HomeMy WebLinkAbout20201838 Ver 1_SAW-2019-01336 F 14288 PJD SIGNED_20210913U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action Id. SAW No. 2019-01336 County: Union U.S.G.S. Quad: NC- Catawba NE
NOTIFICATION OF JURISDICTIONAL DETERMINATION
Requestor: North Carolina Department of Transportation
Anamika Laad
Address: 1533 Mail Service Center
Raleigh, North Carolina 27699
Telephone Number: 919-707-4700
Size (acres) 103 acres Nearest Town Waxhaw
Nearest Waterway Twelvemile Creek River Basin Santee
USGS HUC 03050103 Coordinates Latitude: 34.923056
Longitude: -80.77422
Location description: NC 73, Waxhaw Highway, and Tory Path Road, south of Waxhaw, Union County, NC.
Indicate Which of the Following Apply:
A. Preliminary Determination
There appear to be waters, including wetlands on the above described project area/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). The
waters, including wetlands have been delineated, and the delineation has been verified by the Corps to be sufficiently accurate
and reliable. The approximate boundaries of these waters are shown on the enclosed delineation maps, Figures 1-3 dated
4/1/2019. 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 appear to be waters, including wetlands on the above described project area/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,
including wetlands on your project area/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 project area/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, including wetlandson the above described project area/property 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, including wetlands on your project area/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.
The waters, including wetlands on your project area/property have been delineated and the delineation has been verified by
the Corps. The approximate boundaries of these waters are shown on the enclosed delineation map dated DATE. We strongly
SAW No. 2019-01336
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, including wetlands have been delineated and surveyed and are accurately depicted on the plat signed by the
Corps Regulatory Official identified below onDATE. 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/property 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 Nicholle Braspennickx at 704-510-0162 or
Nicholle.M.Braspennickx.usace.army.mil.
C. Basis For Determination: Basis For Determination: See the preliminary jurisdictional determination
form dated 07/24/2019.
D. Remarks: None.
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 (This information applies only to approved jurisdictional determinations as indicated in B.
above)
This correspondence constitutes an approved jurisdictional determination for the above described site. 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 10M15
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 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 Not applicable.
**It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this correspondence.**
Corps Regulatory Official: ______________________________________________________
Date of JD: 07/24/2019 Expiration Date of JD: Not applicable
SAW No. 2019-01336
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
http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0
NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND
REQUEST FOR APPEAL Applicant: North Carolina Department of
Transportation, Anamika Laad File Number: SAW No. 2019-01336 Date: 07/24/2019
Attached is: See Section below
INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) A
PROFFERED PERMIT (Standard Permit or Letter of permission) B
PERMIT DENIAL C
APPROVED JURISDICTIONAL DETERMINATION D
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 or http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx
or the 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 final
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 final
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 district engineer. This form
must be received by the division engineer within 60 days of the date of this notice.
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
appeal process you may contact:
District Engineer, Wilmington Regulatory Division
Attn: Nicholle Braspennickx
Charlotte Regulatory Office
U.S Army Corps of Engineers
8430 University Executive Park Drive, Suite 615
Charlotte, North Carolina 28262
If you only have questions regarding the appeal process you may
also contact:
Mr. Jason Steele, Administrative Appeal Review Officer
CESAD-PDO
U.S. Army Corps of Engineers, South Atlantic Division
60 Forsyth Street, Room 10M15
Atlanta, Georgia 30303-8801
Phone: (404) 562-5137
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 course of 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.
________________________________________
Signature of appellant or agent.
Date: Telephone number:
For appeals on Initial Proffered Permits send this form to:
District Engineer, Wilmington Regulatory Division, Attn: Nicholle Braspennickx, 69 Darlington Avenue, Wilmington, North
Carolina 28403
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. Jason Steele, Administrative Appeal
Officer, CESAD-PDO, 60 Forsyth Street, Room 10M15, Atlanta, Georgia 30303-8801
Phone: (404) 562-5137
PRELIMINARY JURISDICTIONAL DETERMINATION (PJD) FORM
BACKGROUND INFORMATI ON
A. REPORT COMPLETION DATE FOR PJD: 07/24/2019
B. NAME AND ADDRESS OF PERSON REQUESTING PJD: North Carolina Department of Transportation,
Anamika Laad, 1533 Mail Service Center, Raleigh, North Carolina 27699
C. DISTRICT OFFICE, FILE NAME, AND NUMBER: Wilmington District, NC DOT Rail/Tory Path Road,
SAW No. 2019-01336
D. PROJECT LOCATION(S) AND BACKGROUND INFORMATION: NC 73, Waxhaw Highway, and Tory Path
Road
(USE THE TABLE BELOW TO DOCUMENT MULTIPLE AQUATIC RESOURCES AND/OR
AQUATIC RESOURCES AT DIFFERENT SITES)
State: NC County: Union City: Waxhaw
Center coordinates of site (lat/long in degree decimal format): Latitude: 34.923056 Longitude: -80.77422
Universal Transverse Mercator:
Name of nearest waterbody: Twelvemile Creek
E. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY):
Office (Desk) Determination. Date: July 22, 2019 Field Determination. Date(s):
TABLE OF AQUATIC RESOURCES IN REVIEW AREA WHICH "MAY BE" SUBJECT TO REGULATORY
JURISDICTION.
TABLE OF AQUATIC RESOURCES IN REVIEW AREA WHICH “MAY BE” SUBJECT TO REGULATORY JURISDICTION.
Site number
Latitude
(decimal
degrees)
Longitude
(decimal
degrees)
Estimated amount of
aquatic resource in review
area (acreage and linear
feet, if applicable)
Type of aquatic
resource (i.e., wetland
vs. non‐wetland
waters)
Geographic authority to which the
aquatic resource "may be" subject
(i.e., Section 404 or Section
10/404)
SA Reach 1 34.922617 ‐80.770548 329 LF / 0.039 Ac non‐wetland Section 404
SA Reach 2 34.923404 ‐80.769960 423 LF / 0.038 Ac non‐wetland Section 404
SA Reach 3 34.925039 ‐80.771185 273 LF / 0.049 Ac non‐wetland Section 404
SB 34.923796 ‐80.769603 62 LF / 0.003 Ac non‐wetland Section 404
SC 34.925303 ‐80.774674 728 LF / 0.095 Ac non‐wetland Section 404
WA 34.923375 ‐80.769901 1.313 Ac wetland Section 404
WB 34.925039 ‐80.771021 0.050 Ac wetland Section 404
WC 34.925257 ‐80.771406 0.134 Ac wetland Section 404
WD 34.925004 ‐80.774993 0.011 Ac wetland Section 404
WE 34.924565 ‐80.775592 0.159 Ac wetland Section 404
WF 34.921179 ‐80.776027 0.253 Ac wetland Section 404
PA 34.921257 ‐80.776327 0.310 Ac non‐wetland Section 404
PB 34.920867 ‐80.778469 0.084 Ac non‐wetland Section 404
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:
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: Figures 1-3
dated April 2019 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: Natural Resources Conservation Service Soil Survey. Citation: 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):
or Other (Name & Date): Previous determination(s). File no. and date of response letter: Other information (please specify):
The delineated stream channels (Stream A – Stream C) flow to Twelvemile Creek, an interstate
water of the U.S. Corps of Engineers regulations at 33 CFR Part 328.3(a)(5) assert Clean Water
Act (CWA) jurisdiction over tributaries that flow to other waters of the U.S. Therefore, Streams
A-C may be considered waters of the U.S.
Wetlands A-F are adjacent to waters of the U.S. Corps of Engineers regulations at 33 CFR Parts
328.3(a)(7) assert CWA jurisdiction over wetlands adjacent to waters of the U.S. Therefore,
Wetlands A-F may be considered waters of the U.S.
Ponds A&B are impounded stream channels. Corps of Engineers regulations at 33 CFR Parts
328.3(a)(4) assert CWA jurisdiction over impoundments of waters of the U.S. Therefore, Ponds
A and B may be waters of the U.S.
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.
Signature and date of Regulatory
staff member completing PJD
07/24/2019
Signature and date of person requesting PJD
(REQUIRED, unless obtaining the signature is
impracticable) 1
1 Districts may establish timeframes for requester to return signed PJD forms. If the requester 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.
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MINERAL SPRINGS
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UV16
Study Area
Proposed Rail Crossing Closure at Tory Path Road
F#14288
Project Vicinity Map
Union County, NC
±Source: ESRI, NC OneMap
0 10.5 Miles
Union County
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USGS The National Map: National Boundaries Dataset, National Elevation Dataset, Geographic Names
Information System, National Hydrography Dataset, National Land Cover Database, National Structures
Dataset, and National Transportation Dataset; U.S. Census Bureau - TIGER/Line; HERE Road Data. Data
Refreshed July, 2017.±0 500 1,000250FeetStudy Area Figure 2: Topographic Map
Proposed Rail Crossing Closure
at Tory Path Road
Union County, NC
F-14288April 2019USGS 1:24,000 Scale Topo Quads: Catawba NE & Waxhaw (2017)
±
0 250 500125Feet
Wetland Data Point
Study Area
Potential Wetland Waters of the US
PEM
PFO
Potential Non-Wetland Waters of the US
Intermittent Stream
Perennial Stream
Upland Impoundment
Pond
Figure 3: Jurisdictional Features Map
Proposed Rail Crossing Closure
at Tory Path Road
Union County, NC
F-14288April 2019
WASA Reach 1SB
WA
SA Reach 2WA
DPU WA
DPW WA
DPU WB
DPW WB
WB
WC
DPU WC
DPW WC
SA Reach 3
DPW WD
DPW WE
WE
WDSC
SC
WD
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PB
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WA
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WF
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WC WB
SA
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a
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0 50 100
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0 50 100
Feet
0 75 150Feet
0 50 100
Feet
Source: NC OneMap (2015)
WA