20160682 Ver 1_Corps of Engineer Correspondence_20161108

Burdette, Jennifer a
From: Shaver, Brad E SAW <[e-mail]>
Sent: Tuesday, November 08, 2016 9:32 AM
To: Kim Williams
Cc: Coburn, Chad; Burdette, Jennifer a; [e-mail]
Subject: Comment Letter Ocean Isle Beach Marketplace Post Public Notice
Attachments: E Copy Comment Letter Ocean Isle Beach Marketplace.pdf
Kim,
Attached you will find an e -copy of the comment letter post Public Notice of the subject project.
I do not have Charlie's email address so please forward.
Hard copies are on the way.
:.•
Brad E Shaver
Project Manager
US Army Corps of Engineers
69 Darlington Ave
Wilmington, NC 28403
[phone]
Fax# [phone]
Website: http://corpsmapu.usace.army.mil/cm apex/f?p The Wilmington District is committed to providing the
highest level of support to the public. To help us ensure we continue to do so, please complete the Customer
Satisfaction Survey located at http://regulatory.usacesurvey.com/.
1

Regulatory Division
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
Action ID No. SAW -2015-01887
Halpern Development Company LLC
Attn: Charlie Worthen
5269 Buford Highway
Atlanta, Georgia 30340
Land Management Group, Inc.
Attn: Ms. Kim Williams
3805 Wrightsville Avenue, Suite 15
Wilmington, North Carolina 28403
Mr. Worthen and Ms. Williams:
November 8, 2016
Please reference your request for a Department of the Army authorization to discharge fill
material into 2.04 acres of Section 404 wetlands, 152 linear feet of jurisdictional stream, and 205
linear feet of tributary waters draining toward Kilbart Slough that drains to the Intracoastal
Waterway, a navigable water of the US, associated with the development of Ocean Isle Beach
Marketplace, a proposed commercial shopping center, Brunswick County, North Carolina.
On February 6, 1990, the Department of the Army (DA) and the U.S. Environmental
Protection Agency (EPA) signed a memorandum of agreement (MOA) establishing procedures
to determine the type and level of mitigation necessary to comply with Clean Water Act Section
404(b)(1) Guidelines. This MOA provides for first, avoiding impacts to waters and wetlands
through the selection of the least damaging, practicable alternative; second, taking appropriate
and practicable steps to reduce impacts on waters and wetlands; and finally, compensation for
remaining unavoidable impacts to the extent appropriate and practical. Pursuant to 40 CFR
230.3(q), "practicable" is defined as "available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of the overall project". To enable
us to process your application, in compliance with the MOA, we request that you provide the
following additional information:
a. Permits for work within wetlands or other special aquatic sites are available only if the
proposed work is the least environmentally damaging, practicable alternative. Please furnish
information regarding any other alternatives, including upland alternatives, to the work for which
you have applied and provide justification that your selected plan is the least damaging to water
or wetland areas.

The current off-site alternatives analysis is limited and weak. Please further explain why
the current location is limited to Ocean Isle Beach and Sunset Beach and not the Hwy 179
corridor between the two Beach communities. This may be explained with a more detailed
discussion beyond, "Several sites in this general vicinity have been identified that meet the size
criteria and have access to one major corridor". Please outline the citing criteria, properties that
were considered for this development, and how those properties were eliminated from
consideration due to the citing criteria. This should include basic information on the extent of
Waters of the US (WouS) that may be present on these properties. Furthermore, a minimum of
three outparcels with no apparent purpose, are cited as a requirement for this development.
Please explain the basis of this requirement and how none vs. one vs. two vs. three outparcels are
critical to the success of the shopping complex. You should be aware that we are unable to issue
permits for purely speculative development.
b. It is necessary for you to have taken all appropriate and practicable steps to minimize
wetland losses. Based on our review of the application, in addition to the anchor tenant, there are
a total of 13 additional retail facilities, including three outparcels being proposed for the site.
The application does not provide sufficient information regarding why there is the need for type
and amount of the additional retail construction on the property. Please indicate all that you have
done, especially regarding the development and modification of plans and proposed construction
techniques, including reducing the amount of additional retail space to minimize adverse
impacts. You are strongly encouraged to provide data that supports your contention that
without the additional retail facilities, the project would not be financially viable.
Although the plans provided with the application indicate that the lower 22 acre tract would
remain vacant, we are aware of plans to develop this property. We strongly encourage complete
development plans for a single and complete project as it allows us, and the project proponent, to more
fully consider options to avoid and minimize impacts to WouS and allow proposed development to
advance more efficiently. As it appears that this southern tract may allow for options to further avoid
and minimize impacts to WouS! [Ki ] , are there opportunities to shift a portion of the development from
the northern tract to the southern tract in order to minimize wetland impacts.
We note that the wet pond on the northern tract encompasses a significant amount of upland area.
Please explore the possibility of innovative storm water designs to minimize the amount of wet pond
necessary (e.g., impervious surfaces, underground collection and treatment facilities, etc.) and/or utilize
the existing wetlands as part of the overall treatment system. We can assist in facilitating coordination
with the NCDEQ-DMLR regarding options to release treated storm water into wetlands in order to
minimize additional wetland drainage and to ensure that the remaining wetlands on the tract remain
hydrated.
Kilbart Slough, which runs through the center of the tract, drains to SA tidal waters, which is one
of the highest water quality classifications in Eastern North Carolina. Given that there will be a
roundabout constructed at the corner of Hwy 944 and Hwy 179, it is unclear why an additional crossing
of Kilbart Slough is necessary. We note that with this improvement that there will be three ingress and
egress points into the proposed development.
2

Finally, elimination/reconfiguration of parking spaces can be an important component of
minimizing impacts to WoUS, please provide the rational for the number of spaces shown.
Based on our review of the application, we believe that there are less environmentally damaging
alternatives available and that unless you can rebut the presumption that these alternatives exist, we
would have no choice but to deny your permit.
c. The MOA requires that appropriate and practicable mitigation will be required for all
unavoidable adverse impacts remaining after all appropriate and practicable minimization has
been employed. Your current plan calls for the use of an approved mitigation bank within the
Lower Pee Dee River Basin at a 1:1 ratio.
Based on the NCWAM assessment provided in the application, the wetlands have rated as
medium to high quality. This assessment would lead the Corps to believe that a more appropriate
mitigation ration would be 2:1. There is no other analysis of the stream system but it is assumed
that 2:1 would be appropriate for a system that drains to SA tidal waters.
Once the key points of the aforementioned MOA have been satisfied and the Least
Environmentally Damaging and Practicable Alternative is identified, you will need to provide
better permit drawings that depict fill site cross sections and stream site cross sections.
During the Public Notice comment period, we received 5 citizen comments, 6 agency
comments, and one comment from the Southern Environmental Law Center. Our administrative
process provides you the opportunity to propose a resolution and/or rebut any and all objections
before a final decision is made. It is clear from numerous phone calls and correspondence that
local citizens are concerned about the effect of this proposed shopping center on their daily
activities. It may benefit your project to alert the interested citizens of forums where they can
engage with you and/or local planning and zoning officials regarding their concerns.
The information requested in the correspondence is essential to the expeditious processing
of your application and should be forwarded to us within two (2) weeks of your receipt of this
letter. Also, you should be aware that comments received from the Public Notice must be
addressed in the development of the Environmental Assessment.
If you have questions or comments, please do not hesitate to contact me at telephone (910)
251-4611.
Sincerely,
Brad Shaver
Project Manager
Wilmington Regulatory Field Office
3

Copies Furnished (electronic):
NC DEQ-DWR, Mr. Chad Coburn
NC DEQ-DWR, Ms, Jennifer Burdette
US EPA, Mr. Todd Bowers

C Mew
Shaver, Brad E SAW
From:
Jane Fox <[e-mail]>
Sent:
Thursday, October 27, 2016 4:05 PM
To:
Jane Fox; Shaver, Brad E SAW
Subject:
[EXTERNAL] Re: Fwd: Publix Public Notice Ocean Isle Beach, Brunswick County
Attachments:
Charles Fox Publix letter.docx
Good afternoon Mr Shaver
This is in response to the Public Notice for the Publix Project, Ocean Isle Beach, INC
Thank you so very much for your time and consideration.
Attached you will find our reply
Charles Fox
6157 Rick St SW
Ocean Isle Beach, NC 28469
On Saturday, October 15, 2016 7:57 AM, Jane Fox <[e-mail]> wrote:
Sent from my iPad
Begin forwarded message:
From: "Shaver, Brad E SAW" <[e-mail] <mailto:[e-mail]>>
Date: October 14, 2016 at 4:22:38 PM EDT
To: "[e-mail] <mailto:[e-mail]>"<[e-mail]
<mailto:[e-mail]> >
Subject: Publix Public Notice Ocean Isle Beach, Brunswick County
Mr. and Mrs. Fox,
Please take a look at the exhibits provided by the Development Group and read the description. Once you have
had a chance to think about the proposal please comment back to me via email so that I can include your comments in
the administrative record.
The hyperlink to the Public Notice is below.

Thanks for your interest in this process,
Blockedhttp://saw-reg.usace.army.mii/PN/2016/SAW-2015-01887-PN.pdf
Brad E Shaver
Project Manager
US Army Corps of Engineers
69 Darlington Ave
Wilmington, NC 28403
[phone]
Fax# [phone]
Website: Blockedhttp://corpsmapu.usace.army.miI/cm apex/f?p
The Wilmington District is committed to providing the highest level of support to the public. To help us ensure
we continue to do so, please complete the Customer Satisfaction Survey located at
Blocked http://regulatory.usacesurvey.com/.

Charles Fox
6157 Rick Street SW
Ocean Isle Beach, NC 28469
910 477-0565 -
October 27, 2016
Brad Shavers
The Corps of Engineers
Wilmington District
69 Darlington St
Wilmington, NC 28403
Dear Brad Shavers:
Applicant Mr. Charlie Worther
Halpern Development Company, LLC
5269 Buford Highway
Atlanta, GA 30340
Project Description — 39,500 Sq. Ft grocery store, 16,200 retail shops, 6,500 Sq. Ft Restaurant,
Parking facility, hotels
I write in connection with the above planning application. I have examined the plans and
know the site well. I wish to object strongly to the development of the Project as is stated
concerning access to Rick Street.
This development would strongly impact the value of my property located at 6157 Rick St in a
negative way, the amount of extra traffic that this project would put on Rick St is not
acceptable. During the summer the traffic is backed up a mile or more on 4 mile Road (Ocean
Isle Rd.), Hwy 179 in both directions making it extremely difficult to be able to get onto
Causeway Rd from Rick Street or get off. Rick Street should be cut off from direct access to
the Publix Project. There is also the issue of Emergency traffic being able to access Rick St.
The new road they are putting in called Charles St, how do they propose to keep run off from
go into the pond between Rick St and Culpepper Rd.
Please take this as notice that I would like to speak at a hearing about this project. I don't
know why this project has to be done since there is an upper end grocery store (Lowes) less
than a mile away.
Charles Fox

cmc
Shaver, Brad E SAW
From: Diane Middleton <[e-mail]>
Sent: Friday, October 21, 2016 9:53 AM
To: Shaver, Brad E SAW
Cc: [e-mail]; [e-mail]; [e-mail]
Subject: [EXTERNAL] Ocean Isle Beach Marketplace Proposal
Attachments: Oct 19 Army Corps of Engineers POA letter.docx
Brad, it was gratifying speaking with you earlier this week concerning questions about this project. A committee of the
Crown Creek Property Owners met recently, and I have attached our letter requesting a public hearing.
Thank you for your consideration,
Diane Middleton
6074 Culpepper Rd.
Ocean isle Beach, NC 28469
Sent from my Wad
1

October 19, 2016
Mr. Brad Shaver
Army Corps of Engineers
Wilmington District
69 Darlington Avenue
Wilmington, NC 28403
RE: Ocean Isle Beach Marketplace
Dear Mr, Shaver:
Following up on the conversation you had yesterday with Diane Middleton, we, as
representatives of the Crown Creek Property Owners Association, are requesting a public
hearing regarding the above-mentioned project.
These are some of the issues we would like to have discussed in a public forum:
>Wetlands: adjoining properties on Culpepper Road are on septic; ground
water contamination possibilities since the pond closest to Culpepper
flooded for the first time this spring for 4-- 6 weeks.
>Location/Habitat: documented alligator and bald eagle in Crown Creek in 2016 (photo
(photographs available); other animals use this environment (deer, rabbits, raccoon)
>Quality of Life: impact of increased traffic, noise, and light
>Economic need: existent Lowes Foods shopping center and other restaurants
are located within a mile of this proposed project -
>Community Lifestyle: potential of increased crime; community is currently comprised
of single family dwellings; with increased traffic usage on our
one public road, we will be subjected to increased visibility
from shopping center patrons, delivery company personnel,
construction employees, and center employees; opens us up
to safety concerns for property and life.
>Culpepper Road Entrance: present road will not accommodate heavy truck traffic for
store deliveries on a frequent basis; increased commercial
traffic will endanger our senior residents who use the
road for exercise since we have no sidewalks; invitation
to crime as this project would give increased entrances
and exits to Crown Creek; question need for access from
here due to two other access points on Rte. 179 and on
the OIB Causeway which already carry commercial traffic.
We appreciate the opportunity to discuss this proposal at a public hearing. Contact
information is by email: [e-mail] or ipm48@.Ii.otmail.com Phone: [phone]
Address: 6074 Culpepper Rd. Ocean Isle Beach, NC 28469
Sincerely,
Jay Middleton, Interim President CCPOA
Diane Middleton, Kathryn Gossett, Kathy Wilson Committee Members

October 19, 2016
Mr. Brad Shaver_�;-
Army Corps of Engineers
Wilmington District
69 Darlington Avenue
Wilmington, NC 28403
RE: Ocean Isle Beach Marketplace
Dear Mr. Shaver:
Following up on the conversation you had yesterday with Diane Middleton, we, as
representatives of the Crown Creek Property Owners Association, are requesting a public
hearing regarding the above-mentioned project.
These are some of the issues we would like to have discussed in a public forum:
>Wetlands: adjoining properties on Culpepper Road are on septic; ground
water contamination possibilities since the pond closest to Culpepper
flooded for the first time this spring for 4 -- 6 weeks.
>Location/Habitat: documented alligator and bald eagle in Crown Creek in 2016 (photo
(photographs available); other animals use this environment (deer, rabbits, raccoon)
>Quality of Life: impact of increased traffic, noise, and light
>Economic need: existent Lowes Foods shopping center and other restaurants
are located within a mile of this proposed project
>Community Lifestyle: potential of increased crime; community is currently comprised
of single family dwellings; with increased traffic usage on our
one public road, we will be subjected to increased visibility
from shopping center patrons, delivery company personnel,
construction employees, and center employees; opens us up
to safety concerns for property and life.
>Culpepper Road Entrance: present road will not accommodate heavy truck traffic for
store deliveries on a frequent basis; increased commercial
traffic will endanger our senior residents who use the
road for exercise since we have no sidewalks; invitation
to crime as this project would give increased entrances
and exits to Crown Creek; question need for access from
here due to two other access points on Rte. 179 and on
the OIB Causeway which already carry commercial traffic.
We appreciate the opportunity to discuss this proposal at a public hearing. Contact
information is by email: [e-mail] att.net or ` m48 hotmail.com Phone: [phone]
Address: 6074 Culpepper Rd. Ocean Isle Beach, NC 28469
Si erely, %
6aneon, Interim President CCPOA
dleton, Kathryn Gossett, Kathy Wilson Committee Members

Shaver, Brad E SAW
From: Shaver, Brad E SAW
Sent: Monday, October 31, 2016 91:23 AM
To: 'Stephen Migliaccio'
Subject: RE: Culpepper Rd Ocean Isle Beach NC
Mr. Migliaccio,
Thank you for your comments. I do not have many answers to your concerns as all the information I have to date is
contained within the Public Notice. I will forward your concerns back to the developer and his consultant as part of the
Corps' review process.
I did learn recently that a Planning Board meeting is scheduled around November 15 with the Town of Ocean Isle and it
may be an opportunity for folks to hear more about the project from a local perspective. I would recommend you reach
out to the Town for more information concerning upcoming public events related to this project.
Thanks,
Brad Shaver
-----Original Message -----
From: Stephen Migliaccio [mailto:[e-mail]]
Sent: Friday, October 28, 2016 9:50 AM
To: Shaver, Brad E SAW <[e-mail]>
Subject: [EXTERNAL) Culpepper Rd Ocean Isle Beach NC
Good morning,
I have been in contact with the Crown Creek NDA and they have established a committee, in hopes of getting some
answers and how this new project
will impact our properties, property values and the neighborhood.
1 am requesting information on how close to our backyards the shopping plaza will be. Are there plans to keep some of
the woodland in place so we
don't need to see the back of the stores, there dumpsters and the noise from truck deliveries and smell from dumpsters
that this will bring to our back yards. Are the developers taking into consideration some sort of berm to deflect some of
these issues??
I was referred to a website that shows very little, and doesn't explain any of these issues. Should we contact the
developers who is
actually doing the blue prints.
These are real concerns,for us and understand that progress is important but at what cost to the residents of Culpepper
Rd SW and Eyota. there

i
are many homes that yard will be directly up against this project mine being one of them. I am investing a lot of money
in my property
and want to know what will be done to protect our privacy as well as quality of life and property protection. What is the
time frame for this to start??
Thank you very much, please please if you can get us as much info as possible, on how this will impact us and what they
will do
to protect out properties
Thank you
Stephen Migliaccio

Shaver, Brad E SAW
From: Shaver, Brad F SAW
Sent: Friday, October 21, 2016 9:02 AM
To: 'Stephen Migliaccio'
Subject: RE: Ocean isle beach market place
Mr. Migliaccio,
All the information I have to date is contained within the Public Notice the Corps put out for comment a couple weeks
ago.
hope it provides the information you are seeking. If you would like to provide additional comments once you digest the
Public Notice please feel free. I only ask that you get them to me before the comment deadline of October 31, 2016.
Here is the link to the public notice: http://saw-reg.usace.army.mil/PN/2016/SAW-2015-01887-PN.pdf
Brad Shaver
Project Manager
US Army Corps of Engineers, Wilmington District
-----Original Message -----
From: Stephen Migliaccio [mailto:[e-mail]]
Sent: Thursday, October 20, 2016 9:52 AM
To: Shaver, Brad E SAW <[e-mail]>
Subject: [EXTERNAL] Ocean isle beach market place
Good morning,
My name is Stephen I own a home on Culpepper rd sw in OIB, I purchase this home 4 years ago and am now renovating
in order to move in. It's a large investment I am making and now to hear this news that this Huge shopping development
will possibly in my back yard literally is concerning. My home and yard border the works that will be removed in order to
add a mall that really isn't necessary. We have have Lowes, food lion, and other family run businesses that support our
community as well as us supporting them.
chose this community for is peaceful location in proximity to the causeway as well for the fact that it was not crowded
or noisy especially with a huge shopping mall in my back yard.
With such shopping centers comes noise, traffic, garbage and vermin.
How close to Culpepper will this monstrosity be to my back yard?
Will there be some of the woodland left as a buffer between our homes and all this activity?
Will the roads also be changed for the added traffic for I hear hotels as well?
OIB is a quaint community as is Crown Stream and Crown Steam that this will truly impact in what I feel will be a
negative way.
Bigger doesn't always mean better. Let it be built out behind the Loews, or if this publix development does go up Loews
would probably close, let it take place on the other side of the airport, not in our back yards.
I truly would appreciate a map of the plans so I can better see the impact on our backyards as well as renderings as to
what the developers actually have in mind.

ti
Thank you for your time.
Stephen Migliaccio
6090 Culpepper rd sw
Ocean isle beach
914-497-6556
Sent from my Pad

Ic
�r
Shaver, Brad E SAW
From: Hair, Sarah E SAW
Sent: Thursday, October 13, 2016 12:08 PM
To: Shaver, Brad E SAW
Subject: FW: [EXTERNAL] Brunswick
Here's a comment on your project. Somehow it was sent to me. 1 suppose since I'm listed as the BC contact on the
website, people fail to thoroughly read the PN and see who the actual POC is...
-----Original Message -----
From: Ulrich Alsentzer [mailto:[e-mail]]
Sent: Wednesday, October 12, 2016 8:00 PM
To: Hair, Sarah E SAW <[e-mail]>
Subject: [EXTERNAL] Brunswick
Atlanta-based Halpern Development Co. LLC is seeking approval from the Army Corps of Engineers to fill a little more
than two acres of about five acres of federally regulated wetlands on a nearly 45 -acre site at the intersection of
Causeway Drive and Beach Drive on the mainland side of Ocean Isle Beach.
Dear USACE,
I was dismayed that the above project is even been considered. Wetlands are extremely important for all sorts of
reasons that you are very familiar with. There are too few left. We need to preserve what we still have. I sincerely
hope that you will deny the request to "develop" the above referenced site.
Thank you,
Ulrich Alsentzer, M.D.
103 Cabana Rd Belhaven, NC 27810
252 964 4624
[e-mail] <m.ailto:uaIse [e-mail]>

October 18, 2016
Miss Dilly, Inc.
5880 Clifton Dr. SW
Ocean Isle Beach, NC 28469
CJS Army Corps of Engineers, Wilmington District / Regulatory Division
Attn. Mr. Brad Shaver, Project Manager 3
69 Darlington Avenue„J
Wilmington, NC 28403-1343
Dear Mr., Shaver:
We are in receipt of your public notice on SAW -2015-01887. In addition to Miss Dilly, Inc.
("MDI") we also own Crownstream, Inc. ("CSI"). Both are closely held family corporations that own
properties that will be affected by the altering of the wetland areas, drainage flow, and Increasing run-
off surges from the proposed development of the wetland and surrounding areas.
Additionally, CSI owns 13 lots in the Crownstream Subdivision ("CS"). The Crownstream
Subdivision Property Owners Association ("CS POA") owns, maintains and is responsible for the CS
Storm Water System which includes a retention pond (Lake Joel) that receives the drainage from the
wetlands in question. The CS POA address is PO Box 6950, Ocean Isle Beach, NC 28469. As a concerned
member of the CS POA, CSI recently sent a letter to the NC Storm Water Office expressing our concerns
of sediment being transported into the CS AOA storm water system, concerns that modifications will
needed for the collection pond due to the increased storm water surges from the proposed
development discharging through the CS POA system and that the same applies to the Branchwood
Subdivision downstream. Also, run-off from HWY 179 is not properly draining due to blockage at the the
at the Eyota Drive intersection and is channeling additional run-off and sediment previously filtered by
these wetlands and is now bypassing this natural filtration by the area of this proposed development.
MDI and CSI are already seeing the effects of limited development in this area and we are very
concerned that the proposed alterations to run-off flow, increased sediment discharge and increased
severity of storm discharges will impact the value and use of our properties. As members of the CS POA
we are concerned about the responsibility for the cost of modifications of the CS POA Storm Water
System due to these alterations to the wetlands and alterations to the storm water flow through and
around this development. The proposed development of a large hotel, multiple restaurants, a
subdivision and the associated streets and parking lots will significantly increase the impervious surface
area and result in basin discharge being channeled through the CS POA's storm water system collection
pond during storms that will exceed the capacity of the dam. As a contingency to the approval of their
permit, the proposed development must agree to be responsible for the cost of all required
modifications and/or repairs on the CS PDA storm water drainage, retention pond, weir, dam etc.
Sincerely,
William Chester Clifton,
President: Miss Dilly, Inc. & Crownstream, Inc.

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Far -simile 919-929 9421
CHAPEL HILL, NC 27516-2356
October 31, 2016
Via U.S and Electronic Mail
Brad Shaver
Wilmington Regulatory Field Office
U.S. Army Carps of Engineers
69 Darlington Ave.
Wilmington, NC 28403
brad, e. shaver@usace. army.mil
2016
Re: Ocean Isle Beach Marketplace Clean Water Act Application (SAW -.2015-01887)
Dear Mr. Shaver:
Please accept these comments on Halpern Development Company's application for a
Clean Water Act Section 404 permit for development of the Ocean Isle Beach Marketplace in
Brunswick County, North Carolina ("Project"), The Southern Environmental Law Center
submits these comments on behalf of the North Carolina Coastal Federation. As described
below, the proposed filling of jurisdictional wetlands and streams cannot be permitted. The
Project is not water dependent. Therefore, the Applicant, and the Corps, must "clearly
demonstrate" that there are no practicable alternatives. The application not only fails to meet
that burden of proof, it confirms the presumption that practicable alternatives exist.
The purpose of the Project is to build a shopping center with a premium grocery store.
Public Notice ("PN") at 3. In addition to the proposed grocery store, the Applicant's preferred
alternative includes 16,200 square feet of retail shops, a 6,500 square foot restaurant, 2 hotels,
and 2 to -be -developed outparcels. None of the proposed uses are water dependent. See 40
C.F.R. § 230.10(a)(2). An additional 22 acres is to be left for future development.
The Applicant proposes to fill 2.04 acres of wetlands, 114 feet of perennial stream, 38
feet of intermittent stream, and 205 feet of non -stream tributaries. PN at 3. The affected
wetlands are medium to high quality forested wetlands and drain to Kilbart Slough, which is
classified as SA and High Quality Waters. PN at 2-3.
Under the Clean Water Act and 404(b)(1) Guidelines, avoidable wetland and stream
impacts such as those proposed in the Project cannot be permitted. "[N]o discharge of dredged
or fill material shall be permitted if there is a practicable alternative to the proposed discharge
which would have less adverse impact on the aquatic ecosystem, so long as the alternative does
not have other significant adverse environmental consequences." 40 CFR § 230.10(a). "From a
national perspective, the degradation or destruction of special aquatic sites, such as filling
operations in wetlands, is considered to be among the most severe environmental impacts
covered by these Guidelines." 40 C.F.R. § 230.1(d).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
100% recycled paper

The Applicant bears a heavy burden in demonstrating that the proposed impacts cannot
be avoided. For activities such as these that do not require water access, "practicable alternatives
that do not involve special aquatic sites are presumed to be available, unless clearly
demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). Courts have recognized that "[t]his
presumption of practicable alternatives is very strong, ... creat[ing] an incentive for developers
to avoid choosing wetlands when they could choose an alternative upland site." Nat'l Wildlife
Fed'n v. Whistler, 27 F.3d 1341, 1344 (8th Cir. 1994) (citing Bersani v. Robichaud, 850 F.2d 36,
44 (2d Cir. 1988), cert. denied, 489 U.S. 1089 (1989)) (emphasis in original). To meet this
burden, the Applicant must demonstrate "why it is necessary for the [development] to be located
on the wetlands rather than the uplands, except for its preference to build on the wetlands."
Shoreline Associates v. Marsh, 555 F. Supp. 169,179-80 (D. Md. 1983), affd, 725 F.2d 677 (4th
Cir. 1984).
The Applicant has failed to carry its burden of demonstrating that no practicable off-site
alternatives exist. Far from overcoming the presumption that practicable alternatives exist, the
off-site alternatives analysis admits that such alternatives exist. The analysis states that "several
sites ... meet the size criteria and have access to one major corridor." Proj. Narr. at 7. The
selected site was preferred because it has access to two major roads, id., but nothing in the
application supports the position that other sites were not practicable. The purpose of the Project
is to build a premium grocery store. The Applicant has admitted that other sites are suitable for
such a use. The Applicant has not, therefore, overcome the presumption that alternative sites are
available and the application could be denied solely on that basis,
The Applicant has also failed to carry its burden of demonstrating that no practicable on-
site alternatives exist. The alternatives analysis included in the application evaluates three on-
site alternatives—the no action alternative; the original site plan with amenity center; and the
preferred alternative. The analysis demonstrates that the preferred alternative reduces wetland
and stream impacts as compared to the original site plan. Proj. Narr. at 6-7. The analysis does
not, however, argue --much less clearly demonstrate that wetland and stream impacts cannot
be avoided entirely. The tract is 44 acres with approximately 4 acres of wetlands. It is a near
certainty that the proposed development can be situated such that the wetlands and streams on
site can be avoided. Even if the Applicant could somehow demonstrate that it could not arrange
the proposed buildings in such a manner, the Applicant must then demonstrate that the Project
cannot be reduced in size to avoid wetlands and streams. Avoidance of the streams and wetlands
could plainly be accomplished by relocating or removing one or both of the hotels or one or both
of the outparcels to allow greater flexibility with respect to the proposed Publix. The Clean
Water Act and its regulations presume that avoidance of streams and wetlands is feasible, and
nothing in the application overcomes that presumption. The Applicant has not demonstrated
"why it is necessary for the [development] to be located on the wetlands rather than the uplands,
except for its preference to build on the wetlands." Shoreline Associates, 555 F. Supp. at 179-
80.
A preference to build more is not sufficient justification for the proposed wetland and
stream impacts. The Applicant must demonstrate, and the Coips must determine, that the
wetland and streams cannot be avoided. Based on the information available through the public
notice, the Corps cannot defensibly reach that conclusion.
2

Because the Applicant has not demonstrated that the proposed impacts are unavoidable,
compensatory mitigation should not be considered, and the Corps cannot use mitigation to offset
the proposed impacts. Compensatory mitigation is only available for "unavoidable impacts." 40
C.F.R. § 230.91(c).
We appreciate your consideration of these comments. The requested permit must be
denied based on the information included in the application, Please notify me at the address
above or by email, [e-mail], regarding any permitting action taken on this project.
Sincerely,
Geoffrey R. Gisler
Senior Attorney
GRG/rgd
Cc: Todd Miller, NCCF (via email)
Mike Giles, NCCF (via email)

i
(Sent via Electronic Mail)
Q 0'r OF 00
Ik
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k� r
6�ArES Of
UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
NATIONAL MARINE FISHERIES SERVICE
Southeast Regional office
263 13(h Avenue South
St. Petersburg, Florida 33701-5505
http:llsoro.nmfs.noaa.gov
October 4, 2016
Colonel Kevin P. Landers, Sr., Commander
U.S. Army Corps of Engineers Wilmington District
69 Darlington Avenue
Wilmington, North Carolina 28403-1398
Dear Colonel Landers:
NOAA's National Marine Fisheries Service (NMFS) reviewed the projects described in the public
notice(s) listed below.
Based on the information in the public notice(s), the proposed prof ect(s) would NOT occur in the
vicinity of essential fish habitat (EFH) designated by the South Atlantic Fishery Management Council or
NMFS. We also anticipate that any adverse effects that might occur from the project(s) to NOAA trust
resources would be minimal. Consequently, NMFS offers no EFH conservation recommendations
pursuant to the Magnuson -Stevens Fishery Conservation and Management Act and no recommendations
under the Fish and Wildlife Coordination Act.
NOTICE NO. APPLICANT NOTICE DATE DUE DATE
2014-01349 The Seitz Group, Inc. September 20, 2016 October 20, 2016
2015-01857 Halpern Development September 30, 2016 October 31, 2016
Company, Inc.
Please note these comments do not satisfy your consultation responsibilities under section 7 of the
Endangered Species Act of 1973, as amended. If the activity "may effect" listed species or critical
habitat that are under the purview of NMFS, consultation should be initiated with our Protected
Resources Division at the letterhead address.
Sincerely,
Pace Wilber (for)
Virginia M. Fay
Assistant Regional Administrator
Habitat Conservation Division

EPA
Shaver, Brad E SAW
From: Bowers, Todd <[e-mail]>
Sent: Tuesday, October 18, 2016 11:35 AM
To: Shaver, Brad E SAW
Subject: [EXTERNAL] RE: AID SAW -2015-01887
Brad,
I appreciate the heads up on the commercial development project Public Notice under ID# SAW -2015-01887 in
Brunswick County, NC.
The EPA Region 4 Ocean, Wetlands and Streams Protection Branch has reviewed the subject Public Notice under DA
Action ID SAW -2015-01887 dated September 30, 2016. It is our understanding that the applicant, Halpern
Development Company, LLC (c/o Mr. Charlie Worthen), proposes to develop a shopping center with a premium grocery
store that is centrally located within Brunswick Beaches area to serve surrounding full-time residents and visitors. The
desired service area would include Ocean Isle Beach, Sunset Beach, Calabash, Carolina Shores, Shallotte, Goose Creek,
and Brick Landing, which are all projected to be within a ten-minute drive of the project area. The 44.86 -acre project
location is at the intersection of Causeway Drive (Highway 904) and Beach Drive (Highway 179) in Ocean Isle Beach,
Brunswick County, North Carolina. Much of the project are is currently undeveloped and forested.
In order to develop the applicant's preferred project, impacts to waters of the US include filling 2.04 acres of medium to
high quality jurisdictional wetlands, 114 linear feet of perennial stream, 38 feet of intermittent stream and 205 linear
feet of RPW. The applicant states that these impacts are necessary to develop the building and parking placement and
provide secondary road access to the shopping center. The secondary road crossing impacts are due to a culverted
crossing to maintain hydrologic flow. No impacts to fisheries, manatees or critical shellfish habitat in Kilbart Slough or
the Atlantic Intracoastal Waterway are expected as well. Compensatory mitigation for unavoidable impacts to waters of
the United States is being offered at a 1:1 credit to impact ratio and the applicant plans to purchase 2.04 wetland credits
from Stone Farm Mitigation Bank.
At this time the EPA has two main comments or concerns with the project as described per the documents forwarded to
Lis.
1). The EPA recommends that the applicant provide compensatory mitigation for wetland impacts at a 2:1 ratio thereby
purchasing 4.1 acres of wetland credit from Stone Farm Mitigation Bank. This recommendation is mainly driven by the
fact that on-site wetlands were determined to be of medium to high quality and providing a substantial amount of
hydrologic function and habitat.
2). The EPA recommends that the applicant further minimize impacts on-site by bridging the stream and wetlands for
the secondary road access. This will maintain the stream functions of habitat and floodplain access/connectivity to the
fullest extent possible and still meet project purpose.
Thank you for the opportunity to provide feedback on DA Action ID SAW -2015-01887 and the associated Public Notice to
authorize impacts to wetlands and stream for commercial and retail space associated with the Ocean Isle Beach
Marketplace in Brunswick County, North Carolina.
Best Regards,
Todd Bowers
Todd Allen Bowers

North Carolina Department of Natural and Cultural Resources
State Historic Preservation Office
Ramona M. Sarlos, Administrator
Governor Pat McCrory
Secretary Susan Kluttr,
October 18, 2016
Brad Shaver
Wilmington Regulatory Field Office
69 Darlington Avenue
Wilmington, NC 28403
Office of Archives and History
Deputy Secretary Kovin Cherry
Re: Construct Commercial & Retail Space, Ocean Isle Beach Marketplace, Ocean Isle Beach Road &
Highway 179, Ocean Isle, SAW -2015-01887, Brunswick County, ER 16-1822
Dear Mr. Shaver:
We have received the public notice for the above project and would like to take this opportunity to
comment.
A number of archaeological sites are recorded in the region. Sites 31BW163, 31BW164, and 31BW167 are
located within the proposed project area. Sites 31B W 165 and 31 B W 166 are nearby, but outside of the
current project area. All of these sites remain unassessed with respect to their eligibility for listing on the
National Register of Historic Places.
We recommend that an archaeological investigation be conducted by an experienced archaeologist to
evaluate the significance of the known archaeological remains that may be damaged or destroyed by the
proposed project, Potential effects on unknown resources within the project boundaries should also be
assessed prior to the initiation of construction activities. Our office would be pleased to assist you in the
development and review of any scopes of work, proposals, or other documents relating to this matter.
We have determined that the project as proposed will not have an effect on any historic structures.
The above comments are made pursuant to Section 106 of the National Historic Preservation Act and the
Advisory Council on Historic Preservation's Regulations for Compliance with Section 106 codified at 36
CFR Part 800.
Location; 109 East Jones Street, Raleigh NC 27601 ]Bailing Address: 4617 Mail Service Center, Raleigh ATC 27699-4617 Telephone/Fax: [phone]-6599

Thank you for your cooperation and consideration. If you have questions concerning the above comment,
contact Renee Gledhill -Earley, environmental review coordinator, at 919-807-6579 or
environmental. reviewr{ ncdcr.gov. In all future communication concerning this project, please cite the
above referenced tracking number,
Sincerely,
XO
�.a
Ramona M. Bartos
c
cc: Kim Williams, Land Management Group, Inc.
Charlie Worthen, Halpern Development Company, LLC

1)wc
Shaver, Brad E SAW
From: Burdette, Jennifer a <[e-mail]>
Sent: Thursday, October 20, 2016 5:12 PM
To: Shaver, Brad E SAW; Coburn, Chad
Subject: [EXTERNAL] Ocean Isle Beach Marketplace
Brad,
DWR has reviewed the Individual Permit application for the Ocean Isle Beach Marketplace and have the following
comments/concerns regarding avoidance and minimization of wetland and stream impacts and impacts to downstream
water quality.
1. The application indicates that three parcels are necessary to meet the minimum site criteria. The preferred
alternative includes four outparcels. Can the proposed restaurant be relocated to Outparcel #1 or 2 to minimize the
amount of wetland and stream impacted by the project?
2. The restaurant has a large patio area. Could rooftop outdoor seating be used in order to shift the restaurant to the
northeast to minimize the wetland and stream impact?
3. Now would the hydrology of the intermittent stream and Kilbart Slough be maintained? The stormwater collection
system transports all runoff to the wet pond that discharges to Kilbart Slough downstream of the intermittent stream
and the upper portion of Kilbart Slough along the southern property boundary. Could multiple, smaller stormwater
bmps be used to avoid removing the hydrology to the upper portion of Kilbart Slough and the intermittent stream?
4. Could the roundabout be eliminated to minimize impacts?
5. Would flipping the hotel locations allow additional minimization to the central portion of the high quality wetland
currently between the restaurant and hotel?
6. Tract B would utilize the access road between the proposed development and Culpepper Road for access to this
site. Wouldn't Tract B be considered part of the proposed project? Could the proposed hotels be located to upland
portion of this tract and still be visible to Beach Drive?
Thanks,
Jennifer
Jennifer Burdette
401/Buffer Coordinator
Division of Water Resources - 401 & Buffer Permitting Branch

United States Department of the Interi®r
FISH AND WILDLIFE SERVICE
Raleigh ES Field Office
Post Office Box 33726
Raleigh, North Carolina 27636-3726
October 28, 2016
A
Brad Shaver
rr't.s,
U.S. Army Corps of Engineers, Wilmington District
Wilmington Regulatory Field Office
69 Darlington Avenue
Wilmington, NC 28403
Re: Halpern Development Company / SAW -2015-018871 Brunswick County
Dear Mr. Shaver:
The U.S. Fish and Wildlife Service (Service) has reviewed the project advertised in the above
referenced Public Notice. The project, as advertised in the Public Notice, is expected to have minimal
adverse impacts to fish and wildlife resources. Therefore, we have no objection to the activity as
described in the permit application.
In accordance with the Endangered Species Act of 1973, as amended, (ESA) and based on the
information provided, and other available information, it appears the action is not likely to adversely
affect federally listed species or their critical habitat as defined by the ESA. We believe that the
requirements of section 7 (a)(2) of the ESA have been satisfied for this project. Please remember that
obligations under the ESA must be reconsidered if: (1) new information identifies impacts of this
action that may affect listed species or critical habitat in a manner not previously considered; (2) this
action is modified in a manner that was not considered in this review; or, (3) a new species is listed or
critical habitat determined that may be affected by the identified action.
For your convenience a list of all federally protected endangered and threatened species in North
Carolina: is now available on our website at <http://�x,i.x ..fkA s.goy/raleigh>. Our web page contains a
complete and updated list of federally protected species, and a list of federal species of concern
known to occur in each county in North Carolina.
The Service appreciates the opportunity to review and provide comments on the proposed action.
Should you have any questions regarding the project, please contact John Ellis at [phone],
extension 26.
Sine rely,
Pte Benjamin,
Field Supervisor
cc: NMFS, Beaufort, NC
EPA, Atlanta, GA
WRC, Raleigh

® North Carolina Wildlife Resources Commission
Gordon Myers, Executive Director
MEMORANDUM
TO: Brad Shaver
US Army Corps of Engineers, Wilmington District
and
Karen Higgins
NC Division of Water Resources
1v�'-
FROM: Maria T. Dunn, Coastal Coordinator
Habitat Conservation Division
DATE: October 31, 2016
SUBJECT: Ocean Isle Beach Marketplace, Halpern Development Company, LLC, Charlie
Worthen, Brunswick County, North Carolina.
SAW -2015-01887
PCN No. 20160682
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) reviewed the
public notice and pre -construction notification with regard to impacts on fish and wildlife
resources. The project site is located at the intersection of Causeway Drive (NC Hwy 904) and
Beach Drive (NC Hwy 179) in Ocean Isle, NC. Our comments are provided in accordance with
provisions of the Coastal Area Management Act (G.S. 113A-100 through 113A-128), as
amended, Sections 401 and 404 of the Clean Water Act, as amended, and the Fish and Wildlife
Coordination Act (48 Stat. 401, as amended; 16 U.S.C. 661 et seq.).
The applicant proposes to develop an approximate 62,000 ft' commercial/retail area with a
grocery store, restaurant, and additional retail shops including four outparcels. The 44.86 acre
project area contains 4.69 acres of Section 404 wetlands, I,485' of Kilbart Slough, 273' of an
intermittent tributary to Kilbart Slough, and 205' of a Relatively Permanent Water (RPW). The
site is currently undeveloped and forested. Kilbart Slough is classified by the Environmental
Management Commission as SA HQW. The NC Wetland Assessment Method (NCWAM) was
Mailing Address: Habitat Conservation o 1721 Mail Service Center • Raleigh, NC 276 99-172 1
Telephone: [phone] • Fax: [phone]

Ooer n IsIoDeach b arkelplaw Page 2 October 31, 2016
SANV-2015-01887'
PCN No. 20160682
performed on the site and rated on-site wetlands between medium and high. The project as
proposed would impact 2.04 acres of these wetlands, 114' of Kilbart Slough, 38' of the
intermittent tributary, and 205' of the RPW. Future development options on the remainder of the
property may include .residential housing.
The NCWRC has reviewed the available information and does not believe an appropriate
alternative analysis has been provided or that avoidance and minimization of wetland impacts
has been donnonstrated. An alternative analysis should include additional properties. Information
provided indicated other properties we're examined, but were eliminated from consideration due
travel corridors. These parcels should be more clearly identified and perhaps the area of
consideration enlarged. In addition to alternative sites, other configurations within the property
should be considered. The only alternative configuration provided in the public notice included
the removal of an amenity center from consideration. Readjustments of parking or oWpareels
should also be considered. If it is determined no other parcel could suit specific needs,
avoidance and minimi; ation of wetland impacts should be better demonstrated land once impacts
cannot not be further avoided or minimized, mitigation can then be explored. Since the wetlands
,rated between medium and high under NCWAM, a ratio greater than 1:1 is preferred.
We appreciate the opportunity to review and comment on this project and look forward to any
additional information as it becomes available. If you need further assistance or additional
information, please contact zee at [phone] or at maria,dunn_ ncwildtife.orQ