Shallowford Road_Stream Appeal_6.28.24

PO Box 128, Kernersville, NC 27285
www.pilotenviro.com

June 28, 2024

Ms. Stephanie Goss
NCDEQ-DWR 401 and Permitting Branch
1617 Mail Service Center
Raleigh, North Carolina 27699

Reference: Formal Appeal - Stream Call
Approximate 16.9-Acre Tract
7825 Shallowford Road
Lewisville, Forsyth County, North Carolina
Pilot Project 10372

Dear Ms. Goss:

Pilot Environmental, Inc. (Pilot) met with Ms. Seren Homer at the approximate 16.9-acre tract
located at 7825 Shallowford Road on May 8, 2024. Drawings identifying the site are included as
attachments. During the site visit, Ms. Homer evaluated stream SA1 (Drawing 5, identified as
intermittent) as a perennial stream (reportedly scored a 33). We have not received an official
score sheet or letter from Ms. Homer. At the request of our client, we asked Ms. Homer if she
would be willing to revisit the site and evaluate the feature under its current conditions. Ms.
Homer indicated that her call was final in an e-mail dated June 27, 2024 and refused an additional
site visit indicating that it was not a feasible use of her time. I have included e-mail
correspondence between Pilot and Ms. Homer to provide record of our communication.

At the request of our client, Pilot revisited the site on June 28, 2024 to re-evaluate the stream.
The stream reach being evaluated has a stronger section that contained stagnant water in a few
of the deeper pools (area up-gradient of the culvert for 139 linear feet) and a weaker section with
a completely dry stream bed (from 139 linear feet to the site boundary). We completed a NC
DWQ Stream Identification Form Version 4.11 for the stronger reach (attached). Please note that
I asked Ms. Homer to rate the reaches separately during our initial site visit but she indicated that
she had rated the entire stream reach as one. We have included photographs documenting the
current stream conditions (attached). Based on the NC DWQ Stream Identification Form Version
4.11 (attached) and our observations of the stream, it is our opinion that the entire stream reach
is intermittent. The upper portion of it certainly dries up more frequently and provides minimal
aquatic habitat (no water or aquatic species observed).

Please accept this letter as a formal appeal and let me know if you need additional information.
I am happy to provide assistance in arranging a site visit, meeting on the site or assisting as
necessary. I appreciate your assistance in resolving this matter.

Wetland Delineation
Pilot Project 10372
June 28, 2024
2

Please contact me at [phone] if you have questions or require additional information.

Sincerely,

Michael T. Brame, PWS
Principal

Attachments: Drawing 1 – USGS Topographic Map
Drawing 2 – Web Soil Map
Drawing 2A – Published Soil Map
Drawing 3 – NWI Map
Drawing 4 – FEMA FIRM
Drawing 5 – Wetland Map
NC DWQ Stream Identification Form Version 4.11
Photographs
E-mail dated June 27, 2024

USGS Topographic Map
Shallowford Road
Approximate 16.9-Acre Tract
Lewisville, Forsyth County, NC
Pilot Project 10372
Drawing 1
USGS Topographic Map
Clemmons, NC Quadrangle
Scale: 1” = 2,000’
LEGEND
Site Boundary
Web Soil Map
Shallowford Road
Approximate 16.9-Acre Tract
Lewisville, Forsyth County, NC
Pilot Project 10372
Drawing 2
USDA Web Soil Survey
of Forsyth County, NC
Scale: 1” = 400’
LEGEND
Site Boundary
Published Soil Map
Shallowford Road
Approximate 16.9-Acre Tract
Lewisville, Forsyth County, NC
Pilot Project 10372
Drawing 2A
USDA Soil Survey
of Forsyth County, NC
Published 1976
Scale: 1” = 400’
LEGEND
Site Boundary
NWI Map
Shallowford Road
Approximate 16.9-Acre Tract
Lewisville, Forsyth County, NC
Pilot Project 10372
Drawing 3
USFWS NWI
Wetlands Mapper
Scale: 1” = 400’
LEGEND
Site Boundary
FEMA FIRM
Shallowford Road
Approximate 16.9-Acre Tract
Lewisville, Forsyth County, NC
Pilot Project 10372
Drawing 4
National Flood Hazard Layer
from FEMA Web Map Service
Scale: 1” = 1,000’
Wetland Map
Shallowford Road
Approximate 16.9-Acre Tract
Lewisville, Forsyth County, NC
Pilot Project 10372
Drawing 5
Aerial Imagery from ESRI
and Pilot GPS Data
Scale: 1” = 200’
Date: 1.08.2023
DP-1
WA 1-22
0.075 Ac.
THE LOCATIONS OF FEATURES SHOWN ON THIS MAP ARE PRELIMINARY. THEY
HAVENOTBEENVERIFIEDBYTHEUSACE.THISMAPINCLUDESGPSLOCATIONS
OF DELINEATEDFEATURES. DELINEATEDBY PILOT ON JANUARY 8, 2024.
LEGEND
Site Boundary
Perennial Stream
Intermittent Stream
Wetland
Flag Number
Data Point
Culvert
SA 1-5
DP-1
DP-2
SA1
368 LF
WB 1-7
0.063 Ac.
SA2
240 LF
WC 1-14
0.247 Ac.
Photograph 2 - View of dry stream bed with a puddle of stagnant water
(start of stronger reach).
Photograph 1 - View of dry stream bed.
SITE PHOTOGRAPHS
Photograph 3 - View of dry stream bed.
SITE PHOTOGRAPHS
From:Homer, Seren M
To:Michael Brame
Cc:Lawrence, Jennifer L CIV USARMY CESAW (USA)
Subject:RE: [External] RE: Shallowford Rd Driving Range
Date:Thursday, June 27, 2024 4:25:37 PM
Attachments:image004.png
image005.png
image001.png
image002.png
Good afternoon Michael,

Just to clarify, DWR is assessing the mitigation thresholds consistent with the USACE. As Jenni stated
below, "Any additional impacts to the stream + the ~150LF of already culverted stream need to stay
under 0.02 acres to not trigger mitigation. If mitigation is triggered, then I would not charge for
mitigation for the ~150LF portion as that part was installed long before the idea to make the golf
course even came about. So the cost of mitigation would be just the additional stream impacts, once
that mitigation threshold is triggered." This is consistent with how DWR is considering the mitigation
threshold. As such, DWR is relying on the USACE to determine cumulative impacts.

The only reason the USACE mitigation threshold is not triggered in this case versus DWR is because
(as you stated) their threshold is calculated in area versus linear footage. DWR cannot assess the
mitigation threshold using acreage/area as that is not how our regulations are written.

It is not standard practice for DWR to reconduct stream calls any time there is a disagreement with
the determination. We do not have the capacity for this to be feasible. I understand you have been
to the site several times and therefore have seen the stream in different conditions. However,
DWR's assessment is limited to the conditions on the day the determination was conducted. In
terms of the appeal process, landowners or affected parties that dispute the determination made by
the Division may request a determination by the Director of Water Resources. This determination is
final and binding, unless an appeal request is made to the Director in writing within sixty (60)
calendar days of the date the letter is issued.

Thank you,
Seren Homer (she/her)
Environmental Specialist II, Division of Water Resources
North Carolina Department of Environmental Quality
Office: [phone] | Cell: [phone]
[e-mail]

From: Michael Brame <[e-mail]>
Sent: Wednesday, June 26, 2024 9:50 AM
To: Homer, Seren M <[e-mail]>
Cc: Lawrence, Jennifer L CIV USARMY CESAW (USA) <[e-mail]>
Subject: RE: [External] RE: Shallowford Rd Driving Range

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Good Morning Seren,

I concur that conditions are drier than normal. However, the water table and associated
groundwater discharge are much less in the summer and even less in the fall and it is early
summer. It is my opinion that the stream does not contain perennial flow throughout normal
precipitation years. This is not a severe drought and it is early summer as far as the
groundwater table is concerned. Leaving the call as is unfeasible to the client as it kills his
project and effects his livelihood.

Additionally, the client can make it work if they are allowed to impact 198 additional linear
feet of stream (the USACE mitigation threshold based on acreage of impact). I don’t know
if there is leniency in the NCDEQ-DWR to not consider the impacts cumulative and use the
USACE mitigation threshold but that would work also. I have never worked on a project
where the NCDEQ-DWR cumulated impacts from a pipe that is 20 plus years old so I don’t
think this is the NCDEQ-DWRs common business practice. On projects I have been
involved with, the NCDEQ-DWR relies on the USACE to determine cumulative impacts.

It appears that the NCDEQ-DWR has options that can be used to assist a small business
owner with using a property for a driving range. The property is less than 7 miles from his
existing driving range that he was renting that he can no longer use. This property is the
only affordable property (due to the bulk of it previously being used for a landfill) that allows
him to continue his business and support his livelihood. If the NCDEQ-DWR is unwilling to
re-evaluate the stream and is going to consider the impacts cumulative to the 20 plus year
old impacts, please provide guidance on how to appeal the stream call. Thanks for your
assistance.

Sincerely,

Michael T. Brame
336.708-4620 (c)
336.310.4527 (o)
PO Box 128
Kernersville, NC 27285
www.pilotenviro.com
[e-mail]

From: Homer, Seren M <[e-mail]>
Sent: Tuesday, June 25, 2024 6:52 PM
To: Michael Brame <[e-mail]>
Cc: Lawrence, Jennifer L CIV USARMY CESAW (USA) <[e-mail]>
Subject: RE: [External] RE: Shallowford Rd Driving Range

Hi Mike,

Thanks for reaching out. Considering our current workload and the relative precipitation conditions
for the area according to NOAA's data (precipitation conditions were in the normal range when we
completed the determination and have been classified as drier than normal for the past two weeks),
I don't think an additional site visit is feasible at this time. I can certainly provide a stream
determination letter to you and your client based on our site visit. I will be in the field or out of the
office the remainder of this week, so it may be next week before I can get the letter to you. Please
let me know if you have any additional questions or need anything else in the meantime.

Thanks,
Seren Homer (she/her)
Environmental Specialist II, Division of Water Resources
North Carolina Department of Environmental Quality
Office: [phone] | Cell: [phone]
[e-mail]

From: Michael Brame <[e-mail]>
Sent: Monday, June 24, 2024 3:28 PM
To: Homer, Seren M <[e-mail]>
Cc: Lawrence, Jennifer L CIV USARMY CESAW (USA) <[e-mail]>
Subject: RE: [External] RE: Shallowford Rd Driving Range

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Good Afternoon Seren,

I stopped by the Shallowford Road site at the clients request and the stream is dry. I know
that you rated it as perennial by a couple of points during your site visit at which time it
contained flowing water and you found aquatic life. Would you like an opportunity to revisit
the site and see if you still consider the stream to be perennial in its current conditon? If
not, please send me your determination letter so that I can provide my client with his
options in moving forward. Thank-you.

Sincerely,
Michael T. Brame
336.708-4620 (c)
336.310.4527 (o)
PO Box 128
Kernersville, NC 27285
www.pilotenviro.com
[e-mail]

From: Homer, Seren M <[e-mail]>
Sent: Tuesday, May 28, 2024 2:52 PM
To: Michael Brame <[e-mail]>
Cc: Lawrence, Jennifer L CIV USARMY CESAW (USA) <[e-mail]>
Subject: RE: [External] RE: Shallowford Rd Driving Range

Hi Mike,

Mitigation will be required if the prior impacts + proposed impacts combined reach or exceed 300
LF, but mitigation would not be charged by DWR for the existing impact length.
So, if prior impacts = 150 LF and proposed impacts = 150 LF, then mitigation would be required, but
we would only charge for the additional 150 LF.

I hope this helps. Let me know if you have any other questions or wish to discuss.

Thanks,
Seren Homer (she/her)
Environmental Specialist II, Division of Water Resources
North Carolina Department of Environmental Quality
Office: [phone] | Cell: [phone]
[e-mail]

From: Lawrence, Jennifer L CIV USARMY CESAW (USA) <[e-mail]>
Sent: Tuesday, May 28, 2024 2:10 PM
To: Michael Brame <[e-mail]>
Cc: Homer, Seren M <[e-mail]>
Subject: [External] RE: Shallowford Rd Driving Range

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Report Message button located on your Outlook menu bar on the Home tab.

Hey Michael,

I think the average stream width is around 2.5 feet, so roughly 348 LF of stream impacts including
the crossing would stay under our mitigation thresholds.

Let me know if you have any other questions.

Thanks,

Jennifer Lawrence, PWS (she/her)
Regulatory Specialist, Charlotte Regulatory Field Office
U.S. Army Corps of Engineers, Wilmington District
8430 University Executive Park Drive, Suite 615
Charlotte, NC 28262

Email: [e-mail]
Cell: [phone]

From: Michael Brame <[e-mail]>
Sent: Tuesday, May 28, 2024 9:28 AM
To: Lawrence, Jennifer L CIV USARMY CESAW (USA) <[e-mail]>; Homer,
Seren M <[e-mail]>
Subject: [Non-DoD Source] RE: Shallowford Rd Driving Range

Jennifer,

What average width do you want us to use for the previous stream impacts and the
additional stream in determining the linear footage that can be impacted before reaching
the 0.02 acre threshold? It is important to know at what point 2:1 mitigation will kick in.

Seren,

Is it correct that the state mitigation (1:1 ratio) will kick in when the additional impacts
exceed ~150 feet?

Upon receiving answers, I will address the client. Based on conversations with him and his
civil, this will likely make the property unusable for a driving range. Thanks for the
assistance.

Sincerely,
Michael T. Brame
336.708-4620 (c)
336.310.4527 (o)
PO Box 128
Kernersville, NC 27285
www.pilotenviro.com
[e-mail]

From: Lawrence, Jennifer L CIV USARMY CESAW (USA) <[e-mail]>
Sent: Friday, May 24, 2024 12:48 PM
To: Michael Brame <[e-mail]>
Cc: Homer, Seren M <[e-mail]>
Subject: Shallowford Rd Driving Range

Michael,

After speaking with Seren, it looks like I’ve either misspoken or wasn’t super clear about impacts for
this site. My apologies!

The ~150LF that was already culverted is something that I would permit under a non-notifying NWP3
if they are wanting to fix the crossing/upsize the culvert without adding much to the footprint. They
could address that first and/or separately without needing to submit anything, assuming they can
follow the conditions outlined in the NWP.

Any additional impacts to the stream + the ~150LF of already culverted stream need to stay under
0.02 acres to not trigger mitigation. If mitigation is triggered, then I would not charge for mitigation
for the ~150LF portion as that part was installed long before the idea to make the golf course even
came about. So the cost of mitigation would be just the additional stream impacts, once that
mitigation threshold is triggered.

And in case I wasn’t super clear, I want to reiterate that they will need to demonstrate the purpose
and need of culverting more of the stream and why an alternative like a retaining wall above the top
of bank can’t be used.

Please call me if you have any questions. Sorry for the confusion!

Have a good weekend,

Jenni

Jennifer Lawrence, PWS (she/her)
Regulatory Specialist, Charlotte Regulatory Field Office
U.S. Army Corps of Engineers, Wilmington District
8430 University Executive Park Drive, Suite 615
Charlotte, NC 28262

Email: [e-mail]
Cell: [phone]

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