_External_ Request for Additional Information for SAW-2021-01108 Durham Auto _ 1802 S Mineral Springs Road _ Durham

From: Tillery, Julia A CIV USARMY CESAW (USA)
To: dshirleyCabsandec.com
Cc: Thomas, Zachary T; Myers, Joseph M
Subject: [External] Request for Additional Information for SAW-2021-01108 Durham Auto / 1802 S Mineral Springs Road /
Durham
Date: Monday, July 17, 2023 1:28:28 PM
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Thank you for your PCN, dated 6/17/2023, for the above referenced project. I have reviewed
the information and need clarification before proceeding with verifying the use of Nationwide
Permit (NWP) 29. Please submit the requested information below (via e-mail is fine) within 30
days of receipt of this Notification, otherwise we may deny verification of the use of the
Nationwide Permit or consider your application withdrawn and close the file:
This project site received a Delineation Concurrence email from the Corps on 7/14/2021
concurring with the presence and extent of the aquatic resources found within the site. An
AJD was requested on Pond 1 and Wetland W7 of the project area, although it was not
processed prior to the 3/20/2023 implementation of the 2023 WOTUS Rule or the U.S.
Supreme Court's May 25, 2023, decision in the case of Sackett v. EPA .
The EPA and the U.S. Department of the Army (the agencies) are in receipt of the U.S.
Supreme Court's May 25, 2023, decision in the case of Sackett v. EPA. In light of this decision,
the agencies are interpreting the phrase "waters of the United States" consistent with the
Supreme Court's decision in Sackett. The agencies are developing a rule to amend the final
"Revised Definition of 'Waters of the US" rule, published in the Federal Register on January 18,
2023, consistent with the U.S. Supreme Court's May 25, 2023, decision in the case of Sackett
v. EPA. The agencies intend to issue a final rule by September 1, 2023.
Per direction issued from the agencies since the Sackett decision, we can move forward on
AJDs for ONLY 1) Dry land and 2) Excluded Waters, see definitions below for reference. We
remain paused on AJDs for all other types of aquatic resources. We may continue issuing
PreliminaryJDs and confirming aquatic resource boundaries.
As proposed, your project construction would impact Pond 1 (0.32 acre) and Wetland W7
(0.06 acre). The Corps will concur that Pond 1 is an irrigation pond constructed in uplands (an
excluded water) per the current rules; however, the Corps cannot concur that Wetland W7 is
"isolated" as it is does not fit one of the types of resources eligible for an AJD as stated above
and defined below.
As discussed over the phone, there are three options available to the applicant at this time to
proceed with permitting:
1. Redesign the construction so as to completely avoid impacts to Wetland W7

2. Leaving design as currently proposed, revise proposed impacts to include impacts to
Wetland W7 (0.06 acre), and recalculate proposed mitigation to reflect additional
impacts
3. Place project/application on hold until the Agencies issue the expected Final Rule,
whereas the wetland in question would be reevaluated and an AJD could be processed.
Please let me know how you would like to proceed with this permit application.
Thank you,
Julia
For your information regarding Approved Jurisdictional Determinations post SCOTUS Sackett:
USACE Wilmington District can now resume AJDs for ONLY the following 2 categories:
1) Dry land AJDs
2) All exclusions in paragraph (b) of the 2023 rule for districts currently implementing
the 2023 Rule
Paragraph (b) exclusions from the 2023 WOTUS Rule are:
(b)(1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the
requirements of the Clean Water Act" are not "waters of the United States".
(b)(2) prior converted cropland designated by the Secretary of Agriculture. The exclusion
would cease upon a change of use, which means that the area is no longer available for the
production of agricultural commodities.
(b)(3) -ditches (including roadside ditches) excavated wholly in and draining only dry land and
that do not carry a relatively permanent flow of water;
(b)(4) -artificially irrigated areas that would revert to dry land if the irrigation ceased;
(b)(5) -artificial lakes or ponds created by excavating or diking dry land to collect and retain
water and which are used exclusively for such purposes as stock watering, irrigation, settling
basins, or rice growing;
(b)(6) -artificial reflecting or swimming pools or other small ornamental bodies of water
created by excavating or diking dry land to retain water for primarily aesthetic reasons;
(b)(7) -waterfilled depressions created in dry land incidental to construction activity and pits
excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the
construction or excavation operation is abandoned and the resulting body of water meets the
definition of waters of the United States; and
(b)(8) -swales and erosional features (e.g., gullies, small washes) characterized by low volume,
infrequent, or short duration flow.

Julia Tillery (she/her)
Regulatory Specialist, Raleigh Field Office
CE-SAW-RG-R
U.S. Army Corps of Engineers —Wilmington District
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
Phone: [phone]
Email: iulia.a.tilleryna usace.army.mil
From: RaleighNCREG <[e-mail]>
Sent: Friday, June 16, 2023 1:39 PM
To: [e-mail]
Cc: Tillery, Julia A CIV USARMY CESAW (USA) <[e-mail]>
Subject: SAW-2021-01108 (Durham Auto / 1802 S Mineral Springs Road / Durham NC / Durham
County)
Good Afternoon,
We have received your Pre -Construction Notification (PCN) NWP request for the above
project and forwarded it to Julia Tillery for further processing.
Thank you,
Josephine Schaffer
From: lase rfiche.ncdenr.govna mccicloud.io <laserfiche.ncdenr.govna mccicloud.io>
Sent: Thursday, June 15, 2023 3:29 PM
To: RaleighNCREG <RaleighNCREG(cDusace.army.mil>
Cc: SAW-PCN-RG <SAW-PCN-RG(@usace.army.mil>
Subject: [Non-DoD Source] More Information Received - Non -DOT- Durham
New Project has been received on 6/15/2023 3:28 PM for Mica Ridge. The link below will take you to
the project folder.
https://edocs.deg.nc.gov/Laserfiche/index.aspx?db=WaterResources#id=546066:view=browse
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