Submittal of Additional Information_ SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest _ 4100 Auburn Church Road _ Garner _ Wake County)

Baker, Caroline D
From: Harbour, Jeff W <[e-mail]>
Sent: Thursday, June 15, 2023 2:00 PM
To: Thomas, Zachary T; Bailey, David E CIV USARMY CESAW (USA)
Cc: Michael Kane; Steve Triggiano; David Parker
Subject: [External] Submittal of Additional Information: SAW-2020-01779 and DWR#
20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner / Wake County)
Attachments: SAW-2020-01779_DWR#20210137 V2 docs.pdf
Importance: High
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David and Zach,
Please see our responses in RED to your questions below as well as the attachment. Thank you for your patience
and please let us know if you have any questions.
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. Terracon is aware of the most recent court ruling that was reported in late May
2023. It is our understanding that currently the USACE cannot process AJDs associated with a permit
request. As you are aware the landscape position of these wetlands, as reviewed by you in 2020, was such that
they were deemed non-404. It is our hope that USDACE can receive guidance in a timely manner to proceed
with this permit review process as it pertains to these proposed non-404 impacts.
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. Please see the attached email
exchange between DWR and the project engineer regarding the culvert. After this consultation, the culvert was
redesigned based on the agencies concerns. Updated drawings and supporting calculations are provided with
this submittal. Impacts to the stream remain unchanged.
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. Agree that NWP 39 can be utilized for this review
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.
T5 - T5 is an intermittent stream which is primarily fed by ground water flow. The surface valley that drains to
T5 is proposed to be filled but will include a perforated storm pipe wrapped in stone and filter fabric to allow
groundwater flows to maintain its existing path. What surface flow is removed from the start point to T5 will be
directed back into the wetlands between T4 and T5 after being treated for water quality and quantity per City of
Raleigh standards. We do not believe that the currently proposed action will result in a detrimental indirect
impact to T5.
T9 - The Eagle Crest Ph1 plan had temporary diverted flow from T9 to T6 which will be corrected with our
proposed PH2 Lot 7 pond. The pond is designed to pick up the upstream tributary area to T9, provide water
quality and quantity control per City of Raleigh standards and outlet north directly back into to T9.
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. Terracon provided USACE with a copy of the
Protected Species Review for the property on 4/7/2023. We believe that this report should help obtain the
necessary concurrence from USFWS for the continued processing of the 404 request.
6) Please note that responses to the questions above may prompt additional information requests to allow full
evaluation of the proposed project. Understood
Jeff Harbour, PWS
Senior Scientist I Natural Resources
0 16e"m L r ra c o n
2401 Brentwood Road, Suite 107 I Raleigh, NC 27604
D [phone] I M [phone]
[e-mail] I Terracon.com

From: Thomas, Zachary T <[e-mail]>
Sent: Friday, May 5, 2023 4:14 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Michael Kane <[e-mail]>; David. [e-mail]
Subject: RE: [External] RE: Request for Additional Information: SAW-2020-01779 (Eagle Crest industrial park / 4100
Auburn Church Road / Garner / Wake County)
Hi Jeff,
I have completed my initial review of this project (DWR# 20210137 V2) and DWR will be considering this project on hold
until we receive a response to the items requested in the 3/30/23 USACE email and the below item:
Regarding the culvert burial in item 2 of David's email, per the general certification:
• "For structures less than 72" in diameter/width, and topographic constraints indicate culvert slopes of
greater than 2.5% culvert burial is not required, provided that all alternative options for flattening the
slope have been investigated and aquatic life movement/connectivity has been provided when possible
(e.g. rock ladders, cross -vanes, sills, baffles etc.). Notification, including supporting documentation to
include a location map of the culvert, culvert profile drawings, and slope calculations, shall be provided
to DWR 30 calendar days prior to the installation of the culvert."
• Please redesign the culvert per the above guidance and provide an updated PCN and impact map
reflecting the changes.
Pending the responses to items requested by the USACE, additional information may be requested to assist in
completing the final review of the project application.
If you have any questions, please let me know.
Thank you,
Zach Thomas
Environmental Program Consultant, Division of Water Resources
North Carolina Department of Environmental Quality
Office: [phone]
[e-mail]
Raleigh Regional Office
1628 Mail Service Center
Raleigh, NC 27699-1628
Email correspondence to and from this address is subject to the North Carolina Public Records Law
and may be disclosed to third parties.
From: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Sent: Tuesday, April 25, 2023 5:23 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Michael Kane <mkane@caPita lcivil.com>; Thomas, Zachary T <[e-mail]>

Subject: [External] RE: Request for Additional Information: SAW-2020-01779 (Eagle Crest industrial park / 4100 Auburn
Church Road / Garner / Wake County)
CAUTION: External email. Do not click links or open attachments unless verified. Report suspicious emails with the Report Message
button located on your Outlook menu bar on the Home tab.
Hi Jeff. The Corps is amenable to granting an additional 30 days to respond to our request for additional information
dated 3/30/2023. As such, the new suspense date to submitting the required information is now 5/29/2023. 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: David. [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: Harbour, Jeff W <[e-mail]>
Sent: Tuesday, April 25, 2023 9:35 AM
To: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Cc: Michael Kane <mkane@caPita lcivil.com>; Thomas, Zachary T <[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] RE: Request for Additional Information: SAW-2020-01779 (Eagle Crest
industrial park / 4100 Auburn Church Road / Garner / Wake County)
Hey David,
Good to talk to you yesterday. I have spoken with the engineer and we would like to request an additional 30 days to
allow for ongoing consultation between the engineer, the wall designer and City of Raleigh, to conclude. We propose to
have the necessary information back to you by May 26, 2023. Thank you for your assistance with this project.
Jeff Harbour, PWS
Senior Scientist I Natural Resources
fi'werracon
2401 Brentwood Road, Suite 107 I Raleigh, NC 27604
D [phone] I M [phone]
[e-mail] I Terracon.com
From: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Sent: Tuesday, April 25, 2023 7:01 AM

To: Harbour, Jeff W <[e-mail]>
Cc: Michael Kane <mkane@caPita lcivil.com>; Thomas, Zachary T <[e-mail]>
Subject: RE: Request for Additional Information: SAW-2020-01779 (Eagle Crest industrial park / 4100 Auburn Church
Road / Garner / Wake County)
Hi Jeff. As a follow-up to my email from yesterday, Corps HQ has updated our procedure related to the "Revised
Definition of 'waters of the United States"' (the 2023 WOTUS Rule) as it relates to the order issued by the U.S. Court of
Appeals for the 6th Circuit in the case of Commonwealth of Kentucky et al., vs. EPA (Case No. 23-5345). In 23 states,
including North Carolina, the Corps will continue to implement the 2023 WOTUS Rule unless your client is a "Plaintiff -
Appellant in Case 23-5345 or one of their members." This includes: Kentucky Chamber Of Commerce, U.S. Chamber Of
Commerce, Associated General Contractors Of Kentucky, Inc., Home Builders Association Of Kentucky, Portland Cement
Association, and Georgia Chamber Of Commerce. My assumption is that your client isn't one of those, but please let me
know if they are.
The good news here is that I should be able to proceed coordinating the AJD with the EPA.
I await your email regarding additional time needed as we discussed yesterday. Thanks, and please let me know if you
have any questions.
-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: Bailey, David E CIV USARMY CESAW (USA)
Sent: Monday, April 24, 2023 1:51 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Michael Kane <mkane@caPita lcivil.com>; Thomas, Zachary T <[e-mail]>
Subject: RE: Request for Additional Information: SAW-2020-01779 (Eagle Crest industrial park / 4100 Auburn Church
Road / Garner / Wake County)
Hi Jeff, and thanks for your email. I just left you a VM, so give me a call back when you get a chance. In short, I have not
coordinated with EPA yet as we have been watching the US Circuit court cases move along regarding the 2023 "Revised
Definition of 'waters of the United States"' (the 2023 WOTUS Rule). On Friday, Corps Headquarters (HQ) notified us that
the U.S. Court of Appeals for the 6th Circuit issued an order in the case of Commonwealth of Kentucky et al., vs. EPA
granting an administrative stay of the 2023 WOTUS Rule until 10 May 2023. The extent of this Administrative Stay is not
clear at the moment. HQ further stated that, in light of the stay and as they evaluate the scope of the order, districts
should not apply the 2023 Rule in the 24 states affected, including North Carolina, until further direction is given.

Bottom line, our leadership directed us to not issue any Approved Jurisdictional Determinations under either the pre-
2015 regime or under the 2023 Rule until further notice. As such, item 1) in our request for additional information is on
hold until we receive further direction.
Regarding granting additional time on other items, the Corps is generally not opposed to granting additional time to
gather the requested information. Please specific the amount of additional time requested and the reason for it to
facilitate my response.
Thanks again.
-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: David. [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: Harbour, Jeff W <[e-mail]>
Sent: Monday, April 24, 2023 11:58 AM
To: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Cc: Michael Kane <mkane@caPita lcivil.com>; Thomas, Zachary T <[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] RE: Request for Additional Information: SAW-2020-01779 (Eagle Crest
industrial park / 4100 Auburn Church Road / Garner / Wake County)
Importance: High
David,
Just to give you an update. We are working on the items you list below and I have sent you info regarding Item 5. Also,
have you heard anything from EPA regarding Item1.
In closing we are wondering if we can formally request a little more time to get everything properly addressed before
submitting this additional info back to you? 30 days is this weekend and we would like to ask for some additional
time. Please let us know and thanks for your assistance.
Jeff Harbour, PWS
Senior Scientist I Natural Resources
Ferracon
2401 Brentwood Road, Suite 107 I Raleigh, NC 27604
D [phone] I M [phone]
[e-mail] I Terracon.com

From: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Sent: Thursday, March 30, 2023 5:12 PM
To: Harbour, Jeff W <[e-mail]>; H. Glen Bagwell, Jr <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: Request for Additional Information: SAW-2020-01779 (Eagle Crest industrial park / 4100 Auburn Church Road /
Garner / Wake County)
0
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: David. [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.
httos://edocs.dea.nc.eov/laserfiche/index.asox?db=WaterResources#id=2694964:view=browse
This email was automatically generated by Laserfiche workflow. Please do not respond to this email address, as
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