20210722 Ver 1_Corps Incomplete Notification_ThorpeJolly_Letters_20210519

Wanucha, Dave
From:Williams, Andrew E CIV USARMY CESAW (USA) <Andrew.E.Williams2
@usace.army.mil>
Sent:Wednesday, May 19, 2021 11:28 AM
To:Sandy Smith
Cc:Euliss, Amy; Wanucha, Dave; Williams, Andrew E CIV USARMY CESAW (USA)
Subject:Corps Incomplete Notification_ThorpeJolly_Letters
Attachments:1September2004JollyThorpeLetter.pdf; 19Oct2004ThorpeJollyletter.pdf
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Sandy:

As always, it was good to talk with you today and discuss the proposed NCDOT Salisbury Station Project.

As we discussed, the Pre-construction notification (PCN) for the proposed NCDOT Salisbury Station Project (SAW-2019-
00063), received on May 18, 2021 is incomplete.

In order for us to continue evaluating the proposed project, please provide the following information:

1. Please consider constructing the proposed passenger platform on pilings to further reduce impacts to the stream. If
the platform cannot be constructed on pilings, please provide a brief explanation. NWP general condition #23 (a),
Mitigation, states that the activity must be designed and constructed to avoid and minimize adverse effects, both
temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on
site) and (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating) will be required to
the extent necessary to ensure that the adverse effects to the aquatic environment are minimal.

2. A proposed mitigation plan (provided #1 above does not result in impact elimination). Also, you should provide any
information, such as completed North Carolina Stream Assessment Method (NCSAM) forms, stream descriptions and
recent photographs that would assist in verifying your proposed compensatory mitigation ratio. The Nationwide Permit
(NWP) general condition 23(d), which pertains to mitigation, states, “For losses of streams or other open waters that
require pre-construction notification, the district engineer may require compensatory mitigation to ensure that the
activity results in no more than minimal adverse environmental effects.”. As described in the attached letters between
the Corps of Engineers and NCDOT dated September 1, 2004 and October 19, 2004, the Corps will require
compensatory mitigation for the stream length loss associated with this proposed project.

3. Stream bank stabilization that results in the placement of rip rap below the ordinary high water mark (OHWM) is
considered as a permanent impact (but not a loss of waters). Please provide a revised plan indicating the stream bank
impacts are permanent.

4. The PCN indicates that suitable habitat for Schweinitz's sunflower (Helianthus schweinitzii) is within the proposed
project area. As such, we will initiate informal consultation with the US Fish and Wildlife Service (USFWS) for this
species. Please provide any information that you believe would be helpful regarding this evaluation. This information
will be forwarded to USFWS for their review.

Nationwide permit condition 18 Endangered Species states, (a) No activity is authorized under any NWP which is likely
to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed
for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly
1

destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which ‘‘may
affect’’ a listed species or critical habitat, unless ESA section 7 consultation addressing the effects of the proposed
activity has been completed.

The following item was a topic of discussion, but does not make the application incomplete. However, based on our
discussion you may choose to address this.

5. This project may be eligible for authorization under Nationwide Permit #18, provided the total amount of fill below
the OHWM, is 25 cubic yards or less. If you decide that it is beneficial to you (the applicant) to have this verified under
the NWP #18, please indicate so in your response to this email, and provide the calculations of fill volume (below the
OHWM) for the project.

Please provide the requested information within 30 days, or your application will be withdrawn. Feel free to contact me
with any questions or concerns. Thanks.

Andrew Williams
Regulatory Project Manager
Regulatory Division Office
US Army Corps of Engineers, Wilmington District
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
Office Tel: [phone], x26

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 the Customer Satisfaction Survey located at our website at
https://regulatory.ops.usace.army.mil/customer-service-survey/
to complete the survey online.

2

September 1, 2004
Regulatory Division 'f , ; x
Dr. Gregory J. Thorpe, Ph.D.
Environmental Management Director, PDEA
N.C. Department of Transportation
1548 Mail Service Center
Raleigh,NC 27699-1548
Dear Dr. Thorpe:
This letter is to notify you that we will routinely require compensatory mitigation for all
general permit actions (regional general permits and nationwide permits)resulting in permanent
impacts that are requested by NCDOT. This requirement was established, in part, by the 2002
Nationwide Permit regulations and has not been actively pursued by this office due to the
development of the Ecosystem Enhancement Program (EEP). A number of discussions on this
matter have taken place with you and other NCDOT staff. Based on the current status and
capabilities of the EEP, we have decided to proceed with the implementation of this requirement.
Please note that this letter is directed to non-TIP projects. TIP projects are currently already in
compliance with these requirements.
Compensatory mitigation will be expected at a 2:1 ratio (2 restoration equivalents for 1
unit impact) for all permanent impacts to jurisdictional waters and wetlands where a Pre-
construction Notification (PCN) is required. We have suggested that the compensatory
mitigation required by our general permit verification letters and tear-sheets be assimilated by
each Division on a quarterly basis and provided to the EEP for acceptance with a copy provided
to our office for verification and accounting purposes. Once the EEP provides an acceptance
letter and receives appropriate funding, the EEP, and not NCDOT, will be responsible for the
compensatory mitigation. We believe that this approach would provide NCDOT an efficient
method for satisfying its mitigation requirements on a programmatic basis.
For this non-TIP compensatory mitigation requirement, the EEP will be expected to
comply with Year 3 protocols (as described in the Three Party Memorandum of Agreement dated
July 2003). To allow sufficient time to address these additional responsibilities, all permits
issued from the date of this letter until July 22, 2005 will require mitigation site construction
completed within one year of July 22, 2005, not one year from the permit issuance date as
specified in the MOA. After July 22, 2005, mitigation site construction should be completed
within one year of the date of the end of the quarter in which the permit was issued.

If you need additional information or would like to discuss this issue further, please
contact Mr. David Franklin at [phone].
Sincerely,
FILENAME:DOTGPMITIGATION
CESAW-OC/McCORCLE
CESAW-RG/FRANKLIN
CESAW-RG/JOLLY/th/s
MAIL
CESAW-RG/FILE
S. Kenneth Jolly
Chief, Regulatory Division
Copy furnished:
Mr. William D. Gilmore, P.E.
EEP Transition Manager
Ecosystem Enhancement Program
1652 Mail Service Center
Raleigh,NC 27699-1652
BCF:
CESAW-OC/McCORCLE
CESAW-RG/FRANKLIN
CESAW-RG-L/TIMPY
CESAW-RG-L/SPENCER
CESAW-RG-W/BELL
CESAW-RG-W/BIDDLECOME
CESAW-RG-R/ALSMEYER
CESAW-RG-R/THOMAS
CESAW-RG-A/MCLENDON
CESAW-RG-A/PENNOCK
2

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REGULATORY
RALEIGH REGULATORY ULATUkY SiAf r, F NORTH CAROLINA WILM. FLD. OFC.
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY LYNDO TIPPETT
GOVERNOR SECRETARY
October 19, 2004
Mr. S. Kenneth Jolly
U.S. Army Corps of Engineers
P.O. Box 1890
Wilmington, NC 28402- 1890
Dear Mr. Jolly,
This letter is provided in response to your letter of September 1 , 2004 regarding compensatory
mitigation requirements for general permit actions resulting in permanent impacts. In accordance with your
letter, the Nationwide Permit General Conditions and the Final Regional Conditions for Nationwide Permits
in the Wilmington District, it is the understanding of the N.C. Department of Transportation that
compensatory mitigation is required for permanent impacts to jurisdictional waters and wetlands where a
Pre-construction notification (PCN) is required. In other words, if a PCN is not required, then mitigation is
not required. When such mitigation is required, it is also the Department's understanding that the Corps of
Engineers will accept mitigation for those impacts through the Ecosystem Enhancement Program (EEP),
with impacts provided to EEP on a quarterly basis.
In accordance with your letter, the Department is now implementing, as of September 1 , 2004,
compensatory mitigation for permanent impacts resulting from projects that require a PCN. Given that the
requirement for a PCN is now the trigger for requiring compensatory mitigation, the Department wants to
ensure that its staff understands the circumstances under which a PCN is required by the Nationwide Permit
General Conditions and the Final Regional Conditions for Nationwide Permits in the Wilmington District.
By this letter, the Department requests that you provide written guidance on this issue. Your written
guidance will help the Department understand when a PCN is required, so that all projects across the state
will be treated equally and the Department can begin to make an estimate of the impacts that will require
mitigation, and what that mitigation will cost. This information will be especially valuable to the
Department in determining its maintenance budgets for non-TIP projects, which may be greatly impacted by
increased mitigation requirements.
Thank you for your assistance in this matter.
Sincerely,
7AIIIP‘‘/
Grego or . Director
Proje Devel a sment and Et vironmental Analysis
Branc
•
cc: W. S. Varnedoe, P. E., Operations
William D. Gilmore, P.E., EEP Transition Manager
Philip S. Harris,- P. E., ONE Manager
MAILING ADDRESS:
NC DEPARTMENT OF TRANSPORTATION TELEPHONE: [phone] LOCATION:
PROJECT DEVELOPMENT AND ENVIRONMENTAL ANALYSIS FAX: [phone] 2728 CAPITOL BOULEVARD
PARKER LINCOLN BUILDING, SUITE 168
1598 MAIL SERVICE CENTER RALEIGH NC 27699
RALEIGH NC 27699-1598 WEBSITE: WWW.DOH.DOT. STATE.NC. US