STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 02 EHR 1648

|Raleigh-Durham Airport Authority, |) | |

|Petitioner, |) | |

| |) | |

|v. |) |ORDER AND DECISION |

| |) | |

|N.C. Dept. of Environment and Natural Resources, Division of |) | |

|Water Quality, |) | |

|Respondent. |) | |

This matter came for hearing before the undersigned Administrative Law Judge on November 24, 2003, upon Petitioner’s motion for summary judgment. Petitioner Raleigh-Durham Airport Authority (the “RDU Authority”) was represented by Craig Bromby. Respondent Division of Water Quality (“DWQ”) was represented by Mary Penny Thompson. Petitioner’s Motion was granted.

ISSUE

The RDU Authority raised two issues in its motion for summary judgment.

1. Whether Respondent waived the requirement for Water Quality Certification (401 Certification) by failing to issue the 401 Certification within 60 days after receipt of the RDU Authority’s application; and

2. Whether there is a riparian area within the meaning of 15A NCAC 2B .0233 to which buffer mitigation requirements apply after the removal of the stream to which the regulated area would have been riparian.

UNDISPUTED FACTS

Based on the entire record in this matter, including the filed pleadings, briefs submitted by the RDU Authority and Respondent, and discovery exchanged by the parties, this Court finds the following facts are undisputed:

1. This contested case involves the issuance of 401 Water Quality Certification No. 3386 to the RDU Authority on July 19, 2002, and reissued on August 9, 2002 (collectively, the “401 Certification”) with respect to the RDU Authority’s planned project to construct a runway safety area for the southern end of runway 5R-23L.

2. The RDU Authority submitted a request for a 401 certification by letter dated April 25, 2002 (the “401 Application”).

3. Respondent date stamped the RDU Authority’s April 25, 2002, letter as received on April 29, 2002.

4. Respondent issued the original 401 Certification to the RDU Authority on July 19, 2002.

5. Respondent issued a second 401 Certification to the RDU Authority on August 9, 2002.

6. The 401 Certification contained a condition to provide compensatory mitigation for 251,005.5 square feet of buffers in addition to mitigation requirements for 2.1 acres riparian wetlands and 2,124 linear feet of perennial streams (the July 19, 2002, 401 Certification imposed mitigation for 2.6 acres of riparian wetlands and 2.706 linear feet of perennial stream. The August 9, 2002, 401 Certification purported to “replace the one issued to the RDU Authority on July 19, 2002”).

7. The 401 Application submitted by the RDU Authority stated that the RDU Authority intended to purchase mitigation credits from the North Carolina Wetlands Restoration Program (WRP), that several meetings had been held with WRP staff, the U.S. Army Corps of Engineers, and DWQ, and that these participants had agreed that payment into the WRP would be acceptable.

8. The 401 Application states that “[o]ne of the options you have available to satisfy the compensatory mitigation requirements is through the payment of a fee to the Wetlands Restoration Fund per NCAC 2R .0503.”

9. Respondent received a copy of the WRP letter confirming the program’s acceptance of the RDU Authority’s mitigation on June 21, 2002.

10. Under the terms of a permit issued to the RDU Authority by the U.S. Army Corps of Engineers, pursuant to Section 404 of the Clean Water Act, the stream channel to which the buffer area for which mitigation is sought will be completely removed by pipe or fill.

11. Respondent’s testimony and discovery responses state that to the extent that a perennial or intermittent stream channel is completely removed by fill or pipe, then a buffer no longer needs to be maintained along the former footprint.

CONCLUSIONS

1. 15A NCAC 2B .0507 states that the Director must grant or deny an application for 401 Certification within 60 days, and that failure to take final action within 60 days shall result in waiver of the certification requirements unless any of the exceptions listed in 15A NCAC 2B .0507(a)(1) through (5) apply.

2. 15A NCAC 2H .0503(a) states that public notice of a pending 401 certification must be published “at least 15 days prior to proposed final action by the Director upon application and not more than 20 days after acceptance of a completed application.” Thus, confirmation of the public notice requirement pursuant to 15A NCAC 2H .00503(c) in not “information necessary to the Director’s decision” under 15A NCAC 2B .0507(a)(5) or (a)(3) such that an exception to the 60 day requirement is applicable.

3. Confirmation of acceptance by the WRP of payment by the RDU Authority for compensatory mitigation was not “information necessary to the Director’s decision” under 15A NCAC 2B .0507(a)(5) or (a)(3) such that an exception to the 60 day requirement was applicable.

4. Nothing in the record supports a conclusion that any information necessary to the Director’s decision was unavailable on April 29, 2002, pursuant to 15A NCAC 2B .0507(a)(5).

5. Nothing in the record supports a conclusion that the RDU Authority failed to furnish on April 29, 2002, any information necessary to the Director’s decision pursuant to 15A NCAC 2B .0507(a)(3).

6. Nothing in the record supports a conclusion that the exceptions of 15A NCAC 2B .0507(1),(2), or (4), apply to the Director’s issuance of the 401 Certification.

7. Respondent waived the certification requirements when it issued the 401 Certification more than 60 days after it received the completed 401 application on April 29, 2002.

8. 15A NCAC 2B .0233(1) states that the purpose of the Neuse River riparian buffer protection rules is “to protect and preserve existing riparian buffers in the Neuse River Basin to maintain their nutrient removal function.”

9. 15A NCAC 2B .0202(56) defines “riparian area” as an area adjacent to a body of water.

10. 15A NCAC 2B .0233 imposes restrictions on “50-foot wide riparian buffers directly adjacent to surface waters in the Neuse River Basin.”

11. Upon lawful removal of the stream by pipe or fill, there remains no surface water adjacent to a buffer area that must be maintained pursuant to 15A NCAC 2B .0233, therefore, there is no riparian area the impact to which would require mitigation.

12. No genuine issues of material fact remain in the matter before this Court which would prevent the granting of summary judgment in favor of the RDU Authority.

BASED UPON the foregoing UNDISPUTED FACTS and CONLUSIONS, the undersigned makes the following:

DECISION

Summary judgment, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, and Rule .0105 of the Rules of the Office of Administrative Hearings should be granted in favor of the RDU Authority because there is no genuine issue of material fact that, as a matter of law, Respondent waived the 401 Certification requirements pursuant to 15 A NCAC .0507, and that the buffer area at issue is not a riparian area subject to the restrictions and mitigation requirements of 15A NCAC 2B. 0233.

NOTICE

Before making its FINAL DECISION, the agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this DECISION and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

The agency is required by N.C. Gen. Stat. § 150B-36(b3) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the Environmental Management Commission.

This the 18th day of December, 2003.

______________________________________

Beecher R. Gray

Administrative Law Judge

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