20220518 Ver 1_SAW-2018-02111-PN_20220412

I
PUBLIC NOTICE
US Army Corps
Of Engineers
Wilmington District
Issue Date: April 12, 2022
Comment Deadline: May 12, 2022
Corps Action ID Number: SAW-2018-02111
The Wilmington District, Corps of Engineers (Corps) received an application from
Legacy Cary, LLC seeking Department of the Army authorization to discharge fill
material into 1 ,107 linear feet (0.170 acre) of stream channel and 0.372 acre of
wetlands, associated with mixed-use multifamily apartment complex construction
in Wake County, North Carolina.
Specific plans and location information are described below and shown on the
attached plans. This Public Notice and all attached plans are also available on
the Wilmington District Web Site at:
https://www.saw.usace.army.mil/Missions/Requlatory-Permit-Program/Public-
Notices/
Applicant: Mr. Derek Boesch
Legacy Cary, LLC
10720 Sikes Place, #150
Charlotte, North Carolina 28277
AGENT (if applicable): Mr. Troy Beasley
WithersRavenel, Inc.
219 Station Road, Suite 101
Wilmington, North Carolina 28405
Authority
The Corps evaluates this application and decides whether to issue, conditionally
issue, or deny the proposed work pursuant to applicable procedures of the
following Statutory Authorities:
® Section 404 of the Clean Water Act (33 U.S.C. 1344)
❑ Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403)
❑ Section 103 of the Marine Protection, Research and Sanctuaries Act of
1972 (33 U.S.C. 1413)
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Location
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Figure 1 : Proposed Project Boundary Along Twyla Road
Location Description:
Project Area (acres): 36.42 Nearest Town: Cary
Nearest Waterway: Unnamed Tributary to Panther Creek
River Basin: Cape Fear
Latitude and Longitude: 35.8115 N, -78.8886 W
Existing Site Conditions
The proposed 36.42-acre project site is located at 1112 Twyla Road, in Cary, in
Wake County, North Carolina. The project site consists primarily of mature forest
and previously contained several single-family lots/dwellings and associated
yards on both sides of Twyla Road prior to being purchased by the applicant.
Twyla Road bisects the project site and currently is the only point of access to
the project area, as well as privately owned property to the north and west of the
project.
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Soils mapped on site are presented in the table below:
Table 1 : Soil Characteristics
Soil Type Map Unit Symbol Hydric/Non-hydric
Chewacla and ChA Hydric
Wedahkee soils, 0 to 2
percent slopes,
frequently flooded
Creedmoor-Green Level CrB Non-hydric
complex, 2 to 6 percent
slopes
Creedmoor-Green Level CrD Non-hydric
complex, 10 to 15
percent slopes
Among the three soil types that occur within the project area, Chewacla and
Wedahkee (which is frequently flooded) are hydric and other soil types within the
project area are non-hydric. Average annual precipitation for Wake County is
46.1 inches of rainfall and 3.6 inches of snowfall.
The site contains two vegetative communities consisting of mixed hardwood/pine
forest and early successional. The mixed hardwood/pine forest vegetation was
comprised primarily of red maple (Acer rubrum), sweet gum (Liquidambar
styraciflua), tulip poplar (Liriodendron tulipifera), white oak (Quercus alba) and
loblolly pine (Pinus taeda). The understory and groundcover were sparsely
vegetated due to the dense canopy.
The early successional communities are associated with the yards of the former
residences. These areas were historically mowed/maintained as lawns but since
the residences have been vacated these areas are no longer mowed/maintained
and are currently in transition with early successional species beginning to
establish. The vegetative composition consisted primarily of fescue (Festuca
spp.) and Bermuda grasses (Cynodon dactylon), dog fennel (Eupatorium
capillifolium), broomsedge (Andropogon virginicus), sweetgum and Chinese
privet (Ligustrum sinense).
The vegetation on the shoulders of Twyla Road is maintained at low heights and
consist of a mixture of Bahia grass (Paspa/um notatum) and other common
weeds.
Site reconnaissance was conducted by the applicant's agent for the proposed
residential development to determine and delineate the presence and location of
potentially jurisdictional waters of the US. The wetland delineations were
performed in accordance with the U.S. Army Corps of Engineers 1987
Delineation Manual and subsequently issued Regional Supplement to the 1987
Delineation Manual: Eastern Mountains and Piedmont (Version 2.0). The
wetland delineation for the proposed project was approved by the Corps and the
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Preliminary Jurisdictional Determination was issued on December 15, 2021 . The
Town of Cary issued a Buffer Determination Letter for the proposed project
(TCRB 18-008) on March 15, 2019.
The project area is in the Cape Fear River Basin, Hydrologic Unit Code (HUC)
0303000206. Streams within the project area are generally stable. Onsite
streams include Panther Creek (Stream Index: 16-41-1-17-3) and four additional
unnamed tributaries to Panther Creek with normal pattern and profile for the
ecoregion. These streams carry the North Carolina Division of Water Resources
(NCDWR) best usage classification of Water Supply (WS) WS-IV; Nutrient
Sensitive Water (NWS). WS-IV refers to waters used as sources of water supply
for drinking, culinary, or food processing purposes where a WS-I, II or III
classification is not feasible. These waters are also protected for Class C uses.
WS-IV waters are generally in moderately to highly developed watersheds or
Protected Areas. The streams are also considered NSW which is a
supplemental classification intended for waters needing additional nutrient
management due to being subject to excessive growths of microscopic or
macroscopic vegetation. Additionally, the site contains eleven (11) wetlands, all
the Headwater Forest type per the North Carolina Wetland Assessment Method
(NCWAM).
There is a total of 3,587 linear feet (0.65 acre) of stream channel within the
project area and 1 .2 acre of wetlands. In general, the unnamed tributaries flow
south to north and confluence with Panther Creek. Panther Creek flows east to
west before flowing into Jordan Lake. The stream channels within the project
range from high to low function per the North Carolina Stream Assessment
Method (NCSAM). Stream 1 (intermittent) has been historically impacted by
relocation and channelization during construction of Twyla Road. Stream 1 has a
total of three existing culverted crossings, consisting of two culverted driveway
crossings and a culvert within Twyla Road, all of which are located within the
proposed Stream 1 impact area (Impacts S1 and S2). Additionally, the
vegetative buffer on one side of Stream 1 was removed as a result of
construction of Twyla Road and is maintained as low height herbaceous
vegetation.
Applicant's Stated Purpose
The purpose of the proposed project is to construct a mixed-use multi-family
apartment complex and commercial/retail development to meet the existing
demand for affordable rental workforce housing in the Town of Cary and Wake
County.
Project Description
The applicant provided the following project description:
The proposed project consists of construction of six multi-family apartment
buildings with a total of 390 units and a Clubhouse:
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Building 1 — 86,876 square feet(sf)/61 Units
Building 2 — 104,516 sf/69 Units
Building 3 — 104,516 sf/69 Units
Building 4 — 13,000 sf/Clubhouse
Building 5 — 99,168 sf/62 Units
Building 6 — 99,168 sf/62 Units
Building 7 — 91 ,945 sf/67 Units
The project also consists of constructing associated infrastructure including
internal roads, a 10-foot-wide greenway trail, parking, utilities, and stormwater
management, a clubhouse (Building 4) and amenities, as well as two outparcels
designated for future commercial/retail development. The project also requires
improvements to the existing Twyla Road, as well as the extension of
Stockwell Lane from the existing stub within the Fryars Gate subdivision to the
east.
While the total project area is 36.42 acres, site constraints including wetlands,
streams, 50-foot Jordan Lake Riparian Buffers and 100-foot Town of Cary Urban
Transition Buffers reduce the total developable upland area to approximately 25
acres. The ±25-acres of developable uplands consist of two separate areas: a
±17-acre area east of Twyla Road and an ±8-acre area west of Twyla Road. The
site is further constrained by the requirement to extend the existing stub of
Stockwell Lane to Twyla Road, as well as improve Twyla Road to meet Town
design standards and relocate the connection to Morrisville Parkway to the
existing traffic circle.
Twyla Road would be a public road required to meet Town of Cary design
standards for a public roadway and would have a 60-foot right-of-way (ROW).
Twyla Road would be widened and raised 33 feet in elevation to match the
existing 350-foot elevation of the Morrisville Parkway traffic circle and transition
the road to natural grade at the 282-foot elevation of the northern cul-de-sac.
The required improvements to Twyla Road would result in permanent impacts to
Stream 1 (intermittent) that runs parallel to Twyla Road only a few feet from the
existing edge of pavement. The project has been designed to capture the
existing drainage to Stream 1 in a storm drainage pipe, which would outfall into a
constructed swale that drains into the undisturbed portion of Stream 1
downstream of the impact area, allowing for construction to be completed "in the
dry."
The extension of Stockwell Lane is necessary to meet Town of Cary's
interconnectivity requirements and would provide a secondary access to
Morrisville Parkway for residents of Fryars Gate subdivision traveling west on
Morrisville Parkway. Additionally, pending development of the future commercial
outparcels, Stockwell Lane would provide internal access (vehicular, pedestrian
and bicycle) for Fryars Gate residents to these businesses without having to
travel on Morrisville Parkway, thereby eliminating additional traffic on Morrisville
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Parkway. The extension of Stockwell Lane would result in a perpendicular
crossing of two intermittent streams (Streams 2 and 3). The alignment of the
Stockwell Lane extension was restricted by the location of the existing road stub
within the Fryars Gate subdivision to the east.
Avoidance and Minimization
The applicant provided the following information in support of efforts to avoid
and/or minimize impacts to the aquatic environment:
Prior to site plan design, the applicant requested that a detailed wetland
delineation be conducted so that impacts to wetlands and "waters" could be
minimized. Proposed wetland and stream impacts have been minimized to only
those necessary for infrastructure. There are no proposed impacts for
construction of buildings, parking, or stormwater management.
Most of the proposed wetland and stream impacts are necessary for construction
of the roads for access to the site. The primary access to the proposed Legacy
Cary development would be Twyla Road from Morrisville Parkway. The existing
connection of Twyla Road to Morrisville Parkway would be relocated to the traffic
circle because the existing intersection is too close to the traffic circle to meet
North Carolina Department of Transportation (NCDOT) separation standards.
Also, relocating Twyla Road to connect to the traffic circle provides safer
conditions for vehicles entering and leaving Twyla Road. Aside from the
relocation of the connection of Twyla Road to the Morrisville Parkway traffic
circle, Twyla Road would be improved in its current location/alignment.
Twyla Road would be a public road required to meet Town of Cary design
standards for a public roadway and would have a 60' ROW. Twyla Road must
be widened and raised to match the elevation of the Morrisville Parkway traffic
circle and transition the road to natural grade at the northern cul-de-sac. The
required improvements to Twyla Road would result in permanent impacts to the
Stream 1 (intermittent) that runs parallel to Twyla Road only a few feet from the
existing edge of pavement. Various alignments and designs for Twyla Road
were explored and determined not to be feasible or not result in a reduction of
impacts to Stream 1 .
The alignment of the Stockwell Lane extension was restricted by the location of
the existing road stub within the Fryars Gate subdivision to the east. The
proposed impacts for the Stockwell Lane extension have been minimized to the
greatest extent practicable while maintaining a functional design that prevents
future disturbance to Streams 2 and 3.
Upon completion of construction of the Stockwell Lane extension, the temporary
coffer dams within Streams 2 and 3 would be removed and the temporary stream
impact areas restored to natural grade. The stream banks would be lined with
biodegradable matting and temporarily seeded, if possible, depending on the
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water levels. No matting would be placed on the stream bed. Additionally,
temporary wetland impact areas would be restored to natural grade and seeded
with a wetland seed mix.
The greenway trail has been designed to minimize wetland impacts to only those
necessary for a riprap dissipator for a culvert in the greenway trail to prevent
erosion within Wetland F. There are no proposed wetland or stream impacts
required for construction of the greenway trail.
Compensatory Mitigation
The applicant offered the following compensatory mitigation plan to offset
unavoidable functional loss to the aquatic environment: An NCSAM assessment
was conducted for Stream 1 (intermittent) which determined that the functional
value was "Low" due to the historic alterations during construction of Twyla Road.
An NCSAM assessment determined the functional value was "Low" for Stream 2
(intermittent) due to the degradation of the stream from erosion. An NCSAM
assessment for Stream 3 (intermittent) determined the functional value was
"High."
Due to the "Low" functional value of Streams 1 and 2, the applicant proposes to
mitigate for the 793 linear feet of permanent impacts to Stream 1 and 188 linear
feet of permanent impacts to Stream 2 at a 1:1 mitigation ratio. The applicant
proposes to mitigate for 106 linear feet of permanent impacts to Stream 3 at a
2:1 mitigation ratio. The applicant proposes to mitigate for the 0.335 acre of
permanent wetland impacts at a 2:1 ratio.
Essential Fish Habitat
The Corps' determination is that the proposed project would not effect EFH or
associated fisheries managed by the South Atlantic or Mid Atlantic Fishery
Management Councils or the National Marine Fisheries Service.
Cultural Resources
Pursuant to Section 106 of the National Historic Preservation Act of 1966,
Appendix C of 33 CFR Part 325, and the 2005 Revised Interim Guidance for
Implementing Appendix C, the District Engineer consulted district files and
records and the latest published version of the National Register of Historic
Places and initially determines that:
® No historic properties, nor properties eligible for inclusion in the National
Register, are present within the Corps' permit area; therefore, there will be
no historic properties affected. The Corps subsequently requests
concurrence from the SHPO (or THPO).
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The District Engineer's final eligibility and effect determination will be based upon
coordination with the SHPO and/or THPO, as appropriate and required, and with
full consideration given to the proposed undertaking's potential direct and indirect
effects on historic properties within the Corps-indentified permit area.
Endangered Species
Pursuant to the Endangered Species Act of 1973, the Corps reviewed the project
area, examined all information provided by the applicant and consulted the latest
North Carolina Natural Heritage Database. Based on available information:
® The Corps determines that the proposed project
may affect, not likely to adversely affect federally listed endangered or
threatened species or their formally designated critical habitat.
® By copy of this public notice, the Corps initiates consultation under
Section 7 of the ESA and will not make a permit decision until the
consultation process is complete.
❑ The Corps will consult under Section 7 of the ESA and will not make a
permit decision until the consultation process is complete.
❑ The Corps has initiated consultation under Section 7 of the ESA and
will not make a permit decision until the consultation process is complete.
❑ The Corps determines that the proposed project may affect federally listed
endangered or threatened species or their formally designated critical
habitat. Consultation has been completed for this type of activity and the
effects of the proposed activity have been evaluated and/or authorized by
the National Marine Fisheries Service (NMFS) in the South Atlantic
Regional Biological Opinion or its associated documents, including 7(a)(2)
& 7(d) analyses and Critical Habitat assessments. A copy of this public
notice will be sent to the NMFS.
❑ The Corps is not aware of the presence of species listed as threatened or
endangered or their critical habitat formally designated pursuant to the
Endangered Species Act of 1973 (ESA) within the project area. The Corps
will make a final determination on the effects of the proposed project upon
additional review of the project and completion of any necessary biological
assessment and/or consultation with the U.S. Fish and Wildlife Service
and/or National Marine Fisheries Service.
Other Required Authorizations
The Corps forwards this notice and all applicable application materials to the
appropriate State agencies for review.
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North Carolina Division of Water Resources (NCDWR):
The Corps will generally not make a final permit decision until the
NCDWR issues, denies, or waives the state Certification as required by
Section 401 of the Clean Water Act (PL 92-500). The receipt of the
application and this public notice, combined with the appropriate
application fee, at the NCDWR Central Office in Raleigh constitutes initial
receipt of an application for a 401 Certification. Unless NCDWR is
granted a time review extension, a waiver will be deemed to occur if the
NCDWR fails to act on this request for certification within sixty days of the
date of this public notice. Additional information regarding the 401
Certification may be reviewed at the NCDWR Central Office,
401 and Buffer Permitting Unit, 512 North Salisbury Street, Raleigh,
North Carolina 27604-2260. All persons desiring to make comments
regarding the application for a 401 Certification should do so, in writing,
by May 5, 2022, to:
NCDWR Central Office
Attention: Mr. Paul Wojowski, 401 and Buffer Permitting Unit
(USPS mailing address): 1617 Mail Service Center, Raleigh, NC
27699-1617
Or,
(Physical address): 512 North Salisbury Street, Raleigh, North
Carolina 27604
North Carolina Division of Coastal Management (NCDCM):
® Based upon all available information, the Corps determines that this
application for a Department of Army (DA) permit does not involve an activity
which would affect the coastal zone, which is defined by the Coastal Zone
Management (CZM) Act (16 U.S.C. § 1453).
Evaluation
The decision whether to issue a permit will be based on an evaluation of the
probable impacts including cumulative impacts of the proposed activity on the
public interest. That decision will reflect the national concern for both protection
and utilization of important resources. The benefit which reasonably may be
expected to accrue from the proposal must be balanced against its reasonably
foreseeable detriments. All factors which may be relevant to the proposal will be
considered including the cumulative effects thereof; among those are
conservation, economics, aesthetics, general environmental concerns, wetlands,
historic properties, fish and wildlife values, flood hazards, flood plain values (in
accordance with Executive Order 11988), land use, navigation, shoreline erosion
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and accretion, recreation, water supply and conservation, water quality, energy
needs, safety, food and fiber production, mineral needs, considerations of
property ownership, and, in general, the needs and welfare of the people. For
activities involving the discharge of dredged or fill materials in waters of the
United States, the evaluation of the impact of the activity on the public interest
will include application of the Environmental Protection Agency's 404(b)(1)
guidelines.
Commenting Information
The Corps of Engineers is soliciting comments from the public; Federal, State,
and local agencies and officials, including any consolidated State Viewpoint or
written position of the Governor; Indian Tribes and other interested parties to
consider and evaluate the impacts of this proposed activity. Any comments
received will be considered by the Corps of Engineers to determine whether to
issue, modify, condition, or deny a permit for this proposal. To make this
decision, comments are used to assess impacts on endangered species, historic
properties, water quality, general environmental effects and the other public
interest factors listed above. Comments are used in the preparation of an
Environmental Assessment (EA) and/or an Environmental Impact Statement
(EIS) pursuant to the National Environmental Policy Act (NEPA). Comments are
also used to determine the need for a public hearing and to determine the overall
public interest of the proposed activity.
Any person may request, in writing, within the comment period specified in this
notice, that a public hearing be held to consider the application. Requests for
public hearings shall state, with particularity, the reasons for holding a public
hearing. Requests for a public hearing will be granted, unless the District
Engineer determines that the issues raised are insubstantial or there is otherwise
no valid interest to be served by a hearing.
The Corps of Engineers, Wilmington District will receive written comments
pertinent to the proposed work, as outlined above, until 5pm, May 12, 2022.
Comments should be submitted to April R. Norton,
Raleigh Regulatory Field Office, 3331 Heritage Trade Drive, Suite 105 ,
Wake Forest, North Carolina 27587, at [phone], or
[e-mail].
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