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HomeMy WebLinkAbout20171606 Ver 3_USACE Permit_20200928DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS 69 DARLINGTON AVENUE WILMINGTON, NORTH CAROLINA 28403-1343 September 28, 2020 Regulatory Division Action ID: SAW-2017-02531 347 MCO LLC Roy E. Carroll II 201 North Elm Street Suite 201 Greensboro, NC 27401 Dear Mr. Carroll: Please reference your July 9, 2020, request submitted by your agent, Land Management Group, Inc., to modify the Department of the Army (DA) permit issued on January 27, 2020 to fill approximately 0.47 acre of jurisdictional wetlands and 70 linear feet of stream, and convert 3.4 acres of open water into stormwater use associated with a mixed use development. This site is located at 349 and 565 Military Cutoff Road in Wilmington, New Hanover County, North Carolina. Specifically, your request is to impact an additional 0.037 acre of jurisdictional channel and enlarge the open water pond to create two islands for the construction footprint of designated amenities. With the expansion and inclusion of the islands the pond size will remain 3.4 acres. These changes are due to a modification of the original 5/10/2019 plans for the commercial development layout of the original 5/10/2019 plans for the commercial development. Upon the review of your permit modification request, our office has determined that the modification is hereby authorized pursuant to Section 404 of the Clean Water Act provided adherence to all new, modified, and original conditions (attached). The original expiration date of December 31, 2025 remains unchanged. 1) New Special Condition: a) Prior to initiating any work in the permitted wetland impact area, a finalized copy of the Mitigation Transfer Form, signed by the Lower Cape Fear Mitigation Bank Sponsor or authorized agent, shall be provided to the Corps of Engineers Wilmington Regulatory Field Office, Attn: Ms. Rachel Capito. b) Notification of work start date shall be provided to our office two (2) weeks prior to the initiation of any construction. -2- 2) Modified Special Condition (number coincides with the original permit condition a) Special Condition (2) Work Limits: All work authorized by this permit shall be performed in strict compliance with the attached plans dated June 30, 2020, which are a part of this permit. The Permittee shall ensure that the construction design plans for this project do not deviate from the permit plans attached to this authorization. Any modification to the attached permit plans must be approved by the U.S. Army Corps of Engineers (Corps) prior to any active construction in waters or wetlands. All other permit conditions pursuant to the January 27, 2020 authorization (copy enclosed) remain applicable. If you have any questions or comments, please contact the project manager, Rachel Capito at (910) 251-4487 or Rachel.A.Capito@usace.army.mil. Sincerely, SUGG.MICKEY.Digitaly signed by SSUGGIMICKEYT.11229800830 T.1229800830 040 °2°.09.28,527:U2 Mickey Sugg, Chief Wilmington Regulatory Field Office Copies furnished with enclosures: Kim Williams-LMG- kwilliamsklmgroup.net Paul Wojoski-DWR- Paul.wojol ski(cncdenr.gov Robb Mairs-DWR- Robb.mairsgncdenr.gov Tara McPherson-DCM- Tara.macpherson(d),ncdenr.gov Brian Chambers -City of Wilmington- Brian. chambers&wilmin t�gov DEPARTMENT OF THE ARMY PERMIT Permittee: 347 MCO, LLC Mr. Roy E. Carroll II Permit No.: SAW-2017-02531 Issuing Office: CESAW-RG-L NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term "thi& office". rekrs_to the appropriate.district .or division.Affice of the-f-orps .af EngiuQ= haviug jurisdiction over the permitted activity or the appropriate official of that office acting under the authority of the commanding officer. You are authorized to perform work in accordance with the terms and conditions specified below. Project Description: This verification authorizes the discharge of fill material into 0.47 acres of wetlands and 70 linear feet of stream for the construction of a mixed use development with commercial retail, hospitality, office, residential units, and parking garages. This project, known as Carroll at the Avenue, will also impact 3.4 acres of open water jurisdictional pond in order to convert the pond for stormwater use. Project Location: The project area is located off Military Cutoff Road, between Old MacCumber Station Road and East Westwood Road, adjacent to an unnamed tributary to Howes Creek, in Wilmington, New Hanover County, North Carolina. The address for this site is 349 and 565 Military Cutoff Road, Wilmington, North Carolina 28405. General Conditions: 1. The time limit for completing the work authorized ends on December 31,_2025. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached. 2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area. 3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization. 5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions. 6. You must allow representatives from this office to 'inspect the authorized activity at anytime deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit, Special Conditions: SEE ATTACHED SPECIAL CONDITIONS Further Information: 1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to: ( ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). (X) Section 404 of the Clean Water Act (33 U.S.C. 1344). () Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413). 2. Limits of this authorization. a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law. b. This permit does not grant any property rights or exclusive privileges. c. This permit does not authorize any injury to the property or rights of others. d. This permit does not authorize interference with any existing or proposed Federal project. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following: a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes. b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. d. Design or construction deficiencies associated with the permitted work. e. Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. S. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include, but are not limited to, the following: a. You fail to comply with the terms and conditions of this permit. b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above). c. Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. 6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit, Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give favorable consideration to a request for an extension of this time limit. Your signature below, as permittee, indicates th t you accept and agree to comply with the terms and conditions of this permit. (PER MI EE) a (DATE) This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below. r 3{ q12 C. Clary., COLONEL (DATE) When the strut ures or work authorized by this permit are still in existence at the time the property is transferred, the erms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. (TRANSFEREE) (DATE) *U.S. GOVERNMENT PRINTING OFFICE: 1986 - 717-425 SPECIAL CONDITIONS Action ID: SAW-2017-02531 1. Stormwater Pond: It should be noted that the pond will be removed from Corps' permitting authority, pursuant to Section 404 of the Clean. Water Act, once NC DWR authorizes its use as a permitted stormwater facilely. The permittee shall maintain the feature in perpetuity as a 3.4 acre open water stormwater pond under the conditions of the State Stormwater Permit. Prior notification must be made to the Corps if there is any change from a wastewater facility to another designated use, as a change in use will potentially revert jurisdiction back to Corps and potentially require further authorization and/or mitigation. 2. Work Limits: All work authorized by this permit shall be performed in strict compliance With the attached plans dated 5/10/2019, which are a part of this permit. The Permittec shall ensure that the construction design plans for this project do not deviate from the permit plans attached to this authorization. Any modification to the attached permit plans must be approved by the U.S. Army Corps of Engineers (Corps) prior to any active construction in waters or wetlands. 3. Unauthorized Dredge and/or Fill: Except as authorized by this permit or any Corps - approved modification to this permit, no excavation, fill or mechanized land -clearing activities shall take place at any time in the construction or maintenance of this project, within waters or wetlands. This permit does not authorize temporary placement or double handling of excavated or fill material within waters or wetlands outside the permitted area. This prohibition applies to all borrow and fill activities connected with this project. 4. Permit Distribution: The Permittee shall require its contractors and/or agents to comply with the terms and conditions of this permit in the construction and maintenance of this project, and shall provide each of its contractors and/or agents associated with the construction or maintenance of this project with a copy of this permit. A copy of this permit, including all conditions and drawings shall be available at the project site during construction and maintenance of this project. 5. Notification of Construction Commencement and Completion: The Permittee shall notify the U.S. Army Corps of Engineers in writing prior to beginning the work authorized by this permit and again upon completion of the work authorized by this permit. 6. Reporting Address: All reports, documentation, and correspondence required by the conditions of this permit shall be submitted to the following: U-S. Army Corps of Engineers, Wilmington District Wilmington Regulatory Field Office, Attn: Rachel Capito, 69 Darlington Ave Wilmington, NC 28403, or Rachel.A.Capito@usace.anny.mil. The Permittee shall reference the following permit number, SAW-2017-02531, on all submittals. 7. Permit Revocation: The Permittee, upon receipt of a notice of revocation of this permit or upon its expiration before completion of the work will, without expense to the United States and in such time and manner as the Secretary of the Army or his authorized representative may direct, restore the water or wetland to its pre-proj ect condition. 8. Reporting Violations: Violation of these permit conditions or violation of Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act shall be reported to the Corps in writing and by telephone at: 910-251 -4487 within 24 hours of the Permitfee's discovery of the violation. 9. Endangered Species Act: The Permittee shall implement all necessary measures to ensure the authorized activity does not kill, injure, capture, harass, or otherwise harm any federally -listed threatened or endangered species. While accomplishing the authorized work, if the Pennittee discovers or observes an injured or dead threatened or endangered species, the U.S. Army Corps of Engineers, Wilmington District Wilmington Field Office, Attn: Rachel Capito at 910-251-4487, or Rachel.A.Capito@usace.army.mil will be immediately notified to initiate the required Federal coordination. 10. Maintain Flows and Circulation Patterns of Waters: Except as specified in the plans attached to this permit, no excavation, fill or mechanized land -clearing activities shall take place at any time in the construction or maintenance of this project, in such a manner as to impair normal flows and circulation patterns within waters or wetlands or to reduce the reach of waters and/or wetlands. 11. Sediment and Erosion Control: 1) During the clearing phase of the project, heavy equipment shall not be operated in surface waters or stream channels. Temporary stream crossings will be used to access the opposite sides of stream channels. All temporary diversion channels and stream crossings will be constructed of non -erodible materials. Grubbing of riparian vegetation will not occur until immediately before construction begins on a given segment of stream channel. 2) No fill or excavation impacts for the purposes of sedimentation and erosion control shall occur within jurisdictional waters, including wetlands, unless the impacts are included on the plan drawings and specifically authorized by this permit. This includes, but is not limited to, sediment control fences and other barriers intended to catch sediment losses. 3) The Permittee shall remove all sediment and erosion control measures placed in waters and/or wetlands, and shall restore natural grades on those areas, prior to project completion unless deemed necessary for the establishment of permanent stabilization. 4) The Permittee shall use appropriate sediment and erosion control practices which equal or exceed those outlined in the most recent version of the "North Carolina Sediment and Erosion Control Planning and Design Manual" to ensure compliance with the appropriate turbidity water quality standard_ Erosion and sediment control practices shall be in full compliance with all specifications governing the proper design, installation and operation and maintenance of such Best Management Practices in order to ensure compliance with the appropriate turbidity water quality standards. This shall include, but is not limited to, the immediate installation of silt fencing or similar appropriate devices around all areas subject to soil disturbance or the movement of earthen fill, and the immediate stabilization of all disturbed areas. Additionally, the project shall remain in full compliance with all aspects of the Sedimentation Pollution Control Act of 1973 (North Carolina General Statutes Chapter 113A Article 4). Adequate sedimentation and erosion control measures shall be implemented prior to any ground disturbing activities to minimize impacts to downstream aquatic resources. These measures shall be inspected and maintained regularly, especially following rainfall events. All fill material shall be adequately stabilized at the earliest practicable date to prevent sediment from entering into adjacent waters or wetlands. 12. Clean Fill: The Pern ittee shall use only clean fill material for this project. The fill material shall be free of items such as trash, construction debris, metal and plastic products, and concrete block with exposed metal reinforcement bars. Soils used for fill shall not be contaminatedwithany toxic substance in concentrations governed by Section 307 of the Clean Water Act. Unless otherwise authorized by this permit, all fill material placed in waters or wetlands shall be generated from an upland source. 13. Water Contamination: All mechanized equipment shall be regularly inspected and maintained to prevent contamination of waters and wetlands from fuels, lubricants, hydraulic fluids, or other toxic materials. In the event of a spill of petroleum products or any other hazardous waste, the Permittee shall immediately report it to the N.C. Division of Water Resources at (919) 733-3300 or (800) 858-0368 and provisions of the North Carolina Oil Pollution and Hazardous Substances Control Act shall be followed. 14. Aquatic Life Movement: No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area. All discharges of dredged or fill material within waters of the United States shall be designed and constructed to maintain low flows to sustain the movement of aquatic species. 15. Prohibitions on Concrete: The Permittee shall take measures necessary to prevent live or fresh concrete, including bags of uncured concrete, from coming into contact with any water in or entering into waters of the United States. Water inside coffer dams or casings that has been in contact with concrete shall only be returned to waters of the United States when it no longer poses a threat to aquatic organisms (concrete is set and cured). 16. Compensatory Mitigation: In order to compensate for impacts associated with this permit, mitigation shall be provided in accordance with the provisions outlined on the most recent version of the attached Compensatory Mitigation Responsibility Transfer Form. The requirements of this form, including any special conditions listed on this form, are hereby incorporated as special conditions of this permit. 17. Culverts: 1) Unless otherwise requested in the application and depicted on the approved permit plans, culverts greater than 48 inches in diameter shall be buried at least one foot below the bed of the stream. Culverts 48 inches in diameter and less shall be buried or placed on the stream bed as practicable and appropriate to maintain aquatic passage, and every effort shall be made to maintain existing channel slope. The bottom of the culvert shall be placed at a depth below the natural stream bottom to provide for passage during drought or low flow &-6 iditions. Culverts shall be designed and constructed in a manner that minimizes destabilization and head cutting. 2) Measures shall be included in the culvert construction/installation that will promote the safe passage of fish and other aquatic organisms. The dimension, pattern, and profile of the stream above and below a culvert or pipe shall not be modified by widening the stream channel or by reducing the depth of the stream in connection with the construction activity. The width, height, and gradient of a proposed opening shall be such as to pass the average historical low flow and spring flow without adversely altering flow velocity. Spring flow should be determined from gauge data, if available. In the absence of such data, bankfull flow can be used as a comparable level. 3) The Permittee shall implement all reasonable and practicable measures to ensure that equipment, structures, fill pads, work, and operations associated with this project do not adversely affect upstream and/or downstream reaches. Adverse effects include, but are not limited to, channel instability, flooding, and/or stream bank erosion. The Permittee shall routinely monitor for these effects, cease all work when detected, take initial corrective measures to correct actively eroding areas, and notify this office immediately. Permanent corrective measures may require additional authorization by the U.S. Army Corps of Engineers. 4) Culverts placed within wetlands must be installed in a manner that does not restrict the flows and circulation patterns of waters of the United States. Culverts placed across wetland fills purely for the purposes of equalizing surface water shall not be buried, but the culverts must be of adequate size and/or number to ensure unrestricted transmission of water. 18. CAMA Permit: The Permittee shall fully abide by all conditions of the CAMA Major Development Permit No- 2-20, dated January 2, 2020, issued by the North Carolina Division of Coastal Management, which are incorporated herein by reference. 19. Compliance Inspection: A representative of the Corps of Engineers will periodically and randomly inspect the work for compliance with these conditions. Deviations from these procedures may result in a directive to cease work until the problem is resolved to the satisfaction of the Corps. Compensatory Mitigation Responsibility Transfer Form Permittee: 347 MCO LLC, Roy E. Carroll it Action ID: SAW-2017-02531 Project Name: Carroll at the Avenue County: New Hanover County Instructions to Permittee: The Permittee must provide a copy of this form to the Mitigation Sponsor, either an approved Mitigation Bank or the North Carolina Division of Mitigation Services (NCDMS), who will then sign the form to verify the transfer of the mitigation responsibility. Once the Sponsor has signed this form, it is the Permittee's responsibility to ensure that to the U.S. Army Corps of Engineers (USAGE) Project Manager identified on page two is in receipt of a signed copy of this — fo-rm befare-can d-uetirrg-autfmrized ifWaet-s,-un{ess otf�emisrespec-ified belowv -if rrrorethan on-w�iH--be used to provide the mitigation associated with the permit, or if the impacts and/or the mitigation will occur in more than one 8-digit Hydrologic Unit Code (HUC), multiple forms will be attached to the permit, and the separate forms for each Sponsor and/or HUC must be provided to the appropriate mitigation Sponsors. Instructions to Sponsor: The Sponsor must verify that the mitigation requirements (credits) shown below are available at the identified site. By signing below, the Sponsor is accepting full responsibility for the identified mitigation, regardless of whether or not they have received payment from the Permittee. Once the form is signed, the Sponsor must update the bank ledger and provide a copy of the signed form and the updated bank ledger to the Permittee, the USACE Project Manager, and the Wilmington District Mitigation Office (see contact information on page 2). The Sponsor must also comply with all reporting requirements established in their authorizing instrument. Permitted Impacts and Compensatory Mitigation Requirements Permitted Impacts Requiring Mitigation*: 8-digit HUC and Basin: 03030001., White Oak River Basin Stream Impacts (linear feet) Wetland Impacts (acres) Warm Cool Cold Riparian Riverine Riparian Nan-Riverine Non -Riparian Coastal 70 0.47 *If more than one mitigation sponsor will be used for the permit, only include impacts to be mitigated by this sponsor. Compensatory Mitigation Requirements: 8-digit HUC and Basin: 03030001, White Oak Raver Basizr Stream Mitigation (credits) Wetland Mitigation (credits) Warm Cool Cold Riparian Riverine Riparian Nan-Riverine Non -Riparian Coastal 140 0.94 Mitigation Site Debited:_ Lower Cape Fear Umbrella Mitigation Bank (List the name of the bank to be debited. For umbrella banks, also list the specific site. For NCDMS, list NCDMS. If the NCDMS acceptance letter identifies a specific site, also list the specific site to be debited). Section to be completed by the Mitigation Sponsor Statement of Mitigation Liability Acceptance: I, the undersigned, verify that I am authorized to approve mitigation transactions for the Mitigation Sponsor shown below, and I certify that the Sponsor agrees to accept full responsibility for providing the mitigation identified in this document (see the table above), associated with the USACE Permittee and Action ID number shown. I also verify that released credits (and/or advance credits for NCDMS), as approved by the USACE, are currently available at the mitigation site identified above. Further, I understand that if the Sponsor fails to provide the required compensatory mitigation, the USACE Wilmington District Engineer may pursue measures against the Sponsor to ensure compliance associated with the mitigation requirements. Mitigation Sponsor Name: Name of Sponsor's Authorized Rep Signature of Sponsor's Authorized Representative Date of Signature Conditions for Transfer of Compensatory Mitigation Credit: • Once this document has been signed by the Mitigation Sponsor and the USACE is in receipt of the signed form, the Permittee is no longer responsible for providing the mitigation identified in this form, though the Permittee remains responsible for any other mitigation requirements stated in the permit conditions. • Construction within jurisdictional areas authorized by the permit identified on page one of this form can begin only after the USACE is in receipt of a copy of this document signed by the Sponsor, confirming that the Sponsor_has accepted responsibility for providinF, the mitigation requirements listed herein. For authorized impacts conducted by the North Carolina Department of Transportation (NCDOT), construction within jurisdictional areas may proceed upon permit issuance; however, a copy of this form signed by the Sponsor must be provided to the USACE within 30 days of permit issuance. NCDOT remains fully responsible for the mitigation until the USACE has received this form, confirming that the Sponsor has accepted responsibility for providing the mitigation requirements listed herein. • Signed copies of this document must be retained by the Permittee, Mitigation Sponsor, and in the USACE administrative records for both the permit and the Bank/ILF Instrument. It is the Permittee's responsibility to ensure that the USACE Project Manager (address below) is provided with a signed copy of this form. • if changes are proposed to the type, amount, or location of mitigation after this form has been signed and returned to the USACE, the Sponsor must obtain case -by -case approval from the USACE Project Manager and/or North Carolina Interagency Review Team (NCIRT). If approved, higher mitigation ratios may be applied, as per current District guidance and a new version of this form must be completed and included in the USACE administrative records for both the permit and the Bank/ILF Instrument. Comments/Additional Conditions: This form is not valid unless signed below by the USACE Project Manager and by the Mitigation Sponsor on Page I - Once signed, the Sponsor should provide copies of this form along with an updated bank ledger to: 1) the Permittee, 2) the USACE Project Manager at the address below, and 3) the Wilmington District Mitigation Office, Attn: Todd Tugwell, 3331 Heritage Trade Drive, Suite 105, Wake Forest, NC 27587 (email.. todd.tugwellgusace.army.mil). Questions regarding this form or any of the permit conditions may be directed to the USACE Project Manager below. USACE Project Manager: Rachel Capito USACE Field Office: Wilmington Regulatory Field Office US Army Corps of Engineers 69 Darlington Avenue Wilmington, NC 28403 Email: , Achel.A.Capito@usace.army.mil q-2a-,zo USACE Project Manager Signature Date of Signature Current Wilmington District mitigation guidance, including information on mitigation ratios, functional assessments, and mitigation bank location and availability, and credit classifications (including stream temperature and wetland groupings) is available at http://ribits.usace.army.mil. 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