welborn, Chief, Wetlands Protection Section, EPA, Region IV, entitled "401 Application
to EPA for Section 404 Tribal Projects". For those reasons, we believe that the proposed use of
'-ection 401 water quality certification review procedures similar to the federal Section 404(b)(1)
iiidelines is entirely lawful.
IV- Will the Proposed Rules Operate to Halt any Elimination of Wetlands Areas,
in Light of the Antidegradation Policy of the Environmental Management
Commission?
An additional concern has been expressed that in light of the EMC's antidegradation policy,
found in 15A NCAC 2B .020 1, proposed rule 15A NCAC 2B .0220 would prohibit any development
of wetlands. The concern is whether any wetland fill project would be permitted since the wetland
area itself would be eliminated and the wetland use could no longer exist.
This issue also arises under the language of the Clean Water Act, and has been resolved
nationally by the EPA's reading Sections 303, 402 and 404 of the Act together, recognizing that
permitting fill under the federal. regulations promulgated pursuant to Section 404 is the statutorily
authorized method for determining that significant uses of wetlands are not impaired. See, EPA
Questions & Answers on: Antidegradation 5 (1983). North Carolina takes a similar approach in the
current EMC water quality classification rules at 15A NCAC 2B .0109:
Projects that alter the reach and extent of a freshwater wetland will not be considered
as removing existing uses of the wetland in violation of the Antidegradation Policy
[pursuant to 15A NCAC 2B .0201(b)] if the alteration protects all existing and
1-10
.Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page I 1
designated uses of all waters of the State. In making this determination, the Director
will be guided by 40 CFR Part 230, Subparts A through F.
We believe this is a lawful regulatory construction of the classification and use protection
requirements in North Carolina. The interpretation is specifically supported by several provisions of
the North Carolina statutes found in N.C.G.S. § 143-214.1. The context of those provisions relating
to classification, uses of eaters and assignments is that a variety of factors must be considered by the
EMC to implement the policy and purposes of Chapter 143, Article 21.
The proposed rules are consistent with the existing EMC policy of reasonable
%fccommodation of projects affecting wetlands while protecting overall state water quality.
Specifically, application of proposed rule 15A NCAC 2H .0506 under the existing policy of
reasonable accommodation means that projects that make the required showings under the
certification review procedures are deemed to comport with state water quality standards, including
state antidegradation requirements. We believe this approach is a lawful application of EMC rules.
To make clear its intent to continue to apply a policy of reasonable accommodation, we recommend
that the EMC retain the relevant provision of 15A NCAC 2B .0109, or one equally explicit, in the
new rules.
For the above reasons, it is our opinion that the wetland standards and the Section 401 water
quality certification review procedures proposed for rule adoption by the EMC are adequately
authorized by the North Carolina General Statutes and consistent with federal law. We will be
happy to continue to assist you, the EMC, the regulated community and interested .commentators to
assure that any proposed rules relating to state water quality are authorized by state law, and clearly
understood.
1-11
NIr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 12
7
.M/DCO/KJC/TDN/dw
cc: Senator Beverly Perdue
Secretary Jonathan Howes
David Moreau
Preston Howard
Norm Christensen
Sincerely,
9tk-v?' ". IIIC(I II
John R. McArthur
Chief Counsel
..0o.,.? L'
Daniel C. Oakley
Senior Deputy Attorney General
Kathryn Jones Cooper
Special Deputy Attorney General
Timothy D. Nifong
Assistant Attorney General
1-12
C y y m R H o
? ?' ^• W ? R L/ lO'?
R< o ?, o a v
(D a ie w C. co
M
W R (e ? W
(D a, g m M
m ? Zy' p' C R?
y
(D ?. M W R .C) 10
w to Er ma
v?
?M^xC
w a ? g
° a' H
G m o 0 00 `?
W
m ° o• b o o.
?+ W A
OI W o o, c
coy ti
m G Rm
W M R •7 CT' (p R
cD ? c• A m n W
B a? p 04 •, W f
0 CD
O a N m b 'S' '.Y
N 0 R A In
O
a• e m 0 o. Q
<<
R 1 o O
A
?
m o n w B
C E3 g ti
fD R
(D ?' ea'• Q. a •
La. (p _ 0 00
- 0 w A O 00
m <. R• ° on O
(RD U C a n
W F A cc'
ao o'a
.y a .y C R
o O B r9 m
~ ~ r. R R
o C m
b o. o. .,
W ,7 ? A
5
?7 °a ° E.
a ?• ? o a.
?• m w
m ° (o 0
00 a' c
W
<< ~ (D SD
R P+ ?.
O
t A a
CD R •^f
y• 6 ? w
o' Do C m
a m.
E o
:. a oo n
W O •Y
a T a -or.
W
a ?*
? .
•n
W
v m G
v r to
O,, o o >n 7
N c m
Q
R Q ?
Q
? ? ''s1
? °7
Q

?b ?b zb D
C
D
R c: m w R CD w R co'
(
?? o h o o? o. o h o w
a it II p it p
p
it
11 Z C II Z 0 II Z oz II Z C II n
0 0 0 0 0 0 0 0
C

R (D 1?! CD ?

m ?+. co

y ?
y
.R..
II

r+
' y
o 11 a ? II O a II ? ? ?• ? ~
nZit
o nzn

o nzn
C .IB II

p A
OD (D
O
Oo
(D
C
to
C (D
t • m
p
C C C
?. <
a < a ?. <, a ?.
.

o:?b (D b

2: ?b Q0 (D 'LS

p: QO (D
'd
Cc
E??

v
u o it I' it 11 I..
o n
(D II (o II (e II II
(
^ N • ?'C

C
?' m m
? cam' m
A C m
o
N ?• o •• o •• o
?y
CD > CD > CD CD
CD
? ? ??b
w ? ?b
co
w _? ?b
?
c. 'r
w ?CDv
R
0 0 II n
p??' ti w c+
° o II n
o? p co ° o CD II n
a?5 a w o CD II y
o?El o R v
W
II N ?* o o II N r o o II R o o
b II Ny 0 o o
- < b m
A
f9 O b 11
(A ? ? (9 O
^? 61 Rp (D O
W •? W RO
. A
^ r7l.1 RO R
M
m R'
N n D] C
CD
46 n pp (D
i14
. G W
N N N N
2-1
?-3
r•
l?
A

>y
C
ty
r
A
^l
n
O
O
E?•
C
C
e?
O
RULES AS PROPOSED FOR ADOPTION:
WETLANDS AND 401 CERTIFICATION PROCEDURES
DECEMBER 1995
15A NCAC 2B .0101 is proposed for amendment as follows:
SUBCHAPTER 2B - SURFACE WATER AND WETLAND STANDARDS. MONITOR
SECTION .0100 - PROCEDURES FOR ASSIGNMENT OF WATER QUALITY STANDARDS
.0101 GENERAL PROCEDURES 4
(a) The rules contained in Sections .0100, .0200 and .0300 of this Subchapter which pertain to the series of
classifications and water quality standards shall be known as the "Classifications and Water Quality Standards
Applicable to the Surface Waters and Wetlands of North Carolina."
(b) The Environmental Management Commission, prior to classifying and assigning standards of water quality to
any waters of the state, will proceed as follows:
(1) The Commission, or its designee, will determine waters to be studied for the purpose of classification and
assignment of water quality standards on the basis of user requests, petitions, or the identification of
existing or attainable water uses, as defined by 15A NCAC 2B .0202, not presently included in the water
classification.
(2) After appropriate studies of the identified waters to obtain the data and information required for
determining the proper classification of the waters or segments of water are completed, the Commission,
or its designee, will make a decision on whether to initiate proceedings to modify the classifications and
water quality standards of identified waters. In the case of the Commission's designee deciding to initiate
said proceedings, the designee will inform the Commission of the decision prior to scheduling a public
bearing.
(3) In the case of a petition for classification and assignment of water quality standards according to the
requirements of General Statute 150B-20, the Director will make a preliminary recommendation on the
appropriate classifications and water quality standards of the identified waters on the basis of the study
findings or information included in the petition supporting the classification and standards changes.
(4) The Commission will make a decision on whether to grant or deny a petition in accordance with the
provisions of General Statute 150B-20 based on the information included in the petition and the
recommendation of the Director. The Commission may deny the petition and request that the Division
study the appropriate classifications and water quality standards for the petitioned waters in accordance
with Subparagraph (b)(2) of this Rule.
(5) The Director will give due notice of such bearing or hearings in accordance with the requirements of
General Statute 143-214.1 and G.S. 150B, and will appoint a bearing officer(s) in consultation with the
chairman of the Commission.
(6) The hearing officer(s) will, as soon as practicable after the completion of the hearing, submit a complete
report of the proceedings of the hearing to the Commission. The hearing officer(s) shall include in the
report a transcript or summary of testimony presented at such public hearing, relevant exhibits, a
summary of relevant information from the stream studies conducted by the technical staff of the
Commission, and final recommendations as to classification of the designated waters and the standards of
water quality and best management practices which should be applied to the classifications recommended
(7) The Commission, after due consideration of the hearing records and the final recommendations of the
hearing officer(s), will adopt its final action with respect to the assignment of classifications, and any
applicable standards or best management practices applicable to the waters under consideration. The
Commission will publish such action, together with the effective date for the application of the
provisions of General Statute 143-215.1 and 143-215.2, as amended, as a part of the Commission's
official rules.
(8) The final action of the commission with respect to the assignment of classification with its
accompanying standards and best management practices shall contain the Commission's conclusions
relative to the various factors given in General Statute 143-214.1(d), and shall specifically include the
3-1
class or classes to which such specifically designated waters in the watershed or watersheds shall be
assigned on the basis of best usage in the interest of the public.
(c) Freshwater Classifications.
(1) Class C; freshwaters protected for secondary recreation, fishing, aquatic life including propagation and
survival, and wildlife; all freshwaters are classified to protect these uses at a minimum;
(2) Class B; freshwaters protected for primary recreation which includes swimming on a frequent or organized
basis and all Class C uses;
(3) Class WS-I; waters protected as water supplies which are essentially in natural and undeveloped
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules .0104 and.0211
of this Subchapter; local programs to control nonpoint sources and stormwater discharges of pollution are
required; suitable for all Class C uses;
(4) Class WS-II; waters protected as water supplies which are generally in predominantly undeveloped
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules.010.4 and.0211
of this Subchapter; local programs to control nonpoint sources and stormwater dischargm of pollution are
required; suitable for all Class C uses; %
(5) Class WS-III; waters protected as water supi ies which are generally in low to moderately developed
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules .0104 and .0211
of this Subchapter; local programs to control nonpoint sources and stormwater discharges of pollution are
required; suitable for all Class C uses;
(6) Class WS-IV; waters protected as water supplies which are generally in moderately to highly developed
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules .0104 and .0211
of this Subchapter; local programs to control nonpoint sources and stormwater discharges of pollution are
required; suitable for all Class C uses;
(7) Class WS-V; waters protected as water supplies which are generally upstream of and draining to Class-IV
waters; no categorical restrictions on watershed development or treated wastewater discharges are required;
however, the Commission or its designee may apply appropriate management requirements as deemed
necessary for the protection of downstream receiving waters (15A NCAC 2B .0203); suitable for all
Class C uses.
L& Class WL: waters that meet the definition of wetlands found at 15A NCAC 2B .0202 except those
designated as Class SWL
(d) Tidal Salt Water Classifications.
(1) Class SC; saltwaters protected for secondary recreation, fishing, aquatic life including propagation and
survival, and wildlife; all saltwaters are classified to protect these uses at a minimum;
(2) Class SB; saltwaters protected for primary recreation which includes swimming on a frequent or organized
basis and all Class SC uses;
(3) Class SA; suitable for commercial shellfrshing and all other tidal saltwater uses.
142 Class SWL: waters that meet the definition of coastal wetlands as defined by NCGS 113-229(n) (3). and
which are landward of the mean high water line. and wetlands contiguous to estuarine waters as defined by
NCGS 113A-113(b)(2).
(e) Supplemental Classifications.
(1) Trout waters Jr); freshwaters protected for natural trout propagation and survival of stocked trout;
(2) Swamp waters (Sw); waters which have low velocities and other natural characteristics which are different
from adjacent streams;
(3) Nutrient Sensitive Waters (NSW); waters subject to growths of microscopic or macroscopic vegetation
requiring limitations on nutrient inputs;
(4) Outstanding Resource Waters (ORW); unique and special waters of exceptional state or national
recreational or ecological significance which require special protection to maintain existing uses;
(5) High Quality Waters (HQW); waters which are rated as excellent based on biological and
physical/chemical characteristics through Division monitoring or special studies, native and special
native trout waters (and their tributaries) designated by the Wildlife Resources Commission, primary
nursery areas (PNA) designated by the Marine Fisheries Commission and other functional nursery areas
designated by the Wildlife Resources Commission, critical habitat areas designated by the Wildlife
Resources Commission or the Department of Agriculture, all water supply watersheds which are either
classified as WS-I or WS-11 or those for which a formal petition for reclassification as WS-I or WS-11 has
been received from the appropriate local government and accepted by the Division of Environmental
Management and all Class SA waters.
Li Lr :Li, =wetL, ' JAW ?-_wetlanr,; 2f exce tional state or national ecological significance which require
?!"__ia! err t_ ;__n to r'__;i.ntain cristinj uses. These wetlands could include wetlands that have been
3-2
t
(f) In determining the best usage of waters and assigning classifications of such waters, the Commission will
consider the criteria specified in General Statute 143-214.1(d) and all existing uses as defined by 15A NCAC 2B
.021 In determining whether to revise a designated best usage for waters through a revision to the classifications,
the Commission will follow the requirements of 40 CFR 131.10(b),(c),(d) and (g) which 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 Environmental Management, Water Quality
Planning Branch, 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).
(g) When revising the classification of waters, the Division will collect water quality data within the watershed for
those substances which require more stringent control than required by the existing classification. However, such
sampling may be limited to only those parameters which are of concern. Ili the revision to classifications involves
the removal of a designated use, the Division will condo pa use attainability study as required by the provisions of
40 CFR 131.106) which 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 Environmental Management, Water Quality Planning Branch, 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).
HistoryNote: Statutory Authority G.S. 143-214.1; 143-215.3(a)(1);
Eff. February 1, 1976;
Amended Eff. February 1, 1993; August 3, 1992; August 1, 1990; October 1, 1989.
15A NCAC 2B .0103 is proposed for amendment as follows:
.0103 ANALYTICAL PROCEDURES
(a) Chemical/Physical Procedures. Tests or analytical procedures to determine conformity or non-conformity
with standards will, insofar as practicable and applicable, conform to the guidelines by the Environmental Protection
Agency codified as 40 CFR, Part 136, which are hereby incorporated by reference including any subsequent
amendments and editions or such other methods as may be approved by the Director. This material is available for
inspection at the Department of Environment, Health, and Natural Resources, Division of Environmental
Management, Water Quality Planning Branch, 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).
(b) Biological Procedures. Biological tests to determine conformity or non-conformity with standards will be
based on methods published by the U.S. Environmental Protection Agency as outlined in "Methods for Measuring
the Acute Toxicity of Effluents to Freshwater and Marine Organisms, Fourth Edition" (1991; Report No.
EPA/600/4-90/027) or subsequent versions, "Short-term Methods for Estimating the Chronic Toxicity of Effluents
and Receiving Waters to Freshwater Organisms, Second Edition" (1989; Report No. EPA/600/4-89/001) or
subsequent versions, and "Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving
Waters to Marine and Estuarine Organisms" (Report No. EPA/600/4-87/028) or subsequent versions, or methods
published by the North Carolina Department of Environment, Health, and Natural Resources, as outlined in
"Standard Operating Procedures: Biological Monitoring" (1990; Division of Environmental Management, Water
Quality Section) or subsequent versions, or such other methods as approved by the Director.
?2 Wetland Evaluation Procedures Evaluations of wetlands for the presence of existing uses will be based on
methods or guidance approved by the Director Conies of approved methods or guidance may be obtained by
submitting a written request to NCDEM Water Oulaity Section Wetlands Groun P.O. Box 29535, Raleigh .NC
27626-0535.
History Note: Statutory Authority G.S. 143-214.1; 143-215.3(a)(1);
Ef. .. February 1, 1976;
3-3
Amended Ef. . February 1, 1993; October 1, 1989; January 1, 1985; September 9, 1979.
15A NCAC 2B .0109 is proposed for repeal as follows:
.0109 WATERS AFFECTED BY DREDGE AND FILL ACTIVITIES (REPEALED)
Woieva& that A,a; th-a mach :and extant of 2 fparhwatar- wa,12nd will no4 be ronsideFed as ig use& 9
#he- 9.0011-and- of the An6deg;adatiea Policy [pursuant to 15 A ISIC, A G N 0201 Ch)l the altetration
History Note: Statutory Authority G.S. 143-214.1,
E,B: October 1, 1989.
ar
15A NCAC 2B .0201 is proposed for amendment as follows:
SECTION .0200 - CLASSIFICATIONS AND WATER QUALITY STANDARDS APPLICABLE
TO SURFACE WATERS AND WETLANDS OF NORTH CAROLINA
.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 Environmental
Management, Water Quality Planning Branch, 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 will be implemented in North Carolina as set forth in
Paragraphs (b), (c) and (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 will affect these waters will 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 will 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
will be implemented in order to meet these requirements:
(1) Each applicant for an NPDES permit or NPDES permit expansion to discharge treated waste will
document an effort to consider non-discharge alternatives pursuant to 15A NCAC 21-1.0105(c)(2).
(2) Public Notices for NPDES permits will list parameters that would be water quality limited and state
whether or not the discharge will 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 will 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.
`.-Maters with quality hi-..her than the star lards will be id aified t the Division on a case-by-case basis through the
tiPDES I- ' -Hitting a:.. waste l-:sd a" cation proct!- (purs , .nt to the provisions of 15A NCAC 2H .0100).
Dischargers affected b} the requirements of Fai agraphs ( -;1) through (c)(4) of this Rule and the public at large will
3-4
be notified according to the provisions described herein, and all other appropriate provisions pursuant to 15A NCAC
2H .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 can
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 will 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 are as described by 15A NCAC 2B .0101(e)(5). The following
procedures will be implemented in order to meet the requirements of this part:
(1) New or expanded wastewater discharges in High Quality Waters will comply with the following:
(A) Discharges from new single family residences will be prohibited. Those* that must discharge will
install a septic tank, dual or recirculating sand filters, disinfection and step aeration.
(B) All new NPDES wastewater discharges (exQ;pt single family residences) will be required to provide the
treatment described below:
(i) Oxygen Consuming Wastes: Effluent limitations will be as follows: BODS= 5 mg/l, NH3-N = 2
mg/1 and DO = 6 mg/l. More stringent limitations will be set, if necessary, to ensure that the
cumulative pollutant discharge of oxygen-consuming wastes will not cause the DO of the receiving
water to drop more than 0.5 mg/I below background levels, and in no case below the standard
Where background information is not readily available, evaluations will assume a percent saturati on
determined by staff to be generally applicable to that hydroenvironment.
(ii) Total Suspended Solids: Discharges of total suspended solids (TSS) will be limited to effluent
concentrations of 10 mg/1 for trout waters and PNA's, and to 20 mg/1 for all other Higb Quality
Waters.
(iii) Disinfection: Alternative methods to chlorination will be required for discharges to trout streams,
except that single family residences may use chlorination if other options are not economically
feasible. Domestic discharges are prohibited to SA waters.
Ci v) Emergency Requirements: Failsafe treatment designs will be employed, including stand-by power
capability for entire treatment works, dual train design for all treatment components, or equivalent
failsafe treatment designs.
(v) Volume: The total volume of treated wastewater for all discharges combined will not exceed 50
percent of the total instream flow under 7Q10 conditions.
(vi) Nutrients: Where nutrient overenrichment is projected to be a concern, appropriate effluent
limitations will be set for phosphorus or nitrogen, or both.
(vii) Toxic substances: In cases where complex wastes (those containing or potentially containing
toxicants) may be present in a discharge, a safety factor will be applied to any chemical or whole
effluent toxicity allocation. The limit for a specific chemical constituent will be allocated at one-
half of the normal standard at design conditions. Whole effluent toxicity will be allocated to
protect for chronic toxicity at an effluent concentration equal to twice that which is acceptable under
design conditions. In all instances there may be no acute toxicity in an effluent concentration of 90
percent as measured by the North Carolina "Pass/Fail Methodology for Determining Acute
Toxicity in a Single Effluent Concentration". -Ammonia toxicity will be evaluated according to
EPA guidelines promulgated in the Ammonia Criteria Development Document (1986); EPA
document number 440/5-85-001; NTIS number P1385-227114; July 29, 1985 (50 FR 30784).
(C) All expanded NPDES wastewater discharges in High Quality Waters will be required to provide the
treatment described in part (1)(B) of this Rule, except for those existing discharges which expand with
no increase in permitted pollutant loading.
(2) Development activities which require an Erosion and Sedimentation Control Plan in accordance with
rules established by the NC Sedimentation Control Commission or local erosion and sedimentation
control program approved in accordance with 15A NCAC 4B .0218, and which drain to and are within
one mile of High Quality Waters (HQW) will be required to control runoff from the one inch design
storm as follows:
(A) Low Density Option: Developments which limit single family developments to one acre lots and
other type developments to 12 percent built-upon area, have no stormwater collection system as defined
3-5
in 15A NCAC 2H .1002(13), and have built-upon areas at least 30 feet from surface waters will be
deemed to comply with this requirement, unless it is determined that additional runoff control measures
are required to protect the water quality of High Quality Waters necessary to maintain existing and
anticipated uses of those waters, in which case more stringent stormwater runoff control measures may
be required on a case-by-case basis. Activities conforming to the requirements described in 15A NCAC
2H .1003(a) [except for Subparagraphs (2) and (3) which apply only to waters within the 20 coastal
counties as defined in 15A NCAC 2H .1002(9)] will also be deemed to comply with this requirement,
except as provided in the preceding sentence.
(B) High Density Option: Higher density developments will be allowed if stormwater control systems
utilizing wet detention ponds as described in 15A NCAC 2H .1003(i), (k) and p) are installed, operated
and maintained which control the runoff from all built-upon areas generated from one inch of rainfall,
unless it is determined that additional runoff control measures am required to protect the water quality of
High Quality Waters necessary to maintain existing and anticipated uses of those waters, in which case
more stringent stormwater runoff control m>11unes may be required on a case-by-case basis. The size of
the control system must take into account the runoff from any pervious surfaces draining to the
system.
(C) All waters classified WS-1 or WS -11 and all waters located in the 20 coastal counties as defined in Rule
15A NCAC 2H .1002(9) are excluded from this requirement since they already have requirements for
nonpoint source controls.
If an applicant objects to the requirements to protect high quality waters and believes degradation is necessary to
accommodate important social and economic development, the applicant can contest these requirements according to
the provisions of G.S. 143-215.1(e) and 15013-23.
(e) Outstanding Resource Waters (ORW) are a special subset of High Quality Waters with unique and special
characteristics as described in Rule .0216 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,
will be maintained and protected.
M Activities re2ul red ender Section 404 of the Clean Water Act (33 U S C 1344) which rr4uire a water
quality certification as described it 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 will 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 will incorporate
the criteria found at 15A NCAC 2H 0506(c)(l)-(5) in determining the potential imy?pt of the proposed activity on
the existing uses of the wetland per 15A NCAC 2H .0220.
History Note: Statutory Authority G.S. 143-214.1; 143-215.1; 143-215.3(a)(1);
Ef. .. February 1, 1976;
Amended Eff. February 1, 1993; April 1, 1991; August 1, 1990; October 1, 1989.
15A NCAC 2B .0202 is proposed for amendment as follows:
.0202 DEFINITIONS
The definition of any word or phrase used in these rules shall be the same as given in Article 21, Chapter 143 of
the General Statutes of North Carolina. The following words and phrases, which are not defined in this article, will
be interpreted as follows:
(1) Acute toxicity to aquatic life means lethality or other harmful effects sustained by either resident aquatic
populations or indicator species used as test organisms in a controlled toxicity test due to a short-term
exposure (relative to the life cycle of the organism) to a specific chemical or mixture of chemicals (as in
an effluent). Short-term exposure for acute tests is generally 96 hours or less. Acute toxicity will be
determined using the following procedures:
(a) . ifiic chemical constituents or come ounds, acceptable levels wi:' `e equivalent to a concentration
;: half or less of die Fin Acute Valu:, F AV) as dc:c:mined acc.....ng to ,sidelines `or Deriving
3-6
Numerical Water Quality Criteria for the Protection of Aquatic Life and its Uses" published by the
Environmental Protection Agency and referenced in the Federal Register (50 FR 30784, July 29, 1985).
(b) for specific chemical constituents or compounds for which values described under Subparagraph (1)(a)
of this Rule can not be determined, acceptable levels will be equivalent to a concentration of one-third
or less of the lowest available LC50 value.
(c) for effluents, acceptable levels are defined as no statistically measurable lethality (99 percent confidence
level using Students t test) during a specified exposure•period. Concentrations of exposure will be
determined on a case-by-case basis.
(d) in instances where detailed dose response data indicate that levels of acute toxicity are significantly
different from those defined in this Rule, the Director may determine on a case-by-case basis an
alternate acceptable level through statistical analyses of the dose response curve.
(2) Acute to Chronic Ratio (ACR) means the ratio of acute toxicity expressed as an LC50 for a specific
toxicant or an effluent to the chronic value for the same toxicant or effluent.
(3) Agricultural uses include the use of waters forrstock watering, irrigation, and other farm purposes.
(4) Approved treatment, as applied to water supplies, means treatment accepted as satisfactory by the
Division of Environmental Health or Division of Environmental Management.
(5) Average (except bacterial) means arithmetical average and includes the analytical results of all samples
taken during the specified period; all sampling shall be done as to obtain the most representative sample
under prevailing conditions:
(a) Daily Average for dissolved oxygen, shall be of at least four samples;
(b) Weekly Average means the average of all daily composite samples obtained during the calendar week; if
only one grab sample is taken each day, the weekly average is the average of all daily grab samples; a
minimum of three daily grab samples is needed to calculate a weekly average;
(c) Monthly Average means the average of all daily composites (or grab samples if only one per day)
obtained during the calendar month.
The definitions in this Paragraph do not affect the monitoring requirements for NPDES permits but rather
are to be used by the Division along with other methodologies in determining violations of water quality
standards. Arithmetical averages as defined by this Rule, and not confidence limits nor other statistical
descriptions, will be used in all calculations of limitations which require the use of averages pursuant to
this Rule and 40 CFR 122.410)(4)(iii).
(6) Best Management Practice (BMP) means a structural or nonstructural management-based practice used
singularly or in combination to reduce nonpoint source inputs to receiving waters in order to achieve
water quality protection goals.
(7) Best usage of waters as specified for each class means those uses as determined by the Environmental
Management Commission in accordance with the provisions of Article 21, Chapter 143-214.1, General
Statutes of North Carolina.
(8) Bioaccumulation factor (BAF) is a unitless value that describes the degree to which substances are taken
up or accumulated into tissues of acquatic organisms from water directly and from food or other ingested
materials containing the accumulated substances, and is usually measured as a ratio of a substance's
concentration in tissue versus its concentration in water in situations where exposure to the substance is
occurring from both water and the food chain.
(9) Bioconcentration factor (BCF) is a unitless value that describes the degree to which substances are
absorbed or concentrated into tissues of aquatic organisms from water directly and is usually measured as
a ratio of substance's concentration in tissue versus its concentration in water in situations where
exposure to the substance is occurring from water only.
(10) Biological integrity means the ability of an aquatic ecosystem to support and maintain a balanced and
indigenous community of organisms having species composition, diversity, population densities and
functional organization similar to that of reference conditions.
(11) Buffer means a natural or vegetated area through which stormwater runoff flows in a diffuse manner so
that the runoff does not become channelized and which provides for infiltration of the runoff and filtering
of pollutants. The buffer is measured landward from the normal pool elevation of impounded structures
and from the bank of each side of streams or rivers.
3-7
(12) Built-upon area means that portion of a development project that is covered by impervious or partially
impervious cover including buildings, pavement, gravel roads, recreation facilities (e.g. tennis courts),
etc. (Note: Wooden slatted decks and the water area of a swimming pool are considered pervious.)
(13) Chronic toxicity to aquatic life means any harmful effect sustained by either resident aquatic populations
or indicator species used as test organisms in a controlled toxicity test due to long-term exposure (relative
to the life cycle of the organism) or exposure during a substantial portion of the duration of a sensitive
period of the life cycle to a specific chemical substance or mixture of chemicals (as in an effluent). In
absence of extended periods of exposure, early life stage of reproductive toxicity tests may be used to
define chronic impacts.
(14) Chronic value for aquatic life means the geometric mean of two concentrations identified in a controlled
toxicity test as the No Observable Effect Concentration (NOEC) and the Lowest Observable Effect
Concentration (LOEC).
(15) Concentrations are the mass of a substance per volume of water and for the purposes of this Section will
be expressed as milligrams per liter (mg/1), micrograms per liter (ug11), or nanograms per liter (ngA).
LM Contiguous refers to those wetlands land- of the mean hieh water line or normal water level and
within 575 feet of classified surface waters which appear as solid blue lines on the most recently
published versions of U S G S 1:24.000 (7.5 minute) scale topoglgphic mays.
06) LM Critical area means the area adjacent to a water supply intake or reservoir where risk associated with
pollution is greater than from the remaining portions of the watershed. The critical area is defined as
extending either 112 mile from the normal pool elevation of the reservoir in which the intake is located or
to the ridge line of the watershed (whichever comes fast); or 1/2 mile upstream from and draining to the
intake (or other appropriate downstream location associated with the water supply) located directly in the
stream or river (run-of-the-river), or to the ridge line of the watershed (whichever comes first). Since WS-
J watersheds are essentially undeveloped, establishment of a critical area is not required. Local
governments may extend the critical area as needed. Major landmarks such as highways or property lines
may be used to delineate the outer boundary of the critical area if these landmarks are immediately
adjacent to the appropriate outer boundary of 1/2 mile. The Commission may adopt a different critical
area size during the reclassification process.
0-7) LM Critical habitat areas are defined for the purposes of the rules of this Section as those waters which are
considered to be essential for the continued existence of an endangered or threatened species, and which are
so designated by the NC Wildlife Resources Commission for animals or the NC Department of
Agriculture for plants.
fig) U9_1 Designated Nonpoint Source Agency means those agencies specified by the Governor in the North
Carolina Nonpoint Source Management Program, as approved by the Environmental Protection Agency.
(-1-9) JM Development means any land disturbing activity which adds to or changes the amount of impei pious or
partially impervious cover on a land area or which otherwise decreases the infiltration of precipitation
into the soil.
(M fU Discharge is the addition of any man-induced waste effluent either directly or indirectly to state surface
waters.
Q+) JM Division means the Division of Environmental Management or its successors.
(22) Domestic wastewater discharge means the discharge of sewage, non-process industrial wastewater, other
domestic wastewater or any combination of these items. Unless excepted by the Director, domestic
wastewater includes liquid waste generated by domestic water using fixtures and appliances, from any
residence, place of business, or place of public assembly even if it contains no sewage. Examples of
domestic wastewater include once-through non-contact cooling water, seafood packing facility discharges
and wastewater from restaurants.
(23) f241 Effluent channel means a discernable confined and discrete conveyance which is used for transporting
treated wastewater to a receiving stream or other body of water as provided in Rule .0215 of this Section.
(24) j Existing development, for the purposes of these Rules, shall be defined as those projects that are built or
those projects that at a minimum have established a vested right under North Carolina zoning law as of
the effective date of the local government water supply ordinance, or such earlier time that an affected
local government's management plans and ordinances shall specify, based or at least one of the folly '.ving
criteria:
3-8
(a) substantial expenditures of resources (time, labor, money) based on a good faith reliance upon having
received a valid local government approval to proceed with the project, or
(b) having an outstanding valid building permit in compliance with G.S. 153A-344.1 or G.S. 160A-
385.1, or
(c) having expended substantial resources (time, labor, money) and having an approved site specific or
phased development plan in compliance with G.S. 153A-344.1 or G.S. 160A-385.1.
(2:5) j? Existing uses mean uses actually attained in the water body, in a significant and not incidental manner,
on or after November 28, 1975, whether or not they are included in the water quality standards, which
either have been actually available to the public or are uses deemed attainable by the Environmental
Management Commission. At a minimum, uses shall be deemed attainable if they can be achieved by
the imposition of effluent limits and cost-effective and reasonable best management practices (BMPs) for
nonpoint source control.
(M) Fishing means the taking of fish by sport or commercial methods as 'well as the consumption of fish or
shellfish or the propagation of fish and iuch'other aquatic life as is necessary to provide a suitable
environment for fish. dr
(24) j?$1 Freshwater means all waters that under natural conditions would have a chloride ion content of 500 mg/1
or less.
(28) fn Hazardous material means any substance listed as such in: Superfund Amendments and Reauthorization
Act (SARA) Section 302 Extremely Hazardous Substances (42 USC 11000 et seq.), Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) Hazardous Substances (42 USC
9601 et seq.) or Section 311 of the Clean Water Act (CWA), as amended (33 USC 1251 et seq.; oil and
hazardous substances) 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 Environmental Management, 512 North Salisbury Street, Raleigh, North
Carolina. Copies of SARA and CERCLA may be obtained as a single package from the Superintendent
of Documents, U.S. Government Printing Office, Washington, D.C. 20402-9325 at a cost of one
hundred and one dollars ($101.00). Copies of CWA may be obtained from the Superintendent of
Documents, U.S. Government Printing Office, Washington, D.C. 20402-9325 at a cost of fifty dollars
($50.00).
(29) 141 Industrial discharge means the discharge of industrial process treated wastewater or wastewater other than
sewage and includes:
(a) wastewater resulting from any process of industry or manufacture, or from the development of any
natural resource;
(b) wastewater resulting from processes of trade or business, including wastewater from laundromats and
car washes, but not wastewater from restaurants;
(c) stormwater will not be considered to be an industrial wastewater unless it is contaminated with
industrial wastewater, or
(d) wastewater discharged from a municipal wastewater treatment plant requiring a pretreatment program
(39) 1312 LC50 means that concentration of a toxic substance which is lethal (or immobilizing, if appropriate) to
50 percent of the organisms tested during a specified exposure period. The LC50 concentration for toxic
materials shall be determined for sensitive species as defined by Subparagraph (43) of this Rule under
aquatic conditions characteristic of the receiving waters.
(3}j Ql Local government means a city or county in singular or plural as defined in G.S. 160A-1(2) and G.S.
158A-10.
(3-2) 1.331 Lower piedmont and coastal plain waters mean those waters of the Catawba River Basin below Lookout
Shoals Dam; the Yadkin River Basin below the junction of the Forsyth, Yadkin, and Davie County
lines; and all of the waters of Cape Fear, Lumber, Roanoke, Neuse, Tar-Pamlico, Chowan, Pasquotank,
and White Oak River Basins; except tidal salt waters which are assigned S classifications.
(33) JM MF is an abbreviation for the membrane filter procedure for bacteriological analysis.
(34) M5 Mixing zone means a region of the receiving water in the vicinity of a discharge within which dispersion
and dilution of constituents in the discharge occurs and such zones shall be subject to conditions
established in accordance with 15A NCAC 2B .0204(b).
(33) 0(51 Mountain and upper piedmont waters mean all of the waters of the Hiwassee; Little Tennessee, including
the Savannah River drainage area; French Broad; Broad; New; and Watauga River Basins; and those
3-9
portions of the Catawba River Basin above Lookout Shoals Dam and the Yadkin River Basin above the
junction of the Forsyth, Yadkin, and Davie County lines.
(36) LUI Nonpoint source pollution means pollution which enters waters mainly as a result of precipitation and
subsequent runoff from lands which have been disturbed by man's activities and includes all sources of
water pollution which are not required to have a permit in accordance with G.S. 143-215.1(c).
(3-7) IM Non-process discharge means industrial effluent not directly resulting from the manufacturing process.
An example would be non-contact cooling water from a compressor.
(38) LM Nutrient sensitive waters mean those waters which are so designated in the classification schedule in order
to limit the discharge of nutrients (usually nitrogen and phosphorus). They are designated by "NSW"
following the water classification.
f39) 4Q) Offensive condition means any condition or conditions resulting from the presence of sewage, industrial
wastes or other wastes within the waters of the state or along the shorelines thereof which shall either
directly or indirectly cause foul or noxious odors, unsightly conditions, or breeding of abnormally large
quantities of mosquitoes or other insect pester shall damage private or public water supplies or other
structures, resuit in the development of gases which destroy or damage surrounding property, herbage or
grasses, or which may cause the impairment of taste, such as from fish flesh tainting, or affect the health
of any person residing or working in the area.
(40) L4.U Primary Nursery Areas (PNAs) are tidal saltwaters which provide essential habitat for the early
development of commercially important fish and shellfish and are so designated by the Marine Fisheries
Commission.
(44) 4Z Primary recreation includes swimming, skin diving, skiing, and similar uses involving human body
contact with water where such activities take place in an organized or on a frequent basis.
(42) i4l Protected area means the area adjoining and upstream of the critical area in a WS-IV water supply in
which protection measures are required The boundaries of the protected areas are defined as extending five
miles upstream and draining to water supply reservoirs (measured from the normal pool elevation) or to
the ridge line of the watershed (whichever comes first); or 10 miles upstream and draining to the intake
located directly in the stream or river (run-of-the-river), or to the ridge line of the watershed (whichever
comes first). Local governments may extend the protected area. Major landmarks such as highways or
property lines may be used to delineate the outer boundary of the protected area if these landmarks are
immediately adjacent to the appropriate outer boundary of five or 10 miles. In some cases the protected
area will encompass the entire watershed. The Commission may adopt a different protected area size
during the reclassification process.
(43) 44) Residential development means buildings for residence such as attached and detached single family
dwellings, apartment complexes, condominiums, townbouses, cottages, etc. and their associated
outbuildings such as garages, storage buildings, gazebos, etc.
(44) L451 Secondary recreation includes wading, boating, other uses not involving human body contact with water,
and activities involving human body contact with water where such activities take place on an infrequent,
unorganized, or incidental basis.
(45) 44M Sensitive species for aquatic toxicity testing is any species utilized in procedures accepted by the
Commission or its designee in accordance with Rule .0103 of this Subchapter, or the following genera:
(a) Daphnia;
(b) Ceriodaphnia;
(c) Salmo;
(d) Pimephales;
(e) Mysidopsis;
(f) Champia,
(g) Cyprinodon;
(h) Arbacia;
(i) Penaeus;
0) Menidia;
(k) Notropis;
p) Salvelinus;
(M Oncc;;".vnchus;
(n) Selenasuum.
3-10
Other genera may be accepted by the Commission or its designee on a case-by-case basis.
(46) 1421 Shellfish culture includes the use of waters for the propagation, storage and gathering of oysters, clams,
and other shellfish for market purposes.
(44) j9$) Sludge/residuals means any solid or semisolid waste generated from a wastewater treatment plant, water
treatment plant or air pollution control facility permitted under the authority of the Environmental
Management Commission.
(48) 1:42) Source of water supply for drinking, culinary or food-processing purposes 'means any source, either
public or private, the waters from which are used for human consumption, or used in connection with the
processing of milk, beverages, food, or other purpose which requires water suitable for human
consumption.
(49) M Swamp waters mean those waters which are classified by the Environmental Management Commission
and which are topographically located so as to generally have very low velocities and certain other
characteristics which are different from adjacent streams draining steeper topography. They are designated
by "Sw" following the water classificatiod.
(59) Lib Tidal salt waters mean all tidal waters which are classified by the Environmental Management
Commission which generally have a natural chloride ion content in excess of 500 parts per million and
include all waters assigned S classifications.
(54 Toxic substance or toxicant means any substance or combination of substances (including disease-causing
agents), which after discharge and upon exposure, ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through food chains, has the
potential to cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological
malfunctions (including malfunctions or suppression in reproduction or growth) or physical deformities
in such organisms or their offspring.
(52) j?D Trout waters are those waters which have conditions which will sustain and allow for trout propagation
and survival of stocked trout on a year-round basis. These waters are classified by the Commission after
considering the requirements of Rule.0101(b) and (c) of this Subchapter and include all waters designated
by "Tr" in the water classification.
(53) L5441 Waste disposal includes the use of waters for disposal of sewage, industrial waste or other waste after
approved treatment.
(54) L5,'21 Water dependent structures are those structures for which the use requires access or proximity to or siting
within surface waters to fulfill its basic purpose, such as boat ramps, boat houses, docks and bulkheads.
Ancillary facilities such as restaurants, outlets for boat supplies, parking lots and commercial boat
storage areas are not water dependent structures.
(SSj L5-61 Water quality based effluent limits and best management practices are limitations or best management
practices developed by the Division for the purpose of protecting water quality standards and best usage of
surface waters consistent with the requirements of Genet Sl,5, 143-214.1 and the Federal Water
Pollution Control Act as amended.
( L? 71 Waters with quality higher than the standards means all waters for which the determination of waste load
allocations (pursuant to Rule .0206 of this Section) indicates that water quality is sufficiently greater
than that defined by the standards such that significant pollutant loading capacity still exists in those
waters.
(57) LM Watershed means the entire land area contributing surface drainage to a specific point. For the purposes
of the water supply protection rules (15A NCAC 2B .0211) local governments may use major landmarks
such as highways or property lines to delineate the outer boundary of the drainage area if these landmarks
are immediately adjacent to the ridgeline.
159_2 Wetlands are "waters" as defined by G S 143-212(6) and are areas that are inundated or saturated bye
accumulation of surface or ground water at a frequency and duration sufficient to support. and that under
normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil
conditions Wetlands generally include swamps marshes bound similar areas Wetlands classified as
waters of the state are restricted to waters of the United States as defined by 33 CFR 328.3 and 40 CFR
230.3.
History Note: Statutory Authority G.S. 143-214.1; 143-215.3(a)(1);
Eff. February 1, 1976;
3-11
Amended Eff. February 1, 1993; August 3, 1992; August 1, 1990; October 1, 1989.
15A NCAC 2B .0220 is proposed for adoption as follows:
.0220 WETLAND STANDARDS
fM General. The water quality standards for all wetlands are designed to protect. preserve. restore and enhance
the quality and uses of wetlands and other waters of the state influenced by wetlands. The following are wetland
uses:
111
Storrs'
and flood water -torage and retention and the moderation of extreme
water level fluctuations:
a) Hydro
stream logic functions including groundwater discharge that contrib
flow and. at otber locations or times. groundwater recharge tha utes to maintain dry weatber
t replenisbes the groundwater

131 system
Filuad :
on or storage of sediments, nutrients, toxic substances, or other p
ollutants that would otberwise
advers ely impact the qu i of other waters of Le state:
L41 Shorel ine protection against erosion through ytie dissipation of wave e nergy and water velocity and
stabili zation of sediments:
M Habita
fish c t for the propagation of resident wetland-dependent aquatic organis
rustaceans mollusks insects annelids planktonic organisms an ms including but not limited to
d the plants and animals upon
which these aquatic organisms feed and deMndupon for their needs in all l ife stages.
151 Habita t for the propagation of resident wetland-dependent wildlife spec ies. including mammals, birds,
rQUIe s and amphibians for breeding. nesting. cover. travel corridors and fo od: and
M Th e follo wing standards shall be used to assure the maintenance or enhan cement of the existing uses of
wetland
Ill s id entified
LiQuid in Paragraph (a) of this rule:
s. fill or other solids or dissolved gases may not be present in am
ounts which may cause adverse

impact s on existing wetland uses:
121 Floatin g or submerged debris. oil. deleterious substances, or other m aterial may not be present in
amoun ts which may cause adverse impacts on existing wetland uses:
131 Materi als producing color. odor. taste or unsightliness may not be prese nt in amounts which may cause
advers e impacts on existing wetland uses:
f 4
1 Conce ntrations or combinations of substances which are toxic or barmfu l to human. animal or plant life
- may n ot be present in amounts which individually or cumulatively m ay cause adverse impacts on
existin g wetland uses.
M Hydro logical conditions necessary to support the biological and physical characteristics naturally present
in wetl ands shall be protected to prevent adverse impacts oa:
1A1 Wat er currents. erosion or sedimentation pattems:
(B Natu ral water temperature variations:
n The chemical. nutrient and dissolved oxygen regime of the wetland:
1p1 The movement of aquatic fauna,
a The pH of the wetland: and
(M Wat er levels or elevations.
M ne po
15A N pulations of wetland flora and fauna shall be maintained t2 protect
CAC 2B .0202. biological integrity as defined at
History Note: Statutory Authority G.S. 143-214.1: 143-215.3(a)(1):
l5A N' AC 2H .0501 : - roposed for adoption as follows:
3-12
SUBCHAPTER 2H - PROCEDURES FOR PERMITS: APPROVALS
SECTION.0500 - WATER QUALITY CERTIFICATION
.0501

lia fa)
ison a The
nd fi p
na rovisio
ncial a ns of this
id dote in section shall ap
ations that affe ply
ct sur to all g
face w lvtst
aters on regutato
and wetlan n, ptan
ds as defi muY
ned b IGJV U,<
y 15A N c u,auaewua u,•
C' AC 2130202
Th is sect ion sh all only spply to s pecific activitie s whi ch requ ire s tate review after the effecti ve date of this Rule and
wh ich ra luir e a Divisi on detemti nadon concemin g eff ects on surfa ce waters or wetland s Act ivities th at are described
in Sectio
M n 4
Th 04(
ese f)(I)(A
Rules -F) of the
outline th Clean Water Ac
e application t (33
and r U S C
eview 134
proc 4) are exem
edures for pt from t
activitie his Ru
s that le.
requir
e water quality
ce rtifica tion s ( certific ations) pur suant to Sectio n 401 of the Cle an Water Ac t (33 U S C 1 341)C ertifications are
r: uired wh ene ver co nstructi on o r operation of f acilit ies will resu lt in a disch arge into navig able wat ers as described
in T
33 CF R P art 323 The federal definition of na vigab le wate rs in cludes wetl ands as d efined at 33 C FR 323.3 and 40
CF R 23
W 0.3.
Ce
rtifi ,
cation _
s maybe is
sued for individ
ual_ ac %
tivities
(ind
ividual_ certi
fications
) or iss
ued for
specific tunes or
g imps o
LU f ac
Ind tivi
ivi ties (g
dual ce eneral certi
rtifications fications).
are issued on a
case-
by-case
basi
s and the pr
ocedtres
out-lin
ed in the
following rules

fZ are
Ge
ner uired f
al cert or each ind
ifications ividual_ certificat
are issued for U ion,
ncifi
c D=
s or
groups of a
ctivities
that a
re simil
ar in nature and
con sid ered to have mini mal i=act. The appl ication and review proc edures f or requ esting c oncurrence from
the D ivision that the general certific ation can be use d for the p roposed activi ty are t he same as the
pro ce dures o utlined in t he following rul es fo r indivi dual certification s unless specifi cally sta ted otherwise in
the ge neral c ertification.
History Note: Statuton Authority G S 143-215.3(a)(1):143-215.3(c):
15A NCAC 2H .0502 recodified from .0501 is proposed for amendment as follows:
.05072 APPLICATION
(a) Application for Certification. Any person, as defined in Article 21, Chapter 143, North Carolina General
Statutes, desiring issuance of the state certification or coveraim under a general certification required by Section 401
of the Federal Water Pollution Control Act as amended shall file with the Director of the North Carolina Division of
Environmental Management (director), at the office in Raleigh, North Carolina, an original and six copies of an
application for certification, and the diitsGtar- shall mail one Gopy of the .. - -on to -ho Noah -11,11111, . 2 Dretr-u o--; of
Wildlife Reseur
Submission of an application to the Division of Coastal Management for
permits to develop in North Carolina's coastal area shall suffice as an application for certification. The application
shall specify:
(1) the date of application;
(2) the name, address, applieen and phone number of the propcM owner;
(3) if the applicant is a corporation, the state in which it is domesticated, the name of its principal officers, and
the name and address of the North Carolina process agency, and the name of the individual who shall be
primarily reWonsible for the conduct of the activity for which certification is sought:
(3) the nature of the activity to be conducted by applicant;
(6) whether the discharge is eeemriag has occurred or ij proposed;
(4) L(21 the location of the discharge, stating the municipality, if applicable; the county; the drainage
basin; the name of the receiving waters; and the location of the point of discharge with regard to the
receiving waters;
3-13
(8) 12.1 the eaetre a description of the receiving waters, including type (creek, river, swamp, canal, lake.-m ponder
estuga) if aovlicable; nature (fresh, brackish or salt); and direction of flow wetland classification;
(9)1.$.1 description of the of waste treatment facilities if applicable; if any, that %441 teeeive the wastewate
00) the" ofdisrh?Fge, mrluding chemiGad GoEapositionj quaatky, expFessed as gallons per- unit of time;
F disehargel
F
(b) Maps. There shall be attached to the application a map(s) or sketch(es) of sufficient detail to accurately
delineate the boundaries of the lands owned or to be utilized by the applicant in carrying out its activity; the location,
dimensions and type of any structures erected or to be erected on said lands for use in connection with the activity;
eaveyiag the dos shags; and the location and extent of the receiving
waters including wetlands within the boundaries in th? vieinity of said lands. Maps and sketches sha4ll be on shee
V.
(c) Power to Request Additional Information. Tbetirector may request, and the applicant shall furnish, any
additional information that may be found necessary for the proper consideration of the application.
(d) Omissions From Applications. If the applicant considers that it is not feasible or is unnecessary to furnish
any portion of the information required by Subdivisions (a) and (b) of this Regulatiee Euh, applicant shall submit a
detailed statement explaining the reasons for omission of any such information.
(e) Investigations. The staff of the Department of
Environment. Health, and Natural Resources (department) shall conduct such investigation as the Director deems
necessary; and applicant shall cooperate in the investigation to the extent that it shall furnish necessary information,
allow the staff jak access to the lands and facilities of the applicant and lend such assistance as shall be reasonable.
(f) Who Must Sign Applications. The application will be considered a "valid application" only if the
application bears the signature of a responsible officer of the company, municipal official, partner or owner. Jbia
signature certifies that the applicant has title to the property, has been authorized by the owner to apply for
certification or is a public entity and has the power of eminent domain. Said official in signing the application shall
also certify that all information contained therein or in support thereof is true and correct to the best of his
knowledge.
f4 An application form may be obtained from the Division of Environmental Management the Division of
Coastal Management. or the U.S. Army Corps of Engineers. Wilmington District Regulatory Branch.
History Note: Statutory Authority G.S. 143-215.3(a)(1);143-215(c);
Eff. February 1, 1976;
Amended Eff. December 1, 1984, January 1, 1979.
15A NCAC 211 .0503 recodified from .0502 is proposed for amendment as follows:
.05022 PUBLIC NOTICE
(a) Notice by Publication. Notice of each pending application for an individual certification shall be published
one time in a newspaper having general circulation in the county in which the discharge will occur, or as provided in
Paragraph (c) of this Rule. Publication shall be made at least 15 days prior to proposed final action by the Director
upon the application and not more than 20 days after acceptance of a completed application.
(b) Contents of Notice. The notice shall set forth the name and address of the applicant; the action requested in
the application; the nature and location of the discharge; and the proposed date of final action to be taken by the
Director upon the application. The notice shall also state that additional information is on file with the department
and may be inspected at any time during normal working hours. Copies of such information on file will be made
available upon request and upon payment of the cost thereof to the department.
(c) The public notice requirement may also be satisfied by a joint notice with the Division of Coastal
Management (I5A NCAC 7.1 0206) or the U S Army Corps of Engineers according to their established procedures
H u Notice of Hearing. If the Director determines t` :u a hearing should be held concerning the granting or
denial of the application, 11le Di-r_ctur shat: pubhs : notice the hc: -ing one time in a newspaper h. ,ing general
3-14
circulation in the county in which the discharge will occur. The notice shall be published at least 30 days prior to
the date of the bearing. The notice shall state the time, place and nature of the hearing.
{dj W Eevirenmeetal Water Quality Certification Mailing List. Any person may request that he or she be mailed
copies of all public notices required by this Rule. The Director shall add the name of any such person to an
environmental a water quality certification mailing list and shall mail copies of notices to all persons on the list.
(f) Payment of Costs of Public Notice. The applicant shall pay to the department the costs of advertising public
notice required by Paragraphs (a) and (e) M of this Regulatie RUk. Certification shall be withheld until such costs
have been paid.
History Note: Statutory Authority G.S. 143-215.3(a)(1); 143-215.3(c);
Eff. February 1, 1976;
Amended Eff. December 1, 1984; September 1, 1984.
15A NCAC 2H.0504 recodified from .0503 is proposed for amendment as follows:
.05034 HEARING
(a) Public Hearing on Certification. If 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, the Director shall so notify the applicant by registered or certified mail, return receipt requested, and
shall publish and give notice as required by Paragraphs .0582(e) and (d) .0503 (d) and (el of this Section. Such
hearing will be held within 90 days following date of notification. The record of each bearing held under this
Paragraph shall remain open for a period of 30 days.
(b) Hearing for Applicant Upon Certification Denial. An applicant whose certification is denied or granted
subject to unacceptable conditions, shall have the right to a contested case hearing pursuant to the provisions of G.S.
15013-23.
History Note: Statutory Authority G.S. 143-215.3(a)(1);143-215.3(c);
Eff. February 1, 1976;
Amended Eff. July 1, 1988; December 1, 1984.
15A NCAC 2H .0506 is proposed for adoption as follows:
Q506 REVIEW OF APPLICATIONS
W 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 Rotential to remove or degrade those significant
cxisting_uses which are present in the wetland or surface water Activities which would not remove or degrade
exy istin?t?,es shall be reviewed according to the procedures found in Subparamphs (c)(2)-(5) of this Rule Those
activities covered by general certifications (15A NCAC 2H 0501(c)(2)) which do not require written concurrence
from the Division will 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 Drrsent at a particular site using a wetland ecological evaluation method approved by the
Director otherwise the designated uses as outline at 15A NCAC 213 0220(a)(1) (6) are assumed to exist in all
classes of wetlands and the appropriate review procedures shall be undertaken Certification shall be issued whr=
the Director detem-dnes water query standards are met. including- protection of existing uses.--.
fb) 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:
W has no vracdcal alternative under the criteria outlined in Paragraph (f) of this Rule:
JZ will minimize adverse impacts to the surface waters based on consideration of existing_top2emphy.
vyegetation, fish and wildlife resources and hydrological conditions under the criteria outlined in
Paragraph (g) of this Rules
M floes not result in the de ation of zrnnndwaters or surface waters:
3-15
does not r esult in cumulative im pacts based upon past or re asonably anticipa ted future impacts.
that cause or will cause a violatio n of downstream water quali ty standards:
provides f
l
t or protecdon of downs
: and
u
e == water quality standards through the use o f on-site stormwater
iQ me
con
ro
provides f as
r
s
or replacement of exis ting uses through mitigation
f
(h)(1)
hi
R
h under U S Army
l Corps of Engineers

fj;)
The D requireme
irector shall nts or as described at S
issue a certification u o
t
s
ubparagrap
s
pon determining that signifi u
e,
cant existing uses
am not removed or

degrad ed by a di scharge to C lass WL wetlands as d efined at 15A NCAC 2B .0 i 0l(c)(8). for an act ivity which:
11) has no pr actical_ alternative as d escribed in Paragraph (f) of this Rule, or imp acts less than three
acres of C lass. WL wetlands:
lz will mini
i mize adverse impacts
ildlif
fi
h
d to the wetland based on co
drolu?ical co
d h nsideration of e
nditions under the xisting topography.
criteria outlined in
vegetat
on
Paragraph e res
s
w
,
an
(g) of his Rule or im ources. an
y
pacts or less than one acre of wetland within 150 feet (ins udin
less than one-third acre of wetla nd within 50 feet), of the m ean J igh water li ne or normal water
level of any perennial or intermi
of the United States Geological_ ttent Ater body as shown b
Survey 1:24.000 (7.5 minu y the most recentl
te) scale topogra y _published version
phical map or other
site-speci
does not fic data:
result in the degmda6on
of groundwaters or surface waters:
M) does not result in cumulative im pacts based upon past or r easonably, anticip ated future impacts,
that cause or wi 1 cause a violati on of downstream water qual ity standards:
? provides
l protection for downstre
d am water quality standards through the use o on-site stormwater
' ffi contro
m
provides easures: an
for replacement of exi sting us through wetland mitigation under U.S. Army Corps of
v Engineers requirements or as des cribed in SubparaMph (h)(1 )-(8) of this Rule.
i(l The D irector shall issue a 401 Water Qu ality Certification for approj ect upon determi ning that significant
existin g uses a re not remo ved or degraded by a discharge to Class SWL w etland as defined at 15A NCAC 2B
0101( d)(4) wetlands that are contiguous to wa ters designated as ORW H QW SA WS-I. WS-II or Trout. or
wetlan ds that a re contiguo us to rivers designated as a North Carolina or Na tional Wild and S cenic River, for an

activity which s atisifies Sub paragraphs (c)(2)-(5) of this Rule. and:
all fDi r wetla nds classified as coast al wetlands pursuant to 15 A NCAC 7H 02 05. has no pact
altemadv e as described in Parag raph (f) of this Rule and:
Q for wetla nds classified as coast al wetlands pursuant to 15A NCAC 7H 0205 is water dependent
and rewi res access to water as a central element of its basic function, althoug h prgjects funded by
goverme nt agencies may be exe mpted from this requirement : and.
M provides for replacement of exi sting uses through wetland mitigation under U.S. Army Corp
Engineers requirements or as de scribed in Subparagraphs (h) (D-0) and (9) of t his Rule.
(e) The D irector shall issue a certification up gn determining wetlands of e xceptional state o r national ecological
signifi cance in cluding but not limited to Class UW1 wetlands and wetlan ds that have been documented to the
satisfa ction of t he Director as habitat essential for t he conservation of state or fe derally listed threa tened or endangg rimed
specie s. for an activj-ty whic b satisifies Subparagra phs (0(2)45) and (d)(1)•(2) of this Rule, ands
the wetla nd impacts are necessar y for the proposed RMiect to meet a demonstrat ed public need: and
provides for replacement of exi sting uses through wetland mitigation under U.S. Army Corps of
Engineer s requirements or as de scribed in Subparagraphs (h) (1)-(71 and (10) o f this Rule
M. A lac k of practic al alternatives may b e shown by demonstrating that considering the potential for a
reduct ion in si ze configu ration or density fo th e proposed activity and all alternative desig ns the basic project
pupos e connot be practical ly accomplished in a m anner which would avoid or result in less adve rse impact to surface
waters or wetlands.
•(g)• Minimization of impacts may be demonstrated by s bowing 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:
the spatial and dimensional requirements of the project: or
the location of any existing structural or natural features that may dictate the placement or
configuration of the proposed proiec.tLu
f) the_pumose of the 12rc ect and how: numose_rela'es to :,±cement.c ,guar. .gr densi.
3-16
M Replacement or mitigation of unavoidable losses of existing uses shall be reviewed in accordance with the
following guidelines:
gU 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 nidgation MQuir A by that - t certification unless the
Director determines that existing uses would not be replaced.
j? Mitigation shall not be required for impacts to Class WL wetlands of less than 1 acre.
Participation in wetland restoration programs coordinated by the Department of Environment.
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 particiaoation in thsee restoration program iY
not practical.
!42 Astable methods of wetlands mitigation are listed below in the order of preference:
fA2 Restoration: the rc-establishment of wetland bydrology and vegetation in an area wbere it
previously existed.
MI Creation: the construction of a wetland in an area where wetlands did not exist in the
recent past.
LO Enhancement: increasing_ one or more of the functions of an existing wetland by
manipulation of vegetation or hydrology.
1I Preservation: protection of wetlands through purchase. donation or conveyance of a
conservation easement to an appropriate government or non-profit agency for
management.
M Restoration is the preferred method of wetlands mitigation. The other methods may be utilized i
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.
JO 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.
7M Wetlands mitigation sball be conducted based on the following ratios (acres mitigated to acres
lost): 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 topograp +h_cal man: 2:1. for wetlands
located between 150 feet and 1000 feet from the mean high water line or normal water level of anv
perennial or intermittent water body as shown by the most recently published version of the Unitd
States Geological Survey 1:24.000 (7.5 minute) scale topographical map: and 1:1. for all other
wetlands. The above ratios apply only to restoration. The acres of required mitigation for the
other types of mitigation shall be determined b m ul 6plying the above ratios by 1.5 for creation.
2 for enhancement. and 5 for preservation. This subparagraph shall not apply to general
certifications until the Department has established a wetlands restoration program or until January
1. 1997. whicbever occurs first.
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.
121 Mitigation for impacts to wetlands designated in Paragraph (d) of this Rule shall be of the same
wetland 0= and located within the same river sub-basin when practical Mitigation for impacts to
wetlands adjacent to waters classified as WS-1 or WS-11 shall be replaced within the water supply
watershed when practical.
UM Mitigation for impacts to wetlands designated in Paragraph (c) of this Rule shall be of the sa=
wetland type and within the same watershed when practical.
M The Director shall not dupliate the site-specific application of any guidelines employed by the United States
Arty Corp os f Engineers in evaluating Mme t applications under 33 U.S.C. 1344 and applicable federal regulations.
History Note: Statutory Authority G S 143-115,3(a)(1): 143-215.3(c):
3-17
15A NCAC 2H .0507 recodified from .0504 is proposed for amendment as follows:
.05041 ISSUANCE OF CERTIFICATION
(a) Time Limit for Final Action on Certification Application. All applications for certification shall be granted
or denied within 430 f Q days after receipt at the offices of the Director in Raleigh, North Carolina, , jtla4ess Failure
to take final_ action within 60 days will result in a waiver of the certification rrwuirement by the Director, unless:
(1) The applicant agrees, in writing, to a longer period;
(2) Final decision is to be made pursuant to a public hearing;
(3) App5cant fails to furnish information necessary to the Director's decision;
(4) Applicant refuses the staff access to its records or premises for the purpose of gathering information
necessary to the Director's decision;
(5) Information necessary to the Director's decision is unavailable.
(b) Time Limit for Final Action on Certification Apglication After Hearing. All applications for certification
shall be granted or denied within 4-M 44 days after pubiic`hearing, Failure to take final_ action within 60 days will
result in a waiver of the certification requirement by the Director unless lk applicant otherwise agrees in writing, or
unless Subdivisiat; Subparagraphs (a)(3), (4), or (5) of this Regulatiee $uk shall apply.
(c) Conditions of Certification. Any certification issued pursuant to this Rule may contain such conditions as
the Director shall deem necessary to insure compliance with Sections 301, 302, 303, 306, and 307 of the Federal
Water Pollution Control Act Amendments.
(d) Modification or Revocation of Certification
(1) Any certification issued pursuant to this Rule is subject to revocation or modification for violations of
conditions of 301, 302, 303, 306, and 307 of the Federal Water Pollution Control Act Amendments.
(2) Any certification issued pursuant to this Rule is subject to revocation or modification upon a
determination that information contained in the application or presented in support thereof is incorrect or
if conditions under which the certification was made have changed.
(e) Notification of Unapproved Application. In the event that the Director denies the application for certification
or for any reason is unable to approve the application, the Director shall so notify the applicant by certified or
registered mail, return receipt requested, specifying in such notification the reasons for the denial or inability to
approve; and a copy of the notification shall be mailed to the appropriate federal licensing or permitting agency and
EPA.
History Note: Statutory Authority G.S. 143-215.3(a)(1);143-215.3(c);
Eff. February 1, 1976;
Amended Eff. July 1, 1988; December 1, 1984
3-18
PROPOSED RULES
TIME 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
Noti e is hereby given in accordance with G.S.
150B-21.2 that the E MR - Environmental Man-
agement Commission intends to amend rules cited
as 15A NCAC 2B. 0101, . 0103, . 0201 -.0202; 2H
.0502 - .0504,.0507; adopt 2B . 0220; 2H . 0501,
.0506,• and repeal 2B .0109.
The proposed effective date of this action is
August 1, 1995.
The public hearing will be conducted at 7:00
p. m. on:
Monday, January 9, 1995
Groundfloor Hearing Room
. Archdale Building
512 North Salisbury Street
Raleigh, NC
Idnesday, January 11, 1995
Humanities Lecture Hall
UNC - Asheville
Asheville, NC
Thursday, January 12, 1995
Medlin Campus Center, Level One
Guilford Technical Community College
Jamestown, NC
Wednesday, January 18, 1995
Francis Speight Auditorium
Jenkins Fine Arts Center
Fast Carolina University
Greenville, NC
Thursday, January 19, 1995
Bryan Auditorium, Morton Hall
UNC - Wilmington
Wilmington, NC
Reason for Proposed Action: The proposed rules
and amendments clarify that wetlands are waters
of the state, define wetlands, designate uses for
wetlands, establish narnitive criteria to protect the
designated uses of wetlands and clarify that the
antidegradation policy applies to wetlands. The
rules also provide greater detail on the procedures
used to review requestc for 401 "bier Quality
Certifications. Titlands are incorporated into the
freshwater, tidal salt water and supplemental
class; fr cations for waters of the state by amend-
ments to 15A NCAC 2B .0101. Amendmotts to
15A NCAC 2B .0201 clarify that the anti
degradation policy applies to wetlands. The
definition of wetlands and other definitions pertain-
ing to wetlands are found in amendments to 15A
NC4C 213 .0202. R%tland uses and the narrative
criteria to protect the designated uses are proposed
at 15A NGC 2B .0220. The 401 Vhter Quality
Certification review procedures, which are used to
evaluate requests to discharge fill material into
waters and wetlands, are incorporated into rules
by the proposed rules and amendments found at.
15A NC4C 2B .0501, .0502, .0503, .0504, .0506
and .0507. These proposed rules and amendments
are intended to protect wafter quality through the
protection of those wetlands that perform valuable
water quality functions such as water storage and
nutrient and pollutant removal. These wetlands
also provide habitat for fish propagation and
wildlife, and recreational and educational opportu-
nities. Incorporation of the 401 Mier Quality
Certification review procedures into rules will
inform the public of these procedures and increase
the ability of the public to avoid and minimize
impacts to waters and wetlands that are perform-
ing important functions. Codification of these
procedures will also result in an increase in the
effectiveness and efficiency of the water quality
cent f cation process.
Comment Procedures: Comments, statements,
data and other information may be submitted in
writing prior to, during or within 30 days after the
date of the final hearing (February 20, 1995) or
may be presented orally at the hearing. Oral
statements may be limited at the discretion of the
hearing officer. Submittal of written copies of oral
statements is encouraged. Copies of the proposed
rules and information package may be obtained by
contacting the Mier Quality Planning Branch at
[phone], ext. 558 or 560. Rritren com-
ments may be submitted to Ron Ferrell, Division of
Environmental Management, Mier Quality Sec-
tion, P. O. Box 29535, Raleigh, NC 27626-0535.
These Rules affect the expenditures or revenues
of local funds. A fiscal note was submitted to the
Fiscal Research Division on November 10, 1994,
OSBM on October 13, 1994, N. G League of
Municipalities on November 10, 1994, and N.C.
Association of County Commissioners on Novem-
ber 10, 1994.
4-1 9:17 NORTH CAROLINA REGISTER December 1, 1994 1348
PROPOSED RULES

- TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
CHAFFER 2 - ENVIRONMENTAL
MANAGEMENT COMMISSION
The Environmental Management Commis-
sion is extending the public comment period from
February 20, 1995 to March 20, 1995 for the
proposed rule modifications in Subchapter 2B
.0100, 2B .0200 and 2H .0500, governing issuance
of 401 Water Quality Certifications and water
quality standards for wetlands. Because of the
significant public interest in the proposed rules, the
record will remain open until March 20th to allow
additional written comments received after Febru-
ary 20th to become part of the official record.
The proposed rule changes were published in the !!
North Carolina Register, Volume 9, Issue 17,
pages 1348-1367 (9:17 NCR 1348-1367). The I
proposed rules affected are cited as 15A NCAC 2B
.0101, .0103, .0109, .0201, .0202, .0220, and
15A NCAC 2H .0501, .0502, .0503, .0504,
.0506, and .0507. The Division will accept
written comments received through March 20,
1995. For information on - the proposed rule
changes or the comment period extension, contact
Ron Ferrell, North Carolina Division of Environ-
mental Management, P.O. Box 29535, Raleigh,
NC 27606-0535, (919-733-0026).

9:22 NORTH CAROLINA REGISTER February 15, 1995 1899
5-1
ENVIRONMENTAL MANAGEMENT COMMISSION
NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
December 8, 1994

TO: Dennis Loflin
Daniel Besse
Larry Zucchino
Robert Epting
FROM: Dave Moreau
SUBJECT: Designation as Hearing Officer
David H. Moreau
Chairman
Charles H. Peterson
Vice Chairman
Edwin E. Andrews, III, PG
Charles L Baker
Daniel V. Besse
Marion E. Deerhake
Carla E. DuPuy
Robert Epting
William S. Farabow, MD
Will B. Fowler
Alice Garland
James Kirk Glenn, Jr.
Michel A. Ibrahim, MD, Ph.D
Dennis C. Loflin
Margaret B. Pollard
Richard V. Watkins, PE
Lawrence R. Zucchino
I am hereby designating you as Hearing Officers for the wetland rules public hearings to
be held in Raleigh on January 9th, Asheville on January 11th, Jamestown on January 12th,
Greenville on January 18th and in Wilmington on January 19th. All of the hearings will
convene at 7:00 P.M. Please plan to attend as many of the hearings as you can; however, I
would like for each of you, individually, to serve as lead hearing officer at one of the
hearings. Please plan to serve as lead officer according to the following schedule.
Raleigh - Larry Zucchino
Asheville - Larry Zucchino
Jamestown - Dan Besse
Greenville - Robert Epting
Wilmington - Dennis Loflin
I have attached a public notice for the hearings and a copy of the Information Package
for your information. The Water Quality staff will be preparing some draft remarks for your
consideration during the next few days and will forward them to you. Ron Ferrell will be
coordinating the logistics for the hearings and the eventual preparation of the hearing
officer's report If you have any questions or suggestions, he will be glad to hear from
you. He can be reached at 733-0026.
Attachment
cc;: Preston Howard
Steve Tedder
An Equal Opportunity Affirmative Action Employer
6-1
PROPOSED RULE MODIFICATIONS:
WETLANDS AND 401 CERTIFICATION PROCEDURES
August 1994
15A NCAC 2B .0101 is proposed for amendment as follows:
SUBCHAPTER 2B - SURFACE WATER AND WETLAND STANDARDS. MONITORLNG
SECTION .0100 - PROCEDURES FOR ASSIGNMENT OF WATER QUALITY STANDARDS
.0101 GENERAL PROCEDURES ,
(a) The rules contained in Sections .0100, .0200 and .0300 of this Subchapter which pertain to the series of
classifications and water quality standards shall be known as the "Classifications. and Water Quality Standards
Applicable to the Surface Waters and Wetlands of North Carolina"
(b) The Environmental Management Commission, prior to classifying and assigning standards of water quality to
any waters of the state, will proceed as follows:
(1) The Commission, or its designee, will determine waters to be studied for the purpose of classification and
assignment of water quality standards on the basis of user requests, petitions, or the identification of
existing or attainable water uses, as defined by 15A NCAC 2B .0202, not presently included in the water
classification.
(2) After appropriate studies of the identified waters to obtain the data and information required for
determining the proper classification of the waters or segments of water are completed, the Commission,
or its designee, will make a decision on whether to initiate proceedings to modify the classifications and
water quality standards of identified waters. In the case of the Commission's designee deciding to initiate
said proceedings, the designee will inform the Commission of the decision prior to scheduling a public
hearing.
(3) In the case of a petition for classification and assignment of water quality standards according to the
requirements of General Statute 150B-20, the Director will make a preliminary recommendation on the
appropriate classifications and water quality standards of the identified waters on the basis of the study
findings or information included in the petition supporting the classification and standards changes.
(4) The Commission will make a decision on whether to grant or deny a petition in accordance with the
provisions of General Statute 15OB-20 based on the information included in the petition and the
recommendation of the Director. The Commission may deny the petition and request that the Division
study the appropriate classifications and water quality standards for the petitioned waters in accordance
with Subparagraph (b)(2) of this Rule.
(5) The Director will give due notice of such hearing or hearings in accordance with the requirements of
General Statute 143-214.1 and G.S. 150B, and will appoint a hearing officer(s) in consultation with the
chairman of the Commission.
(6) The hearing officer(s) will, as soon as practicable after the completion of the hearing, submit a complete
report of the proceedings of the hearing to the Commission. The bearing officer(s) shall include in the
report a transcript or summary of testimony presented at such public hearing, relevant exhibits, a
summary of relevant information from the stream studies conducted by the technical staff of the
Commission, and final recommendations as to classification of the designated waters and the standards of
water quality and best management practices which should be applied to the classifications recommended.
(7) The Commission, after due consideration of the hearing records and the final recommendations of the
bearing officer(s), will adopt its final action with respect to the assignment of classifications, and any
applicable standards or best management practices applicable to the waters under consideration. The
Commission will publish such action, together with the effective date for the application of the
provisions of General Statute 143-215.1 and 143-215.2, as amended, as a part of the Commission's
official rules.
(o) 7 ?,e final a.:r.on of e commission n,ith respect to the assignment of classification with its
and 1?:st management pra,::iees shall contain the Commissions conclusions
7 -1-
relative to the various factors given in General Statute 143-214.1(d), and shall specifically include the
class or classes to which such specifically designated waters in the watershed or watersheds shall be
assigned on the basis of best usage in the interest of the public.
(c) Freshwater Classifications.
(1) Class C; freshwaters protected for secondary recreation, fishing, aquatic life including propagation and
survival, and wildlife; allfreshwaters are classified to protect these uses at a minimum;
(2) Class B; freshwaters protected for primary recreation which includes swimming on a frequent or organized
basis and all Class C uses;
(3) Class WS-I; waters protected as water supplies which are essentially in natural and undeveloped
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules.0104 and .0211
of this Subchapter, local programs to control nonpoint sources and stormwater discharges of pollution are
required; suitable for all Class C uses;
(4) Class WS-II; waters protected as water supplies which are generally in predominantly undeveloped
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules .0104 and.0211
of this Subchapter; local programs to control nonpoint sources and stormwater discharges of pollution are
required; suitable for all Class C uses:
(S) Class WS-III; waters protected as water supplies which are generally in low to moderately developed
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules.0104 and.0211
of this Subchapter, local programs to control nonpoint sources and stormwater discharges of pollution are
required; suitable for all Class C uses;
(6) Class WS-IV; waters protected as water supplies which are generally in moderately to highly developed
watersheds; point source discharges of treated wastewater are permitted pursuant to Rules .0104 and .0211
of this Subchapter, local programs to control nonpoint sources and stormwateer discharges of pollution arc
required; suitable for all Class C uses;
(7) Class WS-V; waters protected as water supplies which are generally upstream of and draining to Class-IV
waters; no categorical restrictions on watershed development or treated wastewater discharges are required;
however, the Commission or its designee may apply appropriate management requirements as deemed
necessary for the protection of downstream receiving waters (15A NCAC 2B .0203); suitable for all
Class C uses.
Class t wafers that meet the definition of wetlands found at 15A NCAC 2B 0202 except those
designated as Class SWL
(d) Tidal Salt Water Classifications.
(1) Class SC; saltwaters protected for secondary recreation, fishing, aquatic life including propagation and
survival, and wildlife; all saltwaters are classified to protect these uses at a minimum;
(2) Class SB; saltwaters protected for primary recreation which includes swimming on a frequent or organized
basis and all Class SC uses;
(3) Class SA; suitable for commercial shellfishing and all other tidal saltwater uses.
Class SWL, waters that meet the definition of coastal wetlands as defined by NCCrS 113-229(n) (3)_ and
whinh art Landward of he mean high water line and wetlands contiguo is toes 1 nne waters as defined by
NCC:S 113A-113(b)(2).
(e) Supplemental Classifications.
(1) Trout waters (Tr); freshwaters protected for natural trout propagation and survival of stocked trout;
(2) Swamp waters (Sw); waters which have low velocities and other natural characteristics which are different
from adjacent streams:
(3) Nutrient Sensitive Waters (NSW); waters subject to growths of microscopic or macroscopic vegetation
requiring limitations on nutrient inputs;
(4) Outstanding Resource Waters (ORW); unique and special waters of exceptional state or national
recreational or ecological significance which require special protection to maintain existing uses;
(5) High Quality Waters (HQW); waters which are rated as excellent based on biological and
physical/chemical characteristics through Division monitoring or special studies, native and special
native trout waters (and their tributaries) designated by the Wildlife Resources Commission, primary
nursery areas (PNA) designated by the Marine Fisheries Commission and other functional nursery areas
designated by the Wildlife Resources Commission, critical habitat areas designated by the Wildlife
Resources Commission or the Department of Agriculture, all water supply watersheds which are either
classified as WS-I or WS-II or those for which a formal petition for reclassification as WS-I or WS-II has
been received from the appropriate local government and accepted by the Division of Environmental
Management and all Class SA waters.
7 -2-
fa
(f) In determining the best usage of waters and assigning classifications of such waters, the Commission will
consider the criteria specified in General Statute 143-214.1(d) and all existing uses as defined by 15A NCAC 2B
.0202. In determining whether to revise a designated best usage for waters through a revision to the classifications,
the Commission will follow the requirements of 40 CFR 131.10(b),(c),(d) and (g) which 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 Environmental Management, Water Quality
Planning Branch, 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).
(g) When revising the classification of waters, the Division will collect water quality data within the watershed for
those substances which require more stringent control than required by the existing classification. However, such
sampling may be limited to only those parameters which are of concern. IPd the revision to classifications involves
the removal of a designated use, the Division will conduct a use attainability study a? required by the provisions of
40 CFR 131.100) which 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 Environmental Management, Water Quality Planning Branch, 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).
HistoryNote: Statutory Authority G.S. 143-214.1: 143-215.3(a)(1);
EJj February 1, 1976;
Amended Ef): February 1, 1993; August 3, 1992; August 1, 1990; October 1, 1989.
15A NCAC 2B .0103 is proposed for amendment as follows:
.0103 ANALYTICAL PROCEDURES
(a) Chemical/Physical Procedures. Tests or analytical procedures to determine conformity or non-conformity
with standards will, insofar as practicable and applicable, conform to the guidelines by the Environmental Protection
Agency codified as 40 CFR, Part 136, which are hereby incorporated by reference including any subsequent
amendments and editions or such other methods as may be approved by the Director. This material is available for
inspection at the Department of Environment, Health, and Natural Resources, Division of Environmental
Management, Water Quality Planning Branch, 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 (513.00).
(b) Biological Procedures. Biological tests to determine conformity or non-conformity with standards will be
based on methods published by the U.S. Environmental Protection Agency as outlined in "Methods for Measuring
the Acute Toxicity of Effluents to Freshwater and Marine Organisms, Fourth Edition" (1991; Report No.
EPA/600/4-90/027) or subsequent versions, "Short-term Methods for Estimating the Chronic Toxicity of Effluents
and Receiving Waters to Freshwater Organisms, Second Edition" (1989; Report No. EPA/600/4-89/001) or
subsequent versions, and "Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving
Waters to Marine and Estuarine Organisms" (Report No. EPA/600/4-87/028) or subsequent versions, or methods
published by the North Carolina Department of Environment, Health, and Natural Resources, as outlined in
"Standard Operating Procedures: Biological Monitoring" (1990; Division of Environmental Management, Water
Quality Section) or subsequent versions, or such other methods as approved by the Director.
ki We lan(t Evaluation Procedures Evaluations of wetlands for the nre_sence of existinEuses will be based on
neaun a_no inrural nesourceS aS oLL1DeC lIl 1`I VIU Ld V11t1-'t UIV1111UH W 1:uvuviwic,.?tn. ... nt?a??.u.?.u¦ ?•ti.uaa.u
''. j_)YS!1ard a in.?System may be obtained by
7-3-
History Note: Statutory Authority G.S. 143-214.1; 143-215.3(a)(1);
Eff. February 1,1976;
Amended E,{): February 1,1993; October 1,1989; January 1,1985; September 9,1979.
15A NCAC 2B .0109 is proposed for repeal as follows:
.0109 WATERS AFFECTED BY DREDGE AND FILL ACTIVITIES (REPEALED)
REGi Pirts uses of
History Note: Statutory Authority G.S. 143-214.1;
E,(. October 1, 1989.
15A NCAC 2B .0201 is proposed for amendment as follows:
SECTION .0200 - CLASSIFICATIONS AND WATER QUALITY STANDARDS APPLICABLE
TO SURFACE WATERS AND WETLANDS OF NORTH CAROLINA
.0201 ANTIDEGRADATION POLICY protect, and enhance water quality
(a) It is the policy of the Environmental Management Commissi?o a to maintain. of 40 CFR 131.12 are hereby
within the State of North Carolina. Pursuant to this policy, requirements incorporated by reference including any subsequent amendments and editions. This material is available for
Division of Environmental
inspection at the Department of Environment, Health, and Natural Resources,
Management, Water Quality Planning Branch, 512 North Salisbury Street, Raleigh, North Carolina. Copies may be 9325 obtained from the U.S. Government Printing Office, menwill be implemented in North Washington, DC as forth in
a cost of thirteen dollars ($13.00). These requirements
Paragraphs (b), (c) and (d). (e)mend (fl 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 will affect these waters will not be permitted unless the existing uses are protected. than the
(c) The Commission shall consider the present and anticipated usage of waters with quality higher
standards, including any uses not specified by the assigned classification (such as outstanding national resource
waters or waters of exceptional water quality) and will 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
will be implemented in order to meet these requirements: expansion to discharge treated waste will
(1) Each applicant for an NPDES permit or NPDES permit document an effort to consider non-discharge alternatives pursuant to 15A NCAC 2H .0105(c)(2).
(2) Public Notices for NPDES permits will list parameters that would be water quality limited and state
whether or not the discharge will 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-
7-4-
(4) The Commission and Division will 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 will 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 15A NCAC 2H .0100).
Dischargers affected by the requirements of Paragraphs (c)(1) through (c)(4) of this Rule and the public at large will
be notified according to the provisions described herein, and all other appropriate provisions pursuant to 15A NCAC
2H .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 can
contest these requirements according to the provisions of General Statute 143-215.1(e) and 150b-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 will not allow degradation of the quality of High Quality Waters below the water
quality necessary to maintain existing and anticipated t1ses of those waters. High Quality Waters are a subset of
waters with quality higher than the standards and are 9described by 15A NCAC 2B .0101(e)(5). The following
procedures will be implemented in order to meet the requirements of this part
(1) New or expanded wastewater discharges in High Quality Waters will comply with the following:
(A) Discharges from new single family residences will be prohibited. Those that must discharge will
install a septic tank, dual or recirculating sand filters, disinfection and step aeration.
(B) All new NPDES wastewater discharges (except single family residences) will be required to provide the
treatment described below:
(i) Oxygen Consuming Wastes: Effluent limitations will be as follows: BOD5= 5 mg/l, NH3-N = 2
mg/1 and DO = 6 mg/l. More stringent limitations will be set, if necessary, to ensure that the
cumulative pollutant discharge of oxygen-consuming wastes will not cause the DO of the receiving
water to drop more than 0.5 mg/1 below background levels, and in no case below the standard.
Where background information is not readily available, evaluations will assume a percent saturation
determined by staff to be generally applicable to that hydroenvironment.
(ii) Total Suspended Solids: Discharges of total suspended solids MS) will be limited to effluent
concentrations of 10 mg/1 for trout waters and PNA's, and to 20 mg/1 for all other High Quaiity
Waters.
(iii) Disinfection: Alternative methods to chlorination will be required for discharges to trout streams,
except that single family residences may use chlorination if other options are not economically
feasible. Domestic discharges are prohibited to SA waters.
(iv) Emergency Requirements: Failsafe treatment designs will be employed, including stand-by power
capability for entire treatment works, dual train design for all treatment components, or equivalent
failsafe treatment designs.
(v) Volume: The total volume of treated wastewater for all discharges combined will not exceed 50
percent of the total instream flow under 7Q10 conditions.
(vi) Nutrients: Where nutrient overenrichment is projected to be a concern, appropriate effluent
limitations will be set for phosphorus or nitrogen, or both.
(vii) Toxic substances: In cases where complex wastes (those containing or potentially containing
toxicants) may be present in a discharge, a safety factor will be applied to any chemical or whole
effluent toxicity allocation. The limit for a specific chemical constituent will be allocated at one-
half of the normal standard at design conditions. Whole effluent toxicity will be allocated to
protect for chronic toxicity at an effluent concentration equal to twice that which is acceptable under
design conditions. In all instances there may be no acute toxicity in an effluent concentration of 90
percent as measured by the North Carolina "Pass/Fail Methodology for Determining Acute
Toxicity in a Single Effluent Concentration". Ammonia toxicity will be evaluated according to
EPA guidelines promulgated in the Ammonia Criteria Development Document (1986); EPA
document number 440/5-85-001; NTIS number PB85-227114; July 29, 1985 (50 FR 30784).
(C) All expanded NPDES wastewater discharges in High Quality Waters will be required to provide the
treatment described in part (1)(B) of this Rule, except for those existing dis&.2. gcs w5ich expand with
no increase in pe::-nitted pollutant loading.
7-5-

(2) Development activities which require an Erosion and Sedimentation Control Plan in accordance with
rules established by the NC Sedimentation Control Commission or local erosion and sedimentation
control program approved in accordance with 15A NCAC 4B .0218, and which drain to and are within
one mile of High Quality Waters (HQW) will be required to control runoff from the one inch design
storm as follows:
(A) Low Density Option: Developments which limit single family developments to one acre lots and
other type developments to 12 percent built-upon area, have no stormwater collection system as defined
in 15A NCAC 2H .1002(13), and have built-upon areas'at least 30 feet from surface waters will be
deemed to comply with this requirement, unless it is determined that additional runoff control measures
are required to protect the water quality of High Quality Waters necessary to maintain existing and
anticipated uses of those waters, in which case more stringent stormwater runoff control measures may
be required on a case-by-case basis. Activities conforming to the requirements described in 15A NCAC
2H .1003(a) [except for Subparagraphs (2) and (3) which apply only to waters within the 20 coastal
counties as defined in 15A NCAC 2H .1002(9)] will also be deemed to comply with this requirement,
except as provided in the preceding sentenc6r,
(B) High Density Option: Higher density developments will be allowed if stormwater control systems
utilizing wet detention ponds as described in 15A NCAC 2H .1003(i), %) and (1) are installed, operated
and maintained which control the runoff from all built-upon areas generated from one inch of rainfall,
unless it is determined that additional runoff control measures are required to protect the water quality of
High Quality Waters necessary to maintain existing and anticipated uses of those waters, in which case
more stringent stormwater runoff control measures may be required on a case-by-case basis. Ile size of
the control system must take into account the runoff from any pervious surfaces draining to the
system.
(C) All waters classified WS-I or WS-]I and all waters located in the 20 coastal counties as defined in Rule
15A NCAC 2H .1002(9) are excluded from this requirement since they already have requirements for
nonpoint source controls.
If an applicant objects to the requirements to protect high quality waters and believes degradation is necessary to
accommodate important social and economic development, the applicant can contest these requirements according to
the provisions of G.S. 143-215.1(e) and 150B-23.
(e) Outstanding Resource Waters (ORW) are a special subset of High Quality Waters with unique and special
characteristics as described in Rule .0216 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,
will be maintained and protected.
M Activities reizulated under Section 404 of the Clean Water Act (33 t t s r 1344) which requirea water
quality certification as described in Section 401 of the Clean Water Act (33 rt r 1341) Shall be evaluated
according to the procedures outlined rn 15A NCAC 2H 0500. The evaluation of Mrmits issued pursuant to G.S.
143-215.1 that involve the assimilation of wastewater or stormwater by wetlands will incorporate the criteria found
at 15A NCAC 2H .0506(c)(l)-(5) in determining We_usitenSial impact of the pro2gsed activity on the existing uses
of the wetland per 15A NCAC 2H .0220_
HistoryNote: Statutory Authority G.S. 143-214.1; 143-215.1; 143-215.3(a)(I);
Eff. February 1, 1976;
Amended Ejj. February 1, 1993; April 1, 1991; August 1, 1990; October 1, 1989.
15A NCAC 2B .0202 is proposed for amendment as follows:
.0202 DEFINITIONS
The definition of any word or phrase used in these rules shall be the same as given in Article 21, Chapter 143 of
the General Statutes of North Carolina. The following words and phrases, which are not defined in this article, will
be interpreted as follows:
(1) Acute toxicity to aquatic life means lethality or other harmful effects sustained by either resident aquatic
populations or indicator species used as test organisms in a controlled toxicity test due to a short-term
7-6-
1
exposure (relative to the life cycle of the organism) to a specific chemical or mixture of chemicals (as in
an effluent). Short-term exposure for acute tests is generally 96 hours or less. Acute toxicity will be
determined using the following procedures:
(a) for specific chemical constituents or compounds, acceptable levels will be equivalent to a concentration
of one-half or less of the Final Acute Value (FAV) as determined according to "Guidelines for Deriving
Numerical Water Quality Criteria for the Protection of Aquatic Life and its Uses" published by the
Environmental Protection Agency and referenced in the Federal Register (50 FR 30784, July 29, 1985).
(b) for specific chemical constituents or compounds for which values described under Subparagraph (1)(a)
of this Rule can not be determined, acceptable levels will be equivalent to a concentratiot, of one-third
or less of the lowest available LC50 value. confidence
(c) for effluents, acceptable levels are defined as no statistically • measurable lethality (99 percent
level using Students t test) during a specified exposure period. Concentrations of exposure will be
determined on a case-by-case basis.
(d) in instances where detailed dose responsejata indicate that levels of acute toxicity are significantly
different from those defined in this Rule, the Director may determine on a case-by-case basis an
alternate acceptable level through statistical analyses of the dose response curve.
(,) Acute to Chronic Ratio (ACR) means the ratio of acute toxicity ezpre?sed as an LC50 for a specific
toxicant or an effluent to the chronic value for the same toxicant or effluent.
(3) Agricultural uses include the use of waters for stock watering, irrigation, and other farm purposes.
(4) Approved treatment, as applied to water supplies, means treatment accepted as satisfactory by the
Division of Environmental Health or Division of Environmental Management. samples
(5) Average (except bacterial) means arithmetical
be don as to obtain the mocestl reresults of presentative sample
taken during the specified period; all sampling shall
under prevailing conditions: samples;
(a) Daily Average for dissolved oxygen, shall be of at least e during the calendar week; if
(b) Weekly Average means the average of all daily composite samples obtained samples; a
only one grab sample is taken each day, the weekly average is the average of all daily grab
minimum of three daily grab samples is needed to calculate a weekly average;
(c) Monthly Average means the average of all daily composites (or grab samples if only one per day)
obtained during the calendar month. but rather
The definitions in this Paragraph do not affect the monitoring requirements for NPDES permits
are to be used by the Division along with other methodologies in determining violations of water quality
standards. Arithmetical averages as defined by this Rule, and not confidence limits nor other statistical
descriptions, will be used in all calculations of limitations which require the use of averages pursuant to
this Rule and 40 CFR 122.41(1)(4)(iii).
(6) Best Management Practice (BMP) means a structural or nonstructural management-based practice used
singularly or in combination to reduce nonpoint source inputs to receiving waters in order to achieve
water quality protection goals.
(7) Best usage of waters as specified for each class means those uses as determined by the Environmental
Management Commission in accordance with the provisions of Article 21, Chapter 143-214.1, General
Statutes of North Carolina.
(8) Bioaccumulation factor (BAF) is a unitless value that describes the degree to which substances are taken
up or accumulated into tissues of acquatic organisms from water directly and from food or other ingested
materials containing the accumulated substances, and is usually measured as a ratio of a substance's
concentration in tissue versus its concentration in water in situations where exposure to the substance is
occurring from both water and the food chain.
(9) Bioconcentration factor (BCF) is a unitiess value that describes the degree to which substances are
absorbed or concentrated into tissues of aquatic organisms from water directly and is usually measured as
a ratio of substance's concentration in tissue versus its concentration in water in situations where
exposure to the substance is occurring from water only.
(10) Biological integrity means the ability of an aquatic ecosystem to support and maintain a balanced and
indigenous community of organisms having species composition, diversity, population densities and
functional org:mization similar to that o refereucz conditiocs.
7-7-
(11) Buffer means a natural or vegetated area through which stormwater runoff flows in a diffuse manner so
that the runoff does not become channelized and which provides for infiltration of the runoff and filtering
of pollutants. The buffer is measured landward from the normal pool elevation of impounded structures
and from the bank of each side of streams or rivers.
(12) Built-upon area means that portion of a development project that is covered by impervious or partially
impervious cover including buildings, pavement, gravel roads, recreation facilities (e.g. tennis courts),
etc. (Note: Wooden slatted decks and the water area of a swimming pool are considered pervious.)
(13) Chronic toxicity to aquatic life means any harmful effect sustained by either resident aquatic populations
or indicator species used as test organisms in a controlled toxicity test due to long-term exposure (relative
to the life cycle of the organism) or exposure during a substantial portion of the duration of a sensitive
period of the life cycle to a specific chemical substance or mixture of chemicals (as in an effluent). In
absence of extended periods of exposure, early life stage or reproductive toxicity tests may be used to
define chronic impacts.
(14) Chronic value for aquatic life means the gop tric mean of two concentrations identified in a controlled
toxicity test as the No Observable Effect oncentration (NOEL) and the Lowest Observable Effect
Concentration (LOEC).
(15) Concentrations are the mass of a substance per volume of water and for the purposes of this Section will
be expressed as milligrams per liter (mg/1), micrograms per liter (ug/1), or nanograms per liter (ug/1).
LM Contiguous refers to those wetlands landward of the mean high water line or normal water level and
within 575 feet of classified surface waters which appear ns solid blue lines on the most recently
published versions of U.S.G.S. 1:24.000 (7.5 minute) scale top2emph_ic mans.
0-6) LM Critical area means the area adjacent to a water supply intake or reservoir where risk associated with
pollution is greater than from the remaining portions of the watershed. The critical area is defined as
extending either 1/2 mile from the normal pool elevation of the reservoir in which the intake is located or
to the ridge line of the watershed (whichever comes first); or 1R mile upstream from and draining to the
intake (or other appropriate downstream location associated with the water supply) located directly in the
stream or river (run-of-the-river), or to the ridge line of the watershed (whichever comes first). Since WS-
I watersheds are essentially undeveloped, establishment of a critical area is not required. Local
governments may extend the critical area as needed. Major landmarks such as highways or property lines
may be used to delineate the outer boundary of the critical area if these landmarks are immediately
adjacent to the appropriate outer boundary of 1/2 mile. The Commission may adopt a different critical
area size during the reclassification process.
(1-7) U& Critical habitat areas are defined for the purposes of the rules of this Section as those waters which are
considered to be essential for the continued existence of an endangered or threatened species, and which are
so designated by the NC Wildlife Resources Commission for animals or the NC Department of
Agriculture for plants.
(}$) LM Designated Nonpoint Source Agency means those agencies specified by the Governor in the North
Carolina Nonpoint Source Management Program, as approved by the Environmental Protection Agency.
(V9) LM Development means any land disturbing activity which adds to or changes the amount of impervious or
partially impervious cover on a land area or which otherwise decreases the infiltration of precipitation
into the soil.
6% JM Discharge is the addition of any roan-induced waste.effluent either directly or indirectly to state surface
waters.
(24) = Division means the Division of Environmental Management or its successors.
(22) M Domestic wastewater discharge means the discharge of sewage, non-process industrial wastewater, other
domestic wastewater or any combination of these items. Unless excepted by the Director, domestic
wastewater includes liquid waste generated by domestic water using fixtures and appliances, from any
residence, place of business, or place of public assembly even if it contains no sewage. Examples of
domestic wastewater include once-through non-contact cooling water, seafood packing facility discharges
and wastewater from restaurants.
(23) J241 Effluent channel means a discernable confined and discrete conveyance which is used for transporting
treated wastewater to a receiving stream or other body of water as provided in Rule .0215 of this Section.
? Existing development, for the purposes of these Rules, shall be defined as those projects that are built or
7247 MAN
those projects that at a minimum have established a vested right under North Carolina zoning law as of
7 -8-
(3)
(b)
(c)
E2:53 121
(26) SZZ2
? 1??2
(M 1241
e-9) 1342
(90) 1311
(34) i3Z
f-2) M
r? 1'-J.
the effective date of the local government water supply ordinance, or such earlier time that an affected
local governmenCs management plans and ordinances shall specify, based on at least one of the following
criteria:
substantial expenditures of resources (time, labor, money) based on a good faith reliance upon having
received a valid local government approval to proceed with the project, or
having an outstanding valid building permit in compliance with G.S. 153A-344.1 or G.S. 160A-
385.1, or
having expended substantial resources (time, labor, money) and having an approved site specific or
phased development plan in compliance with G.S. 153A-344.1 or G.S. 160A-385.1.
Existing uses mean uses actually attained in the water body, in a significant and not incidental manner,
on or after November 28, 1975, whether or not they are included in the water quality standards, which
either have been actually available to the public or are uses deemed attainable by the Environmental
Management Commission. At a minimum, uses shall be deemed attainable if they can be achieved by
the imposition of effluent limits and cost-effegive and reasonable best management practices (BMPs) for
nonpoint source control.
Fishing means the taking of fish by sport or commercial mewods as well as the consumption of fish or
shellfish or the propagation of fish and such other aquatic life as is neicessary to provide a suitable
environment for fish.
Freshwater means all waters that under natural conditions would have a chloride ion content of 500 mg/1
or less.
Hazardous material means any substance listed as such in: Superfund Amendments and Reauthorization
Act (SARA) Section 302 Extremely Hazardous Substances (42 USC 11000 et seq.), Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) Hazardous Substances (42 USC
9601 et seq.) or Section 311 of the Clean Water Act (CWA), as amended (33 USC 1251 et seq.; oil and
hazardous substances) 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 Environmental Management, 512 North Salisbury Street, Raleigh, North
Carolina. Copies of SARA and CERCLA may be obtained as a single package from the Superintendent
of Documents, U.S. Government Printing Office, Washington, D.C. 20402-9325 at a cost of one
hundred and one dollars ($101.00). Copies of CWA may be obtained from the Superintendent of
Documents, U.S. Government Printing Office, Washington, D.C. 20402-9325 at a cost of fifty dollars
($50.00).
Industrial discharge means the discharge of industrial process treated wastewater or wastewater other than
sewage and includes:
(a) wastewater resulting from any process of industry or manufacture, or from the development of any
natural resource;
(b) wastewater resulting from processes of trade or business, including wastewater from laundromats and
car washes, but not wastewater from restaurants;
(c) stormwater will not be considered to be an industrial wastewater unless it is contaminated with
industrial wastewater, or
(d) wastewater discharged from a municipal wastewater treatment plant requiring a pretreatment program.
LC50 means that concentration of a toxic substance which is lethal (or immobilizing, if appropriate) to
50 percent of the organisms tested during a speed exposure period. The LC50 concentration for toxic
materials shall be determined for sensitive species as defined by Subparagraph (43) of this Rule under
aquatic conditions characteristic of the receiving waters.
Loral government means a city or county in singular or plural as defined in G.S. 160A-1(2) and G.S.
158A-10.
Lower piedmont and coastal plain waters mean those waters of the Catawba River Basin below Lookout
Shoals Dam; the Yadkin River Basin below the junction of the Forsyth, Yadkin, and Davie County
lines; and all of the waters of Cape Fear, Lumber, Roanoke, Neuse, Tar-Pamlico, Chowan, Pasquotank,
and White Oak River Basins; except tidal salt waters which are assigned S classifications.
NIF is a:: abbreviatio_, for the membrane filter procedure for bacteriological analysis.
7-9-
(34) LM Mixing zone means a region of the receiving water in the vicinity of a discharge within which dispersion
and dilution of constituents in the discharge occurs and such zones shall be subject to conditions
established in accordance with 15A NCAC 2B .0204(b).
(3- IIQ Mountain and upper piedmont waters mean all of the waters of the Hiwassee; Little Tennessee, including
• the Savannah River drainage area; French Broad; Broad; New; and Watauga River Basins; and those
portions of the Catawba River Basin above Lookout Shoals Dam and the Yadkin River Basin above the
junction of the Forsyth, Yadkin, and Davie County lines.
• (36) l3Z2 Nonpoint source pollution means pollution which enters waters mainly as a result of precipitation and
subsequent runoff from lands which have been disturbed by man's activities and includes all sources of
water pollution which are not required to have a permit in accordance with G.S. 143-215.1(c).
(3:7j LM Non-process discharge means industrial effluent not directly resulting from the manufacturing process.
An example would be non-contact cooling water from a compressor.
fA LM Nutrient sensitive waters mean those waters which are so designated in the classification schedule in order
to limit the discharge of nutrients (usually-ni gen and phosphorus). They are designated by "NSW
following the water classification.
(39) i4M Offensive condition means any condition or conditions resulting from the presence of sewage, industrial
wastes or other wastes within the waters of the state or along the shorelines thereof which shall either
directly or indirectly cause foul or noxious odors, unsightly conditions, or breeding of abnormally large
quantities of mosquitoes or other insect pests, or shall damage private or public water supplies or other
structures, result in the development of gases which destroy or damage surrounding property, herbage or
grasses, or which may cause the impairment of taste, such as from fish flesh tainting, or affect the health
of any person residing or waking in the area
(49) 1411 Primary Nursery Areas (PNAs) are tidal saltwaters which provide essential habitat for the early
development of commercially important fish and shellfish and are so designated by the Marine Fisheries
Commission.
(4}) 5421 Primary recreation includes swimming, skin diving, skiing, and similar uses involving human body
contact with water where such activities take place in an organized or on a frequent basis.
(42) 1431 Protected area means the area adjoining and upstream of the critical area in a WS-IV water supply in
which protection measures are required. The boundaries of the protected areas are defined as extending five
miles upstream and draining to water supply reservoirs (measured from the normal pool elevation) or to
the ridge line of the watershed (whichever comes fast); or 10 miles upstream and draining to the intake
located directly in the stream or river (run-of-the-river), or to the ridge line of the watershed (whichever
comes first). Local governments may extend the protected area Major landmarks such as highways or
property lines may be used to delineate the outer boundary of the protected area if these landmarks are
immediately adjacent to the appropriate outer boundary of five or 10 miles. In some cases the protected
area will encompass the entire watershed. The Commission may adopt a different protected area size
during the reclassification process.
(43) S441 Residential development means buildings for residence such as attached and detached single family
dwellings, apartment complexes, condominiums, townhouses, cottages, etc. and their associated
outbuildings such as garages, storage buildings, gazebos, etc.
(44) l.42 Secondary recreation includes wading, boating, other uses not involving human body contact with water,
and activities involving human body contact with water where such activities take place on an infrequent,
unorganized, or incidental basis.
(45) L412 Sensitive species for aquatic toxicity testing is any species utilized in procedures accepted by the
Commission or its designee in accordance with Rule .0103 of this Subchapter, or the following genera
(a) Daphnia;
(b) Ceriiodaphnia;
(c) Salmo;
(d) Pimephales;
(e)_ Mysidopsis;
W Champia;
(g) Cyprinodon;
(h) Arbacia;
0) Penaeus;
7-10-
G) Menidia;
(k) Notropis;
(1) Salvelinus;
(m) Oncorhyncbus;
(n) Selenastrum.
Other genera may be accepted by the Commission or its designee on a case-by-ease basis.
(46) L4M Shellfish culture includes the use of waters for the propagation, storage and gathering of oysters, clams,
and other shellfish for market purposes.
(47) S4& Sludge/residuals means any solid or semisolid waste generated from a wastewater treatment plant, water
treatment plant or air pollution control facility permitted under the authority of the Environmental
Management Commission.
(48) L421 Source of water supply for drinking, culinary or food-processing purposes means any source, either
public or private, the waters from which are used for human consumption, or used in connection with the
processing of milk, beverages, food, or . cher purpose which requires water suitable for hiunan
consumption.
(49) Swamp waters mean those waters which are classified by the Environmental Management Commission
and which are topographically located so as to generally have very low velocities and certain other
characteristics which are different from adjacent streams draining steeper topography. They are designated
by "Sw" following the water classification.
(50) LIU Tidal salt waters mean all tidal waters which are classified by the Environmental Management
Commission which generally have a natural chloride ion content in excess of 500 parts per million and
include all waters assigned S classifications.
(5? LM Toxic substance or toxicant means any substance or combination of substances (including disease-causing
agents), which after discharge and upon exposure, ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through food chains, has the
potential to cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological
malfunctions (including malfunctions or suppression in reproduction or growth) or physical deformities
in such organisms or their offspring.
(3?) SSA Trout waters are those waters which have conditions which will sustain and allow for trout propagation
and survival of stocked trout on a year-round basis. These waters are classified by the Commission after
considering the requirements of Rule .0101(b) and (c) of this Subchapter and include all waters designated
by "Tr" in the water classification.
(33) L$44 Waste disposal includes the use of waters for disposal of sewage, industrial waste or other waste after
approved treatment.
(34) L5,U Water dependent structures are those structures for which the use requires access or proximity to or siting
within surface waters to fulfill its basic purpose, such as boat ramps, boat houses, docks and bulkheads.
Ancillary facilities such as restaurants, outlets for boat supplies, parking lots and commercial boat
storage areas are not water dependent structures.
(5-5) I& Water quality based effluent limits and best management practices are limitations or best management
practices developed by the Division for the purpose of protecting water quality standards and best usage of
surface waters consistent with the requirements of General Statutes f,I,143-214.1 and the Federal Water
Pollution Control Act-as amended.
(56) LM Waters with quality higher than the standards means all waters for which the determination of waste load
allocations (pursuant to Rule .0206 of this Section) indicates that water quality is sufficiently greater
than that defined by the standards such that significant pollutant loading capacity still exists in those
waters.
(37) Watershed means the entire land area contributing surface drainage to a specific point. For the purposes
of the water supply protection rules (15A NCAC 2B .0211) local governments may use major landmarks
such as highways or property lines to delineate the outer boundary of the drainage area if these landmarks
are immediately adjacent to the ridgeline.
fM Wetlands are "waters" as defined by G S 143-212(6) and are a= that are inundated or saturated by an
?rr?? 1 •?,.,Sf ??rface or s: -', n w?•n-_at a fr?c u n?3n? dt?fation sufficient to su?ort and that antler
c n ? .dense of vege Edon typically adapted for life in saturated soil
Wetlands gene-'l ; int1G?'; -w aN Jnarshe* bogs and similar areas WetLnds classif as
7-11-
History Note: Statutory Authority G.S. 143-214.1; 143-215.3(a)(1);
E,Q'. February 1, 1976;
Amended Eff. February 1, 1993; August 3, 1992; August 1, 1990; October 1, 1989.
15A NCAC 2B .0220 is proposed for adoption as follows:
.0220 WETLAND STANDARDS
_._(82 General Ile water quality s indards for all wetlands are designed to ttect = rye, store and en_h nce
the q 1 li and uses of wetlands and other waters of the state influenced by wetlands. The following are wetl?nd
Storm and food water -tomgs and retention little moderation of extreme water level fluct l itions•
.M Hydrologic function.-, including groundwater discharge that contributes to maintain dry weather
stre mflow and at other locations or times, groundwater recharge that replenishes the groundwater
SYSICm:
M Filtration or storage of sediments. n ltrien s toxic cube an m or other pollutants that would otherwise
adversely impact the ouality of other watm of the staL•
M Shoreline protection against erosion through the dissipation of wave energy and water velocity and
stabilization of sediments*
M5 habitat for resident wetland-dependent aquatic organisms including, but not limited to fish. crustaceans,
mollusks insects. annelids. planktonic organisms and the pl nts and animals upon which these aquatic
organisms feed and dtcnd tenon for their needs in all life shat;,;
M Habitat for resident wetland-dependent wildlife species including m=ats. birds. reptiles and
nmphibiam for breeding nesting. cover, travel corridors and food: and
M Rec=a io al_ educational _ and sci nrific uses-
M The foilowinQ stnnd?rds shall be used to assure the maintenance or enhancement of the existing uses of
wetlands identified in Pam mph (a) of this rule-:
ill liquids fill or other solids or dissolved games _may not present in amounts which may cause adverse
impacts on existing wetland uses,
QM Floating or submerged debris oil deleterious substances or other material may not be present in

M amounts which may cause adverse impacts on existing wetland uses.
Materials producing color, odor. mste or unsightliness may not be present in amounts which mny cause
adverse impacts on existing wetland uses:
f42 Concentrations or combinations of substances which are toxic or h nnful to human- nimal or plant life
may not be present in amounts which individually or cumulatively may_cause adverse impacts on

M existing wetland uses:
to support the biological and physical characteristics naturally present
mlogi 1 renditions necess=
Hyd
_
-
in we lands shall be motected to prevent adverse impacts on:
fAl Water current-, erosion or sedimentition ap_ttems:
MI Natural water Lmpera lre Va intio s:
lQ The chemical_nutr ent and dissolved oxygen regime of the wetland:
lM The movement of aquatic fauna:
fM The pH of the wetland: and
M Water levers or elevations-
M F is ing hahitats and the populations of wetland flora and fa ma shall main mined to protect biological
0202 by;
rity as defined at 15A NCAC 2B
inte
.
g
LAI Protecting food supplies for fish and wildlife:
1M Pmtectin_g ==d ,ctive and n tr = atr_as: and
LM Pro ec 'ng dimersal_ corridors.
Histoj?e Note: Statutory Authority G S 143-214.1: 143-215-1(a)(1):
7-12-
15A NCAC 2H .0501 is proposed for adoption as follows:
SUBCHAPTER 21-1- PROCEDURES FOR PERMITS: APPROVALS
SECTION .0500 - WATER QUALITY CERTIFICATION
.0501 PURPOSE
(n) The nrovisio s of his section shall apply to inning, resource management,
bison and financial aid. determinations that affect surface waters and we 1a-nds ns defined by 15A N .A . 2B .0202.
This section shall only apply to sncrific activities which renuire state review after the effective date, of this Rule-and,
which rare a Division determination concerning _effects n s rrfa waters or w 1 n c ctivi fies t are es scrib?d
in Section 404(f)(1)(A F) of the Clean Water Act (33 jjy C1344) are ezemnt from this Rule.
fU These Rules outline the an lotion and review procedures for activities that require water gL?itV
t 321The federal definition of navigable w
i3 ('FR P
i aters includes wetlands as definers at 13 CFR 3283 an d 40
ar
n
CFR 2303_
!S2 Certifications shall be required for all activitie
Corms of Engineers (COE). Certifications may be issued
for S=cific rims or gro=s of activities (general certificat
al certifications am issued on a case-by-c
I
di
id
s that r hire a Section 404 permit from the U.S. A
for individual activides_ (individual certificationssr is
ions)-
ase basis nd he proced outlined in the foll owing
rmy
stie_d

rules
n
v
u
M
are required for each individual certification.
neral certifications are issued for ifi
M (
s or groans of activities that are similar in nature
and
ge
dered to have minimal impact The applicati
s
o on and review Procedures for =Questing concurrence from
i
n
c
the Division that the general certification can r P or the 1? s ty art- the same as the
edures outlined in the following rules for ind ividual certifications utLecc sPecrfically stated otherw ise in
proc
the general certification-
15A NCAC 2H .0502 recodified from .0501 is proposed for amendment as follows:
.05012 APPLICATION
(a) Application for Certification. Any person, as defined in Article 21, Chapter 143, North Carolina General
Statutes, desiring issuance of the state certification or cove cc under a general certification required by Section 401
of the Federal Water Pollution Control Act as amended shall file with the Director of the North Carolina Division of
Environmental Management (director), at the office in Raleigh, North Carolina, an original and sit copies of an
application for ceitificati o
&h@Fie&j one ropy to '-he Noah r. lina Poa;d of Health; one wpy to the ra
the RnviFgnmeptal The application shall specify:
(1) the date of application;
(2) the name, address, applie :at?nd phone number of Lhe pronertv owner.
(3) if the applicant is a corporation, the state in which it is domesticated, the name of its principal officers, and
the name and address of the North Carolina process agency and the name of Le individual who shall be
primarily responsible for the conduct of the activity for which certification is sought:
(3) S4? the nature of the activity to be conducted by applicant;
463 (S? a Let':er the discharge is-eeeurria has- or is proposed:
7 -13-
f? to the location of the discharge, stating the municipality, if applicable; the county; the drainage
basin; the name of the receiving waters; and the location of the point of discharge with regard to the
receiving waters;
(9) M the aft we a descripdon of the receiving waters, including type (creek. river, swamp, canal, lake,-r pond-M
we land classification:
esWM) if stZWcable; nature (fresh, brackish or salt); and4ireeden of
(9) M description of the of waste treatment facilities if RUmble;
befen
disr?@
(b) Maps. There shall be attached to the application a map(s) or sketch(es) of sufficient detail to accurately
delineate the boundaries of the lands owned or to be- utilized by the applicant in carrying out its activity; the location,
dimensions and type of any structures erected or to be *ected on said lands for use in connection with the activity;
and the location and extent of the receiving
waters including wetlande within the ho mctaries4n-?ty of said lands. "a and be en sheets
aPPr-G7.i1MtdiY & in by 11
(c) Power to Request Additional Information. The Director may request, and the applicant shall furnish, any
additional information that may be found necessary for the proper consideration of the application.
(d) Omissions From Applications. If the applicant considers that it is not feasible or is unnecessary to furnish
any portion of the information required by Subdivisions (a) and (b) of this R gulfttien Elutk, applicant shall submit a
detailed statement explaining the reasons for omission of any such information.
(e) Investigations. The staff of the Department of
Fnvironment- ,sealth and ,.t.,.ural P_esoces (department) shall conduct such investigation as the Director deems
necessary; and applicant shall cooperate in the investigation to the extent that it shall furnish necessary information,
allow the staff s& access to the lands and facilities of the applicant and lend such assistance as shall be reasonable.
(f) Who Must Sign Applications. The application will be considered a "valid application" only if the
application bears the signature of a responsible officer of the company, municipal official, partner or owner. TbiS
sigmature certifies that the applicant bas title to the pro has been authorized by the owner to apply for
certification or is a public entity and has the power of eminent om in. Said official in signing the application shall
also certify that all information contained therein or in support thereof is true and correct to the best of his
knowledge.
((9) The application form m?v be ob ainrrt from the Division of Environmental Mannavement. the Division of
Con- W Mana_vement or the I J.S. Army Coms of Engineers- Wilmington Dtstnct_Reguintory Branch.
History Note: Statutory Authority G.S. 143-215.3(x)(1);143-215(c);
Eff. February 1, 1976;
Amended Eff. December 1, 1994, January 1, 1979.
15A NCAC 2H .0503 recodified from .0502 is proposed for amendment as follows:
.0502.1 PUBLIC NOTICE
(a) Notice by Publication. Notice of each pending application for certification shall be published one time in a
newspaper having general circulation in the county in which the discharge will occur, or as provided in Paragraph (c)
of this Rule. Publication shall be made at least 15 days prior to proposed final action by the Director upon the
application and not more than 20 days after acceptance of a completed application.
(b) Contents of Notice. The notice shall set forth the name and address of the applicant; the action requested in
the application; the nature and location of the discharge; and the l1ro 4- ed date of final action to be taken by the
Director upon the application. The notice shall also state that additional information is on file with the department
and may be inspected at any time during normal working hours. Copies of such information on file will be made
available upon request and upon payment of the cost thereof to the department.
(c) The public notice requirement may also be satisfied by a joint notice with the Division of Coastal
*Management (15A NCAC 7J .020) or the U.S. Army Corps of Engineers according to their estnblisbed procedures.
7-14-
(e) M Notice of Hearing. If the Director determines that a hearing should be held concerning the granting or
denial of the application, the Director shall publish notice of the hearing one time in a newspaper having general
circulation in the county in which the discharge will occur. The notice shall be published at least 30 days prior to
the date of the hearing. The notice shall state the time, place and nature of the hearing.
(d) L6 Eavisesmen Water Quality Certification Mailing List. Any person may request that he or she be trailed
copies of all public notices required by this Rule. The Director shall add the name of any such person to an
en virenmenW a water Qu li certification mailing list and shall mail copies of notices to all persons on the list.
(9) Notice 'aQ#h&cR&manr. Us Dffirwo; shall give mrsitten notice I &urh9We;p6RQR6
(f) Payment of Costs of Public Notice. The applicant shall pay to the department the casts of advertising public
notice required by Paragraphs (a) and (e) LM of this Rege4ft6ee Bing. Certification shall be withheld until such costs
have been paid.
History Note: Statutory Authority G.S. 143--21153(a)(1); 143-215.3(c);
Eff. February 1, 1976;
Amended Eff. December 1, 1984; September 1, 1994.
15A NCAC 2H .0504 recodified from .0503 is proposed for amendment as follows:
.05034 HEARING
(a) Public Hearing on Certification. If 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, the Director shall so notify the applicant by registered or certified mail, return receipt requested, and
shall publish and give notice as required by Paragraphs .0502(e) and (d) .0503 (d) and (e) of this Section. Such
hearing will be held within 90 days following date of notification. The record of each hearing held under this
Paragraph shall remain open for a period of 30 days.
(b) Hearing for Applicant Upon Certification Denial. An applicant whose certification is denied or granted
subject to unacceptable conditions, shall have the right to a contested case hearing pursuant to the provisions of G.S.
150B-23.
History Note: Statutory Authority G.S. 143-215.3(x)(1);143-215.3(c);
Eff. February 1, 1976;
Amended Eff. July 1, 1988; December 1, 1984.
15A NCAC 2H .0506 is proposed for adoption as follows:
.0506 CR.TTERIA F
ial Prior to the evaluation of requests for certification based on the procedures outlined in Paragraphs (b)
through (e) of this Rule the Director shall determine the significant existing uses present in the wetland or surface
waters in question and if the Proposed activity has the p9tenlW to remove or degrade those significant existing uses
which are present. Activities which would not remove or degrade existing uses shall be reviewed according to the
procedures found in Subyaa graphs (c)(2)-(5) of this Rule Ilose activities covered by general certifications (15A
NCAC 2H 0501(c)(2)) which do not require written concurrence froth the Division will be deemed certified if the
conditions of the certification are followed and may proceed without the review procedures outlined in Paragrapbs(b)
through (e) of this Rule.
M The Director shall not issue a certification for a project that impact classified surface waters unless the
Director finds that the a=Ucant has demonstrated that the project:
11.1 has no npra, cticall alternative under the criteria outlined in Parag=h (f) of this Rule:
M will minimize adverse impact to the surface waters based on -consideration of Misting topography.
vegetation-1-.0- M_d wildlife resources, and Ay -_Ziol_ i ' r.-, under thr ?iteria .t]ined in
ParagraPA om R iL1u,
7-15-
j? does not result in the degrada
it in
,se-
ce w tens
f s
f tion of mtmdw tern or surface waters or result in the net loss of:
2B
a ed in 15A N A
0211:
ac dec
i
g
ex
o
ur
a
does not result in ,mnlative
hat
s
ill cause n viola .
.
_
gn
impacts- based U= past or reasonably n icipated future impacts.
un ti standards:
water
tion of downstream
t
cau
e or w
provides for protection of do
enctms_ nd
trol g
-
t m ter tali s an amts through the use of on-site stormwater
con
m
nrnvides for replacement of ex
f this Rule
and (2) isting uses through mitigation ns de-.-, at Suh a,g=hs (i)(1)

ja .
o
The rector shall] use the following c
riteria to review regues c for 401 Water Q u li Certification for
nroiects in CLcs WI. we lap c s defined nt 15 A N A 2B 0101(c)(8) These criteria r . the h sic criteria for all
wetland s Additional and more stringent criteria- applicable to other spe iris wetlands re mecift?Patagm hR s_ (d)
and (e) of this Rule. The Director shall not is sue a certification unless the Director finds that the applicant has
d mons tra ed that he pmiTcte
has no rnactical alternative mi
er the'ojt=n outlined in Paragmph (f) of his Rule*
will in'mi7e adverse imnac
ye ation. fish and wildlife r
ye tt to the•ie land based on consideration of existing topography,
esources. and h mlogical conditions under the criteria outlined in
,
ParngmTL(9) of this Rule_ 11,
does not result in he degradati
exis i uses of wetlands unde on of groundwaters or surface waters or result in the net loss of
r the criteria outlined in Paragmph (h) of this Rule:
does not result in cumnlative impacts bated ti n past or reasonably anticipated future im ac s.

j that cause or will cau
L?l provides protection
control measures: an
fm provides for replace
(i)(1) and l3)-f7) of t
The Director shall not issue a se a violation of downctma_m wate
for down_ctream water quality Stan
d
ment of existing uses through wetla
his Rule.
401 Water Qu li Certification r g u li standards,
rds through he u

nd mitigation as de

for eject in a -
se of on-site stormwater

crn d in S ubparagranh

lass SWL wetland (15A
NCAC 2B .0101(d)(4)), wetlands that are contiguous to waters designat ed as HQW. SA. WS-I. WS-II or Trout or
we land s that are contiguous to rivers designated as a North Carolina or National Wild and Scenic River which are
not c m sifid as ORWunless the 're ctor finds that the applicant has de monstrated that the
a
prQiect meets he criteri
outlined

e) in S ubpamgranhs (c)(1)-(5) of
Ln is water dependent a
funded bygoverp>me
the review criteria fo
im pm :des for replace
(i)(1). (3)-(6) and (8)
The Director shall not issue a this Rule. and:
nd rep„iree accept to water as a ce
nt agencies may be exempted fro
tmm_d in Subpam=hs O(l)-(5) of
ment of existing uses th_m„gh wetla
of this Rule.
401 Water Quality rertificadon f
ntral element of its
m this requirement
his Rule: and.
nd mitigation as de

or a molest in we l
basic function Proie s
if he agency can satisfy

scribed in Subnarg_raphs

ands of exceptional state
or natio nal ecological significance w protection to
hich require _snedal maintain existing tines as defined by 15A
NCAC 2n 0220These wetlands in _
clude r'lo TTW wklande and w etlands that have been documented to the
satisfac tion of the Director as habitat essential for the continued existen ce of state or fede rally listed threatened or
endang ered meciec unless the Direct or finds that the applicant has dem onstrated that the project meets the criteria
oudine d in Pram s (c)(D-(S) and (d
M the wetland impacts
(2) provides for replace )(l) of this Rule, and:
are necessary for h proposed jtrtlje
ment of existing uses through wetla
ct to meet a demon
nd mitigation as des
strated public need: and
cribed in Subpamgmphs

iQ (i)(1). (3)- (6) and (9
The Director shall apply the f
(1) The basic project p
same general area a ) of this Rule,
ollowing criteria in evaluating the
urse cannot be accomplished us
s he proposed activity that woul
mct_icai altemative
ing other reasonab
d avoid or result in
s analysis;
ly available sites in the
less adverse impact to
surface waters or wetlands:
jm Thgpo end 1 for a reduction in size configuration or deity of the mm?oted acti vity and 1?1
alternative designs that would avoid or result in less adverse impact to surface waters or wetlands

(gZ but would a_ccomnl'ch he basic pimnce of the =ject
The Director shall apply the following criteria in evaluating• the minimization analysis:
m The sna ial and dimensional mquirem n s of he project
7-16-
im 7be location of any xis i c ,c ,ral or a ,cal fen ,re-, that may di ate the placement or
{ Ile pl,=se of the proiect and bow the ntrmosc relates to placement, configuration ordensitZ
L4) Abi i of the guurface waters or wetland to continue to support the existing uses after mplect
completion,
f bl 71e Director shall apply the following criteria in determining whether -,igpifi nt us .c are present at a_
particula= wetland site:
!U Designated uses as o, lined at 15A NC A 2B 0220(a)(l)-(7` are assumed to 4xist in all classes of
we lands unless the applicant demongmtes that signifi nt Uses m not present at a particular site
ns' a wetland ecolovi 1 evaluation method =roved by_the Dime.
The Director shall use he following guidelines in determiningnl2=11rLte mitigation for unavoidable losses
of exis(inguses which would otherwise result in a viol_adon of water quality can ar c:
m The Director -,hall coordinate mitt ion gl,iremen s with other p=itting agencies that are
inL n? nitigation for a sD=Wc n=
M Impacts to c acsifitj surface wnt_erc cA11 be conducted in such a manner that the existing yeses
shall be replaced:
m Acceptable meth c of wetlands mitigation are listed below in the order of preference:
JAI Restoration: the re-e-,tiblish_ment, of wetland hydrology and vegetation in an area when it
=yt, 'ously existed-
MI Creation: he construction of a wetland in an area where wetlands did not exist in the
remn_t ct
iQ Fnhancement- increasing- one or more of the functions of an existing wetland by
manipulation of vegetation or hydrology-
MI Preservation: protection of wetlands through purchase, donation or conveyance of a
conservation easement to an appropriate Bove ment or non-profit agency for
man_soement
Restoration is the preferred method of wetlands mitigation The other methods may be utilized if
the applicant can demonstrate hat restoration is not ra is 1 or that the prolmsed altemative is the
most ecologically viable method of replacing the lost functions and values-
All mitigation pr=%a c shall provide for the replacement of wetland acre-, lost due [o the proposed
activity at n minimum of a 1.1 ratio through restoration or creation prior to utilizing enhnneement
or preservation to satisfy the mi ' a ion uirements.
Wetlands mitigation -,hall be based on the following initnaBy acccaptnble acreage ratios unless the
applicant can demonstrate that water auali ?standards can be protected thr_ou¢h other means:
restoration 2.1- creation 1.1• enhancement- 4.1• and preservation- 10:1.
Mitigation for impact-, to wetlands designated in Paragraph (c) of this Rule shall be conducted
within h s m river basin and physiogmphic =vince when practical Unavoidable losses of
wetlands adjacent to waters c ascified as WS-III shall be replaced within the water simply watershed
when practical.
Mitigation for impacts to wetlands _ designated in Parac-rmph (d) of his Rule shall be of the same
wetland type and located within h same river s ub-b sin when =ctical- Mitigation for impacts to
wetlands adjacent to waters classified ac_ WS-1 or WS-II shall be replaced within the water supply
watershed when p'caL
lM Mitigation for impact-, to wetlands designated in Paragmnh (e) of his Rule shall be of the same
ra
wetland t= and within the same watershed when m
History Note: Statutory Authority GS. 143-215.3(a)(l): 143-215.3(-,):
7 -17-
15A NCAC 2H.0507 recodified from .0504 is proposed for amendment as follows:
.05042 ISSUANCE OF CERTIFICATION
(a) 'I'mme Limit for Final Action on Certification Application. All applications for certification shall be granted
or denied within 438 f Q days after receipt at the offices of the Director in Raleigh, North Carolina.-, tmless Failure
to take final action within 60 dal will result in a waiver of the certification requirement by the Director, unless:
(1) The applicant agrees, in writing, to a longer period;
(2) Final decision is to be made pursuant to a public hearing; '
(3) Applicant fails to furnish infonmadonbecessary to the Director's decision;
(4) Applicant refuses the staff access to its records or premises for the purpose of gathering information
necessary to the Director's decision;
(5) Information necessary to the Director's decision is unavailable.
(b) Time Limit for Final Action on Certification Application After Hearing. All applications for certification
shall be granted or denied within 448 QQ days after public hearing. Failure to take final action within 60 days will
result in a waiver of the certification =irement by the amct unless = applicant otherwise agrees in writing, or
unless Serb Asien Sitbam&=ht (a)(3),(4), or (5) of this Regulages $111 shallapply.
(c) Conditions of Certification. Any certification issued pursuant to this Rule may contain such conditions as
the Director shall deem necessary to insure compliance with Sections 301, 302, 303, 306, and 307 of the Federal
Water Pollution Control Act Amendments.
(d) Modification or Revocation of Certification
(1) Any certification issued pursuant to this Rule is subject to revocation or modification for violations of
conditions of 301, 302, 303, 306, and 307 of the Federal Water Pollution Control Act Amendments.
(2) Any certification issued pursuant to this Rule is subject to revocation or modification upon a
determination that information contained in the application or presented in support thereof is incorrect cc
if conditions under which the certification was made have changed.
(e) Notification of Unapproved Application. In the event that the Director denies the application for certification
or for any reason is unable to approve the application, the Director shall so notify the applicant by certified or
registered mail, return receipt requested, specifying in such notification the reasons for the denial or inability to
approve; and a copy of the notification shall be mailed to the appropriate federal licensing or permitting agency and
EPA.
History Note: Statutory Authority G.S. 143-215.3(a)(1);143-215.3(c);
Eff. February 1, 1976;
Amended Eff. July 1, 1988; December 1, 1984

7 -18-
r,rii?ttn •_ vii RevieWer: I ed4f •Jh J0
. WQ SI)PV,.. :
301RV <oson
DO MY I fIF??
0' EN'VI'RONMENTAL SC]:ENCES ? BRANCH DATE .
I
UBJEC:: WETLAND STAFF REFORT AND RE? MENDATIONS
ITEM MUST BE ANSWERED USE N/A FOR NOT APPLICABLE)
*--",EACH
?:MIT YR : 95 PERMIT SO: 00 1145 COUNTY : MECKLENBL'RG
APPLICANT NAME: NATIONSBANK (CAROLINA ) pERMIT.TXPR: rTW33/26
PRO. -CT_TYPE: C014HERCIAL FILL ? UOT_# : Ito
?4
COE_ i DATE FRM_CDA : 10/30/95
RCD = ROM_C DA : A??
OFFICE: MRO 0/
?''- S
IVER_,?:.-D_SUB_BAS113_# : 030833 _INDEX h0: 11-115-4 "?s
STREA.`S_CLASS: WSIV ???s?
,r,?, WL TYPE: htar! (fir ?„f"
WL_IMPA.CT?•??,,33JJN T
WL?REQUESTED: sa6 comAld WL-ACR_EST?: (SIN
WL_SCORE { ll) : 7 7/ 5 '? '* W "S* R. IMPACTED BY FILL? : GIN
MITIG-TION?: Y,?3 I MITIGATION TAE:
MITI G TZON_SIZE: /VIA DID OU REQUEST MORE INFO? : &N
IS WETLAND RATING S. T ATTACHED?: ON
HAVE 2ROJECT CHANGES/ CONDITIONS. BE ! IDISCUSED'VITH APPLICANt? : 01N `
:. ISSUE ISSUE/COND. DE:Y (See Cc*`J
RECOMMENDATION (Circlg 0 I )
K) 1.5' .4r 4WO W ?,I 1'? OG IM GKLV D? r Gc IOW 26,
COMMET:S: 1hi-S re2?e
??-
V6 1 T r `Gv; rw?
/
?/1?? ,
1 !r ? ? .. G?. ., iU.c??a?L . Tv?' 7e??•1 f"?G>' i ?- . Al's
JI 1t? kE? f ??o M?? AcrG ww5 o,4 4
?a C i N. . _fit
?-G4hl' /,1 `ik { ? Rr r Q• ? ti '" n ??t 6 J
?M¢ r ce. vc d a r? , 55 ?o?'rsf 5•
-lhit ?iegim Office
Central Files
isr Wle. A1s K,?? ++d• (Ice '2e/ 46A
?'/ N{{l??{/ Ci??lta?i?''? ?i0 p?ttl. G ? f ! w0 ? Or J' 0.- a4Ye s•
ty .? r 0. ? u cats • ??e rxuP ? ??' { ?,,
rv+?" Reece,
ve.
lv?r as 3 c?vev w•?4s {?ia?' se''' . ! ?hc,/ c,??rracf• Pro Poud'C clGSf je?lSc?rVv
r..?t A • ?1?cc? vu yw,?i"era to flou! t?i+K u. 7.HG . S? ( t dvcw
`?.•,v o? ?c. c?1?er?s _Stitvi. ?v h?,,?,11e,

r u Sri «w,, 1;X4V J .
oscoo rnud : C r !w t'-
of It
Pov!•s%K a? ??.c?( .r,P ?e tkf o? I #ewlS Q p4,e414U ???w?•c.P
64. 7 ?aqt rtc r's?m?) . 77,z ,' vl ser?
rid Jes?y?. ? ?cC?as a Snt?(( c?lve.?? ?h?c?i?td' lei ?iw• ?G. ?lvw ? ' j' '
?wo SGt?'•ns o? ?ct. e•?e?K? (o ? .'?,'i/¢r:? by ? ?oryoos?4? /?aJ ??'S
y -
fovtop? Of
y k.. /'F11Yt ?r'?G•LL? ( ; 5EG`rtiS ? ?d ???C Aulr??
6Lrl ?1j?'•"?•?
ii? i 5 •? `Y2?6+?'i?,y?? : ?' '- ?'' ?e?' 1 ?i'M'a ? :..,?. ;?! ?. f: ?.: ? j? ? ..
L L ?? ?{//K4? •I•?+t .hgcl'' S Y`6G'<r?e5;fw?. e
{??IKQi?k.F•i?i't.?{.i1?i:•.".??'W`:. u;....a.. Jr?t; S.: r.. -/ ?}
TOTAL P.04
NationsBank Trust
Charlotte, NC 28255
Tel [phone]
Nafions Bank
December 21, 1995
Mr. John R. Dorney
Water Quality Certification Program
NC DEHNR-DEM
Post Office Box 29535
Raleigh, NC 27626-0535
Re: Kincey Road Extension Project, Huntersville Business Park, Huntersville, NC;
BKA File No. 9504008; Your File No. 951145
Dear Mr. Dorney:
NationsBank, N.A., as Trustee for the NationsBank Employee Pension Trust Fund
("NationsBank") has received and reviewed your letter dated December 7, 1995
regarding your ongoing review of the Kincey Road Extension project. In your letter
you request information in addition to the Nationwide Permit/Pre-Discharge
Notifications sent to the Corps and your office in October, 1995. This letter provides
you with NationsBank's response to your letter.
For the following reasons, it appears to us that realignment of Kincey Road in the
manner that DEHNR has suggested would not be "practicable," as that term is defined
at 40 C.F.R. § 230.10(a)(2):
Realigning the road would expose NationsBank to great cost by
restricting significantly property available for development along Kincey
Road. Such costs could approach or even exceed $500,000. This is of
particular concern to NationsBank in its role as trustee for the
NationsBank Employee Pension Trust Fund. NationsBank has a legal
obligation to maximize the value of the assets of the NationsBank
Employee Pension Trust Fund for the Fund's beneficiaries. Removing
otherwise valuable property from development without a compelling
reason would be contrary to NationsBank's fiduciary obligations;
The planned intersection has been designed based on requirements of the
prospective tenants and property owner for the intersection to take full

295720.1
Mr. John R. Dorney
December 21, 1995
Page 2
advantage of the scenic vista across the existing man-made pond and
changing the intersection would affect dramatically the project;
Access, frontage and site-specific constraints associated with adjacent
parcel tenant requirements necessitate the placement of the roadway as
planned; and
Vehicular staging, safety issues and roadway engineering design
requirements necessitate the placement of the intersection of Kincey
Road with Reese Boulevard in the planned location. Realignment of the
road along the lines suggested by DEHNR would render impossible
under North Carolina Department of Transportation safety guidelines the
construction of the road that will carry certain Huntersville Business Park
traffic parallel to I-77.
Nevertheless, as DEHNR is well aware, NationsBank is keenly protective of the
environment, and has designed this project to minimize impacts to wetlands at
Huntersville Business Park. For example, project roadway and a sewer line for the
project share a right of way, since construction of sewer line and a road on separate
locations would increase environmental impact.
It should also be noted that the overland flow from the unbuilt Kincey Road site flows
into two man-made amenities, namely the 5.9 acre lake (which has been constructed
with an average depth of greater than 8 feet, and the outlet to the perennial stream
from the lake being placed about 1,000 feet from the inlet from the wetland area at
issue) and the separate wooded forebay/dry detention area, prior to flowing into the
perennial stream near the site. DEHNR has noted that the perennial stream supports a
wide variety of benthic macroinvertibrates immediately adjacent to the project site, and
that no siltation was entering the perennial stream from the project site.
It is these recently-constructed structures into which runoff from the project site flows
that have in the past and continue to achieve water quality antidegradation goals for the
project site as well as a significant portion of the entire Huntersville Business Park
area. Ninety-eight. acres of the Business Park and offsite drainage from I-77 and
elsewhere flow into the lake. Less than 20 acres of drainage area flow to the wetland
in question. These structures serve more than just the project site, and do so with
vastly greater efficiency than the wetlands in question. An application of the 85 %
pollutant removal methodology (which was suggested to us by DEHNR's Scot Thomas)
indicates that the existing lake and its operation and design exceed the requirements to
achieve 85 % pollutant removal from the entire site by over ten times. When one
295720.1
Mr. John R. Dorney
December 21, 1995
Page 3
considers that only 26% of the wetland area in question is being impacted, the lake,
without alternation, will outperform the existing pollutant removal capacity of the lost
wetland area by about 400 times. Furthermore, the wooded forebay increases even
more additional pollutant removal at Huntersville Business Park.
In sum, the "significant uses" described in your letter are the same uses which are
enlarged, enhanced, and successfully functioning by way of the man-made lake,
forebay and streambed enhancements installed prior to the initiation of the Kincey Road
project. It is our position that the loss of uses your letter suggests may occur have
been successfully mitigated prior to the initiation of the Kincey Road project, and that
the aforementioned lake, forebay and streambed enhancements may actually outperform
the area in question for the uses described in your letter.
Before closing, we would like to clear some apparent confusion regarding certain
wetlands activities that have occurred recently at Huntersville Business Park. You
indicate concern in your letter that certain wetlands at Huntersville Business Park were
filled without the requisite approval of DEHNR. NationsBank proceeded with these
activities (which were limited in scope) only after 30 days had passed from receipt by
the Corps of Engineers of NationsBank's pre-discharge notification to conduct the
activities. As you know, once these 30 days pass, federal law states that the
prospective permittee may proceed with its proposed activity. See 33 C.F.R. §
330.1(e). Moreover, in a December 12, 1995, telephone call, Steve Lund of the
Asheville Regional Field Office of the Corps confirmed this construction of the
regulations. In sum, NationsBank certainly did not intend to undertake an unauthorized
fill of wetlands. Given the clear dictate of federal regulation, NationsBank reasonably
believed that it was appropriate to conduct the activities at issue. If we believed
otherwise, I can assure you that we never would have proceeded.
We hope that this information has been helpful to you. So that we may fully
understand your questions about the Kincey Road project, please provide to us the
technical data forms you have used to determine the significance of the Kincey Road
project area. You may recall that this information was requested from you at the
December 6 site visit.
295720.1

Mr. John R. Dorney
December 21, 1995
Page 4
Please contact us or our consultant representative, Jim Spangler at Barrett Kays and
Associates, PA, should you have any questions.
Sincerely,
NATIONSBANK, N.A.
as Trustee
NATIONSBANK EMPLOYEE PENSION
TRUST FUND
FSe
nior Vice-President
cc: Todd St. John, Mooresville DEM Office
Jim Spangler, Barrett Kays and Associates, PA
Steve Lineberger, WGM Design, Inc.
David Franchina, Esq., Kennedy, Covington, Lobdell & Hickman
295720.1
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
;lames 6. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard. Jr.. P.E., Director
December 22, 1995
REGISTERED MAIL
Mr. Floyd Boyce
NationsBank (Carolinas), N.A. as Trustee
NCNB Real Estate Fund
1 NationsBank Plaza
NC-1-002-11.07
Charlotte, N.C. 28255-0131
Dear Mr. Boyce:
Re: Application for road crossings
HuntersvWc, Business Park
DEM # 951228
Mecklenburg County
1 ? •
[D F-= l--?M N F=?k
We have reviewed your application dated 27 November 1995 to fill 0.40 acres of
wetlands for five road crossings off of Reese Boulevard in the Huntersville Business Park.
On 6 December 1995 1 visited the site as well as the adjacent Kincey Road site with Mr. Jim
Spangler and Mr. Stephen Lineburger.
Until the following issues are adequately resolved, I must place this project on hold
due to incomplete information. First, the unresolved problems with the Kincey Road wetland
fill will need to be resolved before additional fill is permitted. These concerns and several
possible solutions were outlined in my 22 December 1995 letter. Second, we will need to
understand and agree upon how much additional wetland fill is anticipated for building
construction in the additional portion of the Business Park. 't'hird, as discussed on site with
Mr. Spangler and in person with him and Mr. Kays, a stormwatcr management plan with a
wetland detention basin(s) will be needed for this portion of the Park in order to protect
downstream aquatic life and water quality standards. One possible location for this pond
would be in the channelized stream channel at Reese Boulevard.
Please respond to these items within two weeks of receipt of this letter. Until that
response is received and evaluated, I will (by copy of this letter) inform the U. S. Army
Corps of Engineers that your application is incomplete and should be placed on hold until the
information is available. Of course until the 401 Certification is received from DEM
P.O. Box 29535, Rdoigh, North Carolina 27626-0635 'rol9phone [phone] FAX [phone]
An Equal opportunity AMrnative Action Employer 5096 rocycled/ 10% post-conai-er paper
S ,
wetlands should not be filled.
Please send a copy of your response to Mr. Todd St. John of our Mooresville Regional
office at 919 North Main Street, Mooresville, N.C. 28115. 1 can be reached at 919-733-1786
if you have any questions.
Sincerely,
Jok}n R. mey
cc: Mr. Barrett Kays
Mr. Todd St. John, Mooresville DEM Regional office
Mr. Owen Anderson, WRC
Mr. Stephen Lineburger; WGM Design Inc.
Mr. Steve Lund; Asheville Field Office COE
Central Files 951228.1tr
TOTAL P.04
.. e
ate of North Carollnd
gepartme,nfof environment,
alth anNbturol Resources
01Y111on of ErtvltCnt'f16?11ta1 Manaoer
Jams D. Hunt, Jr., Governor
Jonathan B..Howas, Secretary
A, Preston Howard, Jr., P.E„ Ili
RBGISTERBD NAM
b o, Floyd BOY46
Nations Doak (Carolinas) N.A. as Trustee
NCNB Real Estate Fund
1 Nations Bank Plaza
-Chatloue. N.C. 28255
Dear Mr. Boyce:
Re: At44tbo-fact wetland fill
Hontorsvilto 13uiitsess Park, ICincey
Mwklenburg County
DIM 0 9x1.145
On 21 December 1995, Greg Price I
Tim Spangler to df $Cuss. "Iible resolutions
Road at HuntorsviI16 BUsiness Park, We 81
regard, Before i outline these optionr in I i
should address several pvlnts in your letter,
PhTt, the estimate. of a cost of S 596
and appatoady r4tota the fact that several
based on the location of Eneey Road. Si.
ware obtai ted, their posAble diminished vi
considerations are not demonstmted.
i
In regard to tba water quality fun4
sciaatific and engineering literature that stb
moasuroS Opecially for particulates. Howe
soluble pollutants while wetlands excel in I
to preserve fts0 *etlands which provide }
consultant has been provided with the eval
finally this fill was done without si
Ca dfa+cation process: as WgImA by Federi
Engineer explicitly states that a 401 Certi4
P.O. B" 29686, Weigh. North CeroAno 27
M EQud OpWun1 y A*moth,* Actlen
22,'1995
ctossfng
meet with your consultants Barrett mays and
?e unauthorized fdltng of wetlands for KInt oy
icussed your 21 December 19951otter in this
formation needed _to evaluate these optioYS, I
to relocate the road Seems exvossively high
its have been sold br steno under development
sse panels wane so;.d before wetland pe="ts
a Iess compelling argument. Also the safety-
if the stormwater pond, it is clear from the
iter Mds :are effective water quality
onds do a miadvely poor Job at removal of
jal of Soluble pollu?nts, Thus DEM strivts
quality uses. As you zequ05t4 yo'x
forms for this site,
ration from DEM through the 401
Also the 404 Permit issued by the .Corps of
is required before wetland fall occurs. In
Tolophone 9196733.7016 ' FAX [phone]
W% reoyCb4/ 10% pat-conau"t pooor
.. . .,m. r .ate----r-,.?
< it be
this zegard I would id12 t) a to knave it w > t the wetland 1111, begun. Also as shotd
clear in my 7 1cs;leM7 bor lttmr. r mute Mr; pAnglec well awNty of our pzvblt+= wlth
pormiWng the road ih this lACatlon.
In torms of the Ali?rnatf tes we &ic4 fed; tb4 ? .are autlin?;cl Wow, A wrtrton nspa„se,
to the prkticaiity of those a110MRdves w4-. t rcqul and Wmi the 401 CorMOAdosa Otul 00.
1.9duC.d. i
1, Rolocaid Kincey Road as s wn on tn`y 7 Decbpnbci 1995 letter. As outlined
above, your respons4 regarding c 93t agd.logistical concerns requires more
documctxtidon. in dais zegar [,{ a kta.j?n for A.4*1; Site 9 will be neodod to
doreonstratg that this road r?Rllg i?cat?as.aot pS Cdc&ble. This Map sb.ould RIso
show property boundaries. ; la y the safety six'guments will need to be better
dvcatmentefl. ?
nccy Road to the " $2e.oaf the 14.butary (sCa- atuahad map).
jQ'
2. Relocata
T alignpCm would avoid! wo t4 fill but would raqu3ro 8 spur road crossing
of the stream to Recess Buil; ng Site Number 7. Please rovisw this des!gn and
discuss Its DmctiAlity. i
.3. LW*:Izieey Road in p.ace ?;ut ;rov„ide ,Yad6o "I-hYdrologic.wntrOls to increase
lace
t.of wotlands abave'tho buta y net t. J6 Bui ding Site•9 (see sketch).
we?will cd sect olovatao ' jiti a wetland 4U..the area to be altered Into a
wpttarxl i4 order to de d th t pracdcalltyx o?.ihis; dssi Also a
coomittait to divert sto watcr? draiup frosE,portions of adjamot parcels
Will bb rseecied in order to is ="o the hydrology and will have to bo
I davoloped and approved by ?1 M Nit
Fipally La,ara?-see: collar will bo regal
line tutdar the pxst;tat pment for Kiae? Rc
Spanglex, uls of thin drMce Is routine in $a r
wetlands. i
Thank y,= for y'A,ur. cojadmod wont
733.1786 if you bimo fitly 'questions.
to be ins "ded on slut newly, installed sewer
As we discussed With Mir. Kays and Mr.
s approvals when they p>ts4 tbrouaih
vo this tz ?l*, I eah be reached at 919-
coot
St. Jptaia'pMooresyltlo DP ? R $io
Imo. dtia •Atl"rl? WRC
Mr. 5atephem L1448er; WOACS 4 ' C.,
1V . Stove L=4'- ?A ihevlllo F16ld 0' 1
cmiml mss
95114s.1tr
TOTAL P,03
A
WGM Dl.;tiu:\ I\(:.
Post-It" brand fax transmittal memo 767110 01 PO"' b
December 27, 1993
Barrett Kays & Associates
224 Fayetteville Street Mall
PO Box 2979
Raleigh, NC 27602-2979
Ael lu n.r•n'nl•:
Attention: Mr. Barrett Kays
lit Al I:1(A11 4rRVIIVa RCferc=: Kinney Avenue Extension Project
Sanitary Sewer Extension Project
Huntersville Business Park
Huntersville, NC
DEM #9511145
Gentlemen:
We have received the letter dated December 22, 1995 from the Department of Environment,
Health and Natural Resources ("DEHNR°) addressed to Mr. Floyd Boyce of NatiomBank
(Carolinas) N.A. as Trustee. As requested, we are providing further informaUcn in response to
alternates numbered 1, 2 and 3.
Alternate M1
To relocate Kincey Avenue as depicted by Mr. Dorncy, in his December 7, 1995 letter is
impractical at this time. We have attached a site plan for Building 9 which identifies the
approximately 1 acre impact into the building site. This also impacts a number of parking
spaces that would have to be constructed elsewhere. At this point in the project, (which has
been permitted by Mecklenburg County) a revision to the site plan and a relocation of the
parking spaces would have a schedule and monetary impact that would create an economic
hardship fbr the project. it also would reduce significantly property available for development
along Kinney Avenue, further economically impacting the project.
This suggested relocation of Kinney Avenue additionally passes through the previous
documented wetland area, which Mr. Dorney has requested that we return to a natural state if
the road remains in its present alignment. We intend to return this area to its natural state if
Kinney Avenue can remain in its current location.
112 $ 1'"Yom boo 1 i St I I K 200U l:nnnl.ln'n: NC 2H2H4 Ti LPVUUa 704 342 99176 VA% 704. 334. 4246
a
As initially proposed, the Kincey Avcnuc intersection with Reece Blvd. West is equal distance
between the existing Reece Blvd. intersection and a future planned road adjacent to the creek
that will serve an approximately 100 acre parcel of Huntersville Business Park to the south.
The positioning of Kincey Avenue equal distance between these other two roads is in the best
interest of the Park from a planning perspective, traffic perspective, and safety perspective
including site distances and separations between intersection. Realigning Kincey Avenue, as
suggerW in Mr. Dorsey`s December 7 letter, would increase traffic and safety risks by placing
Kinney Avenue too close to the future road needed to serve the southern interstate portion of
Huntersville Business Park.
In summary, Alternate I damages the wetland areas we will be able to recreate if Kincey
Avenue is left in its current alignment and due to the extensive economic hardship it would be
preferable to leave Kincey Avenue in its current alignment and increase the wetland areas.
Realigning Kincey Avenue as suggested by DEHNR is therefore not practicable.
Alternate 2
This alternate discusses relocating Kincey Avenue to the north site of the tributary. This
alignment would, in fact, avoid any wetland fill if the road was moved far enough north of the
existing tributary. However, if this road is moved far enough north to avoid the existing
tributary, it is in direct conflict with the ramp between Reece Blvd. West and Reece Blvd. as
depicted on the attached map. We could not meet any DOT regulations including separation
between intersections and site distance safety concerns with such an alignment.
Alternate 3
This alternate is the preferred alternate from a trafFic viewpoint, economic viewpoint, schedule
viewpoint, and appears to meet all of the requirements of all regulatory agencies.
The sewer line that has already been installed creates a natural dam which will backup the
waters on the south side of proposed Kincey Avenue, thus enhancing and enlarging the wetland
area as requested The double pipe extending under Reece Blvd. from the wetland pocket on the
north side of Kincey Avenue is laid in the manner, due to topography, that it is virtually flat.
This already creates a natural backup of water into the wetland area3 on the north side of the
Kincey Avenue extension.
In accordance with the requirements of Mecklenburg County all future stormwater drainage
frown adjacent parcels will also flow into these wetland areas thus increasing the hydrology of
the wetlands area. We simply have no other option but to pipe the existing drainage basin to this
wetland area. The recent grading at the intersection of Gilead Road, Interstate 77 and Reece
Blvd. for a future retail center will also fbed into this wetland area after a primary sediment
basin. Therefore, Mr. Dorney's rocomrnendation to divert stormwater drainage from adjacent
parcels into the wetlands is not only "practicable" under wetlands regulations, but also meets
the requirements of other regulatory agencies.
We hope that Mr. Dorney Hill allow us to proceed with Alternate 3. This, in fact, is the Lame
alternate discussed with Mr. Todd St. John of Mr. Dorney's office on site on November 13,
1995. This is documented by Mr. St. John's field notes.
If you require any further information, please contact me.
V truly yours,
DESIGN INC.
William 0. Monroe, III, AIA
president

F. 7
t l ?

1?+up?pcau??1L
90 740
SOFOOL ARWA____

egc HLVC
I igEEdH OL.VD.
`:
lae I2 0001 KINCIRY A`
KINGE%' AVC
oo
--- so.&LY MEESS BLVD. - - -
t30gp C7faE6E 9LVq,?'
_ .rte

L-EQEND
Tr+e U
s AND WATEp¦ or
1130ab jUAIQDICTIONAL- WCTL ND
? I 0`
LLL?--11 NIT JUp1O0IC:TIONAL WETLANDW AND
ggela COMPLGX U
i '• I
THE CHARLOTTE OBSERVER
Wednesday, January 10, 1996
Section C (Local), Page 6
NORTH CAROUNA DIVISION OF ENVIRONMENTAL MANAGEMENT
PUBUC NOTICE a hereby gmen that Humeraville W. Park (NYwrs-'
Banw) Mar HUmMwxa. NCM Cud- has *=' tO the NOM Gn*ovi D.
wson of ErmecnmenW Management for a WYer Oualrry GrMOalldn 17ur71I,
ant to Sechon 401 of the Federal Clean Water Act aro Erne«lmenw Ma-
nagemen Con+masorl ruin ld ISA NCAC 2H .0500 and 15A NCAC 28
0109 TMt acmTy Ion whr le Me eand"ton is sought u to 6a an adtlnldnal
0.4 aces of wellanes Oxf- n a he has towed 0.7 attn), in Huntersr.ee M
Mecklenburg Ccunty The OWPOSS Of INS rig IS tO emend 10ncey Road to
Reeser Blvd. The N.C. Drwson d Ermra+memal Management has 0019f-
nwne0 that a praCxade aeerrwtme emsls to the locawn d Me road wrwch
would avoo a greatly mnunua wetland fel. Tms anematme would slpntlyy re•
ai?gqnn I'nset' RCao toward F77 to skin me eoga of the rwdaM. There 0.
DEM proposes to Gerry the 401 Candicahon lot No poled requue dlat IM
road be relocated and the wettand fill removed.
TM pudo m kmrled to comment on me above menoml id apol"tion to the
Drwson d EmwonmenW Management. Cornnwnts arras W n wrtteq and
shall be racemed by Me pmsron no weer Man January 19. t996. Comments
SMAO W sent o N.C. Omewn d ErnM menW Management. Erlwrorwnen-
w Scwnces '.t0=C 4401 Reedy Creak Rod. Raurgn, Norm Ca.01
27607. AnenirOrl: Jorn Oorney. A Coot' d ine apd; r On Ne Y Me DrvL
son dlee at Moaeswee Regonal OMlde. 919 North Man StreeL MOOrnvele.
Norm Carona 23115 (704) • 660 . 1699: Fax [phone]) during normal
buwm horns am may be -weaed try the pubes
A. Prnon Howsrd. Jr. -
Orreaor
N.C. Dmhon of
ErmronnwnW Mwagemem
DATE: January S. ISM
LP600t068

WGM DLsiclN INC.
post•lt" brand fax transmittal memo 71M * o1 P?4•¦
DA4 RO;4 X 11
? Fj'l'Y1 ..
Dept. l
n
1
Fax 0 .'
0
January 16, 1996
State of North Carolina
Department of Environment,
Idealdl and Natural Resources
PO Box 29535
Raleigh,NC 27626-0535
Attention: Mr. John R. Dorney
Reference: Kincey Avenue Extension
moini:an.ur. Huntersville Business Park
Nt,,,,.,, PLVIN NU Huntersville, NC
Itr:u.i:•,.;rr:?,:H"?:?r Gentlemen:
We have received today a fax copy of the elevations you requested in the wetland area of
Kincey Avenue extension. R.B. Pharr and Associates, a licensed surveyor has provided this
information and will mail a plan to us which we should receive tomorrow. We apologize for
the delay in obtaining this information, but the surveyor.has had trouble responding to our
request and your December 22, 1995 request, due to the holidays and the inclement weather.
We will contact you by telephone when you are back in the office, but would like to request a
meeting in your office, Tuesday, January 23, 1996 to review this information. In our view, the
information sheds important new light on this matter. We are hopeful that it will facilitate a
satisfactory resolution on this issue. I will attend the meeting along with Mr. Floyd Boyce,
Senior Vice President of NationsBank Real Estate. Investment Services EMCI Mr. David
Franehina of Kennedy Covington Lobdell and Hickman, NationsBank's outside counsel.
We look forward to meeting with you next week, if that is acceptable to your schedule. Due
to our driving time from Charlotte, we would request a meeting time of 10:00 a,m, or 11:00
a.m..
very truly yours,
SIGN INC.
191G.Moriroe, III, AIA
President
cc: Mr. Floyd T. Boyce
Mr, Dave Franchina
112 S. rkYON Srnrr7 SUM 2U9o Clwnimm NC 28284TO.raavoxr; 70-t.. 3.1,2.91176 Fix 701.'!Q4. 4246
Small wetlands
part of big picture
Huntersville park site of small battle
By BRUCE HENDERSON
MUNTER:VILLE - Huntersville
Business Park is a growing place,
and developers cleared more land
last year with plans to extend a
road through the red clay.
The road's path crossed a trickle
of a stream. Workin without state
approval, state regulators say, de-
velopers filled in nearly half an
acre of wetlands around it.
Now regulators want Nations-
Bank, which is developing the pro-
ject, to dig out the fill dirt and move
the road.
It's the kind of little wetland,
common across the Piedmont, that
state officials and environmental-
ists agree is worth fighting for. But
after a year of debate, they still
can't agree on how much protec-
tion is enough.
Next month the state's major
environmental board will vote on
new rules describing how N.C.
wetlands are to be regulated. For
the first time, it puts state wetlands
policy into writing.
Critics say the rules will also
lead to the destruction of many
small wetlands, allowing them to
be filled without state approval.
"If it goes through, it will allow
the development of a lot of small
wetlands that I think most develop-
ers would regard as insignificant,"
said Curtis Richardson, director of
Duke University's Wetlands Cen-
ter. "Collectively, they make up a
very important group."
Please see WETLANDS I Page 4C
Tuesday he will run against
freshman Republican Rep. Da-
vid Funderburk this year, rather
than try for a third term as state
superintendent of public in-
struction. Etheridge said Fun-
derburk had voted with House
Speaker Newt Gingrich 93 per-
cent of the time in his first year.
"Newt Gingrich has enough
congressmen in his pocket,"
Etheridge said. "It's time for our
part of North Carolina to have
our own congressman."
Iredell schools open late
STATESVILLE - Iredell-States-
ville schools will be delayed an
hour today because of contin-
ued icy conditions on some ru-
ral roads in the county.
South Carolina
Gramm visits S.C.
MOUNT PLEASANT - Republican
presidential candidate Phil
Gramm campaigned across
South Carolina Tuesday, pre-
dicting victory in the state's
March 2 primary. Gramm be-
gan with a chart at the kitchen
table in Phil and Kathy McDon-
ald's suburban home. "Our h' -.
Asheville E57974 47

CAROLINAS
FORECAST
Today's highs and tonight's lov
NORTH CAROLINA
TODAY
Morning clouds and fog. Areas of
decreasing clouds in the afternoc
mid-50s to mid-60s, except 40s
TONIGHT
Cloudy with areas of dense fog dE
mostly 40s; mid-50s Outer Bank;
THURSDAY
Scattered mainly afternoon show
ous in west. Highs: 50s west; 601
tic ¢Umiol6e mbaerncir
-I--
4C VERMDAY, JANUARY 17,1996 •
NationsBank hopes
for an ag,eement
WETLANDS
Continued from page IC
State officials say the rules will
focus limited resources on pro-
tecting the most valuable wet-
lands.
In the Piedmont, you'd barely
know most are even there. In-
stead of cattail-lined waters bob-
bing with ducks - the image of
coastal wetlands - Piedmont and
.mountain wetlands typically
;cover less than an acre. They're
frequently deep in forests.
Yet they're front-line guard-
ians of clean water. Many sur-
round the headwaters of small
streams, absorbing the "first
flush" of sediments and other
polluted runoff before it reaches
free-flowing water.
The tributary filled in at Hunt-
ersville Business Park eventually
flows into, Mountain Island Lake,
Charlotte's major water supply.
To fill a small wetland, devel-
opers need the state's certifica-
tion that their project won't hurt
water quality. The state now re-
views projects that would fill one-
third acre or more of wetlands.
The N.C. Division of Environ-
mental Management last summer
quietly prepared to exempt wet-
lands of up to one acre. The
division killed that plan after pro-
tests.
The new rules give greater
protection to wetlands closest to
streams, where they're most valu-
able. Within 150 feet of a stream,
they would allow filling wetlands
of up to one acre. Within 50 feet,
they allow no more than one-third
acre to be filled.
Critics say it's no improvement
over the rules proposed last sum-
mer.
"It pretty much works out the
same," said Ed Harrison, a Sierra
Club wetlands specialist. "Basi-
cally, half the wetlands in that
part of the state would be exempt
from review."
The existing threshold encour-
ages developers to design around,
rather than through, wetlands. It
is cheaper to do that than wait for
the state to approve project plans.
Critics say that incentive will be
lost with the new rules.
But John Dorney, a state wet-
lands specialist, said Piedmont
wetlands overall will maintain
about the same degree of protec-
tion they now have.
"I don't think that's devastat-
ing at all," said Robert Epting,
one of four Environmental Man-
agement Commission members
who held hearings on the wet-
lands rules. "They in fact ratio-
nalize the rules we have."
Epting believes the new rules
will slow the loss of state wet-
lands, now disappearing at the
rate of about 700 acres a year.
Member Dan Besse called the
rules a "functional compromise"
between development and envi-
ronmental interests.
The N.C. Home Builders Asso-
ciation says state review of any
wetland projects smaller than an
acre is "unacceptable and unnec-
essary." The N.C. Department of
Transportation calls it a "bureau-
cratic nightmare" to examine im-
pacts on small wetlands.
The commission is expected to
vote on the wetland rules Feb. S.
While the Huntersville Busi-
ness Park wetlands are typical of
those in the Piedmont, the new
rules wouldn't have changed how
they are regulated.
NationsBank filed an applica-
tion to fill four-tenths of an acre of
wetland, regulators say, but
started the work before the state
approved. Developers had al-
ready won permission to fill 3.7
acres of wetlands in the park.
State regulators believe the de-
velopers can reroute the road to
skirt the wetlands.
Dave Franchina, an attorney
representing NationsBank, said
the project is consistent with state
and federal wetland regulations.
The bank hopes to reach agree-
ment with state regulators, he
said.
This stream flows Into Huntersville Business Park, where state
regulators say developers filled wetlands without state approval.
Environmental officials want the flll removed.
Staff graphu
• WEDNESDAY, JANUARY ??P,rl'99
eleup driving p too fa
when visibility is clear, Valentine
said.
The heavy fog caused the crash
of 21 vehicles on the highway's
westbound side and 25 vehicles in
the eastbound lane. The two chain-
reaction accidents happened about
100 yards apart.
One man was killed.
"The fog was very localized, and
visibility was practically zero," Val-
entine said. "When I got into it, you
really couldn't see past the hood of
your car."
The stretch has long been ac-
knowledged by transportation offi-
cials as possibly the most fog-
prone in the state.
In 1974, the Department of
Transportation installed a
$450,000 set of fog-sensing warn-
ing signals in the area. The
ticated system, at the time tl
one in the country, was Intel
gauge the fog's thickness, an
matically adjust the speed 1
signs along the six-mile cor
The system never worker
erly, and it was dismantled i
In 1990, a 50-car pilet
blamed on fog.
"We had more vehicles
crash, but at least no ot
killed," Valentine said.
Edwin Eugene Council,
Weaverville, N.C., was kille
day when he got out of his
after colliding with a t
trailer. He was struck by a A
thrown in the air, then got
between the van and the I
trailer, the patrol said.
,ets he.aruna on `ridge laws'
tain counties have such "ridge
laws."
Now many Avery residents want
to go further, regulating not only
building heights but densities.
They want to ban any multifamily
housing - such as condominiums
and hotels - from the county's
mountain ridges.
"Save the Summits" petitions
spread through the county last
spring. Last week, county commis-
sioners agreed to organizer
Hughes Estes' request for f
hearing.
Estes hopes commission
agree to a county referent
the ridge ban.
County Manager F
Fletcher said he can't pre
outcome. But interest is I
commissioners have schedf
Feb. 1 hearing for the
County High School gymni
HILL''
CLEANL
LUNCH MENU MAN
Cali 377-4444
Then enter the code below for
more Information on that subject
I Sing Country 1953
Talk To Me 1954
Lunch Menu 1955
Rental & New Construction Clea
For, the Individual Thuch - one Maid Per How
ll
e1?Rf7sP/ ? rov
I at& r??rl6aoli011
k,545-2495 calmnj
BUY ONE PAIR,
GET ONE FREE!
Buy one pair of eyeglasses at ou
regular low price and get a secc
pair FREEI Second pairs are chose
{ from selected frames with single
vision plastic lenses. Lens options
and bifocals available at a slight
extra charge.
CHANGE YOUR EYE COLOR FOR
Blue, green, hazel and gray
WJ Opaque Daily Wear Contacts
"with mfr. rebate, Eye Exam not Ind
EYE EXAMS AVAILABLE BY
INDEPENDENT DOCTOR.
Not valid on prior orders, Umlted Time Offer to 1
Phone [phone]
qJidk
lout lines
rk
We'll flush your redletor
and coollnp system.
cheok bolls, hoes" and
water pump and refill GvQtwn IndudkV 1 pellon of
? "-?, ? I I ? ?, fa4L
* j(kffiwjih-
Ox--,
- WU ?G05C
/2-5/56

IAO
?i ?o YD a9
47>
?u s)
OCIAT
b, V-9-
?om?Q
? rond -
Mw?d1 QM ay
VIVO L-tc
vuu
/?MA?-f ?r
U?A QNw a4Stv CA??,r
Xt rQoN,.R?M P???N'
(-?) CWie C,?-„ w
d

/V- ze4
V16,
,2'-?.ug u,?d rood

FL
w??srn?
DEHrR MOORESVILLE RO Fax:[phone] Jan 18 '96 1549 P.01/01
S?mall??wetlands in the big picture
Huntersville Business Park'is site of battle between state, NationsBank
"111' ?„
emille mainess Park even
f1M Into MMmtefe Island lrlrwallye,
Charho"s major water
To fill a small wetiead, aftle[W
ers need the state's oertiBcation
that their pmied won't hurt water
e state ow reviews
pro&xft that would fill one-third
acme car more of wetlands.
The N.C. Division of Fxiviron-
rnental Management last summer
to w(emppt wet-
]adnd up to oche sera The Pi -
slon killed that phau after proteeb.
The n.w fairer giw ®r access p=o-
toction to wetlands clos to
streaav" where they're most Vahs-
able. W9tlnin 1801100 of a stream,
they would allow fining wetlands
Of tip to one acorn. VVlthin 30 feet,
they allow no more than one-third
acs's to be filled.
Critics stay We no haprovement
over the tales proposed last sum-
mer.
..it pretty much works out the
same, said Ed Harrison, a Sierra
cbo. wetlands spa i"fft- "Besi-
that
caUyw ate Would be exwq)t
of the w
The .mdsting threshold enom r-
ages developers to design around,
rather then through. wetlands. It is
rt,awwwto do that than wait for the
with the mew rules.
But John Dorney, a state wet-
lands specialist, said Piedmont
wetlands overall will mnintein
about the saute degree of protec-
tion they now have.
. " i don't think that's devastating
at an, ' said Robert Epp?ping, one of
four Environmental Mamgement
Caumission members who held
hearings on the wetlands rules.
'"h'Tts'y rn fact rationalize the Hiles
we have."
while the Huntemville Business
park wetlands are typical of those
in the piedmont, the new rules
wouldn't have changed hour they
ated.
are r"
Nationsoult filed an applica-
tion to fill fear-tenths of an acre of
wetland, regulators say, but started
the work before the state ap-
proved- Developers had already
won permission to MI 3.7 acres of
wetlands in the park.
State regulators believe the de-
velopers can reroute the read to
stdrt the wetlands.
Dave Franchina, an attorney
representing NationsBank, avid
the p[oied is consistent with state
and fedwal wetland regulationr+-
The bank hopes to reach agree-
mentwith state regulators, be said.
NUNT[RSVILLE - Huntersville
Busirmiss Park is a growing place,
and dewfters cleared more laced
lest year with plain to aMd a
road through the red clrpr.
nee evade pah crossed a didde
of a stream. yV?without I I
state say. de.
velopps Zd in nearly half an
sere of wedonos around It.
Note warn Natlons-
?a, UK
?
the road.
ICs the kind oft little wedand,
common aloes the Piedmont, that
state officials and cwhonmental-
ists agree is worth dining for.. But
miter a year of debate, thW still
cant aim on how much proteo-
tiom is enougm
Next month the state's major
wAromental•board will Vote on
claw enles descrjMg now N.C.
vwdandr am to be regtdaued. For
? IU titat0 wetlBDdi
pouq Critics say the rules will also
aead to the destruction of MOM.
small wetlands, allowing them to
be fdl4d wit tour state approval.
"lf it goes ttuOWL it will allow
the developmiem of a lot of small
wetlands, that I think most develop-
ers would repM as
said Chia RiChnown, dice for of
Duke University's Wetlands Cen-
tver. "Colletxlvely?, they make UP a
aSteins oMdals my the rules will
A)Ctd limited resourm on protect
tog the moo *juable watlands.
In the piadenortt, you'd barely
kDow most are even . instead
of cattail-lined waters bobbing
with dtedm -the WNW of coastal
wetlands - Pladmant and mourn
tdim.wetlands typically ewer less
thatlt' to acre. Tttcy m freWer*
deep In forests.
et they're fmrrt-line VjM%lians
of dears vvtrter. Mariy surround the
headwaters of small streams. ab-
softa otl rst ??nusoff
mmts hetoee it reaelrss flee4owhtg wa-
ter-MW hgxm ry fim In at Hunt
? apps eventh ec will
that live will be lost
lost
postht' Fax Note 7671 Dstel id 96 peg"
To ?, re race- t'ro
ceJOept °? 19 7 33?f yJ °°.
Pfione i Phone 0
Tale atrem • flowa brta HunWwAls & skww nark, where state
rgMjptwarsy developom flied vm0anda without Itasca opprovsi_
rnrirolttnsntatl officials want On till rotnaved.
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
January 5,
The Charlotte Observer
P.O. Box 32188
Charlotte, N.C. 28232
ATTN: Legal Ad Department
Dear Sir:
SUBJECT: Public Notice
1996
ED EHNR
Please publish the attached Public Notice one time in the
section set aside for Legal Advertisements in your newspaper. The
publication should run on or before January 12, 1996. Please send
the invoice for publication and three copies of the affidavit of
publication to the address given below. Payment cannot be
processed without the affidavit of publication.
N.C. Division of Environmental Management
Water Quality Section
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Attn: John Dorney
If you have any questions concerning this matter, please call
John Dorney at 919/733-1786.
Sincerely,
1
f,Jin rney
s Techni a KR w Group
951145.pub
cc: John Dorney
Wilmington DEM Regional Office
Barrett Kays: Barrett Kays and
Stephen Lineberger: WGM Design,
Steve Lund; Asheville COE Field
Owen Anderson; WRC
Central Files
Associates
Inc.
Office
R0, Box 29,535, Raleigh, North Carolina 27626-0535
An Equal opportunity Affirmative Action Employer
Telephone [phone] FAX [phone]
50% recycled/ 1096 post-consumer paper
NORTH CAROLINA DIVISION OF ENVIRONMENTAL
MANAGEMENT
PUBLIC NOTICE is hereby given that Huntersville Business Park
(NationsBank) near Huntersville, North Carolina, has applied to the
North Carolina Division of Environmental Management for a Water
Quality Certification pursuant to Section 401 of the Federal Clean
Water Act and Environmental Management Commission rules in 15A NCAC
2H .0500 and 15A NCAC-2B .0109. The activity for which the
certification is sought is to fill an additional 0.4 acres of
wetlands (previous fill has totaled 3.7 acres),in Huntersville in
Mecklenburg County. The purpose of this fill is to extend Kincey
Road to Reese Blvd. The N.C. Division of Environmental Management
has determined that a practicable alternative exists to the
location of-this road which would avoid or greatly minimize wetland
fill. This alternative would sligltly realign Kincey Road toward
I-77 to skirt the edge of the wetland. Therefore, DEM proposes.to
deny the 401 Certification for this project, require that the road
be relocated and the wetland fill removed.
The public is invited to comment on the above mentioned application
to the Division of Environmental Management. Comments shall be in
writing and shall be received by the Division no later than January
29, 1996. Comments should be sent to N.C. Division of
Environmental Management, Environmental Sciences Branch, 4401 Reedy
Creek Road, Raleigh, North Carolina 27607, Attention: John Dorney.
A copy of the application is on file at the Division office at
ooresville Regional Office, 919 North Main Street, Mooresville,
North Carolina 28115 (704)-663-1699; Fax # 7Q4-663-6040) during
normal business hours and ma be inspected by the public.
reston we Jr
Dir ctor
N.C. Division of
Environmental Management
DATE: January 5, 1996
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
Ja mes B. Hunt, Jr., G ove mor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
FAX TO:
Q??
E3 EHNR

FAX NUMBER: y J
FROM: V V a f la v1(/d
7?6
PHONE: q ` l l 73,3
4P '
"
NO. OF PAGES INCLUDING THIS SHEET:
COMMENTS.
A-

? c) it fa 6 T ?D lit ?r C)k1' `? ;
Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/10% post consumer paper
® Barrett Kays & Associates
October 23, 1995
Mr. Steve Lund
US Army Corps of Engineers
Regulatory Field Office
Room 75, Grove Arcade Bldg.
37 Battery Park Avenue
Asheville, North Carolina 28801-2714
V L CCvgt-
OCR p 1995
;?I.F?GFS
F:NVIR01`;l?,LN l raL
RE: Nationwide Permit 26 and 33 Pre-discharge Notification for Portions of
Huntersville Business Park, Huntersville, North Carolina
BKA Project 49504008
VIA FAX [phone]. ORIGINAL WILL FOLLOW VIA U.S. MAIL
Dear Mr. Lund:
This letter confirms the major points of our discussions held at the above-referenced site on
Friday, October 20, 1995, and transmits the necessary information for NWP 26 and 33 Pre-
Discharge Notification, as directed by you at the site visit. We appreciate your assistance and
timely attention to this matter.
Summary of Project History. As requested, the following information outlines the history of
the Huntersville Business Park project. On January 22, 1988, the US Army Corps of
Engineers Wilmington District authorized the filling of 4.1 acres of wetlands and Waters of
the U.S. pursuant to Nationwide Permit #26. (See SAW26-88-10, NCNB). On August 1,
1989, the US Army Corps of Engineers confirmed our revised delineation of 9.83 acres of
wetlands and Waters. (See CESAW-C089-J-060). This revised delineation included 9.83
acres of jurisdictional area across the entirety of the Business Park. On September 20, 1989,
the US Army Corps of Engineers Wilmington District ex SAW26-88-10 until
September 12, 1991. (See SAW26-89-61). Approximat y 3.7 cres of impacts have taken
place to wetlands and Waters at Huntersville Business Park to-date, in accordance with these
authorizations.
F.nvironmerrtell Sciences
Civil Engineering
linuirmmiental Fngincering
Planning
Landscape Architecture
?2d I:\Yli'I"1'1?V1I.1, 1: S'I'RH1'.'1' MALI.
SU! 11, 100, P.O 13OS 2979
RAI.LIG11, NOR I'll CAROLINA 27602-2979
IL LLPI ION n 919 828-1903
h:\clicnts\nation\9504008\corext\s1002o.doc I ACS I M 11, L 91 9 8 2 8- 0 3 6 5
® Barrett Kays & Associates
Mr. Steve Lund
BKA Project # 9504008
Pg. 2
Current Permitting Issues. During the October 20, 1995 site visit, concurrence was gained
from you on the re-delineation of wetlands in the Kincey Road (proposed) area of the
Business Park, generally east of Reese Boulevard East. A sketch drawing of the delineation
was provided to you, which you have retained. A copy of this section of the map and the
associated data forms for the re-delineation are included as attachments to this letter, for your
files. Ongoing activity to develop this area of the Business Park has resulted in de minimus
fill and the temporary construction impacts to an area that will eventually be crossed by a
permanent road (Kincey Road). You advised that since the impacts were minor (less than one
tenth of an acre), and since the eventual road crossing would be placed in this location, that
the ongoing work at this stream crossing would be covered, after-the-fact, by Nationwide
Permit 33. As noted at the site and acknowledged by you, the project continues to proceed
under NWP 33. As discussed by you, because the Kincey Road project requires the placement
of fill at its southernmost end, and the crossing of the intermittent stream, a singular
Nationwide 26 PDN would be appropriate for the Kincey Road area. You will find attached to
this letter a NWP 26 PDN for this project area, including all impacts expected across the
entirety of the Kincey Road area, and a separate NWP 33 PDN for the ongoing temporary
construction impacts. We note that all area covered by the NWP 33 will be removed to
facilitate the eventual NWP 26. As noted on the NWP 26 PDN, a total of 0.64 acres of
wetlands and Waters exist on the Kincey Road area project site. Based on the side slopes of
the roadway having slopes of no wider than 2:1, the total estimated impacts associated with
the roadway project will be 0.4 acres. For your information, discussions with the General
Contractor for the project (FN Thompson Co.) indicates that the sewer service for the site will
run down the centerline of Kincey Road. No additional impacts are anticipated to facilitate
sewer line construction. (The staking we observed on the site, marked by red flagging, was the
location of the end of the culvert for stormwater conveyance under Kincey Road.)
Future Site Development. At the October 20, 1995 site meeting, all wetlands remaining at
Huntersville Business Park were visited. It was suggested by you that the Owner should make
every attempt to reconfigure the unnamed roadways in the southeastern quadrant of the
Business Park to avoid impacts to the remaining wetlands. If this was not achievable, then a
separate PDN would be required for the impacts to those wetlands. You also noted the limit of
using only one NWP 14 for road crossings per project, and that future impacts would probably
require a NWP 26 submittal, in the same fashion as Kincey Road. You indicated that there
should be no problem following this line of permitting the future road crossings, but that your
preference would be to resolve the Kincey Road issues first, then have the Owner attempt to
avoid future impacts, and then, if necessary, review the other future projects on a case-by-case
basis.
hAclients\nation\9504008\corext\sl002o.doc
133 Barrett Kays & Associates
Mr. Steve Lund
BKA Project # 9504008
Pg. 3
In summary, we request the approval of the NWP 26 and NWP 33 notifications for the Kincey
Road area project. The total area filled across the entirety of Huntersville Business Park after
the Kincey Road Construction will be equal to or less than the prior-approved 4.1 acres from
1989.
Sincerely,
BARRETT KAYS ASSOCIATES, P.A.
ames A. Sp gler, CEI
Project Manager
Attachments: Data forms (3), map, NWP 33 PDN, NWP 26 PDN
CC: Floyd Boyce, NationsBank
Lud Hodges, NationsBank
David Franchina, Esq., KCL&H
Bill Monroe, WGM
Jennifer Wilson, BKA
h AcI Tents\nation\9504008\corext\s1002o.doc
DEM ID: ACTION ID: RECD/VFD
Nationwide Permit Requested (Provide Nation%vide Permit #): N14P 26 F ?
JOINT FORM FOR 1") 4
Nationwide permits, that require notification to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MANAGEMENT
NC DEPARTMENT OF ENVIRONMENT, HEALTH,
AND NATURAL RESOURCES
P.O. Boy. 29535
Raleigh, NC 27626-0535
ATTN: MR. ;OHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DIVISION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name: NationsBank (Carolinas) N.A. as Trustee
2. Owners Address: NCNB Real Estate Fund 1 NationsBank Plaza, -Charlotte 28255, ttn
r . 1~loyd Boyce
3. Owners Phone Number (Home): (Work):- [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number.
Barrett Kays & Associates. P.A.
224 Fayetteville St. Mall stP 100
Raleigh- NC 27601
5. Location of work (MUST ATTACH MAP). County: _Mecklenbure County, NC
Nearest Town or City: fluntersvi 1 1 NC
Specific Location (Include road numbers, landmarks, etc.):Take I-85 to I-77, to Huntersville, get off
at Huntersville exit. Take Gilead Road west 0.02 mi fo entrance of Huntersville Business
Park. Take left onto.Kincev Road and nark at end
6. Name of Closest Stream/River: Torrence Creek off Rocky Creek
7. River Basin' Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS H? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this property? YES ?J
If yes, explain. UW 26 - 86 -10, CE5AW - 0489 - T - DSO , 5A W 2to- s9 - 61
10. Estimated total number of acres of waters of the U.S., including wetlands, located on.project site: O. ?4 r c.
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Fined: ©• 4
Drained:
Flooded:
Excavated:
Total Impacted: m 0.4
NWP 26 cont..
12. Description of proposed work (Attach PLANS-8 1/2" X 11" drawings only):
see attached map
13 Purpose of proposed work: road crossing cut through waters of U. S. BMP's will be used
to minimize impacts.
14. State reasons why the applicant believes that Ns activity ustbe carried out-in wetlands. Al o note ures
taken to minimize wetland impacts. road crossing w Ilmcross area or Vaters of -i3J. ? . ?Ps
used to minimized impacts.
15. You are required to contact the U.S. Fish and Wildlife Service (USFWS) and/or National Marine Fisheries Service
(NMFS) regarding the presence or any Federally listed orproposed for listing endangered or threatened species or critical
habitat in the permit area that may be affected by the proposed project. Have you done so? . YES [x) NO [ ]
RESPONSES FROM THE USFWS AND/OR NMFS SHOULD BE FORWARDED TO CORPS.
16. You are required to contact the State Historic Preservation Officer (SHPO) regarding the presence of historic
properties in the permit area which may be affected by the proposed project? Have you done so? YES [ x] NO [ J
RESPONSE FROM THE SHPO SHOULD BE FORWARDED TO CORPS.
17. Additional information required by DEM:
A. Wetland delineation map showing all wetlands, streams, and lakes on the property.
B. If available, representative photograph of wetlands to be impacted by project.
C. If delineation was performed by a consultant, include all data sheets relevant to the placement of the
delineation line.
D. If a stormwater management plan is required for this project, attach copy.
E. What is Iand use of surrounding property? rural farmland, I-77, business development surcoundil
F. If applicable, what is proposed method of sewage disposal? town sewer system

Barrett Kays and Associates, P.A.
..224 Fayetteville ._Suite 100 -
Raleigh, NO 27601
(as agents. for Nationsbank (.Carolinas) N.A. as Trust
DEM ID: ACTION ID:
Nationwide Permit Requested (Provide Nationwide Permit #): _ ? fill
JOINT FORM FOR
Nationwide permits that require notifidation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MANAGEMENT
NC DEPARTMENT OF ENVIRONMENT, HEALTH,
AND NATURAL RESOURCES
P.O. Boy. 29535
Raleigh, NC 27626-0535
AM: MR. JOHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DIVISION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name,, NationsBank (Carolinas) N.A.as Trustee
Attn•
2. Owners Address: NCN9 Real Estate Fund 1 NationsBank Plaza, Charlotte 28255, Mr. Floyd Boyce
3. Owners Phone Number (Home):
(Work): [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number.
Barrett Kays & Associates, P.A.
224 Fayetteville St Mall,, qtowo
Ralpioh. NC 27601
5. Location of work (MUST ATTACH MAP). County: _Mecklenburg County . -NC
Nearest Town or City: - Huntersvi l l e NC
Specific Location (Include .road nti ri ii, 1andtnarks,;Ctc.)-Take,.I-85 to I-77, to Huntersville,, get off
at Huntersville exit. Take Gilead Road west 0:02.mi to eritrance of Hunterskille Business
Park. Take left onto Kincey Road and park at end
6. Name of Closest Stream/Mver Torrence Creek off Rocky Creek ,
7. River Basin: Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS II? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this property? YES [ tffl'*J
If yes, explain. SAW 1rc - 8

10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: O. a
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Fill ed: 0. 10 Acre -s
Drained:
Flooded:
Excavated:
Total Impacted: O. 10 Acres
NWP 33 cont.
12. Description of proposed work (Attach PLANS-81/2" X 11" drawings only):
SEE ATTACHED MAP
13 Purpose of proposed work: to facilitate site grading
14. State reasons why the applicant believes that this aclivity must be carrirA out in wetlands. Also- note measures
taken to minimize wetland impacts. parcel land l6cked`4iVG§t`ream'-and wetland. Original
grade will be returned to site, or permitted by NWP 26, as per S Lund, ACOE
15. You are required to contact the U.S. Fish and Wildlife Service (USFWS) and/or National Marine Fisheries Service
(NMFS) regarding the presence or any Federally listed orproposed for listing endangered or threatened species or critical
habitat in the permit area that may be affected by the proposed project. Have you done so? . YES [ X] NO [ ]
RESPONSES FROM THE USFWS AND/OR NMFS SHOULD BE FORWARDED TO CORPS.
16. You are required to contact the State Historic Preservation. Officer (SHl•'O) regarding the presence of historic
properties in the permit area which may be affected by the proposed project? Have you done so? YES J NO [ ]
RESPONSE FROM THE SHPO SHOULD BE FORWARDED TO CORPS.
17. Additional information required by DEM:
A. Wetland delineation map showing all wetlands, streams, and lakes on the property.
B. If available, representative photograph of wetlands to be impacted by project.
C. If delineation was performed by a consultant, include all data sheets relevant to the placement of the
delineation line.
D. If a stormwater management plan is required for this project, attach copy.
E. What is land use of surrounding property? rural farmland, 1-77, business development surroundir
F. If applicable, what is proposed method of sewage disposal? town sewer system

_.,.? arrett Kay and--Associates i.. P.A.:. .
_ 224.Eagetteville.St. Mall
.,.,.. guise 100'
Raleighy:NCL2760.1 1?

-(as agents. for.Nati.onsbank (Carolinas)N.A. as Truste
W
j'
N
tll
ti
w
Q ?
IT-
s Z
4
? .a
ZI
O
O
9J
?0.
?+ N Q,
Z

• ?. w
N t

l

-lb

?•t'
I O
Z
xa
Wh
?v
i N V)
•? W ?

rt

I ? 0

l
4
Z- ?
J \
t? o I 1
Q W
W
w /
p
J'
ul f

1 ..i
r

r State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr„ Governor
Jonathan B, Howes, Secretary
A. Preston Howard, Jr., P.E., Director
December 7, 1995
REGISTERED MAIL
Mr. Floyd Boyce
NationsBank (Carolinas) N.A. as Trustee
NCNB Real Estate Fund
1 Nations Bank Plaza
Charlotte, N.C. 28255
Project # 951145
Dear Mr. Boyce:
1••
[D F= F=1
01[copy
The Division of Environmental Management, Water Quality Section has reviewed your
plans for the discharge of fill material into an additional 0.4 acres of waters and/or wetlands
(a total of 3.71 acres of wetlands was filled previously) located at Reese Boulevard and
Kincey Road in Huntersville Business Park in Mecklenburg County for road crossing and
sewer line installation. Based on this review, we have identified significant uses which would
be removed by this project. These uses are water storage, streambank stabilization, pollutant
removal, wildlife habitat and aquatic life habitat. Furthermore, insufficient evidence is
present in our files to conclude that your project must be built as planned in waters and/or
wetlands. Therefore, we are moving toward denial of your 401 Certification as required by
15A NCAC 213.0109. Until we receive additional information, we are requesting (by copy of
this letter) that the U.S. Army Corps of Engineers place your project on administrative hold.
Please provide us with information supporting your position that your project must be
constructed as planned and that you have no practicable alternative to placing fill in these
waters and/or wetlands. Specifically can you construct Kincey Road by realigning it to skirt
the edge of the wetland and then curving to intersect with Reese Boulevard (see attached
sketch)? Alternatively, could the existing gravel service road in the back of the wetland be
used as an alignment for Kincey Road? It is likely that removal of this fill and restoration of
the wetland to its original grade will be required by DEM. Any documentation such as maps
and narrative that you can supply to address alternative designs for your project may be
helpful in our review of your 401 Certification. Please respond within two weeks of the date
of this letter by sending a copy of this information to me and one copy to Mr. Todd St. John
at the Mooresville Regional Office at 919 North Main Street, Mooresville, N.C. 27115.
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post-consumer paper
Page 2
Mr. Boyce
We are also concerned that the wetlands were filled before the 40.1 Permit and 401
Certification were issued. As you know, these approvals are needed before wetlands are
filled as described in the Clean Water Act. At our first site visit on 13 November, the larger
area had not been filled. On our recent visit on 6 December, both wetlands had been filled
before approvals were obtained. Please inform us as to when the fill was placed in the larger
wetland near Reese Boulevard. This application was discussed with your consultant (Mr. Jim
Spangler) on 27 November and 29 November to arrange a site visit and at that time I
discussed concerns we had with the design for the road. The fact that some fill occurred
before the Certification and Permit were issued in spite of our repeated conversations and site
visits is of concern. I can be reached at 919-733-1786 if you have any questions.
Si c rely,
Jo n R. Dorney
Water Quality Certi ' n Program
cc: Mooresville DEM Regional Office
Wilmington Office Corps of Engineers
Central Files
Jim Spangler; Barrett Kays and Associates
Stephen Lineberger; WGM Design, Inc.
Owen Anderson; WRC
Steve Lund; Asheville COE
951145.nty
State of North Carolina
Department of Environment, l IVA
Health and Natural Resources 1
Division of Environmental Management
James B. Hunt, Jr., Governor k
Jonathan B. Howes, Secretary C E H N F>a
A. Preston Howard, Jr., P.E., Director
January 5, 1996
The Charlotte Observer
P.O. Box 32188
Charlotte, N.C. 28232
ATTN: Legal Ad Department
Dear Sir:
SUBJECT: Public Notice
Please publish the attached Public Notice one time in the
section set aside for Legal Advertisements in your newspaper. The
publication should run on or before January 12, 1996. Please send
the invoice for publication and three copies of the affidavit of
publication to the address given below. Payment cannot be
processed without the affidavit of publication.
N.C. Division of Environmental Management
Water Quality Section
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Attn: John Dorney
If you have any questions concerning this matter, please call
John Dorney at 919/733-1786.
Sincerely,
_ I
John Dorney
W tlands Techni a Review Group
951145.pub
cc: John Dorney
Wilmington DEM Regional Office
Barrett Kays: Barrett Kays and Associates
Stephen Lineberger: WGM Design, Inc.
Steve Lund; Asheville COE Field Office
Owen Anderson; WRC
Central Files
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer %% recycled/ 10% post-consumer paper

NORTH CAROLINA DIVISION OF ENVIRONMENTAL
MANAGEMENT
PUBLIC NOTICE is hereby given that Huntersville Business Park
(NationsBank) near Huntersville, North Carolina, has applied to the
North Carolina Division of Environmental Management for a Water
Quality Certification pursuant to Section 401 of the Federal Clean
Water Act and Environmental Management Commission rules in 15A NCAC
2H .0500 and 15A NCAC 2B .0109. The activity for which the
certification is sought is to fill an additional 0.4 acres of
wetlands (previous fill has totaled 3.7 acres),in Huntersville in
Mecklenburg County. The purpose of this fill is to extend Kincey
Road to Reese Blvd. The N.C. Division of Environmental Management
has determined that a practicable alternative exists to the
location of this road which would avoid or greatly minimize wetland
fill. This alternative would sligltly realign Kincey Road toward
I-77 to skirt the edge of the wetland. Therefore, DEM proposes to
deny the 401 Certification for this project, require that the road
be relocated and the wetland fill removed.
The public is invited to comment on the above mentioned application
to the Division of Environmental Management. Comments shall be in
writing and shall be received by the Division no later than January
29, 1996. Comments should be sent to N.C. Division of
Environmental Management, Environmental Sciences Branch, 4401 Reedy
Creek Road, Raleigh, North Carolina 27607, Attention: John Dorney.
A copy of the application is on file at the Division office at
ooresville Regional Office, 919 North Main Street, Mooresville,
North Carolina 28115 (704)-663-1699; Fax # 7Q4-663-6040) during
normal business hours and ma be inspected by the public.
Di ._r ctor
reston Toward Jr
N.C. Division of
Environmental Management
DATE: January 5, 1996
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B, Hunt, Jr„ Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E„ Director
December 22, 1995
REGISTERED MAIL
Mr. Floyd Boyce
Nations Bank (Carolinas) N.A. as Trustee
NCNB Real Estate Fund
1 Nations Bank Plaza
Charlotte, N.C. 28255
Dear Mr. Boyce:
4*A
Ar?A??
C)EHNR
FILF
Re: After-the-fact wetland fill
Huntersville Business Park, Kincey Road crossing
Mecklenburg County
DEM # 951145
On 21 December 1995, Greg Price and I met with your consultants Barrett Kays and
Jim Spangler to discuss possible resolutions to the unauthorized filling of wetlands for Kincey
Road at Huntersville Business Park. We also discussed your 21 December 1995 letter in this
regard. Before I outline these options and the informapon needed to evaluate these options, I
should address several points in your letter:
First, the estimate of a cost of $ 500,000 to relocate the road seems excessively high
and apparently reflects the fact that several parcels have been sold or are under development
based on the location of Kincey Road. Since these parcels were sold before wetland permits
were obtained, their possible diminished value is a less compelling argument. Also the safety
considerations are not demonstrated.
In regard to the water quality functions of the stormwater pond, it is clear from the
scientific and engineering literature that stormwater ponds are effective water quality
measures especially for particulates. However ponds do a relatively poor job at removal of
soluble pollutants while wetlands excel in removal of `soluble pollutants. Thus DEM strives
to preserve those wetlands which provide water quality uses. As you requested, your
consultant has been provided with the evaluation forms for this site.
Finally this fill was done without authorization from DEM through the 401
Certification process as re uired by Federal law. Also the 404 Permit issued by the Corps of
Engineer explicitly states that a 401 Certification is required before wetland fill occurs. In
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal opportunity Affirmative Action Employer 50% recycled/ 10% post-consumer paper
this regard I would still like to know at what date the wetland fill began. Also as should be
clear in my 7 December letter, I made Mr. Spangler well aware of our problems with
permitting the road in this location.
In terms of the alternatives we discussed, they are outlined below. A written response
to the practicality of these alternatives will be required before the 401 Certification can be
issued.
1. Relocated Kincey Road as shown on my 7 December 1995 letter. As outlined
above, your response regarding cost and logistical concerns requires more
documentation. In this regard, a site plan for Building Site 9 will be needed to
demonstrate that this road realignment is not practicable. This map should also
show property boundaries. Finally the safety arguments will need to be better
documented.
2. Relocate Kincey Road to the north side of the tributary (see attached map).
This alignment would avoid wetland fill but would require a spur road crossing
of the stream to access Building Site Number 7. Please review this design and
discuss its practicality.
3. Leave Kincey Road in place but provide various hydrologic controls to increase
the extent of wetlands above the tributary next to Building Site 9 (see sketch).
We will need spot elevations in the wetland and the area to be altered into a
wetland in order to determine that practicality of this design. Also a
commitment to divert stormwater drainage from portions of adjacent parcels
will be needed in order to increase the hydrology and will have to be
developed and approved by DEM.
Finally an anti-seep collar will be required to be installed on the newly installed sewer
line under the present alignment for Kincey Road. As we discussed with Mr. Kays and Mr.
Spangler, use of this device is routine in sewer line approvals when they pass through
wetlands.
Thank you for your continued work to resolve this matter. I can be reached at 919-
733-1786 if you have any questions.
Sinc ely,
J hn Rcc: Mr. Barrett Kays
Mr. Todd St. John, Mooresville DEM Regional o Mr. Owen Anderson, WRC
Mr. Stephen Lineburger; WGM Design Inc.
Mr. -Steve Lund; Asheville Field Office COE
Central Files
951145.1tr
r N DEC 2 1 '95 12:14 KCLH
276 Po l
KENNEDY COVINGTON LOBDELL & HICKMAN, L.L.P.
ATTORNEYS AT LAW
NationsBank Corporate Ccn:er
Suite 4200
100 North Tryon Street
Charlotte, North Carolina 2820=-4006
David A. Franchina
704/331-7543
FACSIMILE TRANSMIS YQN SNFF'r
Facsimile 704/331-7598
DATE; December ? t ? ooc
PLEASE DELIVF,R THE FOLLOWING PAGES TO.•
NAME: Mr-JAWes Spangler
COMPANY: B K
FAX NUMBER: X19-828-0365 FILE NUMBER. 13520-008
TOTAL PAGES (Including This One); __I_
COMMENTS OR SPECIAL INSTRUCTIONS:
If you do not receive the total number of pages indicated on this transmission
(704) 331-75.90. sheet, please call us at
This Communication may contain confidential or legally privileged information and is intended only for the
use of the individual or entity named above. If you are not the intended recipient, you are hereby notified
that any dissemination, distribution, copying or other use of this communication or any information contained
herein is strictly prohibited. If you have received this communication in error, please notify us immediately
by telephone collect and return the original message to us at the above address via the U. S. Postal Service.
We will be glad to reimburse you for postage. Thank you.
Nation6Bank TrLiA
• Charlou.c:, NC 281255
Tel 704 31+6.5000
Na#ionsBank
December 21, 1995
Mr. John R. Dorney
Water Quality Certification Program
NC DEHNR-DEM
Post Office Box 29535
Raleigh, NC 27626-0535
Re: Kincey Road Extension Project, Huntersville Business Park, Huntersville, NC;
BKA File No. 9504008; Your File No. 951145
Dear Mr. Dorney:
NationsBank, N.A., as Trustee for the NationsBank Employee Pension Trust Fund
("NationsBank") has received and reviewed your letter dated December 7, 1995
regarding your ongoing review of the Kincey Road Extension project. In your letter
you request information in addition to the Nationwide Permit/Pre-Discharge
Notifications sent to the Corps and your office in October, 1995. This letter provides
you with Nations$ank's response to your letter.
For the following reasons, it appears to us that realignment of Kincey Road in the
manner that DEHNR has suggested would not be "practicable," as that term is defined
at 40 C.F.R. § 230.10(a)(2):
Realigning the road would expose NationsBank to great cost by
restricting significantly property available for development along Kincey
Road. Such costs could approach or even exceed $500,000. This is of
particular concern to NationsBank in its role as trustee for the
NationsBank Employee Pension Trust Fund. NationsBank has a legal
obligation to rraximize the value of the assets of the NationsBank
Employee Pension Trust Fund for the Fund's beneficiaries. Removing
otherwise valuable property from development without a cotrnpelling
reason would be contrary to NationsBank's fiduciary obligations;
The planned intersection has been designed based on requirements of the
prospective tenants and property owner for the intersection to take full
295720.1

IN
Mr. John R. Dorney
December 21, 1995
Page 2
advantage of the scenic vista across the existing man-made pond and
changing the intersection would affect dramatically the project;
Access, frontage and site-specific constraints associated with adjacent
parcel tenant requirements necessitate the placement of the roadway as
planned; and
Vehicular staging, safety issues and roadway engineering design
requirements necessitate the placement of the intersection of Kincey
Road with Reese Boulevard in the planned location. Realignment of the
road along the lines suggested by DEHNR would render impossible
under North Carolina Department of Transportation safety guidelines the
construction of the road that will carry certain Huntersville Business Park
traffic parallel to I-77,
Nevertheless, as DEHNR is well aware, NationsBank is keenly protective of the
environment, and has designed this project to minimize impacts to wetlands at
Huntersville Business Park. For example, project roadway and a sewer line for the
project share a right of way, since construction of sewer line and a road on separate
locations would increase environmental impact.
It should also be noted that the overland flow from the unbuilt Kincey Road site flows
into two man-made amenities, namely the 5,9 acre lake (which has been constructed
with an average depth of greater than 8 feet, and the outlet to the perennial stream
from the lake being placed about 1,000 feet from the inlet from the wetland area at
issue) and the separate wooded forebay/dry detention area, prior to flowing into the
perennial stream near the site. DEHNR has noted that the perennial stream supports a
wide variety of benthic macroinvertibrates immediately adjacent to the project site, and
that no siltation was entering the perennial stream from the project site.
It is these recently-constructed structures into which runoff from the project site flows
that have in the past and continue to achieve water quality antidegradation goals for the
project site as well as a significant portion of the entire Huntersville Business Park
area. Ninety-eight acres of the Business Park and offsite drainage from I-77 and
elsewhere flow into the lake, less than 20 acres of drainage area flow to the wetland
in question. These structures serve more than just the project site, and do so with
vastly greater efficiency than the wetlands in question. An application of the 85%
pollutant removal methodology (which was suggested to us by DEHNR's Scot Thomas)
indicates that the existing lake and its operation and design exceed the requirements to
achieve 85% pollutant removal from the entire site by over ten times. When one
295720.1
Mr. John R. Dorney
December 21, 1995
Page 3
considers that only 26% of the wetland area in question is being impacted, the lake,
without alternation, will outperform the existing pollutant removal capacity of the lost
wetland area by about 400 times. Furthermore, the wooded forebay increases even
more additional pollutant removal at Huntersville Business Park.
In sum, the "significant uses" described in your letter are the same uses which are
enlarged, enhanced, and successfully functioning by way of the man-made lake,
forebay and streambed enhancements installed prior to the initiation of the Kincey Road
project. It is our position that the loss of uses your letter suggests may occur have
been successfully mitigated prior to the initiation of the Kincey Road project, and that
the aforementioned lake, forebay and streambed enhancements may actually outperform
the area in question for the uses described in your letter.
Before closing, we would like to clear some apparent confusion regarding certain
wetlands activities that have occurred recently at Huntersville Business Park. You
indicate concern in your letter that certain wetlands at Huntersville Business Park were
filled without the requisite approval of DEHNR. NationsBank proceeded with these
activities (which were limited in scope) only after 30 days had passed from receipt by
the Corps of Engineers of NationsBank's pre-discharge notification to conduct the
activities. As you know, once these 30 days pass, federal law states that the
prospective permittee may proceed with its proposed activity. See 33 C.F.R. §
330.1(e). Moreover, in a December 12, 1995, telephone call, Steve Lurid of the
Asheville Regional Field Office of the Corps confirmed this construction of the
regulations. In sum, NationsBank certainly did not intend to undertake an unauthorized
till of wetlands. Given the clear dictate of federal regulation, NationsFank reasonably
believed that it was appropriate to conduct the activi:ies at issue. If we believed
otherwise, I can assure you that we never would have proceeded.
We hope that this information has been helpful to you. So that we may fully
understand your questions about the Kincey Road project, please provide to us the
technical data forms you have used to determine the significance of the Kincey Road
project area. You may recall that this information was requested from you at the
December 6 site visit.
295720.1
LIC.- G1 7J I--' - 1 ! f\l,Lrl ?_?
v • 4
Mr. John R. Dorney
December 21, 1995
Page 4
Please contact us or our consultant representative, Jim Spangler at Barrett Kays and
Associates, PA, should you have any questions.
Sincerely,
NATIONSBANK, N.A.
as Trustee
NATIONSBANK EMPLOYEE PENSION
TRUST FUND
*F1. yce
Senior Vice-President
cc: Todd St, John, Mooresville DEM Office
Jim Spangler, Barrett Kays and Associates, PA
Steve Lineberger, WGM Design, Inc.
David Franchina, Esq., Kennedy, Covington, Lobdell & Hickman
295720.1

Date B 19 q I q 5
To o L:Dr n
Company Name M
M Barrett Kays & Associates
Project Number
Project Name
From a GLA 1\
Fax Number
Tout Numtler of Pops including the cover sheet
F A C S I M I L E
En vironmenta!Sciences
Civil Engineering
Environmental Engineering
Planning
Landscape Architecture
For questions or problems re$Arding this faosimilq ploam cell
224 FAYE TEVILLESTURTMALL
SUITE M. P.O. BOX 2979
RALEICrIL NC 27602-2979
TELEPHONE [phone]
FACSIMILE 919828-0365
T 0 ' d 6S662FLZ6 01 S31U I DOSSO '8 SAM 11.MMS W021d W : £T 966T-6Z-03Q

VMM DII.HX3N INC.
Dmrnber 27,199$
BWUU Kan & Associates
224 FayottsWllo Stet Mall
PO Bose: 2079
Ralejs. NC 27602.2979
ARIMMITCOK
Alteadon: Mr. BUM Kays
.%Wflilt Kkswi;
I?i•:i. ?1ark?Nnvn Rafffem: Kllloey Average Extension Pmjea
Sanitary Sewer Utindan Prefect
F3u doxviller Business Pule
Hw+teraville, NC
0EM 00511145

We l>aw [wmw d the letter datod Deceanber 22.1995 t)otn the Depa oom oaj'&*ament,
Health and Natural Resourcos COMM addressed to W. Floyd Royce of Na dandkin c
(C volh as) NA. as Trustee. As regw ted, we an providing *row hdbnnation is >1esWase to
eltorttow numbered It 2 stud 3.
U
To rag mo Kbwy Avenue as &pidW by Mr. Domey. in his Deoerohat 7.1993 letter is
impraa cd at this time. We have attacbd a site plain for Bui ft 9 %t& Wmdit the
apply 1 Ure impact into the building site. This allsso in" a mindw of parkia?g
s; es do would have to be carlsttaa*d altalavrhere. At thin point in the ptojm% (t+aU& bps
beat ymnittad by Moddenburg CmV) g revision W the late plan and 4 teb0aft of the
pukft "= would hAvc a schadub and manstuy irnpaet diet w N cute = ag==*
hardship ftr the projact. It also would reduce sig aifiCAUdy property available ft)r dn*oprnw
along Korey Awmit, blither eCgepaataally mpatsting the prejaz
Mds suggosW rolocatlan of Kiruoayr Avowe addidanally passes &vugh dw gnevl m
doa:nmmtod wabW area, which Mr. Domy has rrqueded that we return to a natual am if
then f d rvarWN in lta Pmt "Nn ft We intend to reAtm this area to ill natural state if
Kh=y Avanut oar mutin in its ou reat location.
112 5. ThwN Hews Sun 2UUO ciam.ou NC 28984't'1yxmi,ow?: 704..Ja tAtl6 FAx 701, , 1,1246
Z0 ' d 6S66££LZ6 01 S31U I3OSSU 8 SAUA 1132 8bg W08A 92:21 966T-6Z-330
•
As initially propoaod, the Kinmy Avenue interaeatiort with Roooo Blvd. Writ is egnal dbtasroo
between the existyas Reece Blvd. intmiection and a fature planned, toad Adis to the creek
that will serve an approximately 100 acre panel of Huntemville Busism Park to do smdb
The positioning of Kincey Avenue equal distance betvt!aett dose other two react is in the boat
iaterset aftlte Park ftom a pwugag porsPoetive, traffic partpwdv% sal tow neaspective
iaalu ft mite 00num and sepAradotts between latersectim R=4pft Kiaoey Awst m as
usggasoed la Mr. Dormy's December 7 fever, would inamn ttaftlc and sstbty bales by placing
Klrtoey Meow Loo close to the future road needed t4 serve the •outl m iolwaste portioaa of
Hunwoville Business Park, f- >
In summary. Alte-fri to 1 damages the wetland areas we will be able tD ra`a+eate if Yj may
Avtumte is left in its cunasat alitp mart add duo to the 07ttettsive eommic NwMip it would be
prefbrrtble to leave Kinsey Avenue in its current aligmtsent and inclronte the wetland am.
Rdmllp ttg Kinsey Avenue as suggested by DEHNR is dxrefin tot ptaet amble.
Aleernase Z
'Ibis oherntre discusses relocating Kinsey Avemw to the north silo of the tribgtnty, Ilia
aligameat would, in fact, avoid any wetland fill if the road was monied gar amugh noetb gftW
eadsi ttg tributary. However, if this road is moved der atough main to avoid the mstina
tributary, it is in direct conflict with tba akin betwooa Rea Blvd. Wcet land RON Blvd as
dopf W an alto attached map. We could not mast any b4T resulations Waft cep uatian
heftmeen bursoodm,s and site distance saibty conosms with such ad aligo w.
Ahoy MU 3
This tl *w to is the pmfernd alternW gasp a traf a viewpoint, ocav nik viewpois t, schedule
vkwpolat, and appeMre to meet all of the rrgtsirerrrera of all replatery agencies.
The MW Nita that has alMdy been Watlled creates a awral dam Which will baelmp the
wdere en the south side of proposed Kbrxvy Avenue, dies whaacmg and enlargbag Ow vW4nd
area as Mpefted. Tie double pipe extending Loder Reece Blvd, ftm the mdlaod poe]oet as die
UOM side of Ktncey Avenue is laid in the manner, due to toposrgft dW i< is viM ally fiat,
This alvoody cream a natural backup of water into the wetland am on the w ft dale of the
Hussy Avmw extension.
In aocordanm with the requimu rte of Mecklenburg County all future dormwater dr hap
ftom adjacent parcels will also flow iab these wetland areas dms hxrew6S the hydrology of
ft wetlands *a. Wo simply have no other option but to pipe the wisfm dr hur basin to this
wetland area. IU recent grading at the itttorsoction ofGtW Rod, ftzstaft 77 add Mecca
Blv& for a Um road! echoer will also fad into this wetland to af'Eer a p*nUy tiedtmmat
basin. There bz% Mr. Dom4ys reocmmaod don to divert stormwater drainage flnottt $4aedtt
patak into the watlaads is am otily "practicable" under wedonda reghalAtiant, but Alm moo
the resquirsrasnts of other rsFWMY woe.
201d 6966££LZ6 01 S31dI3OSSU 8 SAUA 11388US W08J L2:2T 966T-6Z-13Q
We hop dart Mr. Don-Ay will allow us to procad with Alternate 3. Thb, is 60. Is dw swe
aft=aft d6ftsaad v ft Mr. Todd St. Jc6n of Mr. Dorody's offloc on silo on Novadw 13,
1945. This is daewv enW by Mr. St. loon': Sold notes.
Myout room any further h*ftfmdOi , PION =t W M.
vwy yomt
INC.
Wi7fiam 0. Mari %A ni, AZA
proew t
b0 ' d 6566££LZ6 01 S31d I DMSd 8 SAUA 11388US WOMJ L£ : £T S66T-6Z-:)3Q
so *C1 lulol
66&oFpWZA`
SMILt
60ana(, A ds
s0 ' d 6966££LZ6 01 S31U I30SSU 8 S WM 1L3d6d8 WWJ L£ : £ T 966I-6Z-o3Q
State of North Carolina
Department of Environment,
Health' and Natural Resources
Division of Environmental Management
Jame sR' Hunt, Jr., Governor
Jonathar) R Howes Secretary
A. Prestoh Howard, Jr., P.E., Director
FAX TO:
S

J
FAX NUMBER:
FROM:
1? - 0-3? ?-

Awl
E) EHNF=11

t /
PHONE: 1 :?13 -- I - y ?3
NO. OF PAGES INCLUDING THIS SHEET:
16
r.
Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer 50% recYo led/10%
post consumer paper
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
JamesB. Hunt, Jr., Govemor
Jonathan R Howes, Secretary
A. Preston Howard, Jr., P.E., Director
FAX TO:
FAX NUMBER:
AT4
L7EHNR
hs Pit ?le?
3S

FROM:
0

PHONE: l l 1 ??? 1
NO. OF PAGES INCLUDING THIS SHEET:
Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmable Action Employer 5016 rec to'/c
Yc? Post consumer paper
COMMENTS: a ea'??-o ? 4-?
?z?zYl9s
VL?
1WrXae)
P,ow8mma DEC 21 '95 09:12J41 4)da: 12120166 Tim*: 17:14:04
COP. 1'496 1
Fax Cover Page
MIL
SUBJECT:
John:

Barrett informs me that we are meeting with you at 2:30 pin -
tomarrow (Thursday) at your office to review the issues at
Huntelsville Business Park. Lam in the process of
prepai-ing a letter to you .iddressing the points in your
recent letter-, and should have that faxed over to you
tomarrow morning for you to review. (I'll bring the original
to the meeting). I'll send the fax to you as soon as l get the
revisions back from the client.
Jim Spangler

To: John Dorney From : Jim Spangler
For Information Call: At, Barrett Kays & Assc
Pages: 1 My Fax Number :
Cover pages by Dehna
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James R Hunt, Jr., G ove mor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
FAX TO:
FAX NUMBER:
FROM:

NO. OF PAGES INCLUDING THIS SHEET:

COMMENTS:
S
I
A ffl?.IWA
14
?EHNR

Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/10% post consumer pauper
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
Ja mes K Hunt, Jr., G ove mor
Jonathan R Howes, Secretary
A. Preston Howard, Jr., P.E., Director
FAX TO:
FAX NUMBER:
FROM:

q (q-1-3
PHONE. l
NO. OF PAGES INCLUDING THIS SHEET:
COMMENTS:
kcl
& LT.WAA
14
[D F= F4
Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportuniy Alirrnattve Action Employer 509/* recycle&10"/• post consumer paper
z?9S

State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
Ja mes B. Hunt, Jr., G ove mor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
FAX TO:
ID EHNR
FAX NUMBER: DO ? q
FROM:
PHONE:

5
Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer 509/6 recycled/10% post oonsuner paper
NO. OF PAGES INCLUDING THIS SHEET:.
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr., G ovemor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
FAX TO:
12?
A4 &*2
C)EHNF1
FAX NUMBER: ? 2 ZJ -? V ?6 )
FROM:
PHoNE
NO. OF PAGES INCLUDING THIS SHEET:.
COMMENTS:
cu'? -? cc, q
Environmental Sciences Branch - 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunlly Affirmative Acdm Employer 501/6 recycl"I0% post oonsumer paper
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
Ja mes B. Hunt, Jr., G ove mor
Jonathan & Howes, Secretary
A. Preston Howard, Jr., P.E., Director
FAX TO:
FAX NUMBER:
A 4
ID EHNR
P

FROM:
PHONE:
NO. OF PAGES INCLUDING THIS SHEET:.
COMMENTS:

Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Atfirtnative Action Employer 500/. recycl"l0% post consumer paper
DEC-22-1995 16:01 FROM BARRETT KAYS & ASSOCIATES TO
Date
To
Company None
Project Number
Project Name
Ae'W
From
Fax Number
TOW NWAU of Papa including Im Oprcr shoot

FACSIMILE
Environmental Sciences
Civil Engineering
Environmental Engineering
Flonnr,?g '
Landscape Architecture
U. &A-
d?.
faF?Y??9J'J ?'Ti?,t4? F?•C !a'v?
224 FAYEMVILLE S7RElr'f MALL.
SUITE 100, P.O. Box 2979
RAWOK NC 27602-29]9
927339959 P.01
IN Barren Kays & Associates
TELEPHONE [phone]
FACSIMILE 91?Zt28-0365
For q?"99- a p-blemp mpar §q Oils a a lM tO=, plcase call _ - -, 3
DEC-22-1995 1602 FROM BARRETT KAYS & ASSOCIATES TO
Date
To ? N JbM
Company Name
Project Number
Project Na+?m/e+ ,/? ? I
From 1/??/?I?VC?+!`.
Fax Number
TOW Number of fto including d ko corer sficet

F A C S I M I L E
Environmental Sciences
Civil Engineering
Environmental Engineering
planning
Landscape Architecnoe
/S ?w CwNPgMMdV foM IlllE
. daw Z2=W-Q) l!'ftAOU '

-gQGsg0Vir -'zt- 86 Dom'
AC lraR
224 FAYETTEVILLESTREETMALL
SUM 100. P.O. BOX 2979
RA[EKK NC 27602.2979
927339959 P.01
® Barrett Kays & Associates
TELEPHONE [phone]
FACSIMILE 919828-0365
for questions or probk= rung tNs hedmiie, pie= cal
DEC-22-1995 1602 FROM BARRETT KAYS & ASSOCIATES TO
927339959 P.02
FAX COVER
PAGE ?.
To., Steve Lineberger From : Jim Spangler,.-..,.....
Pax Number :1-704.334-4246 C64rrett Kays &
Dote: 12/21/86 Time :17:43:00 1 For Information Call:
Fax Number :
MGZNr»> URQBNTY.,,-URGENT»> URGENT
Bill Monroe, Stave Umbargart
We have had a very good meeting eith John Dorney of the Water QuAlity Cortiilcation Oft,
a oon eat nfng the
Rincey Road Imue. Ofthe three options discussed. the best option that lie ivotdd provide a cerHflcAHon for is one
when we back up some water into the rennaining wdi nds that are bisected by Kincey Road, by pitting -some sort
of control or riser on ft double RCP that goes to the exlOW& Idw, and by blocking off the existing pipe that goes
to the creek. His goal is to "reclaim" the use of the wetland area that used to #-rlst that our tsceent delineation
tl uMded. This is flte area through which he placed his proposed new allpment that goes around the existing
deftented weftnft Yf thts sounds good to you, puce fax me back an a ftoWedgema nt so that I can carry it over
to Iltorney toxaurtvw betbre noon. He indicated that Hari sua an "agreetnennt" to bnpound more water and
"•re4aim" the old watl=4 area as aatlands via stop water impoundment of only about 3 inches, he-could see his
any to give the 401 Cufteation based on that condition. Please get this lure to me early tatnarrow so I can get it
to him before he leaves for the Holiday. Thaaim
Jim Spangler.
? ?? cow
DEC-22-1995 1603 FROM BARRETT KAYS & ASSOCIATES TO 927339959 P.03
AwyirnxMWE
Deomnber 22,
Hen+ett Keys & Associates
2U Fayetteville Street Mail
SW* 100
Rtlolak NC 27602-2979
?Uri?e VIAPP&w: Aftation- Mr. Barrett Kays
"'"I' VOMIT ?0"'A
Relirrow: Huntersville Business Park
Kincey Road
twdemim:
I
This is to confirm that we reoelved your fax dated December 21, 1995 and have discuss this
with M. Floyd Boyce of'Nationsgank. We are In agreement to impound the water in the
wetland w" as !tasted in your fkx.
if are oast provide any further Infotmatiotl, please do not hesitate to oontact our otfioe.
very_ sly yours,
INC.
Wild- G. Monroe. llt, AlA
President
01, 1& Pldyd T. Boyce
I12 S. j`fty0N 51Rtr.P.T &;nw 20W (:1M1dA)rrv NC 282817'aJ0110P 7ol, 342.99% I'At 704. $,y4.444(i
TOTAL P.03
NationsBank 'T'rust
CharIott(', NC 2,,,25
Tut 701 386-5000
NafionsBank
January 31, 1996
North Carolina Division of Environmental Management
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Attention: Mr. John R. Dorney
Reference: Huntersville Business Park/Kincey Avenue Extension;
Huntersville, Mecklenburg County, North Carolina
Request for Certification Pursuant to Clean Water Act § 401
Dear Mr. Dorney:
RECEIVED
FEB 0 5 1996
ENVIRONMENTAL SCIENCES
In a recent telephone conversation regarding the referenced matter, Mr. Greg Price of
your office asked for NationsBank, N.A., as Trustee for The NationsBank Pension Plan
("NationsBank"), the owner of Huntersville Business Park, to place obstructions in two pipes that
are located in wetlands near the proposed alignment of Kincey Avenue and that cross Reese
Boulevard. The purpose of the obstructions is to enhance creation of additional wetlands near the
proposed alignment of Kincey Avenue.
NationsBank does not object to DEM's request. It proposes to create the requested
obstructions in a manner that ensures that they appear "natural." Specifically, NationsBank
proposes to create a check dam built with rip rap stone overlain with mesh fabric, soil, and
vegetation. If this does not obstruct the pipes, NationsBank will replace the check dam with a
concrete wall.
Thanks again for working with NationsBank to amicably resolve this matter. Please let us
know if additional information would facilitate your review of NationsBank's request or if you
have further questions.
Sincerely,
NATIONSBANK, N.A., as Trustee for
THE T NSBANK PENSION PLAN
Floyd T. Ace
Senior Vice-President
cc: Mr. Greg W. Price, DEM
Mr. William G. Monroe, III
301581.1
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
A NX.;TA
IT
E3 F= F=1
January 30, 1996
Mecklenburg County
DEM Project # 951145
APPROVAL of 401 Water Quality Certification and ADDITIONAL CONDITIONS
Mr. Floyd Boyce
NationsBank, Trust
NationBank Plaza
Charlotte, NC 28255
Dear Mr. Boyce:
You have our approval to place fill material in 0.4 acres of wetlands or waters for the purpose of
constructing a road crossing at Kincey Blvd., Huntersville Business Park, as you de nbed in your
application dated 1 November, 1995 . After reviewing your application, we have d ided that this fill is
covered by General Water Quality Certification Number 2671. This certification all ws you to use
Nationwide Permit Number 26 when it is issued by the Corps of Engineers.
This approval is only valid for the purpose and design that you described in your application. If you
change your project, you must notify us and you may be required to send us a new application. For this
approval to be valid, you must follow the. conditions listed in the attached certification. The pipe
underneath Reese Blvd. shall be removed or permanently plugged. An antiseep collar shall be placed
near Reese Blvd, on the sewer line installed under Kincey Blvd. Stormwaterefrom the existing building
tinder construction and the adjacent panel shall be directed to flow as much as possible into the created
wetland site. In addition, you should get any other federal, state or local permits before you go ahead
with your project.
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory
hearing. You must act within 60 days of the date that you receive this letter. To ask for a hearing, send
a written petition which conforms to Chapter 150B of the North Carolina General Statutes to the Office
of Administrative Hearings, P.O. Box 27447, Raleigh, N.C. 27611-7447. This certification and its
conditions arc final and binding unless you ask for a hearing.
This letter completes the review of the Division of Environmental Management under Section 401
of the Clean Water Act. If you have any questions, please telephone John Dorney at 919-733-1786.
Sincerely,
Attachment
cc: Wilmington District Corps of Engineers
Corps of Engineers Asheville Field Office
Mooresville DEM Regional Office
Mr. John Dorney
Central Files
Stephen Lineberger; WGM Design
David Franchina
. -) Aq
PoW _ 1
. r ward, Jr. P.E
951145.1tr
Environmental Sciences Branch, 4401 Reedy Creek Rd., Raleigh, MC 27607 Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer • 50% recycled/10% post consumer paper
Nnt iuu,ISm)k 'h ii: :t
C Iial?nll?•, .N('
'I td rU-) :;til; alll )11
FE3 ) 19961
NationsBank
January 31, 1996
North Carolina Division of Environmental Management
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Attention: Mr. John R. Dorney
Reference: Huntersville Business Park/Kincey Avenue
Huntersville, Mecklenburg County, North
Request for Certification Pursuant to Clean
Dear Mr. Dorney:
nPANI
Extension;
Carolina
Water Act § 401
In a recent telephone conversation regarding the referenced matter, Mr. Greg Price of
your office asked for NationsBank, N.A., as Trustee for The NationsBank Pension Plan
("NationsBank"), the owner of Huntersville Business Park, to place obstructions in two pipes that
are located in wetlands near the proposed alignment of Kincey Avenue and that cross Reese
Boulevard. The purpose of the obstructions is to enhance creation of additional wetlands near the
proposed alignment of Kincey Avenue.
NationsBank does not object to DEM's request. It proposes to create the requested
obstructions in a manner that ensures that they appear "natural." Specifically, NationsBank
proposes to create a check dam built with rip rap stone overlain with mesh fabric, soil, and
vegetation. If this does not obstruct the pipes, NationsBank will replace the check dam with a
concrete wall.
Thanks again for working with NationsBank to amicably resolve this matter. Please let us
know if additional information would facilitate your review of NationsBank's request or if you
have further questions.
Sincerely,
NATIONSBANK, N.A., as Trustee for
THE T NSBANK PENSION PLAN
Floyd T. Ace
Senior Vice-President
cc: Mr. Greg W. Price, DEM
Mr. William G. Monroe, III
301581.1

- K.oaal VA-? I

4 uj/gL
'rer Q-,, can,i,- aen? , I I?
WILwu- n
03
'I -? -Z? I lq,5-
-30
alyl F?
Tb?oeT
-a r-ea ice)
m?
_0 o
„-lyn.?, ? ?- e oat
Ylet A

47MVIA,
zw -,*Izr(-n W) JA ?
(') 7p-owcf)

n??
d TI?
h x
4"vD M`
?w
1 '7

(Aqr W??
/TU/kl/14
4T I

awa , dz ? iwfize? L7/ asE
.pRL- ? var... ? ?
I
d -Z
• lll. I ? p;• ::w. ? r
77
4- 1
.. Ian ? ? `? I 1
m ? L
N
W ed I
i
ct w f:* i
? O d ~? ~ • i ./ ai
........... - ----------------
LIJ 'o
)20
li 0
L PL
W
FRQM RALEIGH REGULATORY

10.13.1995 12,54
DATA FORM
ROUTINE WETLAND DETERMINATION
0 987 COE Wetlands"
etlands "Delineation Manual)
Project/site: L f vs 0 I ?? ??vl Sl ?1 PS S
APPUcant/Owner.
Investigator:
Do Normal Circumstances exist on the site?
Is the site sionificantly disturbed (Atypical Situation)?
Is the area a potential Problem Area?
(if needed, explain on reverse.)
VEGETATION
Date: Q c r
\ `4
County: M
State: N C_
0
GYos No Community ID:
Yes ®es? Transect ID:
Yes Plot ID: I
?'A Specie, i Indiomr Dominant Plant Soeciea Strom Indicetor
1. Ck C- l'. LI C£l? . 77 0 K 8.
2.? In rzl 1 r ,1ti.
lo.
Y 11.
12.
13.
Q. 14.
A
16.
Per" of Dor"IrA tt Sp?eoies VMAP P Oaf.,-FAMV •erftC ' -
Iso:bla kV PAC-).
Rarnwks:
Q
1
HYDROLOGY
Ft ad OM Meeerl* in Mmarks): Wadard Hydrology b floaters:
.... 1104611, Lake, or Trde taupe Primary Indlaators:
Awlal _
RwWgrepM• Inwndeted
r
RZZ" ?
? 12 h+cMs
?
_. Ii
d D.ta Avail" ? me&$
L1tws

Field Ob**rvsdort.: _U15 rwirww P'attwm In Wetlands

Depth of Surface Water, 1 (in) 5aaondary ndioatore (2 or rftre required):
Root Chaenda io Upper 12 Inches

be" to Free Water In Pit: _ Wetw Wried Laawe
Lowl Sca Survey Dab

Depth to Sawrated Soil: ? ?una _ FAC-Neutral Teat
Other IE3plain In Rernarka)
Romarks:
P.06

PROM RALEIGH REGULATORY 10.13.1995 12c54
8O(i;,S
me
IS011nd
hes1)' !: i i ' ,^ r
l
- F
'?"-
ubpraup)• r i
A e
d Obvervatiarw
-
F
nn....• Confirm M? Typ.? Yes No

Matrix Color
J_rgLh
eriton IMunogg Majyt)
Mottle Colors Motd?

u f Ma Textures Concrotions,
fmlt)
?w

---------------------
FfY'dri o S«I Indicatoru•
. .
???
Hl.do 4ipd"
Suifldic Oda ? retlona

Wpfi apaNo Content in 3u0e0e Layer in Sandy SoUa
a SUmisidn
-in S
d
S

airq CortelltlorN p
an
y
oib
?_ ? an Lood Hydda Soma Ugt
usw an HMO*"
N
• 'i' ot
fore?hranq t
l Ydrio gas LLt
""
?
a
on
--? .....? ?..._ ..
??
in Mmsrical.
Romwks:
WETUUM dEnMMMTWN
F+ydrophytjp Vepetadsn Prer.ntt w (Ctr0ie)
Wetl?d N1?drdaO1r p1sms" i' as No (circle)
NVal Sells Pre"M? N
le thls Sarnpiinp Point WltNn a Wgdsnd7 e'fs-Z) No
Rsrnw6w

P.07
of
r-
s

?fZ11-1 RGLEIGH REGULATORY
VEGETATION
10.13.1995 12:54 P.06
Dc"71narn 5 e indloetor DgMinant Plant ,Smsc;aa Str_turn . ndiea r

3. V?
4. l ln,? ? Q k l
12-
13
6. 14.
7. 1S.
8. ie.

Perattt of Dorninent Species dw arty O-nL zAc-.y er'r*=
(excluding PAC-).
aamarks: ? ,G?p
WMROLOGY
Reoordsd Data (Delef * In Rernarka): Wetland Hydrotopy bulicatam:
.,•.. Swam, Lake, or Tide Gaups Primary w4wetore:
As" PftotopnpM -inur44ted
Other SeWrOW
In Upper 12 htChee
?VNo Ra o dad Data Ave"
_ Wftorrr Meeks
Delft uftes
Sed'ar»rtt Deposits
ReW Observations: ?rairtape Patten in WedwWo

Depth of Surface Water N A-pn.) Secondary Indlostcrs (2 or rnam required):
Qrddi red Root C)?anneia In Upper 12 Inchee
Water-Stained L.eawt
Depth to Free Water in Pfr. I { O On.) _
T„ Local ScA Survey Dato
FAC-Neutral Test
Depth to Saturated Soil: y On.) _
Otter (Explain In Rernarks)
a.mark.:

'1-
Ck-

DATA -FORM
ROUTINE WETLAND DETERMINATION
(1987 COE Wetlands Delinetittion Manual)
..FROM RALEIGH REGULATORY
' SOILS
10.13.1995 12:54 P.07
- MAP Unit Name --
(Series and Phu@): 11, , ?? (? ( C. C OrainA0e Clew: r
Taxonomy (Subgroup): r?? ? / t !1 i Feld Obgervetione
_ ccM,rm ?
Peed Type? Yes ryO/
Mevlx Color Mottle Color; Mottle Te><turoConcretions,
Horizon un l Moist) (Munpetl Meet) ,i ? t t
0e
1) r4iL41ELcturo. etc.

NO& Soil Indicators;
H E - Concretions
Hlwdo etio
Odor - Hagh OM"c Content in Surfeoe l.eyer in Sandy Solis
?? d,c odor
?C ^qWo Moieara Rine _ or"Wo "'of" in Sends Stile
Reduoarsp Corrdltiawr - on Looal Hydrle Soils Lht
w.Gloved-'Law-ChrwM Velars Wad on Natb NYdrio &sile Wt
' !,.?.._......_..?_ _ . , ? OtNer. flWlarrr . In Remaics) .
Ron arks:
WETLAND DrrEW ATMN
HY*roPhWo VeQatstian Praeenty Yee Carole)
Wedow Hydrology Present; Yes (Circle)
Hydtio 5040 Present? Yee No la thh S
errrp(ing Point Wkhin a Wetlendi Yet Ne
Rerrurka:

-)FRAM RALEIGH REGULATORY

10.13-1995 1254
DATA FORM
ROUTINE WETLAND 'DETSWINATION
0 987 COE Wetlands Delineation Manual)
Project/Site: ?" 0'r Date: ?U
Applicant/Owner. County:
w
Investigator: 3w Ste;
Do Normal Circumstances exist on the site? es? No Community ID:
Is the site significantly disturbed (Atypical Situation)? es (jq?j Transect ID:
is the area a potential Problem Area? Yes o Plot ID:
(If needed, explain on reverse.)
VEGETATION
DorHnem eurt Soaciee Sit= Indlomr DRrnihant Float Soaciea Streturn? Indicator
2. 10.

4.L- f 12.
6. 13
.
Q• 14.
7. 15,

Per" of Dorldnartt Species
("Wadkq FAC-). VW APO OKrFACW cr'FiR-
Ranarkst
HYDROLOGY
Recorded Data Mtsoribe M Remarks): Wadand Hydrology indicators:
Stream, Lake, or Tde Gauge Primary Mdlcaton:
Aerial PhotogrWd.
Ottw _Inundated
K'46irrbd in upper 12 Mehra
2No Recorded Data AveUsNe WNW MCA $
_
? vmi Ltrrts

Field Observedow eda»ertt Deposits
r-- npe Patten In wedande
SecoMary t"oetors (2 or more required);
Depth of Surface Warter. ?prw ?Osidired Float t:hamels in upper 12 Inothee
Wat"talned Uawa
Depth to From Water In Ph: 101 Qna _
La" Soil Survey Date
FACGNeutrd Test
Depth to Sawrated Soil: U 1 L) On.) Y, Other K)pWn M R6rnark2l
Remarks: ;

P.06
"mac

FRam RALEIGH REGULATORY
? f\wu w
10.13.1995 12:54
OV ?W
Map Unit Nome
(SOtiss and Phsse): 1 { ?? O?ainepe Gees: y. -
n - Bald Observa0ons V
Taxonomy (Subgroup): COn6e.n NmPPed Typa? Yss ,?
roAle p?ctiotion•
Depth Matrix Color Mottle Coots Mottle Texture, Concrotions,
rM h He.izcn fMuneelt Mein) (Munpetl Meet) u ce ptmt ?trUCtute, qtc.
Hydro Soil I"catots• , j
Hlstosol ?htlona
Hl?do 40*4 n -7FIiQh OrpsNo Content In 3utface Beyer In Sandy Soile
Sulfldac Odot a $ttaaidng in Sandy Sala
?n0 Con?de+ta an LAOei Ifydda Soiia tilt
_. _ . ayY?'a Chroew Colon '? LWW On Mcdond Hydric gas List
M3gkdn. M Rarnwko
WETLAND aEMMrnaTMN
HV*"hytTo Vo"tmden Ptessrrt? No (Clrole) (O)rals)
Wed&W Hyidn"w Ptseentt No
Hyd"a 8448 Pt"*M? No Is tMs Sampling Point Wmm a Wadsnd? Yes No
Retnatks:
• Y?sis
'?
P.O?
750Q ( `\-J
O /r

O

I ?
I

>11
/r
F
/
-- ce
O
?l 68 o.-
., 5 ? n
40 / I o ` u
2 n
i . 11
fir/ 0 78 i i II
1
777
i
i y \x 78
n? ? I \J\VJJ \
1 1
1
I? 13
s, -
7
• 1? ,, i 136 • 1
I 8 i
n ?
m?
Y i
1
?1 11
N t ?;1
726 O • ^ :T
2004
U rr l
7 \; D O 30
L
II
II
\ \ '? Iyi/f/
l? rr II

r?- j)
V \
Aso

1
?
i
0
/ 0 II
76
o
/ 0
C

o p
ubsta one
15p
wba h>,
2111
I !J ?5 _ \
I /}
?.
•

Site
Location Map Figure 1 BARRETT KAYS & ASSOCIATES
Civil Engineering / Environmental
(riot to scale) Engineering / Environmental Assessment
304 East Jones Street / Rol". North Corolino 27601 / 919-828-1903

DEM ID: q,5 ) LL ACTION ID:
Nationwide Permit Requested (Provide Nationwide Permit #): N[dP 26
JOINT FORM FOR
Nationwide permits that require notifidation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MANAGEMENT
NC DEPARTMENT OF ENVIRONMENT, IIF9LTH,.-..
AND NATURAL RESOURCES P.O. Bor. 29535
Raleigh, NC 27626-0535
ATTN: MR. ;OHN DORNEY ' r1
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CARPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DMSION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name: NationsBank (Carolinas) N.A. as Trustee
2. Owners Address: NCNB Real Estate Fund, 1 NationsBank Plaza, Charlotte 28255, Art Loyd Boyce
3. Owners Phone Number (Home):
(Work): [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number:
Barrett Kays & Associates, P.A.
224 Fayetteville St. Mall qt-p- loo
Raleigh. NC 27601
5. Location of work (MUST ATTACH MAP). County: _Mecklenburg County, NC
Nearest Town or City: _11untersville - NC
Specific Location (Include road numbers, landmarks, etc.):Take I-85 to 1-77, to Huntersville, get off
at Huntersyille exit. Take Gilead Road west 0.02 mi fo entrance of 11unterstille Business
Park. Take left onto.Kincev Road and nark at end.
6. Name of Closest Stream/River: _ Torrence Creek off Rocky Creek
7. River Basin: Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS H? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this property? YES ?J
If yes, explain. .5AW2-6 - as - lb'? CE5AW -- C089 -''- 04,0 , SA V? 21o -89 - 61
10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: O.84 acK-s
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Filled: ^' ©• 4
Drained:
Flooded:
Excavated:
Total Impacted: ^' ©, 4 `
NWP 26 contr.
12. Description of proposed work (Attach PLANS-81/2" X l 1" drawings only): _
see attached map ---
road crossing cut through Waters of U,s. Bmpls will, be used
13 Purpose of proposed work:
to minimize impacts. 14. State masons why the aPPlicaht betev s that th ? s activ y ?
ust be crrried oujin wetlands. AqUo note u
taken to minimize wetland impacts. road cross ng w 7C1`cross area o slaters of , gss roc
used to minimized impacts. 15- You arc required to contact the U.S. Fish and wtldlifo 5" = (iJSFWS) and/or National Marine Fisheries Service
(NMFS) rogarcling the presence or any Federally listed or proposed for listing ?ndangcird threatened species or critical
habitat in the permit area that may be affected by the proposed project or Have you done sot - YES [x NO
RESPONSES FROM ZEE USFWS AND/OR NMM SHOULD BE I;oRWAR :)F TO CORPS. ] C J
16. You are required to contact the State Historic Preservation Officer (SM%o) rcgading the presence of historic
Poperties in the permit area which may be affected by the proposed project? Have you done so? YES C xi No [ ]
RESPONSE FROM "THE SHPO SHOULD BE FORWARDED TO CORPS.
17. Additional information required by DEM:
A. Wetland delineation map showing all wetlands, streams, and lakes on the property,
B. If available, representtadve photograph of wodands to be.impacttd by project.
C, If delineation was performed by a consultant. include all data sheets relevant to the piacerueut of the
delineation line.
D. If a stormwater management plan is .required for this project; attach copy.
E. What 1S lead use of s=ounding property? ,ural farmland,,T-77. business develo merit sureouadxn
If applicable, what is proposed tnethod of sewage.disposal?, torn sewer cyst im
7 77

Barrett Kays and Associates
... .. ,..,. - ? -.
u to100
:_. Raleigh, N 27601
(as agents: for Nationsbank (.Carolinas)'N.A.. as Trust.

Z0 ' d 6S66=6 01 SA1 N I OOSSd '8 SAUA 11?lddUg WMJ J 1,2: Z T S66 ti-i 2-100
DE,%l ID:
ACTION ID:
Nationwide Permit Requested (Provide Nationwide Permit #): MM #33
JOINT FORM FOR
Nationwide permits that require notiftation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
CORPS OF ENGINEERS DIVISION OF ENVIRONMENTAL MANAGEMENT
DEPARTMENT OF THE ARMY NC DEPARTMENT OF ENVIRONMENT, HEALTH,
P.O. Box 1890 AND NATURAL RESOURCES
Wilmington, NC 28402-1890 P.O. Box 29535
ATTN: CESAW-CO-E Raleigh, NC 27626-0535
Telephone [phone] ATTN: MR. ;OHN DORNEY
Telephone [phone]
WILMINGTON DISTRICT ENGINEER WATER QUALITY PLANNLNG
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DIVISION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name, NationsBank (Carolinas) N.A. as Trustee
pttn
2. Owners Address: NCNB Real Estate Fund, 1 NationsBank Plaza, Charlotte 28255, Mr. Floyd Boyce
3. Owners Phone Number (Home): (Work):- [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number.
Barrett Kays & Associates, P.A.
224 Fayetteville St. Mall stp_ loo
Raleigh. NC 27601
5. Location of work (MUST ATTACH MAP). County: Mecklenburg County, NC
Nearest Town or City: Huntersvill e - NC
Specific Location (Include road numbers, landmarks, etc.):Take I-85 to I-77, to Huntersville, get off
at Huntersville exit. Take Gilead Road west 0.02 mi to entrance of Huntersyille Business
Park. Take left onto Kincey Road and park at end.
6. Name of Closest Stream/River: Torrence Creek off Rocky Creek
7. River Basin: Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS 11? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this property? YES bd J
If yes, explain. SAW2?6 - 3? --1U - CESAW- 0-0 99 T- 0(00, SAW 26 -- 6fr? •-
10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: O. 84 a?ye
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Filled: 0.10 Acre- s
Drained:
Flooded:
Excavated:
Total Impacted: 0. 10 Ar-re.s
20'd -id101
NWP 33 cont.
I2.. Description of proposed work (Attach PLANS,,-$ X 111" drawings only):
SEE ATTACHED MAP
13 Purpose of proposed work to facilitate site grading
14. State reasons why the applicatit believes that this AcSayiry taunt be carrind out in wedands. A.IAQ, note res
taken to minirnize wetland unpacts. _ 2arcel IAIW 16cked2l t-^-4tta,a? 'dnd wetland. Orig?ngl. _
grade will be returned td site, or permitted by NWP 26, as per S. Lund, .ACO);. w
IS. You are required to contact the U.S. Fish and Wildlife Service f USFWS) and/or National Marine Fuheries Service
(NMFS) rcga.rding the presence or any Federally listed orproposcd for listing endangered or thrratonod sp ics or critics]
habitat in the permit area that maybe affected by the proposed project. I•Iave you done so? , YES j zJ NO[ )
RESPONSES FROM TIM t.ISFWS AND/OR NWS SHOULD BE FORWARDED TO CORPS.
16. You arc required w contact the State Historic Preservation Officer (SHPO) regarding the presence of historic
properties in the permit area which maybe affected by the pMposed project? Have you done so? YES fy-] NO[
)
RESPONSE FROM THE SHPO SHOULD BE FORWARDED TO CO"S,
I?- Additional information required by DE1r1;
A. Wetland delineation map showing all wot]ands, strew, and lakes. on the property.
13. If available. reprosentativt photograph of wetlands to'bc impacted by project.
C. If delineation was pcrformcd by a consultant, include a data sheets tolevant to the placement of the
delineation line.
I). If a stormwater management plan is rNuircd for this project; attach copy.
E. What is land use of surrounding property:. rural, farmland 1--77. business, development surroundin
F. If applicable, what 1s proposed method of s.p e.duposal? town sewer system
r'... naa'Vt?tt $?grt t: i .atrii.a.. . ,
... , ,.;: ._ . • . „ . ?N:, 'a7^zetc -g&y sea--,Asaocistea. ..p.:A: ..__....._ ..__?_.....r,?_...
_ 224 .&Yettevil.le St. Mall
??-Suite •100' . - , .._.,..,...??.._ _?_.....
_Ca? agents.. oz:.Na..Gi.ontsbank (Carolinas)H.A. at; TruseeE
20'd 6S66M Z6 01 S31d I00SSd 8 SMA 113MU9 WMId B2 : ZT S66T-12-1D0
DEM ID: / L 1 /,--1,5 ACTION ID:
Nationwide Permit Requested (Provide Nationwide Permit #): MP 26
JOINT FORM FOR
Nationwide permits that require notification to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MANA
NC DEPARTMENT OF ENVIRONMEh?'?;;',1
AND NATURAL RESOURCES
P.O. Box 29535
Raleigh, NC 27626-0535
ATTN: MR. ;OHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DIVISION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name: NationsBank (Carolinas) N.A. as Trustee
2. Owners Address: NCNB Real Estate Fund, 1 NationsBank Plaza, Charlotte 28255, Ar.n loyd Boyce
3. Owners Phone Number (Home): (Work): (704)386--5265
4. If Applicable: Agent's name or responsible corporate official, address, phone numberttoy) -?, 55-1
Barrett Kays & Associates, P.A.
224 Fayetteville St, Mall srP_ loo
Raleigh. NC 27601
5. Location of work (MUST ATTACH MAP). County: Mecklenburg County, NC
Nearest Town or City: -11untersviile _ NC
Specific Location (Include road numbers, landmarks, etc.):Take I-85 to 1-77, to Huntersville, net off
at Huntersville exit. Take Gilead Road west 0.02 mi to entrance of liuntersfille Business
Park, Take left onto Kincey Road and park at end.
6. Name of Closest StreanV?jver: Torrence Creek off Rocky Creek
7. River Basin: Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS II? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this property? YES ?J
If yes, explain. $og26 - 88 - Ib. 1 CF5AW - 0089 - T- 04,0 , 5A W 26 - 139 - 6 J
10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: acres
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Filled: nV ©.4
Drained:
Flooded:
Excavated:
Total Impacted: v ©.
NWP 26 cont.
12. ]description of proposed work (Attach PLANS-8 1/2" X 11' drawings only): _
see attached n,ap
l3 Repose of proposed work' road crossing cut through graters of U, S. BMP's will, be used
to minima'ze impacts.
14. State reasons why the applicant believ s that th a aetiv usr be carried Qtr in wetlands, Aifo note errs
taken to minimize wetland impacts. roa crass ng w1 cross area o haters of ,s
used to minimized impacts.
1S. You are required to contact the U.S. Fish and Wild"; Service (USFWS) and/or National Marino Fisheries Service
habitat Si)n tl?e rig the pre=nce or any Federall y listed er proposed for listing eadangr_md or awned sptdtes or critical
(
perrnit area that may be affected by the pro posed ptojett. Have you done sot . YFS [X ] NO
]
RESPONSES FROM ZHE USFWS AND/OR NMFS SHOULD BE FORWARI)E.D TO COR.pS.
16. You are required to contact the State Historic Preservation Officer (SHPO) regarding the pmscAce of historic
properties in the permit area which may be affected by the proposed project? Have you done so? YES [ x] H4 ( )
RESPONSE FROM THE SHPO SHOULD BE FORWARDED TO CORPS.
17. Additional information required by DEM:
A. Weiland delineation map showing all wetlands, streams,, and lakes on the property.
B. If available,, representative photograph of wetlands. to be impacted by project.
C. If delineation was performed by a consultant, include all data sheets relevant to the pdaaecnent of the
delineation line.
D. If A stormwater management plan is required for this prejec4 attach copy.
E. What is Iattd use of sttrroutiding p%perty2 ,ural rnland Y-77 business development survouadin
F. If applicable, wren is proposed method of sewa$c ddsposal'I, town sewer system

. 6hwv
Barrett Kays and Associate
- Suite. .100
Raleigh, . .
NC 21601
(as agents: fok Nationsbank (.Caroli.nas)'N.A# as ?rust.

Z0•d 6S662UZ6 01 SliUI00SSU 8 SAUM Ii3ddHe WONJ 2,2:Zi S66I-12-100
DEM ID:
ACTION ID:
Nationwide Permit Requested (Provide Nationwide Permit #): __ 133
JOINT FORM FOR
Nationwide permits that require notifWation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MANAGEMENT
NC DEPARTMENT OF ENVIRONMENT, HEALTH,
AND NATURAL RESOURCES
P.O. Box 29535
Raleigh, NC 27626-0535
ATTN: MR. JOHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DIVISION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRIM'.
1. Owners Name, NationsBank (Carolinas) N.A. as Trustee
Attn
2. Owners Address: NCNB Real Estate Fund, 1 NationsBank Plaza, Charlotte 28255, Mr. Floyd Boyce
3. Owners Phone Number (Home):
(Work): [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number.
Barrett Kays & Associates, P.A.
224 Fayetteville St. Mall qtP 100
Raleigh. NC 27601
5. Location of work (MUST ATTACH MAP). County: Mecklenburg County, NC
Nearest Town or City: Huntersvi l 1 e _ NC
Specific Location (Include road numbers, landmarks, etc.) Take 1-85 to 1-77, to Huntersville, get off
at Huntersville exit. Take Gilead Road west 0.02 mi to entrance of Huntersyille Business
Park. Take left onto Kincey Road and park at end.
6. Name of Closest Stream/River: Torrence Creek off Rocky Creek
7. River Basin' Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS 11? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this propert y? YES [ 4fmsm
If yes, explain. SAW 2(6- 853 )O ; CCS AW- C0 S9 •- -- DGD, SAVJ 26 -
10. Estimated total number of acres of waters of the U.S., including wetlands, located on Rroject site: Q. 84 ac.s
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Filled: 0.10 Acres
Drained:
Flooded:
Excavated:
Total Impacted: 0.10 Acre.3
20 • d -idiol

W 33 cont.
12.. Description of proposed work (Attach PLANS78 l,/2" X 11" drawings only):
922 ATTACHED MAP
l3 Purpose Of proposed work:- to facilitate site Srading `
--7-7-7777
14. State reasons why the applicwit believes that this activity must be carrird out iR wadands. A),80, note res
taken to tttinitnize wetland unpacts. pnrGel and 1.oct?ad r-§ti Ai'"dnd wetland. Oril?
grade will bq returned td site, or permitted by NW? 261 as per S, 'Lund, ACOE.-
1 S. You are required to contact the U.S. Fish and Wildlife SeMce (USFWS) and/or National Marine lFawas Service
(N'MFS)) regarding the presence or any Federally' listed orproposed for lisdng endangered ordveatened species or critical
habitat in the permit area that may be affected by the proposed project. have you done so? . YES j x] NO[ RESPONSES FROM TIM USFWS AND/OR N SHOULD BE FORWARDED TO CORPS.
16. You arc required w contact the State Historic Preservation Officer (SHPO) regarding the presence of historic
properties in the permit area which maybe affected by tho ptgposed project? Have, you done so? YES ff) NO[
l
RESPONSE FROM THE SHPO SHOULD BE FORWARDED TO CORD'S.
17_ Additional information required by DIU&
A. Wetland delineation map showing all wetlands. streams, and lakes. on the property.
13. If Available reprocntadve photograph of wetlands to be impacted by project.
C. If dellneation was performed by a consultant. include all data sheets relevant to the placement of the
delineation line.
D. If a stormwater management plan is required for this project Attach Copy.
8, Wbat is land use of surrounding property?„rural, farmland, 1-77, business devel.oLment sitrroundiu
F. If applicable, what is.P,. roP°. sal method of sowalze disposal? -
-.........,;...... _ ... town sewer system
l 9S. ; ;: .

• r:, qty •atid--Aaaociates.? p.:A:
...224 Eavittevil.le St:. Mail
Suite .100, ... .?.•..,^ , .._....•, ....._.?? .__.....
• .. lialeiglty.:tAJ.Ca2Sib0,l.. ;? ;.,: :. _:r
:.(a$ Agent aJOX,.N5i.gnsbank (Carolinas)N.A. as Trustat
20 • d 6S6G2Uz6 Oi S3it1 I00SSd 18 SAUA I [ --]6 !d9 WOkId ez : eT S66Z-LE-i00
-_..:-'FRQf1 RALEIGH REGULATORY
10.13.1995 12:54
DATA-FORM
ROUTINE wzrLANo DEmWiNATiON
0 987 COE Wetlands Delineation Manual)
Praject/Sitg: L r rS v l ?? ??? SI ?1 ?'S S r Date: O C ?
APPUcant/Owner.
Investi
at
County:
t
s
__??y State:
Do Normal Circumstances exist on the site? (?'No Community ID:
Is the Site significantly disturbed (Atypical Situation)? Yes (19) Transect ID:
Is the area a potential Problem Areal Yes No Plot ID:
(If needed, explain on reverse.)

\ VEGETATION
?? 5 ecI
Smftm Irnd1,:mr
1. t U? c•. ?Lf 7
Domina
8.
nt Plant Soecie_
?_ Stretum? Indicator
t
?z
e
*?
13

L 14.

15.

ro MDoren TWM Species thata•t? OM.,rACY ot'l4R..
feocoludhq SAC.-). .
Rarnarks:
6 ?`"1 a
I
HYDROLOGY

Raaorded Daft (Daa0ft* in Rwnwksl:
Btrown, talc., or ride a mme
AMW _ r Photopnpft.
a Re o rfad Data Avail" Wetland Hydrology htdicatore:
Pdmwv a+dloamm:
_Irwr%kKod
T? in Upper 1.2 lnelw
AAsrkra
:' lln?s

R*W Observstlonta. ?indqp patter. in wadmwg

D+pd? of Surface Water
-171) (int.) Secondary ndloaWre (2 or morv required):
jg:fVXkiirvd Root Charmer in Upper 12 Inchoo

Dapell to Free Wear In Pit:
_ a anJ Water-Stained Um%"
Local sorb Survey Date

Dpth to Saturated Soil:
?pna _ FAC-Neutral Taet
Other (Explain In Ranarks)
Remarks:
P.06

FROM RALEIGH REGULATORY
' SOILS
10.15.1995 12:54
- Nuo Unit Name
(S.ri" and Phu@); I .l !: i ,-( C•
_. Oralnepe Cteee: p.- i .
Taxonomy (Subgrouph f=ield 0baerv4jti0l?e
ProAle D«r.a..a,.... l Cortfir,n M*)Pod Typ.t
Yet No
Dopitt,
Matrix Color
Horitan Imumogit Me'
Mottle Calm Motile
u f moist) u ce Textwet Coneredana,
IOYP- 70

r
"ric Soil Indica tam
H
Hwta latoaoi
Stdfl ' EoPedon

dic Odor
?_

..? ? aOanlo Content
^+ In SuHaoe Laryer In Sandy SOUe
Nam R*gonw
C V o 8tr aking in Sandy Sow
V a1 LooN "
.
S
"
ondltle
w
.h
Low4awmm
COlet. y,,
?
o
U.
?? ^r..ri0 gas Wt
O
am
-
dw. M*Wn In Rom m, B).
Rarrwke.

WETLANC aMMMMATiON

f+vdrophWo vapatatlen Pna.ttc?
« tfrol.i
w•+s.naroae?? P+?••n?r .. No (Grol.i
Hydtio sew Pr+..RC7
Is this Sarr"m Point WRNn a W.tlandi e- ?06 No
Rantwkx.

P.07
?. r'R. II RALEIGH REGULATORY
r-
r

10.13.1995 12:54
DATA -FORM
ROUTINE WETLAND DETERMINATION
0 987 COE Wetlands Delinestion Manual)
Project/Slte: un he r??l t Q ? ?1 np SS 1'?? (k Date: C' -
Applicant/Owner. -? l `. Q ?__1 l County I Lkrq'
Invesbgator: __ .'` ,LAJ gam: Q
Do Normal Circumstances exist on the site? No Community ID:
Is the site significantly disturbed (Atypical Situation)? Yes N? Transact 10:
Is the area a potential Problem Area? Yes o Plot ID:?
(If needed, explain on reverse.)
VEGETATION
DorHnarn Mint spe6ey Stratvrt, I I r Dominant Plant Soeciea Straturn Indicator
ed 10.
4 l 12.
6. 13.
a. 14.
7. t5.
8. • ?_ t e.
Peres of Domtinant Species tlMta.R O!L. IC;Y or 9t.. -
(wtolrWkw PAC-).
Ramarkst Ll ,GjO
HYDROLOGY
Reaordod Data (Deserlbe in Rernarka): Wetlyarrd Hydrobpy b oaten:
strsorn, lake, or ride Gaups Primary fndloaton:
AwW Photogrophs• _Inurxl4W
0
l^ Upper 1-2 frothev
VNo R o dad Data Av*il" _ Water s
Drift uses
S knont Depooks
Field Obslrwdorr: ?n0nape Pette., In Wsd&We
Secondary Wicators (2 or more required):
Depth of Surface Water. N pre.) Oxddirod Root Channda in Upper 12 Irahee
Water-stalned Lm"
Depth to Free Wa*r In Pfv .151 Qn.) _
Local $od Survey Data
FAC-Neutral Teat
Depth to Saturated Soil: :5, () an.) _
r Other (Explain In Rer aft)
Remarks:
4

P.06
'mac
..00M RALEIGH REGULATORY 10. IS. 1995 12:54 P.07
SOILS
Map Ur1tt Name -
(Series and Phase): i r? ((( C_ ?..
' Draineos Cleat:
'-
Taxonomy (SubOtaup): Feld Observetione
Confirm Mapped Typ.? Yes - No
Depth --- Matrix Color Motto Calm Mottle
r h Horizon I)111unsell Mo' Texturoi Concretions,
j1 tl? IfNurtpelt Mist) u ce rtroeS S mrveturo. etc.
"Tic Soil Indicators:
HWde da
H Et •-.. Conoredau
n -.... MOh Oroanio Content in Suthoo Layer in Sandy Salle
? ?Rdra Odor
^ o ? RapMMe _ OrpaNo Stnaidnp in Sandy Sole
eduoirq CotsRdaAS ..Zuaw on Loo.l Hydria Sala ust
R
h oducil V CarWh tRo? talon Uoted °n Nad*nsl Nyddio We List
ROmoks:
T ct? l CC- i.,,
WETLAND DETERMM*noN
Hv*roPhytfo V406tation prow'. 7
Wsdand Hvdmlooy prsaant?
Hydtia Salt Praasnt7
Remarku
L
y" Circle) ICirdsl
Y~
YeM No la this Sampling Point WttNn s Wedand7 Yss No

V
FR01.1 RALEIGH REGULATORY

Project/Site!
Applicant/Owner.
10.13.1995 12:54
DATA-FORM
ROUTINE N/ETLAND 'DETSIMINATION
0 987 COE Wetlands Delineation Manual)

Do Normal Circumstances exist on the site? No
Is the site significantly disturbed (Atypical Situation)? es 4
Is the area a potential Problem Areal Yes coo
(if needed, explain on reverse.)
VEGETATION
Date: !U ? ?D
County: (W(Tf'v 11 L V)
State; Q C.,
Community ID:
Transect ID:
Plot ID;
DSminettt ertt Soealee 1_ndleetor Dqadhant P1snt spac;ea Stfsturn Indicator
10.
3.(
12.
s. 13.
Q. 14.
+
/.
8. 16.
?_ ?....
Prat" W OMMI rant Spsoiss Vest rr Oft FAM or1r0= ~
leoroWng FAC-1. ' -
Rertrarkst
O 04'
MROLOGY
Reaaded Data (Deserbe In Remarks):
strow1*4 Lake, or Tde Gauge
As" PhatogrWd.
Other
ZNo R:oadsd Data Available
Field Obsomwdons:
Depth of Surface Water.,, (inJ
Depth to Free Wear In Ptr. O fine
Depth to Saturated Soil- iU Q (ins
Wadand Hydreb0y Indastors:
Prinury Indioamrs:
ln Upper 12 Indree
-wit r
Linn
ras
Deposits
y?$editrrwrtt
tt nape Pstte v In WedmWe
Secondary to ilostors (2 or More required):
_%,CO: kibmd Root CtwwdWa in Upper 12 Inchee
_ Water-Stalned Leaves
Local Sea Survey Date
..,.. FAGNeutral Test
Y, Odwr gain In Remarks)
Remarks: t
P.06
"mac

"'IFRZIO RALEIGH REGULATORY 10.13.1995 12:54 P.07
MWp Unft Narrm
(Series and Phase):
Dralnaoe Ckwd: +_y
n - Q V
Taxonomy (Subgroup): Said Observations
?.? t1 <<_t d Confirm Mapped T ^
yp¦t Yes, No
PrgQ?e D4?ctfetionc
Depth Matrix Color Mottle Color; Mottle Texture, Concredons,
rf!jg,h0Vj Horizon lk)uneell Moirt) (Munpetl M? aet) u ce t gtru2tyre. Zc
l
H1?dr{o Soil Indicators' . Hiltcaol V/11'
retl0fft
?- ?c n -Rah OrGanlo Content in Surface Layer In Sandy Sous
Sutfldic odor =?dryan1c Streaking in Serdy "or
??edudrq CorKlldons an LiOO'r Hvdd4 Soda List
?' Q~ Ward an Nadww ?& Sao List
m tolom .. Awmaw.
WETLAND DETEAMMTWN
MENNEN!
HrdroaMtFo vaoetsdan Praasrtt7
W+d&W Nydrdopy Prow P
Hydria Salts Praaant7
+
??
46P No (Craw)
P No
« No
(Grote)
fa tWo Sampling Point WMn a WadondT /'Yes
No

`C3 I
NATI
I"Ij1,
AI,
S? NOV 2 1995
DIVISION OF ENVIRONMENTAL MANAGEMENT DIVISION OF 'If Mt --I
MOCRFSVIUF RFC1 ,1',l O F!,'
November 1, 1995
MEMORANDUM
TO: Rex Gleason
Mooresville Regional Office
FROM: John Domey j' 0 ?- ? , e .C,
RE: 401 Certification Review
Please review the enclosed 401 Certification applications by November 15, 1995. Please call me if
you or your staff have any questions, or need assistance in these reviews.
PLEASE COMPLETE THE NEW STAFF REPORT AND RECOMMENDATION FORM
1. NationsBank (Carolinas) (2 week review)
#951145
Mecklenburg County
The other enclosed material (if any) is for your general information and use as appropriate.
Enclosure
t
i
`II
?i
I?
I
I?
i ?
S I`
l
l
I
I
?I

J
1
is
-4!r
?c
?. o
c

f ??1

a

1
0
'=

4[
J
' T I!a
I 1 ?4
L a5?, 37 1
I
D
m
? m
! m > c .
I 0 ?1 f? d
1 ?
p Co
W
co
.?. m A
?-- m
?b0 N p
m Z
c
N T.
O
Lo
L
O
? ^ Q
'z3
N .ot
H
b
m
v

? I
1191

C-)
ik'
I
Ii
I
n
JI
-.4 1 y?
r
ee
7 v v
?\\ O .
II O 0 -C
/' ' I O
O
/ I u O
e4'S
n
o' II
1 ? u
? ? II
a ' II
II
a
n u
u i . II
i II
\?t ? I Ip
I
77
i
lx X8

8
n O
1 13c • I

' 1
II

726 ii
O
? `
1? ___

f
\
orr

O ? 2004

•'/

c[
II n r 30
- ? .1 ?l 1?
??
v n ?
•d J II ? -
i /I II
II
?, su II
II
II
O 11
.% /? O 1176 Q
i"
ubsta any _
C5
150 wba bl 2117 I 15 `?
Figure 1 BARRETT KAYS & ASSOCIATES
Site Location Map Civil Engineering / Environmental
(riot to scale) Engineering / Environmental Assessment
304 East Jones Street / Raleigh. North Corollno 27601 / 919-828-1903
r/
// 40
NCWRC,HCP,FALLS LAKE
TEL:[phone] Nov 22'95 10:39 No.003 P.02
North Carolina Wildlife Resources Commission ? z
512 N. Salisbury Street, Raleigh, North Carolina 27604-1183.919-733-3391
Charles R. Fullwood, Executive Director
MEMORANDUM
TO:
FROM:
DATE:
John Dorney `MM
water Quality Planning ?i, D?`?k
Owen F. Anderson, edmont Region
Habitat Conservation Program
November 22, 1995
Coordinator
SUBJECT: NationsBank 401 Water Quality Certification for
Huntersville Business Park, Mecklenburg County,
North Carolina, 951145
Staff biologists with the North Carolina wildlife
Resources Commiazi.on have reviewed the eubject application
for 401 Water Quality Certification with respect to
anticipated project impacts on aquatic habitats. Our
comments are provided in accordance with certain provisions
of the Fish and wildlife Coordination Act (Stat. 401, as
amended; 16 U.S.c. 661 et. seq.), and Section 401(b) of the
Clean Water Act of 1977 (as amended), and North Carolina
General Statutes (G.S. 113-131 et seq.).
The proposed project involves the filling of a total of
approximately 0.5 acres of wetlands for the construction of
road crossings and site grading under NW26 and NW33
respectively, for that construction of Huntersville Business
Park. The wetlands to be filled are part of or adjacent to
Torrence Creek. An estimated 0.84 acres of wetlands are
located on the project site.
The applicant offers no plan to mitigate for the 0.5
acres of wetland losses and it does not appear that wetland
impacts have been avoided or minimized. It appears that the
impacts could be significantly reduced by rerouting the road
north of the wetland areas and creek.
NCWRC,HCP,FALLS LAKE TEL:[phone] Nov 22'95 10:40 No.003 P.03
NationsBank 2 November 22, 1995
Mecklenburg 951145
we request that the following modifications be
incorporated into this permit:
1. Minimize and avoid wetland impacts by rerouting the
road north of the wetland areas.
2. Unavoidable wetland impacts should be mitigated by
creation of wetlands at a ratio of 2:1
(created:destroyed) adjacent to the creek or other
wetland areas.
3. Place deed restrictions on this property to prevent
further wetland destruction by current or future
owners.
4. Maintain a loo-foot vegetated buffer along the creek
and wetlands where possible.
5. Temporarily disturbed wetland areas should be reseeded
with annual, Seasonal vegetation (millet in spring and
summer, wheat or rye in fall); then allowed to revert
to natural wetland vegetation.
6. Grassed swales should be used where feasible to convey
stoxmwater runoff. stormwater runoff from parking
areas should not be discharged directly to surface
waters.
7. Wet retention ponds should be installed to receive
stormwater from impervious surfaces.
Thank you for the opportunity to provide input into the
review process. Contact me at [phone] if I can be of
further assistance.
Project name ova
County h
Name of evaluator.
etland area acres Wetland wid
1-0. John Date 1
Wildlife habitat `5
Aquatic life value 3
Recreation/Education -2'

* Add 1 point if in sensitive watershed and > 10% nonpoint disturbance within 1 /2 mile upstream, upslope, or radius
a IV-A S Rw„k GwA#W * T'12,_ Nearest road ple^e_
Wetland area acres Wetland Nvidrh feet
evaluator- V Tcrfl ,Sf. Jotin Date AyiL

Water storage

/Shoreline stabilization
Pollutant removal *
Wildlife habitat

Aquatic life value x 4.uu fa,,r
Recreation/Education x 1.00
* Add 1 point if in sensitive watershed and > 10% nonpoint disturbance within 1 /2 mile upstream, upslope, or radius
!
i
I
I?

t
i
i
r
I?
a

1
!
1 Ul
ml I
OT
0 -n n v
?? \ r om
s
?? Co
W
40
/v
{ k=v N
v ?
03
r
1
IV• e ~ J
s
v `< 33
1
2-6 i(&'K
Hof o1.4?? r-"d A-'--
-56
Q1QA,
63 A"- nvi- -? I ? ? " L,

tieyl4
hu.:;? ski
C
Sfiv-L a
x ?y
I,?.?aWS?rV-

'i q4 4,te
4-e 6Lc-c--Ar,
IVL? 6?7LY
?I
to
' ?--'
?\ k4- N?, C,-- W I I

'J
}
Tol)
,%
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James R Hunt, Jr., G overnor
Jonathan R Howes, Secretary
A. Preston Howard, Jr., P.E., Director
L7EHNR
FAX TO: -TV ? + %, k'
FAX NUMBER:
FROM:
Environmental Sciences Branch • 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal opportunity Affirmative Action Employer 50% recycled/10% post consumer paper

PHONE: 1 1 ~ l (?
NO. OF PAGES INTCLUDING THIS SHEET:
DEM ID: 9 5) I ACTION ID:
Nationwide ermi Requested (Provide Nationwide Permit #): M,iP 26
JOINT FORM FOR
Nationwide permits that require notifidation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MA?;N
NC DEPARTMENT OF ENVIRONMEN'?'ti
AND NATURAL RESOURCES
P.O. Box 29535
Raleigh, NC 27626-0535 n
ATTN: MR. ;OHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DMSION OF ENVIRONMENTAL MANAGEMENT
PLEASE PRINT.
1. Owners Name: NationsBank (Carolinas) N.A. as Trustee
2. Owners Address: NCNB Real Estate Fund, 1 NationsBank Plaza, Charlotte 28255, ptrtnf Loyd Boyce
3. Owners Phone Number (Home):
(Work): [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number:
Barrett Days & Associates, P.A.
224 Fayetteville St. Mall Sty 100
Raleigh. NC 27601-
5. Location of work (MUST ATTACH MAP). County: Mecklenburg County, NC
Nearest Town or City: Iuntersville- NC
Specific Location (Include road numbers, landmarks, etc.):Take I-85 to 1-77, to Huntersville, get off
at Huntersville exit. Take Gilead Road west 0.02 mi to entrance of Huntersville Business
Park. Take left onto Kincey Road and park at end.
6. Name of Closest Stream/River: - Torrence Creek of f Rocky Creek
7. River Basin' Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS H? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this property? YES ?J owam
If yes, explain. W21& - 86 -101 CE5AW -- C089 - S- G,O , SA W 26 - gq - 61
10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: O.84 acre-s
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Filled: 0.4
Drained:
Flooded:
Excavated:
Total Impacted: J 0.4
r1WP 26 cont.
12. Description of proposed work (Attach PLANS78 1/2" X 11" drawings only): _
see-attached-map
l3 Purpose of proposed work: road crossing cut through craters of U, S. WV 13 will be used
to minimize impacts.
I4. State reasons why the applicant believes that tNs actin?y?must be carried ou in wetlands, nett
takai w minimize wetland izapacts. roa cross ng w I l cross area o haters at ss
used to minimized impacts.
15. You are required to contact the U.S. Fish and WLIdUc 5" = (USFWS) and/or National Marine Fisheries Service
(NMFS) regarding the presence or any FecletalIy listed or proposed for listing endangcrrd or threatcntd species or critical
habitat in the permit area that may be affected by the proposed project. Have you done so? . YES fx ] ?1O ( ]
RESPONSES FROM ZKE USFWS AND/OR NMFS SHOULD BE FORWARDED TO CORPS.
16. You are required to contact the State Historic Preservation Offieor (SHPO) regarding the presence of bistorlc
properties in the permit area which may be affected by the proposed project? Have you done so? YES (x] x0[
]
RESPONSE FROM TIE SHPO SHOULD BE FORWARDED TO CORPS.
17. Additional information required by DEM:
A. Wedand delineation map showing all wetlands, streams, and lakes on the property.
B. If available,, representative photograph of wetlands to be impacted by project.
C. If delineation was performed by a consultant, include all data shasts relevant to the pIacctucnt of die
delineation line
D. If a Stormwater management plan is .required for this project; attach copy.
E. What is land use of surrounding property? rat farmland, 1-77business davelo meat auroounda.n
r- If Spplicable, what is proposed method of sewage disposW7 town sewer system
N-4;4r
. ?. i^.<:.... ... . .. . wr-..?..i:V?+:.+?:-hw. ..J w .. ...._.?.w.?..?_?.-w.-wW r..?...w - ..-... ......... ..h .w .....
Barrett Kays and Associates Py,A.
. ... ,? . , . Suite 100 _
- Raleigh, NO 27601
(as agents: for Nationsbank (.Carolinas) 'N.A. as Trust,
Z0'd 6S662U-Z6 01 S31UMOSSU '8 SAHA li3dNUH WC)dd L2:zT S66T-T2--D0
DEM ID: ACTION ID:
Nationwide Permit Requested (Provide Nationwide Permit #): MW #33
JOINT FORM FOR
Nationwide permits that require notifidation to the Corps of Engineers
Nationwide permits that require application for Section 401 certification
WILMINGTON DISTRICT ENGINEER
CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY
P.O. Box 1890
Wilmington, NC 28402-1890
ATTN: CESAW-CO-E
Telephone [phone]
WATER QUALITY PLANNING
DIVISION OF ENVIRONMENTAL MANAGEMENT
NC DEPARTMENT OF ENVIRONMENT, HEALTH,
AND NATURAL RESOURCES
P.O. Bor. 29535
Raleigh, NC 27626-0535
ATTN: MR. JOHN DORNEY
Telephone [phone]
ONE (1) COPY OF THIS COMPLETED APPLICATION SHOULD BE SENT TO THE CORPS OF ENGINEERS.
SEVEN (7) COPIES SHOULD BE SENT TO THE N.C. DIVISION OF ENVIRONMENTAL MANAGEMENT.
PLEASE PRINT.
1. Owners Name, NationsBank (Carolinas) N.A. as Trustee
2. Owners Address: NCNB Real Estate Fund, \1 NationsBank Plaza, Charlotte 28255, Mr.n loyd Boyce
3. Owners Phone Number (Home):
(Work): [phone]
4. If Applicable: Agent's name or responsible corporate official, address, phone number.
Barrett Kays & Associates, P.A.
224 Fayetteville St. Mall qt-p- 100
Raleigh. NC 27601
5. Location of work (MUST ATTACH MAP). County: _Mecklenburg County, NC
Nearest Town or City: _ Huntersville, NC
Specific Location (Include road numbers, landmarks, etc.) Take I-85 to I-77, to Huntersville, get off
at Huntersville exit. Take Gilead Road west 0.02 mi to entrance of Huntersyille Business
Park, Take left onto Kincey Road and park at end,
6. Name of Closest Stream/River: Torrence Creek off Rocky Creek
7. River Basin:
Catawba River Basin
8. Is this project located in a watershed classified as Trout, SA, HQW, ORW, WS I, or WS II? YES [ ] NO [x]
9. Have any Section 404 permits been previously requested for use on this property? YES
If yes, explain.
i -i I rw .- I .-
10. Estimated total number of acres of waters of the U.S., including wetlands, located on project site: 0. fil
Qs
11. Number of acres of waters of the U.S., including wetlands, impacted by the proposed project:
Filled: 0.10 Acres
Drained:
Flooded:
Excavated:
Total Impacted: 0.10 Acres
20'd -iHlOl

NWP 33 cant,
12.. Description of proposed work (Attach PLANS-8 1/2" X I I" drawings only):
SEE ATTACHED HAP
13 Purpose of proposed work to facilitate site grading
14. State reasons why the applicant believes that this aclmry must be carrir4 out in wedar,(Is, pISQ, ns?te
taken to minimize wetland impacts. parcel 6cked?^?t Mfa'•ind wetland. Ori_gTn gt n s
grade will b-e returned to site, or permitted by NWP 26, as per S. Lund, ACOE. ~
15. You are inquired to contact the U.S. Fish and Wildlife Service (USFWS) and/or National .Marine 1~.uheries Service
MFS) rcga.rding the ptcaence or any FederaUy listed orproposcd for listing endangered or threatened cs or critical
(Nhabitat in the permit area that maybe affected by the proposed project. Have you done so? . YES j 9 NO f ]
RESPONSES FROM THE USFWS AND/OR NW3 SHOULD BE FORWARDED TO CORPS.
16. You arG rcquircd w contact the State Historic Preservation Officer (SHFO) regarding the presence of historic
Properties in the parrnit arcs which maybe affected by the ptvposad projcact? Have you done so? YES fx ] NO[
]
RESPONSE FROM THE SHPO SHOULD B13 FORWARDED TO CORPS,
17_ Additional information required by DEM;
A. Wetland delineAtioa map showing all wetlands, streams, and lakes, on the property.
$. If available repnGSOatativt photograph of wetlands to tic impaCtcd by project
C. If delineation was pcrformod by a consultant, include all data sheets Wevant to the placement of the
delineation line.
D. If a storniwater managemcnt plan is required for this project; Attach Copy.
E. Wbat is land use of surrounding property,?. rural farmland 1777 business development surrpundin
F. If applicable, what is pro posed method of sewage disposal? town sewer system
!'61-tt A511,. .
• ..r .. .. .•h`xYR'{, •?t?n ?vMY:.4 .4:;'i {..i. .- . r. ('9?`:. -«, •,J f:.til/J• {?j?,??y? Y, ']
,:•?.VKi
:•,:??: $tcxatiey . anti--Aaaociates.?...p.;A .. ..__.._._._._,?._..Y y?...
.224.Eayitteville.St. Hall
.Suite -I00' . _?__._. ..,? ....... .. .., .._...•?,. „_._w.__.....
. .. 1?leigbySNCa2?b0.1.. ,'? r _ :. _:r : •
;:(ar Ag?nt?.. ox:.Nationsbank (Carolinas)N.A. as Trustat
20'd 6S66222Z6 01 S31HI00SSH '8 SAHA 113d8H8 WOdA B2:EZ S66 -tiE-100
'FROM RALEIGH REGULATORY

10.13.1995 12:54
DATA-FORM
ROUTINE VVETLAND DETERMINATION
0087 COG Wetlands Delineation Manual)
Project/site: L t r5y l I? 4'??SI ?1 ?S S
AppGcant/Owner:
Investgator: T?Ly
Do Normal Circumstances wdst on the site?
Is the site sionificantiy d4mfted (Atypical Situation)?
Is the area a potential Problem Area?
(If needed, explain on reverse.)
VEGETATION
_ Date: O C /-
County: 14
Stste: U
Gas No Community 10:
Yes (IT
), Transect ID:
Yeses Plot ID:
rrfl 5 ed Indic etor Dominant Plsnt Soeeia_ Stream Indicator
te 10.
00
4. C, 12.
131,
6. 14.
Peroent of -MM ft Speoiaa thatasR 0!L,?FAC1/ or'F ' -
(eotoir?dhtp FAGI.
Remarks:
i
HYDROLOGY
R.aad.d Data Me*erlbe in Rolm 1: W.tland Hydroly Mficetore:
?. Sft*Wr4 Lek$, or ride Gauge Primary lrWI*MN:
_ ? Plwtogr"ho. lfwr44t*d
a
lN Recorded Data Avai" 7Cf*Wf*WLin tipper 12 IWw
,? , LQN4r Marks
?it Lbws
Raid Observonione: ?
r?Patoertr in Wadendf

Depth of Surface Water. 1 QrW Secondary Indicators (2 or More required):
dced Root Channda in Upper 12 Inches

Depth to Free Water to Pft: .2j- 0_Qn-) _ Water-Stalned l "v"
Local "Survey Data

Depth to Saturated Soil: (On.) FAC-Neutrrl Test
Other (E.lain In Remarks)
Remarks:
P.06

PROM RALEIGH REGULATORY 10.13.1995 12154 P.07
' SOILS
Map Untt No,
1
(Sofies and Phase);
.. D?a1MQe seta: /• %....?' 'r
Taxonomy (Subproup): r i Fefd Obeervstions
L

ro}Ile D«r•.s.?a.....
P
Confirm M.pped Typ.? Yee No
Depth v? Mat fx Odor
' ? '0191, un Me' Mottle Colon Mottle
un f Mel Textures Concrotfone,
i-?C1L4f1,._ 9?umlnce/C=rast
-?-` 2-,5 3 1QyP g I, L4

Hydrio Uil Indicatore•
Hhtlo Epoeden
?Sulfldic Odor oru
.? Wah Omar" Content fn Surhoe Layer in Sandy sous
a montua Rapinw ...,, 000Wc Sthaklnp to 64ndy Sofia
on Lood H
dde S
l
Li
`= C? ?aalttlene
Larr Ctaonta ?.
y
a
a
n
Nvdrlo sell. Wt ..
?-
O
Nsrrrrks:

*WrLMD OEnMMMTMN

f+tbt"MRFo Vapssadarr Preaentt
a No (Ci?ole)
Hvdtk gob Pres#m?
N NO
h tWS 540111A M Point WftNn a Wetland? Q No
Ranwka:

FR-IM RALEIGH REGULATORY

10.13.1995 12:54
DATA-FORM
ROUTINE WETLAND DETEWINATIoN
0 987 COE Wetlands Delineation Manual)
Project/Site: "v i- fTD?,J k Q 12S PQCK- Date:
Applicant/Ownar al ?Wny- County c Urcx,
Investigator: _ 73Uj State: o
Do Normal Circumstances exist on the site? No Community ID:
IS the site significantly disturbed (Atypical Situation)? Yes N? Transact 1D:
Is the area a potential Problem Area? Yes o Plot ID:Y
(If needed, explain on reverse.)
VEGETATION
QsminaM 13vt Soeci" 21= Indloetor
1. -l a C t l l'.'• Lcq DRrn10ant Plant Soeeiee Stratum Indicator
10.
3. 11.
4. ??lti? l l 12.
6• 13.
S• 14.
7. 15.
8. 1 d.
?..?
Poroertt of DerttlnWd Species tW n e O!L,sAC:Y erftC
(ertokWhV PAC-).
Retoarkes y ?I4
YLte : - ! Cif
Recorded Data (Deseribe In Renarkol: Wetland Hydrology ft icawn:
Stroafll, Lek*, or roods Gauge Primary bw1camn:
_ Aerial Photographs- _Inur44W
Other Saturated In Upper 12 Inches
VNo Recorded Oat* Avail" _ WSW Merke
.... Drift unes
.,,, Sock wit Deposits
Field Obwmdom: y ;Vinaw Patter, in WetlaMe
Secondary Indicators (2 or moro required):
Depth of Surface Water. N pn.) _ 0xkU ed Root CharwWs in Upper 12 Inches
Watw-Stahad Leaws
Depth to Free Water I" Pit: 15 1 (in.) _
Local "I Survey Dat,
FAC-Neutral Test
Depth to Saturated Soil: L) On.) .... other IE*ain In Rernarks)
Remarks:

P.06
..FROM RALEIGH REGULATORY 10. 1254
• WILS
- Mso Unit Nome
(Sorios and Ph"*): I <..
Orainaae Clam:
r .
Taxonomy (Subgroup): Said Obeervatians
Confirm Mapped Typ.? Yes.-NIZ)
P
Depth Matrix Color Mottle Colors Mottle
rr hM) Horizon 2dunaell Mo'stl urt Mei ce tam, Cow"ona,
I•----
r
Nydr(o Sail Indi=orv:
Hhrtoeoi
Hlvdc
rs ?,, ConOrsdone

---..
fldi Odo -High Organic Content In Surface Leyor In Sandy Solis
Aquio Mois?tro Rogietw WONG Strsaldng in Ssmdy Soils
-Zug on Loud Hydrla Sofia di
Rsduainp Cantoden?
-.?tiiel"ad (yaw-CtROntra tolosa et
- Odw. mown. in Rur4*J4.
R*nuks:

WETLAM 9)VrMWMTI0pj
roPMto VaQetatlen Pnoerrtt Yee
rots!
Wetland HVdrolopy Prsaer%t YM
Hydtio Seib Presom? ' Yoe Na
Remarks:
(Circle)
la this Sampling Point WltNn a Wetland? Yea No
P.07

FRAM RALEIGH REGULATORY

10.13.1995 12:54
DATA-FORM
ROUTINE WETLAND DETERMINATION
0 987 COE Wetlands Delineation Manual)
Project/Site: k?' Or Date: 1U 3 5
Applicant/OWner; County
Investigator: _ `3w State: k? C-1
Do Normal Circumstances exist on the site? No Community ID:
Is the site significantly disturbed (Atypical Situation)? es Transect ID:
Is the area a potential Problem Area? Yes o Plot ID:
(If needed, explain on reverse.)
VEGETATION ?\

Dorninem P1artt soeciea
+ K?r
Indiomr
j)gmihant Plant specie4 Stratum " Indicator
2. ko Ole 0 10.

6. 13
.
s• 14.

B, 16.

P*fO* of Dot11(nynt Speoia?a thanrK ON.,fACY ot'F
(.xAm inp FAC-).
Raut+arkst
HYDROLOGY
Recorded Data (Deseril» in Rwnarka): WwdwW HydrebQy Irld;oatota:
6Wsrt-4 Lake, or ride Gaups Prknary kwlaators:
_ Atrial PhotogrspM•
000 Inundsbd
uttbd M llpw 12 InelIff
ZNo Ra dad Data Av+eU)W W Marks
Un"

FIeW Observations: Les"M 0"t Dapoaita
jrainape Penn..ra in WedsMs
secondary Indicators (2 or r»ore required);
Depth of Surface Water. _ OnJ _ 1,CCx3disad Root Channels in Upper 12 Inches
Water-8Wnsd Laws
Depth to Ft" Water In Ptt•. U O (in-1 _
Local Soll Survey Data
FAC-Neutral Teat
Depth to Saturated Soil: UU L) On.) Y Odwr (Explain In PAnudw)

P.06

+ FRAM RALEIGH REGULATORY
10.13.1995 12:54
SOILS
Map Unit Noma
(Safi" and Phase) G?alnepa Clare: y
TaxoroonY (SubQraup): (1 Field Observanons? V
l,+ L? Confirm Mapped T ^
Yp•? Yee, No
P >i[e D.ecrietion.
?+Pth Matrix Color Mottle Colofs Morda Texturer Concredons,
fn2b2f) Horizon Imunselt Ma1st1 fmuneetl ma7;*o u ce roost St=t", zc
P.07
Hydrio Soil Itdicators•
Histowal rotlons
FBstlo Eprpadon - 4h OrOanlo Contaen to 3uffaoe Layer in Sandy Sous
_ Sulfldic 0dof o Stfeaidna in Bendy "a
QurO MOtoums R,*,,. _Z? on Loom *0114 .'toile Ust
egad" Ca *dmw s Used on Nationr Flyddo sag List
} aNyed'r Law4hrom talon Otlw. mxpwn• in Rn,1a uw .
Rarttarkt} • _ , •r-y...•. _ _ A}
• S? ? is ?/?, l•?-•../??J C"t-?,n-tw \" ?.... • ,/?J-?_..?+.. '?l'--( -
WETLAND 06Tmgm=Ti0N
Mv*"hytfo Ve"tadan Pnsenc7 C -P No cara.? ccira<.?
WetlMd Hydldopy Preoontt No
Hydtb Soils Present? ,00P No is tflia Sa11iplinp Point Within a Wetland) Yes No
Remarks:
•r?
750
° I%
,II ) ) \0
{I
F, 77-
NA 0i:

o ?.
II r? s, j
o:
o% O '
a
11 ? o Q
l7 I o 7so
O
o
I?
r\
__-
eS
\l ? II
h 40 ` II
ll , --1
u U?/v 1 ? / Il
fr,
// C r \I 11
79 7 II
O // Q
i
777
I h 8
? ?, g ? 136• ?
I ?
? 1
1 ?. ?•
726 O ?
? 1004
5511,/„0??^
IVA
ubsta ony'?? / ?' ?(
15 wba h> 1117 \ I
\cr
O •?\ s ? I ,.;? X430 .
Figure 1 BARRETT KAYS & ASSOCIATES
Site Location Map Civil Engineering / Environmentol
(riot to scale) Engineering / Environmentol Assessment
304 East Jones Street / Rol". North Corollno 27601 / 919-828-1903

. W
.

Z
a
o
5J i
14
V a
. U r
s Z .
?
N Z?
/,11% +1 Su:
•
,.i w
w Q?
(I V d y:
wa
LO
i N (? J
17 c" Q N
1

i
O
51.
I
ii
1 ..1
?r
r
I
i
I
i
I I
-l
i
!
1

1

p•?
JO

?I
' II
1
1
i
v