HomeMy WebLinkAbout20201888 Ver 1_07_SAW-2020-01176_Sites1and2_PJD_Revised_20210118 U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action Id. SAW-2020-01176 County: Durham County U.S.G.S.Quad: Southwest Durham
NOTIFICATION OF JURISDICTIONAL DETERMINATION
Property Owner/Applicant: City of Durham
Dana Hornkohl
Address: 101 City Hall Plaza Suite 3100
Durham,North Carolina 27701
Telephone Number: (919)641-6465
Size(acres) —17 Nearest Town Durham
Nearest Waterway Ellerbe Creek River Basin Cape Fear
USGS HUC 03030002 Coordinates Latitude:36.017362
Longitude:-78.894166
Location description: The project area is identified as an approximate 17-acre tract of land,located at Ellerbe Creek and
UT to Ellerbe Creek between West Club and North Roxboro Road in Durham,Durham County.
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 over all 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-2020-01177
_ 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 Act(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 April Norton at 919-554-4884 or
April.RNorton(ausace.army.mil.
C. Basis For Determination: N/A.An Approved JD has not been completed.
D. Remarks: Refer to the enclosed Features Map, dated June 2020, for a detailed evaluation of aquatic
resources on-site.
E. Attention USDA Program Participants
The delineation included herein has been conducted to identify the location and extent of the aquatic resource boundaries and/or the
jurisdictional status of aquatic resources for purposes of the Clean Water Act for the particular site identified in this request.This
delineation and/or jurisdictional determination may not be valid for the Wetland Conservation Provisions of the Food Security Act of
1985,as amended.If you or your tenant are USDA program participants,or anticipate participation in USDA programs,you should
discuss the applicability of a certified wetland determination with the local USDA service center,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: Mr.Philip A. Shannin
Administrative Appeal Review Officer
60 Forsyth Street SW,Floor M9
Atlanta,Georgia 30303-8803
AND
PHILIP.A.SHANNIN@USACE.ARMY.MIL
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 331.5,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 N/A.
It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this
correspondence.
SAW-2020-01177 , /(42 ,,,
Corps Regulatory Official:
Date: August 12,2020
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://corpsmapu.usace.army.mil/cm apex/f?p=1 3 6:4:0.
Copy Furnished:
Kimley-Horn
Mackenzie Richards
421 Fayetteville Street Suite 600
Raleigh,NC,27601
SAW-2020-01177
NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND
REQUEST FOR APPEAL
Applicant: Dana Hornkohl,City of Durham File Number: SAW-2020-01177 Date: August 12,2020
Attached is: See Section below
T INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) A
r PROFFERED PERMIT (Standard Permit or Letter of permission) B
r PERMIT DENIAL C
r APPROVED JURISDICTIONAL DETERMINATION D
17 PRELIMINARY JURISDICTIONAL DETERMINATION E
SECTION I - The following identifies your rights and options regarding an administrative appeal of the above decision.
Additional information may be found at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx or
Corps regulations at 33 CFR Part 331.
A: INITIAL PROFFERED PERMIT: You may accept or object to the permit.
• ACCEPT: If you received a Standard Permit,you may sign the permit document and return it to the district engineer for fmal
authorization. If you received a Letter of Permission(LOP),you may accept the LOP and your work is authorized. Your signature
on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety,and waive all rights to appeal the
permit,including its terms and conditions,and approved jurisdictional determinations associated with the permit.
• OBJECT: If you object to the permit(Standard or LOP)because of certain terms and conditions therein,you may request that the
permit be modified accordingly.You must complete Section II of this form and return the form to the district engineer. Your
objections must be received by the district engineer within 60 days of the date of this notice,or you will forfeit your right to appeal
the permit in the future. Upon receipt of your letter,the district engineer will evaluate your objections and may: (a)modify the
permit to address all of your concerns,(b)modify the permit to address some of your objections,or(c)not modify the permit
having determined that the permit should be issued as previously written. After evaluating your objections,the district engineer
will send you a proffered permit for your reconsideration,as indicated in Section B below.
B: PROFFERED PERMIT: You may accept or appeal the permit
• ACCEPT: If you received a Standard Permit,you may sign the permit document and return it to the district engineer for fmal
authorization. If you received a Letter of Permission(LOP),you may accept the LOP and your work is authorized. Your signature
on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety,and waive all rights to appeal the
permit,including its terms and conditions,and approved jurisdictional determinations associated with the permit.
• APPEAL: If you choose to decline the proffered permit(Standard or LOP)because of certain terms and conditions therein,you
may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form
and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of
this notice.
C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative
Appeal Process by completing Section II of this form and sending the form to the division engineer. This form
must be received by the division engineer within 60 days of the date of this notice.
D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or
provide new information.
• ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of
this notice means that you accept the approved JD in its entirety and waive all rights to appeal the approved JD.
• APPEAL: If you disagree with the approved JD,you may appeal the approved JD under the Corps of Engineers Administrative
Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by
the division engineer within 60 days of the date of this notice.
SAW-2020-01177
E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps
regarding the preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an approved
JD (which may be appealed), by contacting the Corps district for further instruction. Also you may provide new
information for further consideration by the Corps to reevaluate the JD.
SECTION II - REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT
REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your
objections to an initial proffered permit in clear concise statements. You may attach additional information to
this form to clarify where your reasons or objections are addressed in the administrative record.)
ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps
memorandum for the record of the appeal conference or meeting, and any supplemental information that the
review officer has determined is needed to clarify the administrative record. Neither the appellant nor the Corps
may add new information or analyses to the record. However, you may provide additional information to clarify
the location of information that is already in the administrative record.
POINT OF CONTACT FOR QUESTIONS OR INFORMATION:
If you have questions regarding this decision and/or the If you only have questions regarding the appeal process you may
appeal process you may contact: also contact:
District Engineer,Wilmington Regulatory Division, US Army Corps of Engineers
Attn:April Norton South Atlantic Division
Attn: Mr.Philip A.Shannin
Administrative Appeal Review Officer
60 Forsyth Street SW,Floor M9
Atlanta,Georgia 30303-8803
PHILIP.A.SHANNIN(&USACE.ARMY.MIL
RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel,and any government
consultants,to conduct investigations of the project site during the appeal process. You will be provided a 15-day notice of any
site investigation and will have the opportunity to participate in all site investigations.
Date: Telephone number:
Signature of appellant or agent.
For appeals on Initial Proffered Permits send this form to:
District Engineer,Wilmington Regulatory Division,Attn: April Norton,3331 Heritage Trade Drive,Wake Forest,
North Carolina 27587
For Permit denials,Proffered Permits and approved Jurisdictional Determinations send this form to:
Division Engineer,Commander,U.S.Army Engineer Division,South Atlantic,Attn: Mr. Philip Shannin,
Administrative Appeal Officer,CESAD-PDO,60 Forsyth Street,Room 10M15,Atlanta,Georgia 30303-8801
Phone: (404)562-5137,PHILIP.A.SHANNIN(aUSACE.ARMY.MIL
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Figure 3: Jurisdictional Features Map
** EWP Streambank Repair: Site 1 and Site 2
**ir* CITY OF Durham, Durham County, NC
DURHAM June 2020
EWP Streambank Repair: Site 1 and Site 2
Appendix 2 - PRELIMINARY JURISDICTIONAL DETERMINATION (PJD) FORM
BACKGROUND INFORMATION
A. REPORT COMPLETION DATE FOR PJD: August 12, 2020
B. NAME AND ADDRESS OF PERSON REQUESTING PJD: Mackenzie Richards;421 Fayetteville Street,Suite 600,Raleigh,NC 27601
C. DISTRICT OFFICE, FILE NAME, AND NUMBER:Raleigh Field Office, Streambank Repair, SAW-2020-01176
D. PROJECT LOCATION(S) AND BACKGROUND INFORMATION:
(USE THE TABLE BELOW TO DOCUMENT MULTIPLE AQUATIC RESOURCES AND/OR
AQUATIC RESOURCES AT DIFFERENT SITES)
State: NC County/parish/borough: Durham County City: Durham
Center coordinates of site (lat/long in degree decimal format):
Lat.: 36.017362 Long.: -78.894166
Universal Transverse Mercator: 17
Name of nearest waterbody: Ellerbe Creek
E. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY):
X❑ Office (Desk) Determination. Date:August 12, 2020
❑X Field Determination. Date(s): August 11, 2020
TABLE OF AQUATIC RESOURCES IN REVIEW AREA WHICH "MAY BE"SUBJECT TO REGULATORY
JURISDICTION.
Site Latitude Longitude Estimated amount Type of aquatic Geographic authority
number (decimal (decimal of aquatic resource resource (i.e., wetland to which the aquatic
degrees) degrees) in review area vs. non-wetland resource"may be"
(acreage and linear waters) subject(i.e.,Section
feet, if applicable) 404 or Section 10/404)
See attached table
EWP Streambank Repair: Site 1 and Site 2
1) The Corps of Engineers believes that there may be jurisdictional aquatic resources in
the review area, and the requestor of this PJD is hereby advised of his or her option
to request and obtain an approved JD (AJD)for that review area based on an
informed decision after having discussed the various types of JDs and their
characteristics and circumstances when they may be appropriate.
2) In any circumstance where a permit applicant obtains an individual permit, or a
Nationwide General Permit (NWP) or other general permit verification requiring "pre-
construction notification" (PCN), or requests verification for a non-reporting NWP or
other general permit, and the permit applicant has not requested an AJD for the
activity, the permit applicant is hereby made aware that: (1) the permit applicant has
elected to seek a permit authorization based on a PJD, which does not make an
official determination of jurisdictional aquatic resources; (2) the applicant has the
option to request an AJD before accepting the terms and conditions of the permit
authorization, and that basing a permit authorization on an AJD could possibly result
in less compensatory mitigation being required or different special conditions; (3)the
applicant has the right to request an individual permit rather than accepting the terms
and conditions of the NWP or other general permit authorization; (4) the applicant can
accept a permit authorization and thereby agree to comply with all the terms and
conditions of that permit, including whatever mitigation requirements the Corps has
determined to be necessary; (5) undertaking any activity in reliance upon the subject
permit authorization without requesting an AJD constitutes the applicant's acceptance
of the use of the PJD; (6) accepting a permit authorization (e.g., signing a proffered
individual permit)or undertaking any activity in reliance on any form of Corps permit
authorization based on a PJD constitutes agreement that all aquatic resources in the
review area affected in any way by that activity will be treated as jurisdictional, and
waives any challenge to such jurisdiction in any administrative or judicial compliance
or enforcement action, or in any administrative appeal or in any Federal court; and (7)
whether the applicant elects to use either an AJD or a PJD, the JD will be processed
as soon as practicable. Further, an AJD, a proffered individual permit(and all terms
and conditions contained therein), or individual permit denial can be administratively
appealed pursuant to 33 C.F.R. Part 331. If, during an administrative appeal, it
becomes appropriate to make an official determination whether geographic
jurisdiction exists over aquatic resources in the review area, or to provide an official
delineation of jurisdictional aquatic resources in the review area, the Corps will
provide an AJD to accomplish that result, as soon as is practicable. This PJD finds
that there "may be"waters of the U.S. and/or that there "may be"navigable waters of
the U.S. on the subject review area, and identifies all aquatic features in the review
area that could be affected by the proposed activity, based on the following
information:
EWP Streambank Repair: Site 1 and Site 2
SUPPORTING DATA. Data reviewed for PJD (check all that apply)
Checked items should be included in subject file. Appropriately reference sources
below where indicated for all checked items:
❑ Maps, plans, plots or plat submitted by or on behalf of the PJD requestor:
Map:
❑ Data sheets prepared/submitted by or on behalf of the PJD requestor.
• Office concurs with data sheets/delineation report.
❑ Office does not concur with data sheets/delineation report. Rationale:
❑ Data sheets prepared by the Corps:
❑ Corps navigable waters' study:
❑ U.S. Geological Survey Hydrologic Atlas:
❑ USGS NHD data.
❑ USGS 8 and 12 digit HUC maps.
■❑ U.S. Geological Survey map(s). Cite scale &quad name: 1:24:000 / Northwest Durham
■❑ Natural Resources Conservation Service Soil Survey. Citation: Durham County (1976)
❑ National wetlands inventory map(s). Cite name:
❑ State/local wetland inventory map(s):
❑ FEMA/FIRM maps:
❑ 100-year Floodplain Elevation is: .(National Geodetic Vertical Datum of 1929)
■❑ Photographs: • Aerial (Name & Date): NC Orthoimagery(2017)
or ❑ Other (Name & Date):
❑ Previous determination(s). File no. and date of response letter:
❑ Other information (please specify):
IMPORTANT NOTE: The information recorded on this form has not necessarily
been verified by the Corps and should not be relied upon for later jurisdictional
determinations.
Date: 2020.08.12
'4//4.4&,) 16:29:37 -04'00' 7/7/2020
Signature and date of Signature and date of
Regulatory staff member person requesting PJD
completing PJD (REQUIRED, unless obtaining
the signature is impracticable)'
1 Districts may establish timeframes for requestor to return signed PJD forms. If the requestor does not respond
within the established time frame, the district may presume concurrence and no additional follow up is
necessary prior to finalizing an action.
EWP Streambank Repair: Site 1 and Site 2
Latitude Longitude Estimated amount Type of Geographic authority to
Site which the aquatic
number (decimal (decimal of aquatic resource aquatic resource "may be"
degrees) degrees) in review area resource subject
W1 36.017669 -78.896343 0.16 ac. Wetland Section 404
Ellerbe 36.016725 -78.893190 2,003 LF Non- Section 404
Creek Wetland
S1 36.017657 -78.895334 1,567 LF Non- Section 404
Wetland
S2 36.017822 -78.897193 45 LF Non- Section 404
Wetland
S3 36.017637 -78.896088 146 LF Non- Section 404
Wetland
S4 36.017212 -78.895213 269 LF Non- Section 404
Wetland
S5 36.016397 -78.893433 125 LF Non- Section 404
Wetland
S6 36.017342 -78.893321 228 LF Non- Section 404
Wetland
S7 36.018454 -78.893638 168 LF Non- Section 404
Wetland
S8 36.015724 -78.890804 116 LF Non- Section 404
Wetland
1