AJD_SAW-2022-01008.pdf

DEPARTMENT OF THE ARMY
'1 U.S. ARMY CORPS OF ENGINEERS, WILMINGTON DISTRICT
- WILMINGTON REGULATORY OFFICE
69 DARLINGTON AVENUE
WILMINGTON NORTH CAROLINA 28403
August 1, 2024
Regulatory Program/Division
Sent Via Email: [e-mail]
Steven Ball
Soil & Environmental Consultants, Inc.
8412 Falls of Neuse Road
Suite 104
Raleigh, North Carolina 27615
9=mLVA=C F II
This letter is in response to your request to the Wilmington District, Raleigh Field
Office for an approved jurisdictional determination. The review area is located directly
north of Fayetteville Street and Mailman Road. Approximately 0.30 miles south of the
intersection of Knightdale-Eagle Rock Road and Mailman Road, at Latitude 35.779380
and Longitude-78.461210; in Knightdale, Wake County, North Carolina. The review
area for this determination is limited to an approximately 0.975 acre(s) area, which is
illustrated on the enclosed site maps as the yellow outlined area labeled "AJD Review
Area". This request has been assigned the file number SAW-2022-01008. 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
June 16, 2022, and other information available to our office, we have determined the
above -referenced area contains no waters of the United States under U.S. Army
Corps of Engineers (Corps) regulatory jurisdiction within the AJD Review Area. These
waters are identified in the enclosed site maps, Wetland Sketch Map dated February
19, 2024. 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. This determination is valid for a period of
five years from the date of the letter, unless new information warrants revision of the
determination before the expiration date or a District Engineer has identified, after public
notice and comment, that specific geographic areas with rapidly changing
environmental conditions merit re -verification on a more frequent basis.
This letter contains an approved jurisdictional determination for your subject site. If
you object to this determination, you may request an administrative appeal under Corps
regulations at 33 CFR Part 331. Enclosed you will find a Notification of Appeal Process
(NAP) fact sheet and request for appeal (RFA) form. If you request to appeal this

determination you must submit a completed RFA form to the Division Appeals Officer at
the address listed on the RFA form. In order for an RFA to be accepted by the Corps,
the Corps must determine that it is complete, that it meets the criteria for appeal under
33 CFR part 331.5, and that it has been received by the Division Office within 60 days
of the date of the NAP. Should you decide to submit an RFA form, it must be received
by the Corps by September 30, 2024. It is not necessary to submit an RFA form to
the Division Office if you do not object to the determination in this
correspondence.
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.
This determination has been conducted to identify the limits of Corps' 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 below the mean high water line or ordinary
high water line in waters of the United States; and/or, the discharge of dredged or fill
material into any areas identified on the enclosed information as within Federal
jurisdiction, without a Department of the Army permit could subject you to enforcement
action. Receipt of a permit from a state or local municipality does not obviate the
requirement for obtaining a Department of the Army permit.
If you have any questions concerning this correspondence, please contact Matthew
Martin, Regulatory Specialist of the Raleigh Field Office at [phone], by mail at
the above address, or by email at [e-mail]. mi1. Please take a
moment to complete our customer satisfaction survey located at
https://regulatory.ops.usace.army.miI/customer-service-survey/.
Sincerely,
Matthew K. Martin
Regulatory Specialist
Enclosures

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NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND
REQUEST FOR APPEAL
Applicant: Steven Ball, Soil & Environmental
File Number: SAW-2022-01008
Date: 8/1/2024
Consultants, Inc.
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
❑x
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.miI/Missions/Civil-Works/RegulatorV-
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.
-1-

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
Krista Sabin
Attn: Matthew Martin
Regulatory Administrative Appeal Review Officer
Wilmington District U.S. Army Corps of Engineers
U.S. Army Corps of Engineers
3331 Heritage Trade Drive Suite 105
South Atlantic
Wake Forest, North Carolina 27587
60 Forsyth Street Room M9
Atlanta, Georgia 30303-8801
Phone: [phone]
Email: [e-mail]
SECTION II — REQUEST FOR APPEAL or OBJECTIONS TO AN INITIAL PROFFERED PERMIT
-2-

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.
Date:
Signature of appellant or agent.
Email address of appellant and/or agent:
Telephone number:
-3-

DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS, WILMINGTON DISTRICT
69 DARLING AVENUE
WILMINGTON, NORTH CAROLINA 28403
SAW-RG-R 31 July 2024
MEMORANDUM FOR RECORD
SUBJECT: US Army Corps of Engineers (Corps) Approved Jurisdictional Determination
in accordance with the "Revised Definition of `Waters of the United States"'; (88 FR
3004 (January 18, 2023) as amended by the "Revised Definition of `Waters of the
United States'; Conforming" (8 September 2023) ,' [SAW-2022-01008]2
BACKGROUND. An Approved Jurisdictional Determination (AJD) is a Corps document
stating the presence or absence of waters of the United States on a parcel or a written
statement and map identifying the limits of waters of the United States on a parcel.
AJDs are clearly designated appealable actions and will include a basis of JD with the
document.3 AJDs are case -specific and are typically made in response to a request.
AJDs are valid for a period of five years unless new information warrants revision of the
determination before the expiration date or a District Engineer has identified, after public
notice and comment, that specific geographic areas with rapidly changing
environmental conditions merit re -verification on a more frequent basis.'
On January 18, 2023, the Environmental Protection Agency (EPA) and the Department
of the Army ("the agencies") published the "Revised Definition of `Waters of the United
States,"' 88 FR 3004 (January 18, 2023) ("2023 Rule"). On September 8, 2023, the
agencies published the "Revised Definition of `Waters of the United States';
Conforming", which amended the 2023 Rule to conform to the 2023 Supreme Court
decision in Sackett v. EPA, 598 U.S., 143 S. Ct. 1322 (2023) ("Sackett").
This Memorandum for Record (MFR) constitutes the basis of jurisdiction for a Corps
AJD as defined in 33 CFR §331.2. For the purposes of this AJD, we have relied on
Section 10 of the Rivers and Harbors Act of 1899 (RHA),5 the 2023 Rule as amended,
1 While the Revised Definition of "Waters of the United States"; Conforming had no effect on some
categories of waters covered under the CWA, and no effect on any waters covered under RHA, all
categories are included in this Memorandum for Record for efficiency.
2 When documenting aquatic resources within the review area that are jurisdictional under the Clean
Water Act (CWA), use an additional MFR and group the aquatic resources on each MFR based on the
TNW, the territorial seas, or interstate water that they are connected to. Be sure to provide an identifier to
indicate when there are multiple MFRs associated with a single AJD request (i.e., number them 1, 2, 3,
etc.).
3 33 CFR 331.2.
4 Regulatory Guidance Letter 05-02.
5 USACE has authority under both Section 9 and Section 10 of the Rivers and Harbors Act of 1899 but for
convenience, in this MFR, jurisdiction under RHA will be referred to as Section 10.

[SAW-RG-R]
SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2022-01008]
as well as other applicable guidance, relevant case law, and longstanding practice in
evaluating jurisdiction.
1. SUMMARY OF CONCLUSIONS.
a. Provide a list of each individual feature within the review area and the
jurisdictional status of each one (i.e., identify whether each feature is/is not a
water of the United States and/or a navigable water of the United States).
Name of Aquatic Resource
JD or Non -JD
Section 404/Section 10
Pond 4
Non -JD
NA
Pond 5
Non -JD
NA
Pond 6
Non -JD
NA
Wetland 8
Non -JD
NA
2. REFERENCES.
a. "Revised Definition of `Waters of the United States,"' 88 FR 3004 (January 18,
2023) ("2023 Rule")
b. "Revised Definition of `Waters of the United States'; Conforming" 88 FR XXXX
(September 8, 2023))
c. Sackett v. EPA, 598 U.S. _, 143 S. Ct. 1322 (2023)
3. REVIEW AREA..
A. Project Area Size (in acres): 0.975 acres (See "AJD Review Areas")
B. Center Coordinates of the Project Site (in decimal degrees)
Latitude: 35.824976 Longitude:-78.466284
C. Nearest City or Town: Knightdale
D. County: Wake
E. State: North Carolina
F. Other associated Jurisdictional Determinations (including outcomes): PJD
issued on 10/9/2015, Action ID: SAW-2015-00229, for property immediately to the
west of the subject property to the west.
G. Any additional, relevant site -specific information: N/A

[SAW-RG-R]
SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2022-01008]
4. NEAREST TRADITIONAL NAVIGABLE WATER (TNW), THE TERRITORIAL SEAS,
OR INTERSTATE WATER TO WHICH THE AQUATIC RESOURCE IS
CONNECTED. s
A. Name of nearest downstream TNW, Territorial Sea or interstate water: Neuse
River
B. Determination based on: This determination was made based on a review of the
SAW Section 10 list and documented occurrences of boating traffic on the identified
water.
5. FLOWPATH FROM THE SUBJECT AQUATIC RESOURCES TO A TNW, THE
TERRITORIAL SEAS, OR INTERSTATE WATER.
Wetland 8 -> Pond 4 -> Pond overflow through uplands with no consistent OHWM
indicators -> Offsite intermittent tributary SLJ -> Offsite Wetland WLA -> Offsite Pond
SWLB/SWXA -> Offsite perennial tributary SXA/SLC/UT to Poplar Creek-> Poplar
Creek -> Neuse River
6. SECTION 10 JURISDICTIONAL WATERS': Describe aquatic resources or other
features within the review area determined to be jurisdictional in accordance with
Section 10 of the Rivers and Harbors Act of 1899. Include the size of each aquatic
resource or other feature within the review area and how it was determined to be
jurisdictional in accordance with Section 10.8 [N/A]
7. SECTION 404 JURISDICTIONAL WATERS: Describe the aquatic resources within
the review area that were found to meet the definition of waters of the United States
in accordance with the 2023 Rule as amended, consistent with the Supreme Court's
decision in Sackett. List each aquatic resource separately, by name, consistent with
the naming convention used in section 1, above. Include a rationale for each aquatic
resource, supporting that the aquatic resource meets the relevant category of
"waters of the United States" in the 2023 Rule as amended. The rationale should
also include a written description of, or reference to a map in the administrative
record that shows, the lateral limits of jurisdiction for each aquatic resource, including
how that limit was determined, and incorporate relevant references used.
6 This MFR should not be used to complete a new stand-alone TNW determination. A stand-alone TNW
determination for a water that is not subject to Section 9 or 10 of the Rivers and Harbors Act of 1899
(RHA) is completed independently of a request for an AJD. A stand-alone TNW determination is
conducted for a specific segment of river or stream or other type of waterbody, such as a lake, where
upstream or downstream limits or lake borders are established.
33 CFR 329.9(a) A waterbodv which was naviaable in its natural or improved state. or which was
susceptible of reasonable improvement (as discussed in § 329.8(b) of this part) retains its character as
"navigable in law" even though it is not presently used for commerce, or is presently incapable of such
use because of changed conditions or the presence of obstructions.
8 This MFR is not to be used to make a report of findings to support a determination that the water is a
navigable water of the United States. The district must follow the procedures outlined in 33 CFR part
329.14 to make a determination that water is a navigable water of the United States subject to Section 10
of the RHA.
3

[SAW-RG-R]
SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2022-01008]
Include the size of each aquatic resource in acres or linear feet and attach and
reference related figures as needed.
a. Traditional Navigable Waters (TNWs) (a)(1)(i): [N/A]
b. The Territorial Seas (a)(1)(ii): [N/A.]
c. Interstate Waters (a)(1)(iii): [N/A]
d. Impoundments (a)(2): [N/A]
e. Tributaries (a)(3): [N/A]
f. Adjacent Wetlands (a)(4): [N/A]
g. Additional Waters (a)(5): [N/A]
8. NON -JURISDICTIONAL AQUATIC RESOURCES AND FEATURES
a. Describe aquatic resources and other features within the review area identified in
the 2023 Rule as amended as not "waters of the United States" even where they
otherwise meet the terms of paragraphs (a)(2) through (5). Include the type of
excluded aquatic resource or feature, the size of the aquatic resource or feature
within the review area and describe how it was determined to meet one of the
exclusions listed in 33 CFR 328.3(b).9
Aquatic
Size (in
Coordinates
Resource Type
Reason the AR is not jurisdictional
Resource
acres)
Name
Pond 5
0.256
35.779627,
Open Water
(b)(6) Artificial reflecting or swimming pools or
-78.460663
other small ornamental bodies of water created
by excavating or diking dry land to retain water
primarily for aesthetic reasons
Pond 6
0.010
35.779762,
Open Water
(b)(6) Artificial reflecting or swimming pools or
-78.457150
other small ornamental bodies of water created
by excavating or diking dry land to retain water
primarily for aesthetic reasons
b. Describe aquatic resources and features within the review area that were
determined to be non -jurisdictional because they do not meet one or more
categories of waters of the United States under the 2023 Rule as amended (e.g.,
tributaries that are non -relatively permanent waters; non -tidal wetlands that do
not have a continuous surface connection to a jurisdictional water).
9 88 FIR 3004 (January 18, 2023)
12

[SAW-RG-R]
SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2022-01008]
Aquatic Resource
Name
Size (in
acres)
Coordinates
Resource Type
Reason the AR is not jurisdictional
Pond 4 is a negative (a)(5) water. There is no
Pond 4
0.700
35.778657,
Open Water
standpipe or other water control structure exiting
-78.465813
from Pond 4. There is an —250-foot long erosional
feature through uplands exiting the SW corner of
the pond that does not exhibit consistent indicators
of OHWM or otherwise display evidence of
relatively permanent flow. Just offsite, intermittent
tributary SLJ (SAW-2015-00229) originates at a
headcut at the downgradient end of this erosional
feature. Pond 4 has no continuous surface
connection to an (a)(1) - (a)(3) water.
Wetland 8
0.009
35.778494,
Wetland
Wetland 8 is a negative (a)(4) water. This
-78.465262
feature abuts a negative (a)(5) water (Pond 4)
and has no continuous surface connection to a
to an (a)(1) - (a)(3) water.
9. DATA SOURCES. List sources of data/information used in making determination.
Include titles and dates of sources used and ensure that information referenced is
available in the administrative record.
a. 1. Date of Office (desktop review):
2. Date(s) of Field Review (if applicable): June 16, 2022 (Samantha Dailey)
b. Data sources used to support this determination (included in the administrative
record).
❑x Aquatic Resources delineation submitted by, or on behalf of, the requestor:
Title and Date: Attachment C- Wetland Sketch Map / Attachment B — Wetland
Field Data Sheets
❑ Aquatic Resources delineation prepared by the USACE: Title and Date
❑ Wetland field data sheets prepared by the Corps: Title and Date
❑ OHWM data sheets prepared by the USACE: Title and Date
® Previous JDs (AJD or PJD) addressing the same (or portions of the same)
review area:
Attachment A - Delineation Concurrence email, dated 7/19/2022, which documents all
potential waters of the US within the non-AJD Review Areas of the subject property
Attachment F - SAW-2015-00229 PJD / Nationwide Permit (10/9/2015 ) for the
property immediately to the west of the western -most AJD Review Area.
Relevance: Documents intermittent tributary SLJ downgradient of Pond 4.
❑x Photographs: Attachment E - Reference map and site photos documenting upland
erosional feature (not a continuous surface connection) between Pond 4 and off -site
intermittent tributary SLJ
❑x Aerial Imagery: Attachment C - Wetland Sketch Map for AJD Review Areas
G0

[SAW-RG-R]
SUBJECT: 2023 Rule, as amended, Approved Jurisdictional Determination in Light of
Sackett v. EPA, 143 S. Ct. 1322 (2023), [SAW-2022-01008]
0 LIDAR: Attachment D — annotated LiDAR Map
❑ USDA NRCS Soil Survey:
❑ USFWS NWI maps: Title and Dates
❑ USGS topographic maps:
❑ USGS NHD data/maps: Title and Dates
❑ Section 10 resources used: Title and Dates
❑ NCDWR stream identification forms
❑ North Carolina Stream Assessment Method (NCSAM) forms
❑ North Carolina Wetland Assessment Method (NCWAM) forms
❑ Antecedent Precipitation Tool Analysis:
0 Other sources of Information: Attachment F- SAW-2015-00229 Preliminary
Jurisdictional Determination / Nationwide Permit
10. NOTE: The structure and format of this MFR were developed in coordination with
the EPA and Department of the Army. The MFR's structure and format may be
subject to future modification or may be rescinded as needed to implement
additional guidance from the agencies; however, the approved jurisdictional
determination described herein is a final agency action.
A