HomeMy WebLinkAbout20180198 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