20211564 Ver 1_More Info Received_20211203

Strickland, Bev
From: Radford, Emma (Anderson) <[e-mail]>
Sent: Friday, December 3, 2021 11:25 AM
To: Phillips, George L CIV USARMY CESAW (USA)
Cc: Cohn, Colleen M; [e-mail]
Subject: [External] RE: Sunnybrook Apartments / Raleigh / Wake County / SAW-2021-00812 /
Request for Additional Information
Attachments: Sunnybrook SOA 120221_WLS Neuse 01 Umbrella Mitigation Bank.pdf;
PermitDrawings_Sunnybrook_20211202.pdf; SitePlans_Updated11292021.pdf;
Sunnybrook_Fig3_JDFeatures_Update.pdf; Updated Pages from Sunnybrook PCN
Application_20211202.pdf
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Good morning Mr. Phillips,
Please see my responses below to each comment in red. Let me know if you would like these updates in a different
format.
Colleen, updated documentation will be uploaded via Laserfiche!
Thanks,
Emma Radford, WPIT I Environmental Analyst
Kimley-Horn 1421 Fayetteville Street, Suite 600, Raleigh, NC 27601
Direct: 919 677 2215 I Mobile: [phone] I www.kimley-horn.com
From: Phillips, George L CIV USARMY CESAW (USA) <[e-mail]>
Sent: Monday, November 22, 2021 1:25 PM
To: Radford, Emma (Anderson) <[e-mail]>
Cc: Cohn, Colleen M <[e-mail]>
Subject: Sunnybrook Apartments / Raleigh / Wake County / SAW-2021-00812 / Request for Additional Information
Ms. Radford,
I have reviewed the above referenced project and need the following comments/questions addressed to evaluate the
proposed activities.
1) As you may or may not be aware, on 8/30/2021 the U.S. District Court for the District of Arizona issued an order
vacating and remanding the Navigable Waters Protection Rule (NWPR) in the case of Pascua Yaqui Tribe v. U.S.
Environmental Protection Agency. As such, proceeding with the delineation for permitting and processing an
Approved Jurisdictional Determination (AJD) and for any portion of the above referenced site would now have
to be done according to the pre-2015 waters of the U.S. (WOTUS) regulatory regime (i.e. the 1986 WOTUS
regulation, as informed by the 2003 SWANCC and 2008 Rapanos Guidance documents). As such I offer the
following comments for you and the applicant to consider.
a. There are three ways to move forward including: 1) a revised AJD, 2) a revised combined AJD/PJD or 3) a
revised PJD. In order to move forward with an AJD, Rapanos forms would be required to document the

site which is no small effort. Moving forward with a combined AJD/PJD would consists of rapanos forms
for features which would be determined non jurisdictional and a preliminary determination for all other
features. Moving forward under a PJD would mean all features with an ordinary high water mark or
meet the three criterial would be jurisdictional. Please discuss with the applicant and let me know how
you would like to proceed.
We would like to move forward with a revised PJD, making wetlands W1 and W4 jurisdictional. Revised
project figures and permit drawings are attached reflecting these changes. This will result in 0.04 acres
in additional wetland impacts.
Additional mitigation has been reserved for these impacts. See attached updated SOA.
b. Based on my site visit on 07/01/2021, as well as review of DEMs, W4 and W1 previously field -
determined to be non -adjacent wetland based on the NWPR, appears to be jurisdictional under the pre-
2015 WOTUS regulatory regime. The reason for this is that these wetlands are adjacent to (i.e. bordering
or neighboring) waters (S1 and S2), and have a "significant nexus" with a TNW, based on the drainage
patterns connecting W1 and W4 to an RPW which eventually flows to the Neuse River. Since Rapanos
forms would be required to document the preceding, my question for you and your client is: would you
be ok proceeding with the area containing W1 and W4 as a Preliminary Jurisdictional Determination
(PJD)? If you would like to schedule a site visit to review this area please let me know.
We agree that W1 and W4 are not isolated under pre-2015 WOTUS rules, and would like to move
forward with the area containing W1 and W4 as a PJD with the rest of the site.
c. Based on site visit on 07/01/2021, the S2 (EPH) feature depicted on the attached exhibit could be
removed from the delineation. The reason for this is the lack of ordinary high water mark indicators with
the depicted ephemeral feature. If you would like to schedule a site visit to review the areas please let
me know.
Apologies for the oversight, we included an outdated delineation figure in the submittal. The corrected
Figure 3 is attached with S2 (EPH) removed based on the lack of OHWM indicators.
2) Please update the PCN and impact maps to include the wetland impacts as part of the revised delineation (see
comments above).
Revised pages from the PCN with revised text shown in red, revised permit drawings, and updated mitigation
reservation letters are attached to reflect the use of a NWP 18 and 29 as well as the addition of impacts to
wetlands W1 and W4.
3) It appears that a large portion of the wetland impacts at Impact Site 1 are a result of permanent fill for
construction of the proposed storm water Pond A. Per regional condition C.a. — discharges in stream and
wetlands for stormwater management facilities are prohibited under NWP 29. If the permanent impacts for
construction of the proposed stormwater pond A are less than 1/10 of an acre the proposed activities could
potentially be authorized under NWP 18.
We have revised the site plan to further tighten grading surrounding W3 and reduce impacts to W3 associated
with stormwater pond's berm are now under 0.10 acres. We are requesting the use of a NWP 18 for this impact
along with NWP 29 for the remainder of the proposed impacts. Please see attached updated PCN pages.
Please submit the above information within 30 days of receipt of this Notification or we may consider your application
withdrawn and close the file. Please call or email ([e-mail]) me if you have any questions.
Please let me know if you have any questions or concerns. Given the complexity of the comments above, if you would
like to schedule a call or virtual meeting please let me know.
Lyle Phillips
Regulatory Specialist
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US Army Corps of Engineers
CE-SAW-RG-R
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Wake Forest, North Carolina 27587
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