20210307 Ver 1_Email_20211022

From:Hair, Sarah E CIV USARMY CESAW (USA)
To:Rerko, James J; Price, Gregory W; Sprinkle, Hannah H; Dilday, Jason L; Chapman, Amy
Subject:[External] FW: SAW-2020-00079/401 Certification/Cumberland Co/NC
Date:Friday, October 15, 2021 5:46:46 PM
Attachments:image001.png
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FYSA…see comments from EPA below regarding the 401 certification and missing compensatory
mitigation.

*It may be a non-issue from the federal permitting stand point, as we routinely require 2:1
replacement for permanent impacts to good quality wetlands and perennial streams. I am working
through my decision document and hope to have a permit decision in the near future. As you are
aware, by regulation the Corps has 120 days to make a permit decision on individual permit actions,
we are currently at day 78.
Hope all is well with everyone!
Liz
From: Bowers, Todd <[e-mail]>
Sent: Thursday, October 7, 2021 12:17 PM
To: Hair, Sarah E CIV USARMY (USA) <[e-mail]>; 401-R4notices <401-
[e-mail]>
Subject: [Non-DoD Source] RE: SAW-2020-00079/401 Certification/Cumberland Co/NC

Liz,

Thank you for your notification in accordance with 40 CFR 121.12(a), for Water Quality
Certification #4465 dated September 22, 2021, issued by the North Carolina Division of
Water Resources. This notification is associated with the Cedar Creek Road Commercial
Project in Cumberland County, NC for CWA Section 404 Permit Application (SAW-2020-
00079 assumed from email subject). The EPA Region 4 Oceans, Wetlands and Streams
Protection Branch considered the potential for a hydrologic connection and potential for
water quality impacts to a neighboring jurisdiction from the project as certified. EPA does
not foresee water quality effects in a neighboring jurisdiction based on the location, nature,
and scope of the regulated activity. EPA will not issue a “may affect” determination for
this project under CWA Section 121.12.

Thank you for the opportunity to provide analysis and feedback on the aforementioned
Section 401(a)(2) notification.

On a side note (outside of the scope of the (a)(2) review), I would like to point out the that
Corps ID# was not on the WQC document. It also appears that there is missing mitigation
for permanent impacts to perennial streams. If this is a complete project then dividing it into
Sections A and B should not alleviate NCDOT from providing full mitigation (on a minimum
of 1:1 replacement ratio) of 1047 stream credits for 1047 linear feet of permanent impacts.
The state seems to be overlooking stream quality as well as impacts when determining
mitigation required. I would like to see some explanation as to why the 232 feet of impact of
Section A and 155 feet of Section B, both part of the entire Project, are not being replaced.
Yes, individually, they are below the 300 foot threshold for replacement but the entire
project needs to be considered and not individual impacts to WotUS. However, this
approach is resulting in over 400 feet of loss of WotUS and should be rectified. Even the
footnote of the impacts states that the total stream impact for Project: 1073 linear feet.
Only 26 feet of this is temporary and not in need of replacement. Let me know if you have
any further insight on this as I may be missing some information that would clarify this
apparent discrepancy.

Best Regards,

Todd Bowers

Please note that Wilmington District Section 404 Project Managers should submit the received North Carolina Section 401
Certifications to the EPA Region 4 401 Mailbox at: [e-mail] and to [e-mail]. I will respond
directly back to the Corps Project Manager with language similar to that above. Thank you for your

Todd Allen Bowers
US EPA Region 4 Oceans, Wetlands and Streams Protection Branch
61 Forsyth St. SW
Atlanta, GA 30303
404.562.9225
[e-mail]

Note: I am currently teleworking and away from the office. Please contact me via email or at
919.523.2637.

From: Hair, Sarah E CIV (USA) <[e-mail]>
Sent: Wednesday, October 6, 2021 6:19 PM
To: 401-R4notices <[e-mail]>
Cc: Bowers, Todd <[e-mail]>
Subject: SAW-2020-00079/Gillis Hill Road widening/NC DOT TIP U-5798/ 401
Certification/Cumberland Co/NC

Good evening,
Please see attached 401 Certification for the subject project.
Liz

Liz Hair
Regulatory Project Manager
Wilmington District
US Army Corps of Engineers
69 Darlington Avenue
Wilmington, NC 28403
[e-mail]
Work Cell: 910-512-4456

From:Sprinkle, Hannah H
To:Bowers, Todd
Cc:Chapman, Amy ([e-mail])
Subject:RE: [External] RE: SAW-2020-00079/401 Certification/Cumberland/Hoke Co/NC
Date:Friday, October 22, 2021 7:46:00 AM
Attachments:image001.png
Good morning Todd,

I completely understand your concerns and frustration with the permitting threshold. However, I’m
required to follow the regulation as stated and unfortunately that excludes the stream reach
discussed below. Please let me know if you would like to discuss this issue further or have any other
questions related to this project.

Thank you,

Hannah Sprinkle

From: Bowers, Todd <[e-mail]>
Sent: Thursday, October 21, 2021 12:17 PM
To: Sprinkle, Hannah H <[e-mail]>
Subject: [External] RE: SAW-2020-00079/401 Certification/Cumberland/Hoke Co/NC

CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an
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Hi Hannah,

Thank you for the reply to my inquiry and updating the permit conditions as needed. It
seems odd to me, considering that the Section 404(b)(1) Guidelines point me towards
considering the entire project’s cumulative impacts, to only consider individual impacts and
not a project’s total for mitigation purposes. Using the rationale you presented below, a
project could, for example under the auspices of single permit, impact 10 separate
perennial streams similar to Section A (232 feet of impact to each with a combined total of
2,320 feet) and no mitigation would be required by DWR because the impacts occurred to
separate streams. This seems like a large loophole in the NC regulations if this is actually
the case, resulting in a net loss of aquatic resources. I still think that a project’s combined
total impact should be considered as a cumulative loss that would require compensatory
mitigation. Section 404 permitting would include both Section A and B when considering
permitting thresholds (individual v. general) and the amount of mitigation needed to replace
the lost aquatic function. I understand that the Section 401 and Section 404 regs in the
CWA allow for some flexibility in a state or tribe’s approach in permitting but this seems like
a disconnect with serious implications to me.

Any additional thoughts are appreciated.

Best Regards,
Todd B.

Todd Allen Bowers
US EPA Region 4 Oceans, Wetlands and Streams Protection Branch
61 Forsyth St. SW
Atlanta, GA 30303
404.562.9225**
[e-mail]

**Note: I am currently teleworking and away from the office. Please contact me via email or at 919.523.2637.

“Do unto those downstream as you would have those upstream do unto you.”
— Wendell Berry

From: Sprinkle, Hannah H <[e-mail]>
Sent: Wednesday, October 20, 2021 9:35 AM
To: Bowers, Todd <[e-mail]>
Cc: Liz Hair <[e-mail]>; Rerko, James J <[e-mail]>; Price, Gregory W
<[e-mail]>; Dilday, Jason L <[e-mail]>
Subject: SAW-2020-00079/401 Certification/Cumberland/Hoke Co/NC

Good morning Todd,

I just wanted to follow up and address the concerns you voiced about the missing mitigation for
permanent impacts to perennial streams. The stream impacts in Section A and Section B are located
on separate streams and therefore not a continuous reach and not over the 300 ft threshold.

Section A: Little Rockfish Creek = 232 perm impacts = mitigation not required by DWR (<300lf)
Section B : Stewarts Creek = 815 perm impacts = mitigation required by DWR (>300lf)

However, you were correct in calling out the missing 155 linear ft of impacts in Section B, that was a
transcription error and a correction letter will be issued to include these impacts.
The 660ft of permanent impacts will be adjusted to include the 155ft of permanent impacts and
DWR will be requiring mitigation for the 815 linear ft of impacts.

Thank you for bringing this error to our attention and please let me know if you have any follow-up
questions or concerns.

Hannah Sprinkle

Hannah Sprinkle
Environmental Specialist II
401 & Buffer Transportation Permitting Branch
Department of Environmental Quality

[phone] (office)
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[e-mail]

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