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HomeMy WebLinkAboutArmy Corps of Engineers Wetland DeterminationDEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS, WILMINGTON DISTRICT WILMINGTON REGULATORY OFFICE 69 DARLINGTON AVENUE WILMINGTON NORTH CAROLINA 28403 August 26, 2024 Regulatory Program/Division Sent Via Email: rcarroll@thecarrollcompanies.com Roy Carroll Bee Safe Portersneck LLC PO Box 9846 Greensboro, NC 27429 Dear Mr. Carroll: This letter is in response to your request to the Wilmington District, Wilmington Regulatory Field Office for an approved jurisdictional determination. The project/review area is located at Latitude 34.294690 and Longitude -77.789260; in Porters Neck, New Hanover County, North Carolina. The review area for this determination is limited to an approximately 33.7 acre(s) which is illustrated on the enclosed site maps. This request has been assigned the file number SAW-2024-01415 (Market Street Townhomes). This file number should be referenced in all correspondence concerning this project. Based on our review of the information you furnished, a site inspection conducted on August 15, 2024, and other information available to our office, we have determined the above-referenced area contains 1.3 acre(s) of wetland waters of the United States (U.S.) and 2,405 linear feet of Non-wetland Waters of the U.S. under U.S. Army Corps of Engineers (Corps) regulatory jurisdiction. The site also contains 1.3 acers of excluded non jurisdictional open water pond area. These waters are identified in the enclosed site maps and Post USACE Sketch dated August 15, 2024. This determination was made in accordance with the Corps regulatory authority pursuant to Section 404 of the Clean Water Act, and based upon criteria contained in the 1987 Corps of Engineers Wetland Delineation Manual and the Atlantic and Gulf Coastal Plain regional supplement. This determination is valid for a period of five years from the date of the letter, unless new information warrants revision of the determination before the expiration date or a District Engineer has identified, after public notice and comment, that specific geographic areas with rapidly changing environmental conditions merit re-verification on a more frequent basis. This letter contains an approved jurisdictional determination for your subject site. If you object to this determination, you may request an administrative appeal under Corps regulations at 33 CFR Part 331. Enclosed you will find a Notification of Appeal Process (NAP) fact sheet and request for appeal (RFA) form. If you request to appeal this determination you must submit a completed RFA form to the Division Appeals Officer at the address listed on the RFA form. In order for an RFA to be accepted by the Corps, the Corps must determine that it is complete, that it meets the criteria for appeal under 33 CFR part 331.5, and that it has been received by the Division Office within 60 days of the date of the NAP. Should you decide to submit an RFA form, it must be received by the Corps by October 20, 2024. It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this correspondence. Section 404 of the Clean Water Act requires a Department of the Army (DA) permit be obtained prior to the discharge of dredged or fill material into waters of the United States, including wetlands. Section 10 of the Rivers and Harbors Act of 1899 requires a DA permit be obtained for any work in, on, over or under navigable waters of the United States. This determination has been conducted to identify the limits of Corps’ Clean Water Act jurisdiction for the review area identified in this request. The determination may not be valid for the wetland conservation provisions of the Food Security Act of 1985. If you or your tenant are USDA Program participants, or anticipate participation in USDA programs, you should request a certified wetland determination from the local office of the Natural Resources Conservation Service, prior to starting work. You are cautioned that work performed below the mean high-water line or ordinary high water line in waters of the United States; and/or, the discharge of dredged or fill material into any areas identified on the enclosed information as within Federal jurisdiction, without a Department of the Army permit could subject you to enforcement action. Receipt of a permit from a state or local municipality does not obviate the requirement for obtaining a Department of the Army permit. If you have any questions concerning this correspondence, please contact Brad Shaver, Project Manager of the Wilmington Regulatory Field Office at 910-251-4611, by mail at the above address, or by email at brad.e.shaver@usace.army.mil. Please take a moment to complete our customer satisfaction survey located at https://regulatory.ops.usace.army.mil/customer-service-survey/. Sincerely, Brad Shaver Project Manager Enclosures cc: Mark Westendorff, Davey Resource Group (via mark.westendorff@davey.com) Herbert Parham (my hep@yahoo.com) Kim Williams, DRG Brad Shaver Digitally signed by Brad Shaver Date: 2024.08.26 09:54:07 -04'00' R R RR b10 a20 a10 DP2 Up DP1 Up DP2 Wet DP1 Wet c1 tt pl b1 tt pl a1 tt pl c10 tt pl b25 tt pl a31 tt pl T2 T1 T3 W2 W1 ExP1 NOTE: This is not a survey. All boundaries and distances are consideredapproximate. This represents a preliminary sketch prepared from field notes.A survey of delineated areas and review and approval by the U.S. ArmyCorps of Engineers is recommended prior to specific site planning. 3805 Wrightsville AvenueWilmington, NC 28403(910) 452-0001 Post USACE OnsiteSection 404/401Preliminary WetlandDelineation Sketch L:\WETLANDS\2024 WETLANDS FILES\P.ENV0002402 --- 24 - Market St Townhomes, CIP\MAPSBoundaries are approximate and not meant to be absolute.Map Source: 2020 NC OneMap Scale applies to 11X17" print. Market St. TownhomesNew Hanover County, NC Map Date: Updated August 15, 2024P.ENV0002402 0 250 500125Feet¯ Legend Project Area ~33.7 Acres Uplands ~31.1 Acres (92%) Wetland Waters of the US ~1.3 Acres (4%) Non-Jurisdictional Pond (Excluded) ~1.3 Acres (4%) Non-wetland Waters of the US (Tributary) ~2,405 lf R Data Points -1- NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND REQUEST FOR APPEAL Applicant: Roy Carroll, Bee Safe Portersneck LLC File Number: SAW-2024-01415 Date: 8/26/2024 Attached is: See Section below ܆ INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) A ܆ PROFFERED PERMIT (Standard Permit or Letter of permission) B ܆ PERMIT DENIAL WITHOUT PREJUDICE C ܆ PERMIT DENIAL WITH PREJUDICE D ܈ APPROVED JURISDICTIONAL DETERMINATION E ܆ PRELIMINARY JURISDICTIONAL DETERMINATION F SECTION I The following identifies your rights and options regarding an administrative appeal of the above decision. Additional information may be found at https://www.usace.army.mil/Missions/Civil-Works/Regulatory- Program-and-Permits/appeals/ or Corps regulations at 33 CFR Part 331. A: INITIAL PROFFERED PERMIT: You may accept or object to the permit x ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. x OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer. Upon receipt of your letter, the district engineer will evaluate your objections and may: (a) modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or (c) not modify the permit having determined that the permit should be issued as previously written. After evaluating your objections, the district engineer will send you a proffered permit for your reconsideration, as indicated in Section B below. B: PROFFERED PERMIT: You may accept or appeal the permit x ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. x APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. -2- C. PERMIT DENIAL WITHOUT PREJUDICE: Not appealable You received a permit denial without prejudice because a required Federal, state, and/or local authorization and/or certification has been denied for activities which also require a Department of the Army permit before final action has been taken on the Army permit application. The permit denial without prejudice is not appealable. There is no prejudice to the right of the applicant to reinstate processing of the Army permit application if subsequent approval is received from the appropriate Federal, state, and/or local agency on a previously denied authorization and/or certification. D: PERMIT DENIAL WITH PREJUDICE: You may appeal the permit denial You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. E: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new information for reconsideration x ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of this notice means that you accept the approved JD in its entirety and waive all rights to appeal the approved JD. x APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. x RECONSIDERATION: You may request that the district engineer reconsider the approved JD by submitting new information or data to the district engineer within 60 days of the date of this notice. The district will determine whether the information submitted qualifies as new information or data that justifies reconsideration of the approved JD. A reconsideration request does not initiate the appeal process. You may submit a request for appeal to the division engineer to preserve your appeal rights while the district is determining whether the submitted information qualifies for a reconsideration. F: PRELIMINARY JURISDICTIONAL DETERMINATION: Not appealable You do not need to respond to the Corps regarding the preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an approved JD (which may be appealed), by contacting the Corps district for further instruction. Also, you may provide new information for further consideration by the Corps to reevaluate the JD. POINT OF CONTACT FOR QUESTIONS OR INFORMATION: If you have questions regarding this decision you may contact: District Engineer, Wilmington Regulatory Division Attn: Brad Shaver Wilmington District U.S. Army Corps of Engineers 69 Darlington Ave Wilmington, NC 28403 If you have questions regarding the appeal process, or to submit your request for appeal, you may contact: Krista Sabin Regulatory Administrative Appeal Review Officer U.S. Army Corps of Engineers South Atlantic 60 Forsyth Street Room M9 Atlanta, Georgia 30303-8801 Phone: 904-314-9631 Email: Krista.D.Sabin@usace.army.mil SECTION II – REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT -3- REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an initial proffered permit in clear concise statements. Use additional pages as necessary. You may attach additional information to this form to clarify where your reasons or objections are addressed in the administrative record.) ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However, you may provide additional information to clarify the location of information that is already in the administrative record. RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 15-day notice of any site investigation and will have the opportunity to participate in all site investigations. _______________________________ Signature of appellant or agent. Date: Email address of appellant and/or agent: Telephone number: DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS, WILMINGTON DISTRICT 69 DARLING AVENUE WILMINGTON, NORTH CAROLINA 28403 [CESAW-RG-L] [21 August 2024] MEMORANDUM FOR RECORD SUBJECT: US Army Corps of Engineers (Corps) Approved Jurisdictional Determination in accordance with the “Revised Definition of ‘Waters of the United States’”; (88 FR 3004 (January 18, 2023) as amended by the “Revised Definition of ‘Waters of the United States’; Conforming” (8 September 2023) ,1 [SAW-2024-01415] [MFR 1 of 1]2 BACKGROUND. An Approved Jurisdictional Determination (AJD) is a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel. AJDs are clearly designated appealable actions and will include a basis of JD with the document.3 AJDs are case-specific and are typically made in response to a request. AJDs are valid for a period of five years unless new information warrants revision of the determination before the expiration date or a District Engineer has identified, after public notice and comment, that specific geographic areas with rapidly changing environmental conditions merit re-verification on a more frequent basis.4 On January 18, 2023, the Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) published the “Revised Definition of ‘Waters of the United States,’” 88 FR 3004 (January 18, 2023) (“2023 Rule”). On September 8, 2023, the agencies published the “Revised Definition of ‘Waters of the United States’; Conforming”, which amended the 2023 Rule to conform to the 2023 Supreme Court decision in Sackett v. EPA, 598 U.S., 143 S. Ct. 1322 (2023) (“Sackett”). This Memorandum for Record (MFR) constitutes the basis of jurisdiction for a Corps AJD as defined in 33 CFR §331.2. For the purposes of this AJD, we have relied on Section 10 of the Rivers and Harbors Act of 1899 (RHA),5 the 2023 Rule as amended, 1 While the Revised Definition of “Waters of the United States”; Conforming had no effect on some categories of waters covered under the CWA, and no effect on any waters covered under RHA, all categories are included in this Memorandum for Record for efficiency. 2 When documenting aquatic resources within the review area that are jurisdictional under the Clean Water Act (CWA), use an additional MFR and group the aquatic resources on each MFR based on the TNW, the territorial seas, or interstate water that they are connected to. Be sure to provide an identifier to indicate when there are multiple MFRs associated with a single AJD request (i.e., number them 1, 2, 3, etc.). 3 33 CFR 331.2. 4 Regulatory Guidance Letter 05-02. 5 USACE has authority under both Section 9 and Section 10 of the Rivers and Harbors Act of 1899 but for convenience, in this MFR, jurisdiction under RHA will be referred to as Section 10. [CESAW-RG-L] SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2024-01415] 2 as well as other applicable guidance, relevant case law, and longstanding practice in evaluating jurisdiction. 1. SUMMARY OF CONCLUSIONS. a. Provide a list of each individual feature within the review area and the jurisdictional status of each one (i.e., identify whether each feature is/is not a water of the United States and/or a navigable water of the United States). i. Name of Aquatic Resource JD or Non-JD Section 404/Section 10 W1 JD Section 404 W2 JD Section 404 T1 JD Section 404 T2 JD Section 404 T3 JD Section 404 Excluded Pond Non-JD N/A 2. REFERENCES. a. “Revised Definition of ‘Waters of the United States,’” 88 FR 3004 (January 18, 2023) (“2023 Rule”) b. “Revised Definition of ‘Waters of the United States’; Conforming” 88 FR 61964 (September 8, 2023)) c. Sackett v. EPA, 598 U.S. _, 143 S. Ct. 1322 (2023) 3. REVIEW AREA. A. Project Are Size (in acres): 33.7 B. Center Coordinates of the Project Site (in decimal degrees) Latitude: 34.294687 Longitude: -77.78926 C. Nearest City or Town: Wilmington D. County: New Hanover E. State: North Carolina F. Other associated Jurisdictional Determinations (including outcomes): N/A G. Any additional, relevant site-specific information: The site was visited a few days after a major rain even that dropped almost 12” of rain. [CESAW-RG-L] SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2024-01415] 3 4. NEAREST TRADITIONAL NAVIGABLE WATER (TNW), THE TERRITORIAL SEAS, OR INTERSTATE WATER TO WHICH THE AQUATIC RESOURCE IS CONNECTED. A. Name of nearest downstream TNW, Territorial Sea or interstate water: The site drains toward Pages Creek which becomes tidal before it enters into the Intracoastal Waterway. B. Determination based on: This determination was made based on a review of desktop data resources listed in Section 9 of this memorandum and a field visit conducted on 8/15/2024, a review of the SAW Section 10 list, and documented (include in AR) occurrences of boating traffic on the identified water. 5. FLOWPATH FROM THE SUBJECT AQUATIC RESOURCES TO A TNW, THE TERRITORIAL SEAS, OR INTERSTATE WATER. The tributaries (T1, T2, and T3) are relatively permanent waters (RPWs) and are an unnamed tributaries to Pages Creek (located approximately 5,000 feet to the south where it becomes tidally influenced), a traditionally navigable water (TNW). The Ordinary High-Water Mark (OHWM) of the unnamed tributaries were indicated by the following physical characteristics: natural line impressed on the bank, shelving, absence of vegetation, scour, and bed and banks. The wetlands (W1 and W2) meet the hydrophytic vegetation, wetland hydrology, and hydric soil criteria of the 1987 Corps of Engineers Wetland Delineation Manual and the Atlantic and Gulf Coastal Plain Regional Supplement and are contiguous with the unnamed tributaries. 6. SECTION 10 JURISDICTIONAL WATERS6: Describe aquatic resources or other features within the review area determined to be jurisdictional in accordance with Section 10 of the Rivers and Harbors Act of 1899. Include the size of each aquatic resource or other feature within the review area and how it was determined to be jurisdictional in accordance with Section 10.7 [N/A] 6 33 CFR 329.9(a) A waterbody which was navigable in its natural or improved state, or which was susceptible of reasonable improvement (as discussed in § 329.8(b) of this part) retains its character as “navigable in law” even though it is not presently used for commerce, or is presently incapable of such use because of changed conditions or the presence of obstructions. 7 This MFR is not to be used to make a report of findings to support a determination that the water is a navigable water of the United States. The district must follow the procedures outlined in 33 CFR part 329.14 to make a determination that water is a navigable water of the United States subject to Section 10 of the RHA. [CESAW-RG-L] SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2024-01415] 4 7. SECTION 404 JURISDICTIONAL WATERS: Describe the aquatic resources within the review area that were found to meet the definition of waters of the United States in accordance with the 2023 Rule as amended, consistent with the Supreme Court’s decision in Sackett. List each aquatic resource separately, by name, consistent with the naming convention used in section 1, above. Include a rationale for each aquatic resource, supporting that the aquatic resource meets the relevant category of “waters of the United States” in the 2023 Rule as amended. The rationale should also include a written description of, or reference to a map in the administrative record that shows, the lateral limits of jurisdiction for each aquatic resource, including how that limit was determined, and incorporate relevant references used. Include the size of each aquatic resource in acres or linear feet and attach and reference related figures as needed. a. Traditional Navigable Waters (TNWs) (a)(1)(i): [N/A.] b. The Territorial Seas (a)(1)(ii): [N/A] c. Interstate Waters (a)(1)(iii): [N/A.] d. Impoundments (a)(2): [N/A.] e. Tributaries (a)(3): Name of Aquatic Resource Size (in linear feet) Flow Regime and additional description of the tributary Method for determining flow regime T1 675 See attached delineation map Observed flow during site visit during site visit. T2 1,620 See attached delineation map Observed flow during site visit during site visit. T3 110 See attached delineation map Observed flow during site visit during site visit. f. Adjacent Wetlands (a)(4): Name of Aquatic Resource Size (in acres) Contiguous with or abutting? If so, list water Describe continuous surface connection W1 0.1 Yes, T2 The wetland boundary is connecting and contiguous with stream T2, an RPW. W2 1.2 Yes, T2 The wetland boundary is connecting and contiguous with stream T2, an RPW. g. Additional Waters (a)(5): [N/A] [CESAW-RG-L] SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2024-01415] 5 8. NON-JURISDICTIONAL AQUATIC RESOURCES AND FEATURES a. Describe aquatic resources and other features within the review area identified in the 2023 Rule as amended as not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5). Include the type of excluded aquatic resource or feature, the size of the aquatic resource or feature within the review area and describe how it was determined to meet one of the exclusions listed in 33 CFR 328.3(b).8 Name of excluded feature Size (in acres) Specific exclusion (b)(1) - (b)(8) ExP1 1.3 (b)(5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing. b. Describe aquatic resources and features within the review area that were determined to be non-jurisdictional because they do not meet one or more categories of waters of the United States under the 2023 Rule as amended (e.g., tributaries that are non-relatively permanent waters; non-tidal wetlands that do not have a continuous surface connection to a jurisdictional water). [N/A] 9. DATA SOURCES. List sources of data/information used in making determination. Include titles and dates of sources used and ensure that information referenced is available in the administrative record. a. 1. Date of Office (desktop review):8/21/2024 2. Date(s) of Field Review (if applicable):8/15/2024 b. Data sources used to support this determination (included in the administrative record). ☒ Aquatic Resources delineation submitted by, or on behalf of, the requestor: Title and Date AJD package from Davey Resource Group ☐ Aquatic Resources delineation prepared by the USACE: Title and Date ☐ Wetland field data sheets prepared by the Corps: Title and Date ☐ OHWM data sheets prepared by the USACE: Title and Date ☐ Previous JDs (AJD or PJD) addressing the same (or portions of the same) review area: ORM Numbers and Dates ☐ Photographs: Source, Title, and Dates ☒ Aerial Imagery: Sources, Title, and Dates 2020 NC One Map ☒ LIDAR: Sources, Title, and Dates 2014 QL2 Lidar 8 88 FR 3004 (January 18, 2023) [CESAW-RG-L] SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2024-01415] 6 ☒ USDA NRCS Soil Survey: Title and Dates GIS Data New Hanover County ☐ USFWS NWI maps: Title and Dates ☒ USGS topographic maps: Title and Dates 7.5 minute Topo Scotts Hill ☐ USGS NHD data/maps: Title and Dates ☐ Section 10 resources used: Title and Dates ☐ NCDWR stream identification forms ☐ North Carolina Stream Assessment Method (NCSAM) forms ☐ North Carolina Wetland Assessment Method (NCWAM) forms ☒ Antecedent Precipitation Tool Analysis: List Date(s) 4/12-5/12 2024 ☐ Other sources of Information: List 10. OTHER SUPPORTING INFORMATION. [N/A] 11. NOTE: The structure and format of this MFR were developed in coordination with the EPA and Department of the Army. The MFR’s structure and format may be subject to future modification or may be rescinded as needed to implement additional guidance from the agencies; however, the approved jurisdictional determination described herein is a final agency action.