Flowers Solar LLC - 05. Approved Jurisdictional Determination - Flower Solar

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U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action Id. SAW-2015-01817 County: Harnett U.S.G.S. Quad: Benson
NOTIFICATION OF JURISDICTIONAL DETERMINATION
Property Owner: Sarah Flowers Agent: Pilot Environmental, Inc.
attn: David Brame
Address: 2010 Hillside Drive S PO Box 128
N Myrtle Beach, SC 29582 Kernersville, NC 27285
Property description:
Size (acres) 44
Nearest Waterway Mingo Swamp
USGS HUC 03030006

Nearest Town Benson
River Basin Cape Fear River Basin
Coordinates N 35.4132 W -78.6020
Location description: The project area is approximately 44 acres, located on Baileys Cross Road and Chic Ennis
Road in Benson, Harnett County, North Carolina. Parcel ID # is 1610-85-7257.000.
Indicate Which of the Following Apply:
A. Preliminary Determination
X Based on preliminary information, there may be waters of the U.S. including wetlands on the above described
project area. This preliminary determination is not an appealable action under the Regulatory Program
Administrative Appeal Process ( Reference 33 CFR Part 331). 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. See preliminary jurisdictional
determination form dated August 31, 2015.
B. Approved Determination
There are Navigable Waters of the United States within the above described property subject to the permit requirements of
Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. Unless there is a change in the law or
our published regulations, this determination may be relied upon for a period not to exceed five years from the date of this
notification.
There are waters of the U.S. including wetlands on the above described project area subject to the permit requirements of
Section 404 of the Clean Water Act (CWA)(33 USC § 1344). Unless there is a change in the law or our published
regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification.
We strongly suggest you have the wetlands on your property delineated. Due to the size of your property and/or our
present workload, the Corps may not be able to accomplish this wetland delineation in a timely manner. For a more timely
delineation, you may wish to obtain a consultant. To be considered final, any delineation must be verified by the Corps.
The waters of the U.S. including wetlands on your project area have been delineated and the delineation has been verified
by the Corps. We strongly suggest you have this delineation surveyed. Upon completion, this survey should be reviewed
and verified by the Corps. Once verified, this survey will provide an accurate depiction of all areas subject to CWA
jurisdiction on your property which, provided there is no change in the law or our published regulations, may be relied
upon for a period not to exceed five years.
The waters of the U.S. including wetlands have been delineated and surveyed and are accurately depicted on the plat
signed by the Corps Regulatory Official identified below on. Unless there is a change in the law or our published
regulations, this determination may be relied upon for a period not to exceed five years from the date of this notification.
There are no waters of the U.S., to include wetlands, present on the above described property which are subject to the
permit requirements of Section 404 of the Clean Water Act (33 USC 1344). Unless there is a change in the law or our
published regulations, this determination may be relied upon for a period not to exceed five years from the date of this
notification.
The property is located in one of the 20 Coastal Counties subject to regulation under the Coastal Area Management Act
(CAMA). You should contact the Division of Coastal Management in Wilmington, NC, at [phone] to determine
their requirements.
Placement of dredged or fill material within waters of the US and/or wetlands without a Department of the Army permit may
constitute a violation of Section 301 of the Clean Water Act (33 USC § 1311). If you have any questions regarding this
determination and/or the Corps regulatory program, please contact Emily Greer at [phone].
C. Basis For Determination Based on information submitted by Pilot Environmental Inc. and a desktop
determination by Emily Greer.
D. Remarks
E. Attention USDA Program Participants
This delineation/determination has been conducted to identify the limits of Corps’ Clean Water Act jurisdiction for the
particular site identified in this request. The delineation/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.
F. Appeals Information (This information applies only to approved jurisdictional determinations as indicated in
B. above)
This correspondence constitutes an approved jurisdictional determination for the above described 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 following address:
US Army Corps of Engineers
South Atlantic Division
Attn: Jason Steele, Review Officer
60 Forsyth Street SW, Room 10M15
Atlanta, Georgia 30303-8801
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 at the above address by not applicable.
**It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this
correspondence.**
Corps Regulatory Official: ______________________________________________________
Date:2/8/2016
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 attached customer Satisfaction Survey or visit http://per2.nwp.usace.army.mil/survey.html to
complete the survey online.
GREER.EMILY.C.1385325300
Digitally signed by GREER.EMILY.C.1385325300
DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA,
cn=GREER.EMILY.C.1385325300
Date: 2016.02.08 15:11:20 -05'00'
NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND
REQUEST FOR APPEAL
Applicant: Sarah Flowers File Number: SAW-2015-01817 Date:February 8, 2016
Attached is: Site map See Section below
INITIAL PROFFERED PERMIT (Standard Permit or Letter of permission) A
PROFFERED PERMIT (Standard Permit or Letter of permission) B
PERMIT DENIAL C
APPROVED JURISDICTIONAL DETERMINATION D
PRELIMINARY JURISDICTIONAL DETERMINATION E
SECTION I - The following identifies your rights and options regarding an administrative appeal of the above decision.
Additional information may be found at http://www.usace.army.mil/inet/functions/cw/cecwo/reg or
Corps regulations at 33 CFR Part 331.
A: INITIAL PROFFERED PERMIT: You may accept or object to the permit.
x 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.
x 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. Your objections must be received by the district engineer within 60 days of the date of this notice, or you will
forfeit your right to appeal the permit in the future. 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
x 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.
x 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.
C: 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.
D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or provide new
information.
x 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.
x 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 district engineer. This form
must be received by the division engineer within 60 days of the date of this notice.
E: PRELIMINARY JURISDICTIONAL DETERMINATION: 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.
SECTION II - 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. 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.
POINT OF CONTACT FOR QUESTIONS OR INFORMATION:
If you only have questions regarding the appeal process
you may also contact:
District Engineer, Wilmington Regulatory Division, Attn:
David Shaeffer, 3331 Heritage Trade Drive, Suite 105,
Wake Forest, North Carolina 27587
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.
________________________________________
Signature of appellant or agent.
Date: Telephone number:
For Permit denials, Proffered Permits and approved Jurisdictional Determinations send this form to:
Division Engineer, Commander, U.S. Army Engineer Division, South Atlantic, Attn: Mr. Jason Steele,
Administrative Appeal Officer, CESAD-PDO, 60 Forsyth Street, Room 10M15, Atlanta, Georgia 30303-8801
Phone: [phone]
1
PRELIMINARY JURISDICTIONAL DETERMINATION FORM
BACKGROUND INFORMATION
A. REPORT COMPLETION DATE FOR PRELIMINARY JURISDICTIONAL DETERMINATION (JD): February 4,
2016
B. NAME AND ADDRESS OF PERSON REQUESTING PRELIMINARY JD: Sarah Flowers, 2010 Hillside Drive
South, North Myrtle Beach, SC 29582
C. DISTRICT OFFICE, FILE NAME, AND NUMBER: Wilmington, Flowers, Sarah / Solar Farm / JD, SAW-2015-
01817
D. PROJECT LOCATION(S) AND BACKGROUND INFORMATION:
(USE THE ATTACHED TABLE TO DOCUMENT MULTIPLE WATERBODIES AT DIFFERENT SITES)
State: NC County/parish/borough: Harnett City: Benson
Center coordinates of site (lat/long in degree decimal format): Lat. 35.4132694° Pick List, Long. -78.602025° Pick List.
Universal Transverse Mercator:
Name of nearest water body: Mingo Swamp
Identify (estimate) amount of waters in the review area:
Non-wetland waters: 930 linear feet: 3-4 width (ft) and/or 0.5 acres.
Cowardin Class: Riverine
Stream Flow: Intermittent
Wetlands: 18 acres.
Cowardin Class: Palustrine, forested
Name of any water bodies on the site that have been identified as Section 10 waters:
Tidal:
Non-Tidal:
E. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLIES):
Office (Desk) Determination. Date:
Field Determination. Date(s): 23 Sept 2015
1. The Corps of Engineers believes that there may be jurisdictional waters of the United States on the subject site, and the permit
applicant or other affected party who requested this preliminary JD is hereby advised of his or her option to request and obtain an
approved jurisdictional determination (JD) for that site. Nevertheless, the permit applicant or other person who requested this
preliminary JD has declined to exercise the option to obtain an approved JD in this instance and at this time.
2. In any circumstance where a permit applicant obtains an individual permit, or a Nationwide General Permit (NWP) or other
general permit verification requiring “pre-construction notification” (PCN), or requests verification for a non-reporting NWP or
other general permit, and the permit applicant has not requested an approved JD for the activity, the permit applicant is hereby
made aware of the following: (1) the permit applicant has elected to seek a permit authorization based on a preliminary JD, which
does not make an official determination of jurisdictional waters; (2) that the applicant has the option to request an approved JD
before accepting the terms and conditions of the permit authorization, and that basing a permit authorization on an approved JD
could possibly result in less compensatory mitigation being required or different special conditions; (3) that 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) that the applicant can accept a permit authorization and thereby agree to comply with all the terms and
conditions of that permit, including whatever mitigation requirements the Corps has determined to be necessary; (5) that
undertaking any activity in reliance upon the subject permit authorization without requesting an approved JD constitutes the
applicant’s acceptance of the use of the preliminary JD, but that either form of JD will be processed as soon as is practicable;
(6) accepting a permit authorization (e.g., signing a proffered individual permit) or undertaking any activity in reliance on any
form of Corps permit authorization based on a preliminary JD constitutes agreement that all wetlands and other water bodies on
the site affected in any way by that activity are jurisdictional waters of the United States, and precludes 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 approved JD or a preliminary JD, that JD will be processed as soon as
is practicable. Further, an approved JD, 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, and that in any administrative appeal,
jurisdictional issues can be raised (see 33 C.F.R. 331.5(a)(2)). If, during that administrative appeal, it becomes necessary to make
an official determination whether CWA jurisdiction exists over a site, or to provide an official delineation of jurisdictional waters
on the site, the Corps will provide an approved JD to accomplish that result, as soon as is practicable.
GREER.EMILY.C.
1385325300
Digitally signed by GREER.EMILY.C.1385325300
DN: c=US, o=U.S. Government, ou=DoD, ou=PKI,
ou=USA, cn=GREER.EMILY.C.1385325300
Date: 2016.02.04 15:59:42 -05'00'
Drawing 5
World Imagery From ESRI
and PEI Field Notes
Scale: 1” = 300’
Wetland Flag Map
Flowers Solar
Approximate 44 Acre Tract
Benson, North Carolina
PEI No. 1542
DP-2 DP-1
THE LOCATIONS OF FEATURES SHOWN ON THIS MAP ARE PRELIMINARY.THEY HAVE NOT BEEN VERIFIED BY THE USACE AND/OR
THE NCDENR-DWR.THIS EXHIBIT INCLUDES GPS LOCATIONS OF JURISDICTIONAL FEATURES.
LEGEND
Site Boundary
Pond
Intermittent Stream
Wetlands
Data PointDP-1
PB
WA
SA