20060052 Ver 1_Public Notice_20060306

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Issue Date: March 3, 2006
Comment Deadline: April 3, 2006
Corps Action ID No. 200600366
All interested parties are hereby advised that the Wilmington District, Corps of Engineers
(Corps) has received an application for work within jurisdictional waters of the United States.
Specific plans and location information are described below and shown on the attached plans.
This Public Notice and all attached plans are also available on the Wilmington District Web Site
at www.saw.usace.armv.mil/wetlands
Applicant:
AGENT (if applicable):
Authority
Red Apple Group, LLC
Attn: J. R. Triplett
Post Office Box 689
Shallotte, North Carolina 28459
Charles F. Riggs
Charles F. Riggs and Associates, Inc.
202 Warlick Street
Jacksonville, North Carolina 28541
The Corps will evaluate this application and a decide whether to issue, conditionally issue, or
deny the proposed work pursuant to applicable procedures of Section 404 of the Clean Water
Act.
Location
The proposed Peninsula at Topsail Island Subdivision project site is 8.8 acres in size and is
located adjacent to the Intracoastal Waterway, at the end of Atkinson Road, off NC Highway 50,
approximately 1.6 miles south of the traffic light at the intersection of NC Highway 210 and 50,
in Surf City, Pender County, North Carolina. (34.4149 N, 77.5672 W)
(Attachment A)

Existing Site Conditions
The property is a peninsula of land extending into the inter-tidal marsh area of Topsail Sound,
which consists of 4.016 acres of uplands, 1.904 acres of delineated Section 404 Wetlands, and
0.921 acres of delineated Coastal Wetlands. Man-made canals averaging approximately 50-60
feet in width border the property to the north and south. Approximately 2 acres of the recorded
tract is below the normal high water line of the adjacent man-made canals. The western tip of
the peninsula is bordered by Topsail Sound and the landward (eastern) end of the property is
bordered by an existing residential subdivision. The site is currently undeveloped.
The North Carolina Division of Water Quality classifies the waters of Topsail Sound and the
man-made canals, in the vicinity of the project area, as "SA". The area is not designated as a
Primary Nursery Area by the North Carolina Division of Marine Fisheries and is open to the
harvesting of shellfish.
The peninsula was created, between the late 1960s and early 1970s, by excavating two canals
through marsh and discharging the excavated material within the marsh area between the two
canals. The canals were constructed under a permit from the U.S. Army Corps of Engineers
(Corps) issued on May 6, 1969 (AID 196900042), and from the State of North Carolina's
Division of Coastal Management in 1970. The Corp's permit expired on December 31, 1972.
Based on the review of the Division of Coastal Management's file records, the State permit was
renewed in December of 1971 and reviewed again in February 1973 for a second renewal.
Correspondence from the Division of Commercial and Sports Fisheries, dated November 6,
1973, stated, "Since the original overall project involved considerable additional fill being placed
in important marsh species, the renewal was objected to by the Division and was denied in
February 1973". This permit denial in 1973 appears to be the reason the center of the peninsula
was not filled and remains as §404 Wetlands today. This area, although vegetated with coastal
wetland species, is not considered coastal wetlands by the Division of Coastal Management.
This is due to the fact that the center portion of the peninsula, having been cut off by deposition
of excavated material, is no longer under tidal influence. However, the Corps of Engineers has
exerted jurisdiction over the wetlands in the interior of the tract. A copy of the approved wetland
delineation, signed by the Corps is included with this public notice as Attachment B.
Applicant's Stated Purpose
The applicant's purpose for this project is to develop a 371ot residential subdivision.
(Attachment C)
Project Description
The following is a brief history of past permit activities at this site. In 1989, Ruth A. King filed
an application for a CAMA Major Permit and a Corps Regional General Permit, requesting
authorization to bulkhead the perimeter of the property and to fill the entire tract, raising the
elevation by 2 feet. The application requested permission to fill approximately two acres of
wetlands in the center of the peninsula. The §401 Water Quality Certification and LAMA
Permit were subsequently denied. As a result of the State's denial, the Corps denied the
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application without prejudice on October 11, 1990 (AID 19900428). Ms. King reapplied after
making modifications to her proposal, and in November 1991, CAMA Major Permit #142-91
was issued to Ms. King conditional upon the applicant receiving all required permits and
approvals, including a §401 Water Quality Certification. The Division of Water Quality later
denied the Certification, and accordingly, the Corps denial without prejudice remained. Mrs.
King filed a takings claim against both the Environmental Management Commission and the
Coastal Resources Commission. The claim was based on: (1) the EMC's denial of her
application fora §401 Water Quality Certification to fill wetlands for the purposes of
constructing an access road for a residential subdivision; and (2) the CRC's issuance of a CAMA
Permit for the project that was conditioned on Mrs. King obtaining the §401 Certification prior to
construction. By an order dated of June 6, 1997, the North Carolina Supreme Court denied Ruth
King's petition for discretionary review. The Court of Appeals upheld the summary judgment in
favor of the State agencies on Mrs. King's takings claim.
On February 3, 1999, Mrs. King's son, Mr. Walter A. Warren, filed an application for a CAMA
Major Permit and a Corps Regional General Permit for the development of the eight-acre tract of
land into a 46-lot residential subdivision. This proposal included the filling of approximately
0.39 acres of §404 Wetlands within the center of the property for access road and driveway
construction. The Division of Coastal Management's State Permit No. 129-99 was issued on
December 22, 1999, authorizing the development as proposed. The North Carolina Division of
Water Quality issued Water Quality Certification No. 990.169 for the project on September 13,
1999, and the Corps authorized the project issuing GP 198000291 on February 11, 2000 (AID
199900928). In accordance with the conditions of the Water Quality Certification, State Permit
No. 129-99 required that a conservation easement be placed on all lots with remaining
jurisdictional wetlands and waters preventing future wetland impacts. The permit required that
these mechanisms be put in place within 30 days of the issuance of the permit. This permit was
renewed by the State on October 29, 2002 and by the Corps on November 8, 2002. Both Federal
and State permits expired on December 31, 2004.
In February 2000, aone-lane gravel access road measuring approximately 10 feet in width was
constructed on the property, resulting in the filling of a portion of the §404 Wetlands authorized
for fill. The property was sold to the Red Apple Group, LLC on July 27, 2004. On August 27,
2004, the North Carolina Division of Water Quality issued a Notice of Violation to Red Apple
Group, LLC and to Mr. Walter A. Warren for the failure to comply with the conditions of the
§401 Water Quality Certification dated September 13, 1999, which required that a conservation
easement to be placed on the property within 30 days of the date of the §404 Permit, issued by
the U.S. Army Corps of Engineers. On May 11, 2005, the Division of Coastal Management
received an application from Red Apple Group, LLC for the development of the subject
property. On June 6, 2005, the Division of Coastal Management issued a Notice of Violation to
Mr. Walter A. Warren for violating the terms and conditions of State Permit No. 129-99, for the
failure to record conservation easements on all lots with remaining jurisdictional wetlands and
waters and for the construction of the gravel road approximately 10-15 feet northeast of the
permitted alignment. On June 10, 2005, a letter was sent to Red Apple Group, LLC's agent,
Charles Riggs, notifying him that the permit application, received on May 11, 2005, would not
be processed until the Notice of Violation was resolved. After consultation with the U.S. Army
Corps of Engineers and the North Carolina Division of Water Quality, it was determined that the
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removal of the gravel road way and wetland fill would be sufficient for resolving the Notice of
Violation. Red Apple Group, LLC in early August 2005, removed the gravel road and wetland
fill.
Currently, the Red Apple Group has applied for a Department of the Army permit to fill in all
remaining Section 404 Wetlands (1.904 acres) for the construction of a street, sidewalks, utility
lines, and lots for the proposed subdivision. To mitigate for the proposed wetland impacts, the
applicant is proposing to restore/create approximately 1.992 acres of wetlands along the
perimeter of the peninsula between the proposed dwellings and the coastal wetland line. The
figures in the proposed compensatory mitigation plan (Attachment D), is inconsistent with those
in the permit application.
The Red Apple Group has chosen to leave it up to future homeowners to obtain separate permits
for individual docks and bulkheads, and therefore has not included these potential impacts in this
permit application.
Other Required Authorizations
This notice and all applicable application materials are being forwarded to the appropriate State
agencies for review. The Corps will generally not make a final permit decision until the North
Carolina Division of Water Quality (NCDWQ) issues, denies, or waives State certification
required by Section 401 of the Clean Water Act (PL 92-500). The receipt of the application and
this public notice in the NCDWQ Central Office in Raleigh serves as application to the NCDWQ
for certification. A waiver will be deemed to occur if the NCDWQ fails to act on this request for
certification within sixty days of the date of the receipt of this notice in the NCDWQ Central
Office. Additional information regarding the Clean Water Act certification may be reviewed at
the NCDWQ Central Office, 2321 Crabtree Boulevard, Raleigh, North Carolina 27604-2260.
All persons desiring to make comments regarding the application for certification under Section
401 of the Clean Water Act should do so in writing delivered to the North Carolina Division of
Water Quality (NCDWQ), 2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27609-
2260 Attention: Ms. Cyndi Karoly by March 27, 2006.
The applicant has not provided to the Corps, a certification statement that his/her proposed
activity complies with and will be conducted in a manner that is consistent with the approved
North Carolina Coastal Zone Management Program. Pursuant to 33 CFR 325.2(b)(2), the Corps
can not issue a permit for the proposed work until the applicant submits such a certification to
the Corps and the North Carolina Division of Coastal Management (NCDCM), and the NCDCM
notifies the Corps that it concurs with the applicant's consistency certification.
Essential Fish Habitat
This notice initiates the Essential Fish Habitat (EFH) consultation requirements of the
Magnuson-Stevens Fishery Conservation and Management Act. The Corps' initial
determination is that the proposed project will not adversely impact EFH or associated fisheries
managed by the South Atlantic or Mid Atlantic Fishery Management Councils or the National
Marine Fisheries Service.
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Cultural Resources
The Corps has consulted the latest published version of the National Register of Historic Places
and is not aware that any registered properties, or properties listed as being eligible for inclusion
therein are located within the project area or will be affected by the proposed work. Presently,
unknown archeological, scientific, prehistoric, or historical data may be located within the
project area and/or could be affected by the proposed work.
Endangered Species
The Corps has reviewed the project area, examined all information provided by the applicant and
consulted the latest North Carolina Natural Heritage Database. Based on available information,
the Corps has determined pursuant to the Endangered Species Act of 1973, that the proposed
project will have no effect on federally listed endangered or threatened species or their formally
designated critical habitat.
Evaluation
The decision whether to issue a permit will be based on an evaluation of the probable impacts,
including cumulative impacts, of the proposed activity on the public interest. That decision will
reflect the national concern for both protection and utilization of important resources. The
benefit, which reasonably may be expected to accrue from the proposal, must be balanced
against its reasonably foreseeable detriments. All factors which may be relevant to the proposal
will be considered including the cumulative effects thereof; among those are conservation,
economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and
wildlife values, flood hazards, flood plain values (in accordance with Executive Order 11988),
land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation,
water quality, energy needs, safety, food and fiber production, mineral needs, considerations of
property ownership, and, in general, the needs and welfare of the people. For activities involving
the discharge of dredged or fill materials in waters of the United States, the evaluation of the
impact of the activity on the public interest will include application of the Environmental
Protection Agency's 404(b)(1) guidelines.
Commenting Information
The Corps is soliciting comments from the public; Federal, State and local agencies and officials,
including any consolidate State Viewpoint or written position of the Governor; Indian Tribes and
other interested parties in order to consider and evaluate the impacts of this proposed activity.
Any comments received will be considered by the Corps to determine whether to issue, modify,
condition or deny a permit for this proposal. To make this decision, comments are used to assess
impacts on endangered species, historic properties, water quality, general environmental effects
and the other public interest factors listed above. Comments are used in the preparation of an
Environmental Assessment (EA) and/or an Environmental Impact Statement (EIS) pursuant to
the National Environmental Policy Act (NEPA). Comments are also used to determine the need
for a public hearing and to determine the overall public interest of the proposed activity.

Any person may request, in writing, within the comment period specified in this notice, that a
public hearing be held to consider the application. Requests for public hearings shall state, with
particularity, the reasons for holding a public hearing. Requests for a public hearing shall be
granted, unless the District Engineer determines that the issues raised are insubstantial or there is
otherwise no valid interest to be served by a hearing.
Written comments pertinent to the proposed work, as outlined above, will be received
by the Corps of Engineers, Wilmington District, until Spm, April 3, 2006. Comments should be
submitted in writing to Lillette Granade, delivered to 69 Darlington Avenue, Wilmington, North
Carolina 28402. Ms. Granade may be contacted at [phone].
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