20220313 Ver 1_USACE RFAI_20220325

Strickland, Bev
From: Phillips, George L CIV USARMY CESAW (USA) <[e-mail]>
Sent: Friday, March 25, 2022 4:22 PM
To: Dan McCauley
Cc: Cohn, Colleen M
Subject: [External] Gold Leaf Crossing / Fuquay-Varina / Wake County / SAW-2021-00367 /
NWP 39 / Request for Additional Information
Attachments: QL2 Lidar WAC Area.pdf; NWP39.pdf
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to
Report Spam.
Mr. McCauley,
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 a
Jurisdictional Determination (JD) 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. Three options moving forward: 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 entire site.
Moving forward with a combined AJD/PJD would consists of rapanos forms for features which are
potentially 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. In order to expedite the process a combined AJD/PJD for the areas specific to the
project is the quickest option and still allows the Corps to determine features to be non -jurisdictional for
permitting. Please discuss with the applicant and let me know how you would like to proceed.
b. Wetland WAC was previously field -determined to be non -adjacent wetland based on the NWPR in an
email dated 06/09/2021. Based on the QL2 Lidar (attached) I am unable to confirm if WAC is
jurisdictional under the pre-2015 WOTUS regulatory regime. Rapanos forms would be required to
document the preceding. If you would like to schedule a site visit to review this area please let me know.
In order for WAC to be isolated it would need to be "not adjacent to (i.e. bordering or neighboring) an
RPW, and does not have a "significant nexus" with a TNW."
c. Based on my site visit on 04/01/2021, QL2 LiDAR data, Pond A and Pond B previously field -determined
to be constructed or excavated in uplands or a non -jurisdictional water based on the NWPR, appear to
be non -jurisdictional under the pre-2015 WOTUS regulatory regime. The reason for this is that Pond A
and Pond B appear to be constructed entirely in uplands. There are no features with ordinary high water
marks or hydric soils above which drain into Pond A and Pond B. For explanation of WAC (see above).
2) Based on the application the project proposes to discharge fill material at Wetland Area "B" (WAB). There is
discussion about the quality of WAB but there is no justification for the proposed impacts. The need building is
not disputed; however, you have not demonstrated avoidance and minimization to the maximum extent
practicable as required by NWP General Conditions 23(a) and (b). For example, given the scale of the site, the
amount of proposed buildings and parking it appears that impacts at Impact Area B could be avoided or
1

minimized while still achieving the project purpose. Please provide justification for the importance of this
building and explain how avoiding or minimizing is not practicable.
3) Based on the location of the detention pond, location of the level spreader and the retaining walls it appears as
though the upper portion of Wetland Area A could be indirectly affected hydrologically. Please provide
additional information to support the continued function of Wetland Area A up gradient of the Detention Pond.
4) Based on the location of the SWM, location of the level spreader and the retaining walls it appears as though
the upper portion of Wetland Area B could be indirectly affected hydrologically. Please provide additional
information to support the continued function of Wetland Area B up gradient of the SWM.
5) NOTE: As stated in NWP 39, the discharge must not cause the loss of greater than 1/2-acre of non -tidal waters of
the United States. If NWP thresholds are exceeded you may apply for the proposed project via the Standard
Permit process. Or, as an alternative, you may further avoid or minimize impacts proposed to show that
cumulative impacts fit within the NWP impact thresholds. This may or may not be a factor once the above
comments/questions are addressed.
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, it may be
beneficial to schedule a time to discuss.
Lyle Phillips
Regulatory Specialist
US Army Corps of Engineers
CE-SAW-RG-R
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
Phone: [phone], Ext. 25.
Fax: [phone]
Email: [e-mail]
We would appreciate your feedback on how we are performing our duties. Our automated Customer Service Survey is
located at https://regulatory.ops.usace.army.mil/customer-service-survey/ . Thank you for taking the time to visit this
site and complete the survey.
2