Request for Additional Information_ SAW-2020-01779 (Eagle Crest industrial park _ 4100 Auburn Church Road _ Garner _ Wake County)

Baker, Caroline D
From: Bailey, David E CIV USARMY CESAW (USA) <[e-mail]>
Sent: Thursday, March 30, 2023 5:12 PM
To: Harbour, Jeff W; H. Glen Bagwell, Jr
Cc: Thomas, Zachary T
Subject: [External] Request for Additional Information: SAW-2020-01779 (Eagle Crest industrial
park / 4100 Auburn Church Road / Garner / Wake County)
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Thank you for your PCN, dated 2/28/2023, for the above referenced project. I have reviewed the information and need
clarification before proceeding with verifying the use of Nationwide Permit (NWP) 14 (https://saw-
reg.usace.army.mil/NWP2021/NWP-14.pdf). 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consider your application withdrawn and close the file:
1) Please note that the Approved Jurisdictional Determination (AJD) dated 7/28/2021, which covered Wetlands W6
and W7 of the project area, relied on the Navigable Waters Protection Rule (NWPR), since vacated. Based on the
Memo from the Deputy Commanding General for Civil and Emergency Operations, "Direction Concerning the
Implementation of Section 404 of the Clean Water Act by the Corps of Engineers in Light of the Vacatur of the
Navigable Waters Protection Rule" dated 1/4/2022 (4 January 2022 Memo), the Corps cannot rely on a NWPR
AJD in making a new decision on a regulatory action (including new permitting decisions). Rather, the Corps will
make new permit decisions pursuant to the currently applicable regulatory regime (i.e., the Revised Definition of
"Waters of the United States", implemented on 3/20/2023 [2023 WOTUS Rule]).
I have begun the coordination process with Corps Headquarters and the EPA to confirm that both Wetlands W6
and W7 would remain non -jurisdictional under the 2023 WOTUS Rule, and will advise you accordingly as this
process proceeds. Note that, if these wetlands are determined to be jurisdictional waters of the US, the project
as proposed would not fit the NWP thresholds in general, thereby requiring evaluation under the Standard (i.e.
Individual) Permit process.
2) Given the relatively steep slope (>3%) of the proposed culvert, we are concerned that this stream would be
subject to headcutting (and potential wetland drainage) above the proposed culvert if the invert is buried 1 foot
as proposed. Note also that, in this case, NWP Regional Condition 9.a does not require culvert invert burial,
based on the proposed culvert slope and size of the proposed pipe (48"). Please confirm with NCDWR regarding
whether or not culvert burial is required/advisable in this situation. If burial of the culvert pipe is not advised,
please redesign accordingly and update the PCN and applicable plansheets.
3) The purpose of the proposed fill in waters is to provide access and infrastructure to Phases 3 and 4 of the Eagle
Crest West Industrial Park. The typical authorization sought for such projects is NWP 39 (Commercial and
Institutional Developments). Further, no above -grade fill into waters of the U.S. within the floodway or mapped
FEMA 100-year floodplain is proposed as part of this project which would preclude the use of NWP 39. As such,
NWP 39 (Commercial and Institutional Developments) is a more appropriate authorization for the purpose of
the proposed impacts.
4) Based on proposed/assumed grading, the project appears to eliminate the majority of the drainage
areas/hydrology source for Streams T5 and T9:
a. Please provide justification that hydrologic input will be maintained to these waters. Common designs
include routing approximately equivalent surface water/runoff area to these locations, altering locations

of stormwater outlets, usage of French drains and under -drains where appropriate, etc. Please also
update applicable plansheets to clearly show such measures/details;
b. If maintenance of stream hydrology is unable to be justified as appropriate, the Corps would consider
these areas as reasonably foreseeable indirect impacts (see NWP General Conditions "District Engineers
Decision") resulting from a loss of hydrology. In such cases compensatory mitigation may be required for
indirect impacts resulting in a loss of hydrology and therefore aquatic function; compensatory mitigation
is typically required at a 1:1 ratio for such indirect impacts (although may be situationally up to 2:1),
depending largely on aquatic function (e.g. NCSAM);
c. A monitoring plan (typically including monitoring devices and visual observations for a period of 5 years
post -construction) to document maintenance of stream hydrology may also be proposed for Corps
evaluation and approval; such monitoring plans would also include a contingency plan, typically
including compensatory mitigation, in the event that monitoring does not indicate maintenance of
stream hydrology.
5) Given the relative proximity of this project to known populations of several threatened/endangered mussel
species, as well as potentially suitable habitat for these species occurring within the project action area, we will
initiate informal consultation with the US Fish and Wildlife Service (USFWS). Please note that the Corps cannot
verify the use of a NWP until Section 7 consultation is complete.
6) Please note that responses to the questions above may prompt additional information requests to allow full
evaluation of the proposed project.
It appears that an Individual 401 Water Quality Certification (WQC) is required from the North Carolina Division of Water
Resources (NCDWR) for this project. Please note that the Corps cannot verify the use of any NWP without a valid 401
WQC.
For NCDWR: Within 14 days, please notify me if the certification request does not contain the nine (9) components listed
in Section 121.5(b) of the 2020 Clean Water Act Section 401 Certification Rule; otherwise, we will consider our receipt
date (2/28/2023) as accurate. As specified in the 9/16/2022, Programmatic Agreement (PA) between the USACE and the
NCDWR, the reasonable period of time (RPOT) for DWR to act on a Section 401 certification request is 120 days unless
the RPOT is extended per the terms of this PA. As such, unless we receive an email request for an extension of the RPOT,
the USACE will consider the Section 401 certification for this project to be waived on 6/28/2023.
Please let me know if you have any questions.
Sincerely,
Dave Bailey
David E. Bailey, PWS
Regulatory Project Manager
US Army Corps of Engineers
CE-SAW-RG-R
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
Mobile: [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.

From: RaleighNCREG <[e-mail]>
Sent: Wednesday, March 1, 2023 7:58 AM
To: Harbour, Jeff W <[e-mail]>
Cc: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Subject: SAW-2020-01779 (Eagle Crest industrial park / 4100 Auburn Church Road / Garner / Wake County)
Good morning,
We have received your Pre -Construction Notification (PCN) NWP request for the above project and forwarded
it to Dave Bailey for further processing.
Thank you,
Josephine Schaffer
From: [e-mail] <[e-mail]>
Sent: Tuesday, February 28, 2023 10:00 AM
To: RaleighNCREG <[e-mail]>
Cc: SAW-PCN-RG <[e-mail]>
Subject: [Non-DoD Source] PCN - Wake - Non -DOT
A new project has been received on 2/28/2023 9:59 AM for Eagle Crest West Industrial Park. The link below will take you
to the project folder.
https://edocs.deg. nc.gov/Laserfiche/i ndex.aspx?db=WaterResou rces#id=2694964;view=browse
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