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HomeMy WebLinkAbout20240249 Ver 1_LRR_PCNSigned_20240208 DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS, WILMINGTON DISTRICT CHARLOTTE REGULATORY OFFICE 8430 UNIVERSITY EXECUTIVE PARK DRIVE, SUITE 615 CHARLOTTE NORTH CAROLINA 28262 September 13, 2023 Regulatory Program/Division Matt Kearns Mungo Homes 441 Western Lane Irmo, SC 29063 Via Email: mkearns@mungo.com Dear Mr. Kearns: This letter is in response to your request to the Wilmington District, Charlotte Regulatory Office for a preliminary jurisdictional determination (PJD). The project/review area is located on the NE side of Little Rock Road, N of the intersection of Little Rock Road and Tuckaseegee Road, at Latitude 35.248737 and Longitude -80.936294; in Charlotte, Mecklenburg County, North Carolina. The review area for this determination is limited to an approximately 16.78 acre(s) area comprised of 1 parcels (parcel numbers: 05917201 (partial)), which is illustrated on the enclosed site maps. This project has been assigned the file number SAW-2023-01576 (None). This file number should be referenced in all correspondence concerning this project. Based on our review of the information you furnished, a site inspection conducted on September 13, 2023, and other information available to our office, we have preliminarily determined the above-referenced area may contain approximately 1,045 linear feet of non-wetland waters and 0.12-acre of waters of the United States under the U.S. Army Corps of Engineers (Corps) regulatory jurisdiction. These waters are identified in the enclosed site maps, ÐApproximate Delineation of Surface Waters and WetlandsÑ dated July 24, 2023. This determination was made in accordance with the Corps regulatory authority pursuant to Section 404 of the Clean Water Act, and based upon criteria contained in the 1987 Corps of Engineers Wetland Delineation Manual and the Eastern Mountains and Piedmont regional supplement. Section 404 of the Clean Water Act requires a Department of the Army (DA) permit be obtained prior to the discharge of dredged or fill material into waters of the United States, including wetlands. Section 10 of the Rivers and Harbors Act of 1899 requires a DA permit be obtained for any work in, on, over or under navigable waters of the United States. For purposes of computation of impacts, compensatory mitigation requirements, and other resource protection measures, a permit decision made based on a preliminary jurisdictional determination will treat all waters including wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S. This preliminary determination is not an appealable action under the Regulatory Program Administrative Appeal Process (Reference 33 CFR Part 331). However, you may request an approved jurisdictional determination, which is an appealable action, by contacting the Corps district for further instructions. Please sign and return the attached PJD form within 30 days of receipt. If a signed PJD form is not received within 30 days of the date of this letter, the Corps will presume concurrence. This determination has been conducted to identify the limits of CorpsÓ Clean Water Act jurisdiction for the review area identified in this request. The determination may not be valid for the wetland conservation provisions of the Food Security Act of 1985. If you or your tenant are USDA Program participants, or anticipate participation in USDA programs, you should request a certified wetland determination from the local office of the Natural Resources Conservation Service, prior to starting work. You are cautioned that work performed in areas which may be waters of the United States, as indicated in the preliminary JD, without a Department of the Army permit could subject you to enforcement action. If you have any questions concerning this correspondence, please contact Doug Perez, Biologist-Regulatory Specialist of the Charlotte Regulatory Office at (704) 510- 1439, by mail at the above address, or by email at doug.j.perez@usace.army.mil. Please take a moment to complete our customer satisfaction survey located at http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0. Sincerely, Doug Perez Biologist-Regulatory Specialist Enclosures cc: Drew Lucas, Wetlands & Waters, Inc. (via drewlucas@wetlands-waters.com) PRELIMINARY JURISDICTIONAL DETERMINATION (PJD) FORM BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR PJD: 9/13/2023 B.NAME AND ADDRESS OF PERSON REQUESTING PJD: Matt Kearns, 441 Western Lane, Irmo, SC 29063 C. DISTRICT OFFICE, FILE NAME, AND NUMBER: Wilmington, None, SAW-2023-01576 D. PROJECT LOCATION(S) AND BACKGROUND INFORMATION The project/review area is located on the NE side of Little Rock Road, N of the intersection of Little Rock Road and Tuckaseegee Road. (USE THE TABLE BELOW TO DOCUMENT MULTIPLE AQUATIC RESOURCES AND/OR AQUATIC RESOURCES AT DIFFERENT SITES) State: North Carolina County: Mecklenburg City: Charlotte Center coordinates of site (lat/long in degree decimal format): Latitude: 35.248737 Longitude: -80.936294 Universal Transverse Mercator: Name of nearest waterbody: Paw Creek E.REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): Office (Desk) Determination. Date: 9/13/2023 Field Determination. Date(s): TABLE OF AQUATIC RESOURCES IN REVIEW AREA WHICH "MAY BE" SUBJECT TO REGULATORY JURISDICTION SiteNumberLatitudeLongitudeEstimatedTypeofaquaticGeographicauthorityto (decimal(decimaldegrees)amountofresources(i.e.,whichtheaquatic degrees)aquaticwetlandvs.nonresourceͻƒğǤĬĻͼ resourcesinwetlandwaters)subject(i.e.,Section404 reviewareaorSection10/404) (acreageand linearfeet,if applicable Nonwetland Tributary135.248780.9362920FEETWatersSection404 NonwetlandSection404 Tributary1A35.2477980.936640FEETWaters NonwetlandSection404 Tributary235.2493780.935385FEETWaters Wetland100035.2482680.9364.01ACRESWetlandSection404 Wetland110035.2486680.9365.08ACRESWetlandSection404 Wetland120035.2492280.9356.02ACRESWetlandSection404 Wetland130035.2496180.9353.01ACRESWetlandSection404 1. The Corps of Engineers believes that there may be jurisdictional aquatic resources in the review area, and to request and obtain an approved JD the requestor of this PJD is hereby advised of his or her option (AJD) for that review area based on an informed decision after having discussed the various types of JDs and their characteristics and circumstances when they may be appropriate. 2.In any circumstance where a permit applicant obtains an individual permit, or aNationwide General Permit (NWP) or other general permit verification requiring "pre- construction notification" (PCN), or requests verification for a non-reporting NWP orother general permit, and the permit applicant has not requested an AJD for theactivity, the permit applicant is hereby made aware that: (1) the permit applicant elected to seek a permit authorization based on a PJD, which does not make an official determination has of jurisdictional aquatic resources; (2) the applicant has the option to request an AJD before accepting the terms and conditions of the permit authorization, and that basing a permit authorization on an AJD could possibly result in less compensatory mitigation being required or different special conditions; (3) the applicant has the right to request an individual permit rather than accepting the terms and conditions of the NWP or other general permit authorization; (4) the applicant can accept a permit authorization and thereby agree to comply with all the terms andconditions of that permit, including whatever mitigation requirements the Corps has determined to be necessary; (5) undertaking any activity in reliance upon the subject permit authorization without requesting an AJD constitutes the applicant's acceptance of the use of the PJD; (6) accepting a permit authorization (e.g., signing a proffered individual permit) or undertaking any activity in reliance on any form of Corps permitauthorization based on a PJD constitutes agreement that all aquatic resources in the review area affected in any way by that activity will be treated as jurisdictional, and waives any challenge to such jurisdiction in any administrative or judicial compliance or enforcement action, or in any administrative appeal or in any Federal court; and (7) whether the applicant elects to use either an AJD or a PJD, the JD will be processed as soon as practicable. Further, an AJD, a proffered individual permit (and all terms and conditions contained therein), or individual permit denial can be administratively appealed pursuant to 33 C.F.R. Part 331. If, during an administrative appeal, it becomes appropriate to make an official determination whether geographic jurisdiction exists over aquatic resources in the review area, or to provide an official delineation of jurisdictional aquatic resources in the review area, the Corps will provide an AJD to accomplish that result, as soon as is practicable. This PJD finds that there "may be" waters of the U.S. and/or that there "may be" navigable waters of the U.S. on the subject review area, and identifies all aquatic features in the review area that could be affected by the proposed activity, based on the followinginformation: SUPPORTING DATA. Data reviewed for PJD (check all that apply) C hecked items are included in the administrative record and are appropriately cited: Maps, plans, plots, or plat submitted by or on behalf of the PJD requestor: Map:ÐApproximate Delineation of Surface Waters and WetlandsÑ dated 7/24/2023, Resource Map, Delineation Map Data sheets prepared/submitted by or on behalf of the PJD requestor. Datasheets: DATASHEETS LABEL dated DATASHEETS DATE Office concurs with data sheets/delineation report. Office does not concur with data sheets/delineation report. Rationale: Data sheets prepared by the Corps: Corps navigable waters' study: CORPS STUDY LABEL dated CORPS STUDY DATE U.S. Geological Survey Hydrologic Atlas: USGS NHD data: USGS NHD LABEL dated USGS NHD DATE USGS 8 and 12 digit HUC maps: USGS WBD LABEL dated USGS WBD DATE U.S. Geological Survey map(s). Cite scale & quad name: USGS Topo Quad Figure 3 dated 5/25/2023 Natural Resources Conservation Service Soil Survey. Citation: NRCS Soil Survey Figure 4 dated 5/25/2023 National wetlands inventory map(s). Cite name: NWI Web Survey Figure 5 dated 5/25/2023 State/local wetland inventory map(s): dated LOCAL NWI DATE FEMA/FIRM maps: FEMA Floodplain Panel Figure 6 dated 5/25/2023 100-year Floodplain Elevation is:ELEVATION (National Geodetic Vertical Datum of 1929) FLOOD ELEVATION LABEL dated FLOOD ELEVATION DATE Photographs: Aerial (Name & Date): County GIS, Figure 2 dated 5/25/2023 or Other (Name & Date): Field Photos dated 5/25/2023 Previous determination(s). File no. and date of response letter: PREVIOUS DETERMINATION LABEL dated PREVIOUS DETERMINATION DATE Other information (please specify): OTHER INFORMATION LABEL dated OTHER INFORMATION DATE IMPORTANT NOTE: The information recorded on this form has not necessarily been verified by the Corps and should not be relied upon for laterjurisdictional determinations. Signature and date ofRegulatory Signature and date ofperson requesting staff membercompleting PJD PJD (REQUIRED, unless obtaining 1 Doug Perez the signature is impracticable) 9/13/2023 1 Districts may establish timeframes for requester to return signed PJD forms. If the requester does not respondwithin the established time frame, the district may presume concurrence and no additional follow up isnecessary prior to finalizing an action. NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND REQUEST FOR APPEAL Applicant: Matt Kearns, Mungo Homes File Number: SAW-2023-01576 Date: 9/13/2023 Attached is: See Section below INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) A PROFFERED PERMIT (Standard Permit or Letter of permission) B PERMIT DENIAL WITHOUT PREJUDICE C PERMIT DENIAL WITH PREJUDICE D APPROVED JURISDICTIONAL DETERMINATION E PRELIMINARY JURISDICTIONAL DETERMINATION F SECTION I The following identifies your rights and options regarding an administrative appeal of the above decision. Additional information may be found at https://www.usace.army.mil/Missions/Civil-Works/Regulatory- Program-and-Permits/appeals/ or Corps regulations at 33 CFR Part 331. A: INITIAL PROFFERED PERMIT: You may accept or object to the permit ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer. Upon receipt of your letter, the district engineer will evaluate your objections and may: (a) modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or (c) not modify the permit having determined that the permit should be issued as previously written. After evaluating your objections, the district engineer will send you a proffered permit for your reconsideration, as indicated in Section B below. B: PROFFERED PERMIT: You may accept or appeal the permit ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. -6- C. PERMIT DENIAL WITHOUT PREJUDICE: Not appealable You received a permit denial without prejudice because a required Federal, state, and/or local authorization and/or certification has been denied for activities which also require a Department of the Army permit before final action has been taken on the Army permit application. The permit denial without prejudice is not appealable. There is no prejudice to the right of the applicant to reinstate processing of the Army permit application if subsequent approval is received from the appropriate Federal, state, and/or local agency on a previously denied authorization and/or certification. D: PERMIT DENIAL WITH PREJUDICE: You may appeal the permit denial You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. E: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new information for reconsideration ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of this notice means that you accept the approved JD in its entirety and waive all rights to appeal the approved JD. APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the date of this notice. RECONSIDERATION: You may request that the district engineer reconsider the approved JD by submitting new information or data to the district engineer within 60 days of the date of this notice. The district will determine whether the information submitted qualifies as new information or data that justifies reconsideration of the approved JD. A reconsideration request does not initiate the appeal process. You may submit a request for appeal to the division engineer to preserve your appeal rights while the district is determining whether the submitted information qualifies for a reconsideration. F: PRELIMINARY JURISDICTIONAL DETERMINATION: Not appealable You do not need to respond to the Corps regarding the preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an approved JD (which may be appealed), by contacting the Corps district for further instruction. Also, you may provide new information for further consideration by the Corps to reevaluate the JD. POINT OF CONTACT FOR QUESTIONS OR INFORMATION: If you have questions regarding this decision you If you have questions regarding the appeal process, or may contact: to submit your request for appeal, you may contact: District Engineer, Wilmington Regulatory Division Philip Shannin Attn: Doug Perez Regulatory Administrative Appeal Review Officer Wilmington District U.S. Army Corps of Engineers U.S. Army Corps of Engineers 8430 University Executive Park Drive, Suite 615 South Atlantic Division Charlotte, North Carolina 28262 60 Forsyth Street, Room M9 Atlanta, Georgia 30303-8801 Phone: (404) 562-5136 Email: philip.a.shannin2@usace.army.mil -7- SECTION II Î REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an initial proffered permit in clear concise statements. Use additional pages as necessary. You may attach additional information to this form to clarify where your reasons or objections are addressed in the administrative record.) ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However, you may provide additional information to clarify the location of information that is already in the administrative record. RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 15-day notice of any site investigation and will have the opportunity to participate in all site investigations. -8- Date: _______________________________ Signature of appellant or agent. Email address of appellant and/or agent: Telephone number: -9- Matt Kearns 11-06-2023 Mungo Homes 441 Western Lane Irmo, SC 29063 RE: Threatened and Endangered Species Evaluation Little Rock Road Charlotte, Mecklenburg County, NC PIN: Partial 05917201 Mr. Kearns, Wetlands & Waters, Inc. (W&W) has completed a late growing season pedestrian botanical survey for the . W&W focused on federal threatened and endangered species and potentially suitable habitat for those species listed on USFWS and for which are applicable to the optimal survey window at the time of this report. This report may be used by the U.S. Army Corps of Engineers (or other Lead Federal Agency such as FEMA) to determine if additional coordination will be necessary to satisfy requirements of the Endangered Species Act. For the purpose of this report, the review area is located south of the terminus of Arapaho Drive in Charlotte, Mecklenburg County, NC. Methodology Evaluation of the review area included a report of known species and critical habitat occurrences within or in close proximity to the project area from the North Carolina Natural Heritage Program (NHP) database (Attachment B); field reviews of known extant populations of species that may potentially be present; and on-site field evaluations of potentially suitable habitat for federally listed species known to occur within the review area, conducted on September 7, 2023. The site evaluation focused on Helianthus schweinitzii), Rhus michauxii), Tricolored Bat (Perimyotis subflavus), and Smooth Coneflower (Echinacea laevigata) within potentially suitable habitat areas in the review area. Photographs documenting reference populations (if applicable) and existing site conditions are included in Attachment A. Prior to conducting field evaluations, W&W staff review an automatically generated list of species and known or expected to be on or near the project area and their habitat that may be present. When practical, known populations of federal threatened and endangered species are referenced in a non-intrusive manner for confirmation of seasonal growth patterns, diagnostic features, and behavioral characteristics. Wetlands & Waters, Inc. WETLAND AND ENVIRONMENTAL CONSULTANTS 1 Species Profile Helianthus schweinitzii) __Endangered Habitat for The species is found along roadsides, powerline clearings, old pastures, and woodland openings. ire) to create open areas for full sunlight, but may also grow in open stands of trees with minimal shade. Soils may be either shallow, sandy with high gravel content, or a clayey hardpan. The sunflower may prefer soils derived from basic material (Krings, Goyette, Suiter, & Samuels, 2021). The NC NHP report indicates that there are no known occurrences of this species within a one-mile radius of the review area. Rhus michauxii)____________________________________________Endangered exchange capacities and appears to depend on some form of disturbance to maintain the open quality of its habitat. This disturbance may be in the form of fire, wind throws, or openings created by roads, railroads and utility rights of way (U.S. Fish & Wildlife Service, Southeast Region, Raleigh Ecological Services Field Office, 2021). Tricolored Bat (Perimyotis subflavus) Proposed Endangered Tricolored bats are three to three and a half inches long. Their tricolored name derives from their fur being dark at the base, light in the middle, and then dark at the tips. They forage in the early evening typically preferring field edges and over waterways. During the winter they hibernate in caves and mines. In areas with few caves, they can be found in culverts, barns, tree cavities, and abandoned water wells. Their breeding season begins in the fall. There is potentially suitable habitat for this species within the review area. The Tricolored bat is listed as proposed endangered and has limited protections under the regulations until it is up-listed to endangered. Smooth Coneflower (Echinacea laevigata) ______ Threatened Smooth Coneflower is typically found in open woods, cedar barrens, roadsides, clear cuts, dry limestone bluffs and power line rights-of-way. The species is usually found on magnesium and calcium rich soils associated with amphibolite, dolomite or limestone (in VA), gabbro (in NC and VA), diabase (in NC and SC) and marble (in SC) (U.S. Fish & Wildlife Service Southeast Region, Raleigh Ecological Services Field Office, 2011). The best Echinacea laevigata populations receive abundant sunlight and little competition from other plant species (Gaddy 1991, as referenced in U.S. Fish & Wildlife Service Southeast Region, Raleigh Ecological Services Field Office, 2011). Findings The review area is an approximately 16.8-acre parcel. The majority of the review area is mixed hardwood forest with a sanitary sewer right-of-way running through the center of the review area. Historic aerials indicate the review area was timbered in 2008. The site is underlain by Cecil sandy clay loam, 2 to 8 percent slopes, 8 to 15 percent slopes, Iredell fine sandy loam, 1 to 8 percent slopes, and Wilkes loam, 8 to 15 percent slopes. Potentially suitable habitat is present for the , Sumac, and Smooth Coneflower, but it is limited to the sanitary sewer right-of-way and road frontage along Little Rock Road. Wetlands & Waters, Inc. WETLAND AND ENVIRONMENTAL CONSULTANTS 2 Potentially suitable habitat is present for , Smooth Coneflower, Sumac; however, no individuals were found during the site evaluation. The results of the field survey are illustrated on the attached figure, Threatened and Endangered Species Survey. Potentially suitable habitat is present for the Tricolored Bat; the Corps has issued guidance that following the species uplisting to Endangered status, projects will be required to either abide by a tree clearing moratorium from April 1 to October 15, or conduct acoustic surveys in accordance with USFWS survey protocols to determine presence or absence. Recommendations W&W conducted evaluations of plant communities and potentially suitable habitat for the federally listed Helianthus schweinitzii), Rhus michauxii), Tricolored Bat (Perimyotis subflavus), and Smooth Coneflower (Echinacea laevigata) within the Little Rock Road review area. Although potentially suitable habitat is present for , Michauxs Sumac, and Smooth Coneflower, no individuals were observed within the review area. Because of this This concludes our assessment of the presence or absence of the federally endangered Sunflower (Helianthus schweinitzii), Rhus michauxii), proposed endangered Tricolored Bat (Perimyotis subflavus), and federally threatened Smooth Coneflower (Echinacea laevigata) and the presence of suitable habitat for those species. Should you require more information regarding the results of our evaluation, please do not hesitate to contact us. Sincerely, Perry Isner (704) 773-4239 Enclosures: Federally Threatened and Endangered Species Survey Attachment A. Field Photographs Attachment B. North Carolina Natural Heritage Program Report Attachment C. USFWS IPaC Species List Wetlands & Waters, Inc. WETLAND AND ENVIRONMENTAL CONSULTANTS 3 References Krings, A., Goyette, S., Suiter, D., & Samuels, M. (2021, July). Schweinitz's Sunflower (Helianthus schweinitzii). Retrieved from Rare plants of North Carolina: https://projects.ncsu.edu/cals/plantbiology/ncsc/rare/images/Helianthus_schweinitzii_NHP.pdf U.S. Fish & Wildlife Service Southeast Region, Raleigh Ecological Services Field Office. (2011). Smooth Coneflower (Echinacea laevigata) 5-Year Review: Summary and Evaluation. Raleigh, NC: U.S. Fish & Wildlife Service. Wetlands & Waters, Inc. WETLAND AND ENVIRONMENTAL CONSULTANTS 4 Legend Review Area Approximate Photo Locations 02505001,000Feet Esri Community Maps Contributors, County of Gaston, mecknc, State of North Carolina DOT, © OpenStreetMap, Microsoft, Esri, HERE, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, EPA, NPS, US Census Bureau, USDA, Maxar, Microsoft Project Name: Little Rock Road Mungo Homes Owner / Developer: City / County: Charlotte/Mecklenburg Federally Threatened and Endangered Tax PIN(s):partial 05917201Acreage:16.78 Species Survey Lat:Long: Coordinates:35.2486377°N-80.9362069°WDate:11-04-2023 Buubdinfou!B; Gjfme!Qipuphsbqit Buubdinfou!C; Opsui!Dbspmjob!Obuvsbm!Ifsjubhf Sfqpsu Buubdinfou!D; VTGXT!JQbD!Tqfdjft!Mjtu