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Home My WebLink About20180198 Ver 3_Buffer Appeal_20191028ROY COOPER Governor MICHAEL S. REGAN Secretary LINDA CULPEPPER Director NORTH CAROLINA Environmental Quality October 28, 2019 DWQ Project #: 2018-01980 Johnston County Wildlands Engineering, Inc. Attn: Angela Allen 312 W. Millbrook Rd, Suite 225 Raleigh, NC 27609 Re: On -Site Determination for Applicability to the Neuse Riparian Area Protection Rules (15A NCAC 0213.0233 Dear Ms. Allen: On October 15, 2019, the Division of Water Resources (DWR) received your request to appeal an on -site determination made by DWR on April 4, 2018 as provided in 15A NCAC 02B .0233 (3) (Neuse Buffer Rule). The appeal requested a reclassification of a feature known as T4-Reach 3 to be consistent with the preliminary jurisdiction determination (JD) provided by the US Army Corps of Engineers (USACE) issued on March 22, 2019. The USACE determined T4-Reach 3 to be at least an intermittent stream. Staff of DWR did not conduct an on -site determination to review the preliminary JD by the USACE. The DWR has determined that the feature labeled T4-Reach 3 and shown on the attached map is at least an intermittent stream as determined by the USACE and therefore is subject to the Neuse Buffer Rule. This determination shall replace the determination originally performed by DWR on April 4, 2018. This determination can be contested as provided in General Statute 150B by filing a written petition for an administrative hearing to the Office of Administrative Hearings (hereby known as OAH) within sixty (60) calendar days. A petition form may be obtained from the OAH at littp:i/www.iicoali.com/ or by calling the OAH Clerk's Office at (919) 431-3000 for information. A petition is considered filed when the original and one (1) copy along with any applicable OAH filing fee is received in the OAH during normal office hours (Monday through Friday between 8:00am and 5:00pm, excluding official state holidays). The petition may be faxed to the OAH at (919) 431-3100, provided the original and one copy of the petition along with any applicable OAH filing fee is received by the OAH within five (5) business days following the faxed transmission. North Carolina Department of Environmental Quality I Division of Water Resources _ �� 512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699 1617 919.707.9000 Sassarixa Swamp Site Wildlands Engineering, Inc. October 28, 2019 Mailing address for the OAH: ►fsending via U.S. Postal Service: If sending via delivery service (UPS, FedEx, etc.) Office of Administrative Hearings Office of Administrative Hearings 6714 Mail Service Center 1711 New Hope Church Road Raleigh, NC 27699-6714 Raleigh, NC 27609-6285 One (1) copy of the petition must also be served to DENR: William F. Lane, General Counsel Department of Environmental Quality 1601 Mail Service Center Raleigh, NC 27699-1601 This stream and its associated riparian buffers should be identified on any future plans for this property. The owners (or future owners) should notify the DWR (and other relevant agencies) of this decision in any future correspondences concerning this property. This letter does not approve any activity within the riparian buffers. Nor does this letter approve any activity within Waters of the United States or Waters of the State. Any inquiries regarding applicability to the Clean Water Act should be directed to the US Army Corps of Engineers Raleigh Regulatory Field Office at (919)- 554-4884. Sincerely, Mac Haupt, Acting Supervisor 401 & Buffer Permitting Unit MH/km Enclosures: Figure 3b Site Map, USACE Preliminary JD cc: DWR RO- Stephanie Goss 401 & Buffer Permitting Branch files Jeremiah Dow - Division of Mitigation Services (via electronic mail) Filename: 18-0198v3SassarixaSwamp oohnston)_bufferappeal Page 2 of 2 Figure 3b Site Map - Sheet 2 Sassariala Swamp Mitigation Site W I L D L A N D S 0 150 300 Feet Neuse River Basin (03020201( ENGINEERING t t i /ohoston County, NC U.S. ARMY CORPS OF ENGINEERS WILMINGTON DISTRICT Action Id. SAW-2018-00432 County: JOHNSTON U.S.G.S. Quad: FOUR OAKS NOTIFICATION OF JURISDICTIONAL DETER.NIINATION Requestor: Wildlands Engineering, Inc. Mr. Charlie Neaves Address: 312 West Millbrook Raleigh, North Carolina 27609 Size (acres) = 3 Nearest Waterway Black Creek USGS HUC 03020201 Nearest Town Smithfield River Basin Neuse River Coordinates Latitude:35.473294 Longitude:-78.437318 Location description: The project area is identified as an approximate 83 acre tract of land, located at 160 Old Olive Road, Smithfield, Johnston County, North Carolina. Waters on -site drain into Sassarhm Creek and Black Creek: both are within the Neuse River watershed (8-diait HUC: 03020201). Indicate Which of the Following Apply: A. Preliminary Determination X There are waters, including wetlands, on the above described project area, that may be subject to Section 404 of the Clean Water Act (CWA)(33 USC § 1344) and/or Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403). The waters, including wetlands, have been delineated, and the delineation has been verified by the Corps to be sufficiently accurate and reliable. Therefore this preliminary jurisdiction determination may be used in the permit evaluation process, including determining compensatory mitigation. For purposes of computation of impacts, compensatory mitigation requirements, and other resource protection measures, a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S. This preliminary determination is not an appealable action under the Regulatory Program Administrative Appeal Process (Reference 33 CFR Part 331). However, you may request an approved JD, which is an appealable action, by contacting the Corps district for further instruction. There are wetlands on the above described property, that may be subject to Section 404 of the Clean Water Act (CWA)(33 USC § 1344) and/or Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403). However, since the waters, including wetlands, have not been properly delineated, this preliminary jurisdiction determination may not be used in the permit evaluation process. Without a verified wetland delineation, this preliminary determination is merely an effective presumption of CWA/RHA jurisdiction overall of the waters, including wetlands, at the project area, which is not sufficiently accurate and reliable to support an enforceable permit decision. We recommend that you have the waters of the U.S. on your property delineated. As the Corps may not be able to accomplish this wetland delineation in a timely manner, you may wish to obtain a consultant to conduct a delineation that can be verified by the Corps. B. Approved Determination There are Navigable Waters of the United States within the above described property subject to the permit requirements of Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403) and Section 404 of the Clean Water Act (CWA)(33 USC § 1344). Unless there is a change in law or our published regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification. _ There are waters of the U.S., including wetlands, on the above described project area subject to the permit requirements of Section 404 of the Clean Water Act (CWA) (33 USC § 1344). Unless there is a change in the law or our published regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification. We recommend you have the waters of the U.S. on your property delineated. As the Corps may not be able to accomplish this wetland delineation in a timely manner, you may wish to obtain a consultant to conduct a delineation that can be verified by the Corps. Page 1 of 2 SAW-2018-00432 SASSARIXA SWAMP DAIS SITE _ The waters of the U.S., including wetlands, on your project area have been delineated and the delineation has been verified by the Corps. We strongly suggest you have this delineation surveyed. Upon completion, this survey should be reviewed and verified by the Corps. Once verified, this survey will provide an accurate depiction of all areas subject to CWA jurisdiction on your property which, provided there is no change in the law or our published regulations, may be relied upon for a period not to exceed five years. _ The waters of the U.S., including wetlands, have been delineated and surveyed and are accurately depicted on the plat signed by the Corps Regulatory Official identified below on . Unless there is a change in the law or our published regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification. There are no waters of the U.S., to include wetlands, present on the above described project area which are subject to the permit requirements of Section 404 of the Clean Water AM (33 USC 1344). Unless there is a change in the law or our published regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification. The property is located in one of the 20 Coastal Counties subject to regulation under the Coastal Area Management Act (CAMA). You should contact the Division of Coastal Management in Morehead City, NC, at (252) 808-2808 to determine their requirements. Placement of dredged or fill material within waters of the US, including wetlands, without a Department of the Army permit may constitute a violation of Section 301 of the Clean Water Act (33 USC § 1311). Placement of dredged or fill material, construction or placement of structures, or work within navigable waters of the United States without a Department of the Army permit may constitute a violation of Sections 9 and/or 10 of the Rivers and Harbors Act (33 USC § 401 and/or 403). If you have any questions regarding this determination and/or the Corps regulatory program, please contact Ms. Samantha Dailey at 919-5544M. ext. 22 or by email at Samantha.J.DailevCa usace.armv.mil. C. Basis For Determination: N/A. An Approved JD has not been completed. D. Remarks: Refer to the enclosed Preliminary JD Form and Figures 3, 3a, 3b, and 3c for a detailed evaluation of the aquatic resources on -site. E. Attention USDA Program Participants This delineation/determination has been conducted to identify the limits of Corps' Clean Water Act jurisdiction for the particular site identified in this request. The delineation/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. F. Appeals Information for Approved Jurisdiction Determinations (as indicated in Section B. above) 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 following address: US Army Corps of Engineers South Atlantic Division Attn: Jason Steele, Review Officer 60 Forsyth Street SW, Room IOM 15 Atlanta, Georgia 30303-8801 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 33 L5, 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 at the above address by SAW-2018-0(M32 SASSARIxA SWAMP DMS SITE It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this correspondence.tally signed by DAILEY.SAMANTHA DAIILEYSAMANTHAJ.1387567948 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, Corps Regulatory Official: •J•1387567948 _ Date20;;0,Zz;E„Zfr3-OVO J.1387567948 Date: March 22, 2019 Expiration Date: N/A The Wilmington District is committed to providing the highest level of support to the public. To help us ensure we continue to do so, please complete our Customer Satisfaction Survey, located online at http://corysmai)u.usace.anny.mil/cm auex/PP=136:4:0. Table 1. Summary of On -Site Jurisdictional Waters Feature Latitude longitude Cowardin Class Estimated Amount of Aqua tic Class of Aquatic Resource Resource in Review Area Sassarixa Creek 35,475377 -78.446255 Riverine-Unconsolidated Bottom 3142 Perennial Non -Wetland Waters of the US TS 35.477619 -78.443646 Riverine-Streambed 1731 Intermittent Non -Wetland Waters of the US TIA 35.478594 -78.444288 Riverine-Streambed 384 Intermittent Non-Wedand Waters of the US TIB 35.478424 -78.444761 Riverine-Streambed 259 Intermittent Non -Wetland Waters of the US TIC 35.476262 -78.44093 Rivenne-Streambed 307 Intermittent Non -Wetland Waters of the US T2 35.474431 -78.445631 Riven 354 Intermittent Non-Wetlandne-Streambed Waters of the US T3 35.473283 -78.442523 Riverine-Unconsolidated Bottom 1190 Perennial Non -Wetland Waters of the US T4 35.47037 -78.436943 Riverine-Unconsolidated Bottom 2319 Perennial Non -Wetland - Waters of the US TS 35.469702 -78.435939 Riverine-Unconsolidated Bottom 2606 Perennial Non -Wetland Waters of the US TSA 35.476707 -78.437547 Riverine-Streambed 956 Intermittent Non -Wetland Waters of the US T56 35.47674 -78.435242 Riverine-Streambed 553 Intermittent Non -Wetland Waters of the US TSC 35.476133 -78.43458 Rivenne-Streambed 706 Intermittent Non -Wetland Waters of the US Rivenne-Unconsolidated Bottom T6 35.472774 -78.425131 1750 Perennial Non -Wetland Waters of the US