RE_ SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest _ 4100 Auburn Church Road _ Garner _ Wake County) (2)

Baker, Caroline D
From: Harbour, Jeff W <[e-mail]>
Sent: Tuesday, September 5, 2023 9:07 AM
To: Bailey, David E CIV USARMY CESAW (USA); Michael Kane
Cc: Thomas, Zachary T
Subject: RE: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100
Auburn Church Road / Garner / Wake County)
Attachments: Eagle Crest Phase 2 Road Crossing DMS Acceptance.pdf, Neu -Con SOA - Arrington
Bridge III - Eagle Crest -Phase 2 Road Crossing.pdf
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.
SOA letters are attcahed
Jeff Harbour, PWS
Senior Scientist I Natural Resources
ierracon
2401 Brentwood Road, Suite 107 I Raleigh, NC 27604
D [phone] I M [phone]
[e-mail] I Terracon.com
From: Harbour, Jeff W
Sent: Friday, September 1, 2023 9:26 AM
To: Bailey, David E CIV USARMY CESAW (USA) <[e-mail]>; Michael Kane
<[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: RE: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner /
Wake County)
Importance: High
David and Zach
First of all, than you and Zach for your understanding and patience on this project. What we all thought would be pretty
simple became messy due to the rule change. I have talked to the project team and at this point, since we have included
ALL wetlands as jurisdictional, and will provide mitigation; we are ok with moving forward if you guys think that the
approval could come by September 22.
If we reverted back to assuming non-404, it appears that there is a lot of unknowns with regards to timing and that
could negatively affect the project's timeline.
Do you guys agree that as it stands now, we could receive approval by 9/22? David, I am waiting for the revised SOA but
it's coming.
Thanks!!

Jeff Harbour, PWS
Senior Scientist I Natural Resources
0 Fbawracon
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: Wednesday, August 30, 2023 10:21 AM
To: Harbour, Jeff W <[e-mail]>; Michael Kane <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: RE: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner /
Wake County)
Hi Jeff. Yep, I figure there will be a lot of questions in the next few days on this very issue. So, essentially, the rule
doesn't become final until published in the Federal Register, and then Corps HQ/EPA will push direction to the Districts
regarding our pause on JDs. The timing is fluid on both of these items, but several weeks is a good bet.
-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: Wednesday, August 30, 2023 8:28 AM
To: Bailey, David E CIV USARMY CESAW (USA) <[e-mail]>; Michael Kane
<mkane@caPita lcivil.com>
Cc: Thomas, Zachary T <[e-mail]>
Subject: [Non-DoD Source] RE: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn
Church Road / Garner / Wake County)
David,
You knew I was gonna ask; but does the Rule release yesterday put us back where we were originally? Or, are we in a
better position, time -wise, to push forward with this new approach?
Thanks!!

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: Tuesday, August 29, 2023 10:45 AM
To: Harbour, Jeff W <[e-mail]>; Michael Kane <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: RE: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner /
Wake County)
Thanks Jeff. As far as I can tell the only thing I need is an updated statement of availability from your chosen mitigation
provider. Based on of 2:1 for direct impacts to 0.41 acre of wetlands: the SOA should be for 0.82 riparian non-riverine
wetland credits in 03020201.
Also, just a heads up that I would issue a NWP 39 verification for this portion of the project rather than 14. 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: Harbour, Jeff W <[e-mail]>
Sent: Tuesday, August 29, 2023 8:47 AM
To: Thomas, Zachary T <[e-mail]>; Michael Kane <[e-mail]>; Bailey, David E CIV
USARMY CESAW (USA)<[e-mail]>
Subject: [Non-DoD Source] RE: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn
Church Road / Garner / Wake County)
Zach and David,
Please let me know if you need me to update anything for you. Wasn't sure it was necessary since overall impacts have
not changed. Thanks guys!

Jeff Harbour, PWS
Senior Scientist I Natural Resources
fbrracon
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: Tuesday, August 29, 2023 8:45 AM
To: Michael Kane <mkane@caPita lcivil.com>; Bailey, David E CIV USARMY CESAW (USA)
<[e-mail]>; Harbour, Jeff W <[e-mail]>
Subject: RE: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner /
Wake County)
Received —Thanks, Mike!
Thank you,
Zach Thomas
Environmental Program Consultant, Division of Water Resources
North Carolina Department of Environmental Quality
Office: [phone]
[e-mail] "Please note my new email address"
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: Michael Kane <[e-mail]>
Sent: Friday, August 25, 2023 7:13 PM
To: Bailey, David E CIV USARMY CESAW (USA) <[e-mail]>; Harbour, Jeff W
<Jeff.Harbour(@terracon.com>
Cc: Thomas, Zachary T <[e-mail]>
Subject: [External] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 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
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0

Attached are the updated plan sheets. I have updated the overall info on page 1 and added the 36" culvert to page 2 so
that upstream drainage is maintained to the head of the wetland. Same total impact, just more to Wetland AA and less
to BB.
Jeff was out of town this week so if he has any of the permit documents to update I am sure he will take care of early
next week.
Thanks,
Mike Kane
919 390-9682
From: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Sent: Thursday, August 17, 2023 2:30 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>; Michael Kane <[e-mail]>
Subject: RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner / Wake
County)
Hi Jeff, and thanks for your email. I understand your concerns and thank you for bringing them to my attention. Please
note that, until the release of impending guidance or rule regarding waters of the US, the Corps can only proceed with
evaluating impacts to Wetlands AA and BB by treating them as potential waters of the US. All terms and conditions of a
NWP would have to be met for the Corps to authorize impacts to these features. Essentially you are making an
argument that avoiding indirect impacts to the downstream portion of Wetland AA is not practicable. The Corps may be
amenable to this argument if properly supported, and then would consider the remaining area of Wetland AA
downslope of the proposed Impact as an indirect reduction of aquatic function via reduction of hydrology; typically
these types of impacts would require compensatory mitigation at 1:1. 1 would not consider the top portion of Wetland
BB as indirectly impacted as a separate hydrology source (the upland drainage joining from the southeast) would
remain. In addition to addressing the above, please provide the additional clarification needed to proceed with
verification of the use of NWP 39:
1. Please specify the mitigation ratio for the proposed direct wetland impacts. Typically, compensatory mitigation
is required at a 2:1 credit to impact ratio unless otherwise justified based on evaluation of aquatic function (i.e.
NCWAM). Please update the statement of availability from your chosen mitigation provider accordingly.
2. As requested previously, please also provide the plansheet(s) showing the overall development including this
design change. This is necessary to reference the changes in the context of the overall Corps single and complete
project.
Thanks, and 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]
5

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, August 15, 2023 11:26 AM
To: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>; Michael Kane <[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest/ 4100
Auburn Church Road / Garner / Wake County)
David,
Thanks and attached is the SOA. The engineer has expressed some concerns regarding the most recent request in light
of overall intent of this NWP due to the inability to perform AJD determinations. I have highlighted those concerns
below:
• As this was originally a Non -JD wetland we had anticipated filling it in and raising the grades. Nowwith
trying to keep part of the wetlands in the interim, we have to pickup water at elevations that cause issues
in our overall stormwater pipe network design. The pipes at Eagle Crest Way and the original non-jd
wetland crossing did not convey water across to the head of the wetland.... instead they turned the water
into the storm network to follow the roadway west to the pond. I looked at trying to place a culvert pipe
across the roadway for the wetland underneath the perpendicular roadway storm pipe but I would need to
raise the roadway 3+ feet in order to get the required clearances. Raising the road would increase the fill
slopes and add approximately 0.03 acre of additional impact.
This could be done with a lot of rework and redesign, but our ultimate goal is to remove all remnants of the
original non -JD areas when the final WOTUS rule is released and the Corps receives guidance. As is we
have reduced almost 50% of the wetlands and diverted 2/3rds of the original drainage area. Approximately
8 acres of drainage area remains surrounding the undisturbed wetlands. Also note that Wetland AA is an
excavated, former water hazard from the old golf course (photos included).
• If you were to allow the design to stay as is, and assess secondary impacts to the remaining wetland; we
believe that the applicant would be agreeable to some additional mitigation if that would help with the 404
process and justification.
• Our plan is to ultimately fill all the wetlands as soon as we are able to pending release of the 2023 WOTUS
Rule.
Thanks David and Zach for your assistance. Please let us know your thoughts.
Thanks
Jeff Harbour, PWS
Senior Scientist I Natural Resources
mier
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: Friday, August 11, 2023 6:04 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>; Michael Kane <[e-mail]>
Subject: RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner / Wake
County)
Thanks Jeff. When you send the SOA, could you also send the plansheet(s) showing the overall development including
this design change? This will help me reference the changes in the context of the overall Corps single and complete
projects. Also, please ensure that the plan view of the road crossing includes a culvert pipe to move water into the head
of the wetland downslope of the fill, and provide a profile/cross-section view of the proposed road crossing showing the
culvert relative to the existing ground surface.
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: 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: Thursday, August 10, 2023 2:06 PM
To: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>; Michael Kane <[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest/ 4100
Auburn Church Road / Garner / Wake County)
David and Zach,
Attached please find the revised PCN that now indicates the prior non-404 areas are now assumed to be 404
areas. Total project impacts, including the initial phase previously permitted, are 0.44 acre. Impacts proposed under
this PCN are 0.42 ac now that we have included those wetlands as 404 impacts. The breakdown is below:
0.02 ac PHI permitted W1: Stormwater BMP/Berm (approved ph1)
0.01 ac Eagle Crest Way stream crossing stream bed area (in permit in process now)
0.25 ac Eagle Crest Way wetland crossing (previous non-404 area)
0.16 ac Lot 4 wetland impact (previous non-404 area)
0.44 ac total
I will send a mitigation SOA under separate cover as soon as I receive it.

Thanks for your help and we hope this allows you both to continue your review. Let me know if you have any questions.
Jeff Harbour, PWS
Senior Scientist I Natural Resources
am—
wracon
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: Wednesday, August 2, 2023 8:45 AM
To: Harbour, Jeff W <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner / Wake
County)
Hi Jeff. For the Corps purposes we are ok with this being submitted as an additional information response to our most
recent request. I'll let Zach speak to the 401 side of things, as that may be the bigger issue.
-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: Harbour, Jeff W <[e-mail]>
Sent: Wednesday, August 2, 2023 8:40 AM
To: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest/ 4100
Auburn Church Road / Garner / Wake County)
Importance: High
David and Zach
I think the applicant is going to do a slight redesign and concede those wetlands as 404 to keep this moving
forward. They will keep the proposed cumulative impacts below the NWP threshold as required.

Big question.... can we submit this new, modified information as part of the original submittal, or will we be required to
start over???
Thanks!!
Jeff Harbour, PWS
Senior Scientist I Natural Resources
w ierracon
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: Wednesday, July 12, 2023 6:06 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner / Wake
County)
Hi Jeff, and good question. As noted in my 7/7/2023 email, you can certainly proceed with permitting via a
PJD/delineation concurrence, which essentially concedes that the wetlands in question are potentially jurisdictional. As
you know, the project would need to be re -designed in this case such that cumulative impacts for the project do not
exceed the 0.5 acre NWP impact threshold.
At whatever time that WOTUS guidance is issued, you could request an AJD for the wetlands in question. Whether you
would need to submit a new PCN, or submit revisions to a PCN, depends on whether or not either the 401 or 404
permit/verification has been issued at that point. If a new PCN is required, note that all of the typical submission
requirements and timeframes would apply. It seems reasonable that our review wouldn't take as long in that scenario
since we are already familiar with the project, but note that there are a lot of unknowns about the AJD process that
might exist after guidance is issued, and our permitting workload is very hard to predict.
Essentially, yes you could do what you're proposing, but all of the uncertainty makes me very hesitant to over -promise
on timeframes for fear of under -delivering. Feel free to set up a discussion if it would be helpful for you or your client,
although there's only so much I can confidently say given the unknown timing and content of WOTUS guidance.
-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: Wednesday, July 12, 2023 2:54 PM
To: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest/ 4100
Auburn Church Road / Garner / Wake County)
Thanks David. If the applicant were to revise the app to assume 404jurisdiction over those "non-404 areas" in order to
keep the process moving ..... an then guidance was issued on 9/1..... could you (ACOE).... revert back to the original
(current) proposed activity without losing much time??? I hope that makes sense and my guess is that you guys really
can't answer such a question until guidance is actually issued.
The applicant is trying to decide what to do so they are not waiting for possibly months until formal guidance is issued.
As always, thanks
Jeff Harbour, PWS
Senior Scientist I Natural Resources
1wrracon
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: Wednesday, July 12, 2023 2:35 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: RE: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest / 4100 Auburn Church Road / Garner / Wake
County)
Hi Jeff. Following review of your submittal dated 6/15/2023, the Corps agrees that items 2, 3, 4, and 5 from our request
for additional information dated 3/30/2023 are resolved.
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
10

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: Friday, July 7, 2023 11:47 AM
To: Bailey, David E CIV USARMY CESAW (USA)<[e-mail]>
Cc: Thomas, Zachary T <[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] Re: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest/ 4100
Auburn Church Road / Garner / Wake County)
Do either of you have any other comments regarding the information that we submitted per your questions and
concerns? Just need to know this before we make a decision on how to move forward. Thanks.
Sent from my iPhone
On Jul 7, 2023, at 8:00 AM, Bailey, David E CIV USARMY CESAW (USA)
<[e-mail]> wrote:
Hi Jeff, and thanks for your email. You're correct that, other than a few specific cases (all uplands,
excluded waters [e.g. stormwater ponds]), the Corps is unable to process Approved Jurisdictional
Determinations at this time. The message from EPA and Corps HQ is: "The Environmental Protection
Agency and the U.S. Department of the Army (agencies) are in receipt of the U.S. Supreme Court's May
25, 2023, decision in the case of Sackett v. Environmental Protection Agency. 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 United States"' 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. Environmental Protection Agency. The
agencies intend to issue a final rule by September 1, 2023." Although as we discussed on the phone, the
timing of rule issuance is always subject to change.
We may continue issuing Preliminary JDs and confirming aquatic resource boundaries (irrespective of
potential jurisdiction). We can also continue to accept and process permit requests. So, for the case of
Eagle Crest, we could continue with permitting by treating the two wetlands in question as if they are
jurisdictional. Note that the acreage of proposed impacts to these wetlands may exceed the NWP
permit threshold and therefore require an individual permit. Another option may be to redesign the
current proposed project to not impact those wetlands, or at least reduce the impacts to them enough
to proceed with permitting via NWP (assuming avoidance and minimization to the maximum extent
practicable is justified). Another option would be to wait on issuance of the waters of the US rule,
although timing of that is uncertain (see above) and may require withdrawal of the PCN and re -submittal
once the rule is issued and jurisdictional determinations can be made.
Please let me know which route your client would like to pursue. I'm available for a call or Teams
meeting if it would be helpful.
Sincerely,
Dave Bailey
11

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: Friday, June 30, 2023 9:36 AM
To: Thomas, Zachary T <[e-mail]>; Bailey, David E CIV USARMY CESAW (USA)
<[e-mail]>
Subject: [URL Verdict: Neutral][Non-DoD Source] SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest
/ 4100 Auburn Church Road / Garner / Wake County)
David,
Hope this finds you well. Wanted to see if you have any idea about the possible delay pursuant to Item
1 below. I understand that the Final Rule for the Definition of WOTUS is scheduled to be released by
September 1. Am I correct to assume that you may not be able to rectify Item 1 until this final rule is
released? If that is the case then we would like to explore the option of submitting a new NWP
application that relinquishes those non-404 areas back to USACE jurisdiction; just to be able to keep the
review process moving. The 0.03 acre of impact from Phase I would be included and the cumulative
impact amount from Phase I and Phase II would be under the NWP threshold.
Is this an option if you feel that the delay you are currently experiencing is expected to continue at least
until September 15Y?
Thanks David and have a great holiday.
Jeff Harbour, PWS
Senior Scientist I Natural Resources
<image001.png>
2401 Brentwood Road, Suite 107 I Raleigh, NC 27604
D [phone] I M [phone]
[e-mail] I Terracon.com
From: Harbour, Jeff W
Sent: Thursday, June 15, 2023 2:00 PM
To: Thomas, Zachary T <[e-mail]>; Bailey, David E CIV USARMY CESAW (USA)
<[e-mail]>
Cc: Michael Kane <[e-mail]>; Steve Triggiano <[e-mail]>; David Parker
<[e-mail]>
12

Subject: Submittal of Additional Information: SAW-2020-01779 and DWR# 20210137 V2 (Eagle Crest /
4100 Auburn Church Road / Garner / Wake County)
Importance: High
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.
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
13

4. Based on proposed/assumed grading, the project appears to eliminate the majority of the
drainage areas/hydrology source for Streams T5 and T9:
1. 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;
2. 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);
3. 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 groundwater 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
<image007.png>
2401 Brentwood Road, Suite 107 I Raleigh, NC 27604
D [phone] I M [phone]
[e-mail] I Terracon.com
14

From: Thomas, Zachary T <[e-mail]>
Sent: Friday, May 5, 2023 4:14 PM
To: Harbour, Jeff W <[e-mail]>
Cc: Michael Kane <mkane@caPita lcivil.com>; 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:
1. "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."
2. 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
<image008.png>
Emai, ...,. -- ,ondence 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)
15

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
<image009.png>
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]>
16

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: 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: 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.
17

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
<image010.png>
2401 Brentwood Road, Suite 107 I Raleigh, NC 27604
D [phone] I M [phone]
[e-mail] I Terracon.com
18

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)
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:
1. 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;
19

2. 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);
3. 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.
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.
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.
20

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/index.aspx?db=WaterResources#id=2694964;view=browse
This email was automatically generated by Laserfiche workflow. Please do not respond to this email
address, as responses aren't monitored.
Email correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to third parties by an authorized
state official.
21