20051673 Ver 1_Other Agency Comments_20051025

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United States Department of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box 33726
Raleigh, North Carolina 27636-3726
October 17, 2005 ,~
Ms. Lillette Grande ~ ~ - ~ r~ ~~ -:,~-
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U. S. Army Corps of Engineers
Wilmington Regulatory Field Office ,
P.O. Box 1890 "~~ ~-'
Wilmington, North Carolina 28402-1890
Subject: Action ID No. 200500471; Wheeler, Buckhead Subdivision, Fayetteville, Cumberland County,
North Carolina
Dear Ms. Grande:
This letter provides the comments of the U. S. Fish and Wildlife Service (Service) on the subject Public
Notice (PN), dated September 23, 2005. The applicant, Dr. Bruce Whe_ e~ler,_has applied for an after-the-fact
(ATF) Department of the Army (DA) permit for the discharge of fill into 0.036 of an acre of waters of the
United States, specifically wetlands along Buckhead Creek. These comments are submitted in accordance
with the Fish and Wildlife Coordination Act (FWCA) (48 Stat. 401, as amended; 16 U.S.C. 661-667d).
Comments related to the FWCA are to be used in your determination of compliance with 404(b)(1)
guidelines (40 CFR 230) and in your public interest review (33 CFR 320.4) in relation to the protection of
fish and wildlife resources. Additional comments are provided regarding the District Engineer's
determination of project impacts pursuant to section 7 of the Endangered Species Act (ESA) of 1973, as
amended (16 U.S.C. 1531-1543).
The PN states that the applicant owns a 0.3-acre lot at 4431 Ferncreek Drive, designated as Lot 206. The
rear third of the lot is within the Buckhead Creek Floodway Easement. One definition of a floodway
easement is a channel of a river or other water course and the adjacent land areas that must be reserved in
order to discharge the base flood without cumulatively increasing the water surface elevation more than one
foot. The PN states that a portion of the wetlands (0.036 of an acre) and the floodway easement on the lot
received unauthorized fill in order to create a backyard for the residence. An August 16, 2005, letter from
Dr. J. H. Carter III, a consultant for the applicant, states that the applicant was not responsible for the
unpermitted fill which is given as 2,352 square feet, or 0.054 of an acre . The PN states that that original
subdivision developer, Dohn Broadwell, received a DA permit (Nationwide Permit No. 26) to fill 0.13 of an
acre of wetland in Lots 205 and 206 in order to construct the single-family residences. While not stated
specifically in the PN, the developer apparently exceeded the amount of authorized fill in order to create a
backyard for each residence.
The PN does not contain a graphic representation of the fill area. However, a plan view of the site does show
a line of riprap between the house and Buckhead Creek. This view also shows the line of the 40-foot
Buckhead Creek Floodway Easement and a wetland line, presumably the extent of riparian wetlands. The
DA permit application states that a "rip-rap barrier" was constructed to hold the fill in place. We assume that
portions of the wetlands and floodway easement between the house and the creek have been filled in a
combination of permitted and unpermitted action.

The August 2005 letter of Dr. Carter states that the applicant is "willing to consider reasonable mitigation for
leaving the fill in place." However, no specific mitigation plan is offered.
Federally Protected Species
The PN states that the District Engineer, based on available information, has determined that the proposed
project will have no effect on federally listed endangered or threatened species or their formally designed
critical habitat. The Service has also reviewed available information on federally-threatened or endangered
species known to occur in Cumberland County. We have reviewed information from the North Carolina
Natural Heritage Program (NCNHP) database which contains excellent data on the special status species,
both federal and state. This database can be accessed by topographic quadrangle (quad) of the U. S.
Geological Survey (USGS). Data from USGS quads provide the most project-specific information on
species which should be considered in permitting this project. The project area is located in the Fayetteville
quad. The occurrence data of special status species within this quad can be obtained on the Internet at <
http•1/www ncsparks net/nhp/q_uad html >.
Our review indicates that there are no known occurrences of federally protected species in the immediate
vicinity of the project area. A decision to issue the ATF permit for fill already in place is unlikely to have
section 7 issues. Therefore, the Service would concur with a determination by the District Engineer that the
action is not likely to adversely affect species designated as threatened, endangered, or their designated
critical habitat. However, the requirement of section 7 would need to be reconsidered if: (1) new information
reveals impacts of this identified action that may affect listed species or critical habitat in a manner not
previously considered; (2) this action is subsequently modified in a manner that was not considered in this
review; or, (3) a new species is listed or critical habitat determined that maybe affected by the identified
action.
Service Concerns and Recommendations
The Service is concerned about any permanent loss of riparian wetlands along Piedmont streams. While
riparian zones constitute a small percentage of the landscape, they frequently perform important ecological
functions and contain a disproportionately high number of wildlife species in comparison to most upland
habitats (Fischer et al. 2000; Knutson and Naef 1997). The American Fisheries Society strongly urges that
riparian areas be considered unique and distinctly valuable habitats, and that such areas should be of critical
environmental concern (American Fisheries Society ]985). Riparian areas perform many functions that are
essential to maintaining water quality, aquatic species survival, and biological productivity. Water quality is
enhanced by stabilizing stream banks and filtering capacity for stormwater runoff. Riparian buffers provide
travel corridors and habitat areas for wildlife displaced by development.
The designated Fooodway Easement performs important functions in reducing flood damage. The rip-rap
barrier holding the fill acts as a floodwal or levee along Buckhead Creek. By restricting water conveyance,
the fill can increase the velocity of the creek and elevate flood heights by constraining high flows of the
creek to an artificially narrow channel. Constricting the floodway reduces temporary floodwater storage.
The artificial constriction in the floodway of Buckhead Creek created by the fill may increase flooding along
other sections of the creek. Dr. Carter's letter states that removal of the unpermitted fill would allow
Buckhead Creek to "come within a few feet of the residents, thereby creating health and safety concerns,
particularly for children living at or visiting the residences." However, it should be realized that leaving the
fill in place would, while reducing the risks of the applicant, increase the health and safety concerns of other
nearby residents. From our perspective of protecting fish and wildlife resources, the increased flooding risks

in adjacent area could lead to the need for additional flood control structures along Buckhead Creek. The
construction of additional flood control structures would be detrimental to both aquatic resources and
wildlife using riparian habitats. The Corps should consider the potential increased flooding risk to other
homeowners in the public interest review for this DA permit.
The Service recommends that the public interest requires the maintenance of the established dimensions of
the floodway easement. In addition, the wetlands along Buckhead Creek serve both to attenuate flooding and
improve water quality. If there are other areas of fill in the immediate vicinity (within the range of several
hundred yards) of the subject property along Buckhead Creek that that can be removed to maintain the flood
control function of the floodway, there may be opportunities for on-site, in-kind compensatory mitigation.
The Service opposes compensatory mitigation through payment to the North Carolina In-Lieu-Fee Program
or the use of an off-site, commercial mitigation bank in this circumstance.
If there are no opportunities to replace the floodwater conveyance lost by the unauthorized fill on the subject
property, the Service believe that both the public interest and fish and wildlife resources would be best
served by denial of the requested ATF DA permit and the removal of the fill. If such removal is required, the
Service hopes that the applicant can take legal action against the developer to recover damages resulting
from the diminished value of the property.
The Service appreciates the opportunity to comment on this PN. Please advise us of any action taken by the
Wilmington District, Corps of Engineers. If you have questions regarding these comments, please contact
Howard Hall at 919-856-4520, ext. 27 or by e-mail at < [e-mail] >.
Sincerely,
Pete Benjamin
Ecological Services Supervisor
Literature cited:
American Fisheries Society. 1985. AFS policy statement #14: Strategies for stream riparian area
management. AFS, Bethesda, Maryland. Available:
http://www.fisheries.org/Public_Affairs/Policy_Statements/Index~olicy_statements.shtml. (May
2002).
Fischer, R. A., C. O. Martin, and J. C. Fischenich. 2000. Improving riparian buffer strips and corridors for
water quality and wildlife. Pages 457-462 in P. J. Wigington, Jr. and R. L. Beschta, eds. Proceedings
of the American Water Resources Association International Conference on riparian ecology and
management in multi-land use watersheds, Portland, Oregon.
Knutson, K. L., and V. L. Naef. 1997. Management recommendations for Washington's priority habitats:
riparian. Washington Department of Fish and Wildlife, Olympia.
cc:
Ronald Mikulak, USEPA, Atlanta, GA
John Dorney, NC Division of Water Quality, Raleigh, NC
Steve Everhart, NC Wildlife Resources Commission, Wilmington, NC