HomeMy WebLinkAbout20041713 Ver 1_Other Agency Comments_20041025 (2)86
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DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
Action ID No. 200200769
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July 19, 2002
Mr. Lewis Holding, Nassau Corporation, Post Office Box 151, Raleigh, North Carolina
27609 has applied for an After-the-Fact Department of the Army (DA) Permit to DISCHARGE
FILL MATERIAL INTO 0.18 ACRES OF SECTION 404 WETLANDS, WHICH 0.057 ACRES
IS PRESENTLY FILLED, TO FACILITATE THE CONSTRUCTION OF A RESIDENTIAL
HOME on Lot 113, Dolphin Ridge Subdivision, on Outrigger Court, off Coast Guard Road, in
headwater wetlands adjacent to Bogue Sound, in Emerald Isle, Carteret County, North Carolina.
The following description of the work is taken from data provided by the applicant and
from observations made during a May 1, 2002 field inspection by a representative of the Corps of
Engineers. The stated purpose of the project is to elevate the property for the construction of a
single-family residence and to provide a higher grade around the home.
In it's current condition, the lot has been recently filled with approximately 2,500 square
feet (0.057 Ac) of sand material in preparation of developing the lot. Additional fill material is
being requested to accommodate a driveway, home, and yard. The previous fill activity was
conducted with the assumption that the September 5, 1991 verified wetland survey plat remained
applicable. To date, this survey is not valid and our reassessment of the lot revealed
jurisdictional wetlands are present on the majority of the lot (only exception is along the road
shoulder). The attached plan, showing the building envelope and driveway, are depicted on this
expired 1991 survey. This proposal should be reviewed in the content that the entire lot is
jurisdictional wetlands. No mitigation is proposed for the wetland impacts.
The lot is predominantly void of any canopy trees and underbrush. There are scattered
remnants of herbaceous sedge and rush species. Some of the lot has been excavated and the
majority of the area contains shallow open water areas. Hydrological input to the wetland area is
precipitation and stormwater run-off, but is predominantly driven by groundwater. The
underlying hydric wetland soil type is mapped as Duckston fine sand, which is frequently
flooded. This soil type is characterized as poorly drained with a 0 to 2 percent slope that occurs
within the swale areas of a coastal dune-swale complex.
Nassau Corporation is the original developer of this subdivision, and has sold all but 27 of
k
the 121 lots within the development. In the initial construction of the subdivision, our office
issued a Nationwide Permit No. 26 in July of 1990 for 3.0 acres of wetland impacts. At this
time, it is uncertain how much of the 3.0 acres have been impacted. This issued permit was
conditioned to incorporate covenants to restrict and prohibit additional impacts to jurisdictional
waters and wetlands, which Nassau is in compliance. Please note that the proposal is within
wetlands not registered in the subdivision's declaration of restrictive covenants.
The applicant has determined that the proposed work is consistent with the North Carolina
Coastal Zone Management Plan and has submitted this determination to the North Carolina
Division of Coastal Management (NCDCM) for their review and concurrence. This proposal
shall be reviewed for the applicability of other actions by North Carolina agencies such as:
a. The issuance of a Water Quality Certification under Section 401 of the Clean Water Act
by the North Carolina Division of Water Quality (NCDWQ).
b. The issuance of a permit to dredge and/or fill under North Carolina General Statute 113-
229 by the North Carolina Division of Coastal Management (NCDCM).
c. The issuance of a permit under the North Carolina Coastal Area Management Act
(LAMA) by the North Carolina Division of Coastal Management (NCDCM) or their delegates.
d. The issuance of an easement to fill or otherwise occupy State-owned submerged land
under North Carolina General Statute 143-341 (4), 146-6, 146-11, and 146-12 by the North
Carolina Department of Administration and the North Carolina Council of State.
e. The approval of an Erosion and Sedimentation Control Plan by the Land Quality
Section, North Carolina Division of Land Resources (NCDLR), pursuant to the State
Sedimentation Pollution Control Act of 1973 (NC G.S. 113 A-50-66).
The requested Department of the Army (DA) permit will be denied if any required State or
local authorization and/or certification are denied. No DA permit will be issued until a State
coordinated viewpoint is received and reviewed by this agency. Recipients of this notice are
encouraged to furnish comments on factors of concern represented by the above agencies directly
to the respective agency, with a copy furnished to the Corps of Engineers.
This notice initiates the Essential Fish Habitat (EFH) consultation requirements of the
Magnuson-Stevens Fishery Conservation and Management Act. The District Engineer's initial
determination is that the proposed project would not adversely impact EFH or associated
fisheries managed by the South Atlantic or Mid Atlantic Fishery Management Councils or the
National Marine Fisheries Service (NMFS).
This application is being considered pursuant to Section 404 of the Clean Water Act (33
U.S.C. 1344). Any person may request, in writing within the comment period specified in the
notice, that a public hearing be held to consider this application. Requests for public hearing
shall state, with particularity, the reasons for holding a public hearing.
The District Engineer, based on available information, is not aware that the proposed
activity will affect species, or their critical habitat, designated as endangered or threatened
pursuant to the Endangered Species Act of 1973.
The decision whether to issue a permit will be based on an evaluation of the probable
impacts, including cumulative impacts, of the proposed activity and its intended use on the public
interest. Evaluation of the probable impacts which the proposed activity may have on the public
interest requires a careful weighing of all those factors which become relevant in each particular
case. The benefits which reasonably may be expected to accrue from the proposal must be
balanced against its reasonably foreseeable detriments. The decision whether to authorize a
proposal, and if so the conditions under which it will be allowed to occur, are therefore decided
by the outcome of the general balancing process. That decision should reflect the national
concern for both protection and utilization of important resources. All factors which may be
relevant to the proposal must be considered including the cumulative effects of it. Among those
are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural
values, fish and wildlife values, flood hazards and flood plain values (according to Executive
Order 11988), land use, navigation, shore erosion and accretion, recreation, water supply and
conservation, water quality, energy needs, safety, food and fiber production, mineral needs,
considerations of property ownership, and, in general, the needs and welfare of the people. For
activities involving the placement of dredged or fill materials in waters of the United States, a
permit will be denied if the discharge that would be authorized would not comply with the
Environmental Protection Agencies'404(b)(1) guidelines. Subject to the preceding sentence and
any other applicable guidelines or criteria, a permit will be granted unless the District Engineer
determines that it would be contrary to the public interest.
The Corps of Engineers is soliciting comments from the public; Federal, State and local
agencies and officials; Indian Tribes and other interested parties to consider and evaluate the
impacts of this proposed activity. Any comments received will be considered by the Corps of
Engineers to decide whether to issue, modify, condition or deny a permit for this proposal. To
make this decision, comments are used to assess impacts on endangered species, historic
properties, water quality, general environmental effects and the other public interest factors listed
above. Comments are used in the preparation of an Environmental Assessment (EA) and/or an
Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act
(NEPA). Comments are also used to determine the need for a public hearing and to determine
the overall public interest of the proposed activity.
Additional information regarding the Clean Water Act certification may be reviewed at the
offices of the Environmental Operations Section, North Carolina Division of Water Quality
(NCDWQ), Salisbury Street, Archdale Building, Raleigh, North Carolina. Copies of such
materials will be furnished to any person requesting copies upon payment of reproduction costs.
All persons desiring to make comments regarding the application for Clean Water Act
certification should do so in writing delivered to the North Carolina Division of Water Quality
(NCDWQ), 1621 Mail Service Center, Raleigh, North Carolina 27699-1621, on or before August
9, 2002, Attention: Mr. John Dorney.
Written comments pertinent to the proposed work, as outlined above, will be received in
this office, Attention: Mickey T. Sugg, until 4:15 p.m., August 16, 2002, or telephone (910)
251-4811.
Action ID No.: 200200769
Applicant: Mr. Lewis Holding, Nassau Corporation, Post Office Box 151, Raleigh North
Carolina 27609.
Proposed Work: To discharge fill material into 0.18 acres of Section 404 wetlands, which 0.057
acres is presently filled, to facilitate the construction of a residential home and driveway on Lot
113, Dolphin Ridge Subdivision, on Outrigger Court, off Coast Guard Road, in headwater
wetlands adjacent to Bogue Sound, in Emerald Isle, Carteret County, North Carolina.
58 Lists of addresses that requested All NC Public Notices and Addresses receiving
Notices for Wilmington Field office
1 US Representative Walter B. Jones, Jr., 422 Cannon House Office Building,
Washington, DC 20515
1 Postmaster, Emerald Isle NC 28594
1 Mr. Frank Rush, Town of Emerald Isle, 7500 Emerald Drive, Emerald Isle NC
28594
1 Mr. Doug Huggett, DCM, NCDENR
1 Mr. Ronald Mikulak, EPA, Atlanta, GA
1 Mr. Frank Sheffield, Jr., Ward and Smith, 1001 College Court, New Bern NC
28562
1 CESAW-CO-R/ Mickey Sugg
65 TOTAL
Mr. Doug Huggett
Division of Coastal Management
North Carolina Department of
Environment and Natural Resources
1638 Mail Service Center
Raleigh, North Carolina 27699-1638
Mr. Ronald Mikulak, Chief
Wetlands Section - Region IV
Water Management Division
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
Ms. Kathy Matthews
Wetlands Section- Region IV
U.S. Environmental Protection Agency
980 College Station Road
Athens, Georgia 30605
CESAW-CO-E
Instructions to Word Processing: This is Card Letter 4. Attach application after copies have
been made and letter is ready to be assembled. Please insert date in Paragraph 3, 60 days from
the date of this letter.
July 16, 2002
Regulatory Division
Action ID. 200200769
Mr. John Dorney
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
1621 Mailing Service Center
Raleigh, North Carolina 27699-1621
Dear Mr. Dorney:
Enclosed is the application of Lewis Holding, Nassau Corporation, Post Office 151,
Raleigh, North Carolina 27602, for a Department of the Army (DA) Permit to discharge fill
material into 0.18 acres of Section 404 wetlands, which 0.057 acres is presently filled, to
facilitate the construction of a residential home and driveway on Lot 113, Dolphin Ridge
Subdivision, on Outrigger Court, off Coast Guard Road, in headwater wetlands adjacent to
Bogue Sound, in Emerald Isle, Carteret County, North Carolina.
Your receipt of this letter verifies your acceptance of a valid request for certification in
accordance with Section 325.2(b)(ii) of our administrative regulations.
We are considering authorizing the proposed activity pursuant to Section 404 of the Clean
Water Act, and we have determined that a water quality certification may be required under the
provisions of Section 401 of the same law. A Department of the Army permit will not be granted
until the certification has been obtained or waived.
In accordance with our administrative regulations, 60 days after receipt of a request for
certification is a reasonable time for State action. Therefore, if you have not acted on the request
by **, 1995, the District Engineer will deem that waiver has occurred.
Thank you for your time and cooperation. Please contact me at telephone (910) 251-4811, if
you have any questions.
Sincerely,
Mickey Sugg
Project Manager
Copies Furnished (without enclosure):
Mr. Doug Huggett
Division of Coastal Management
North Carolina Department of
Environment and Natural Resources
1638 Mail Service Center
Raleigh, North Carolina 27699-1638
SUSPENSE
DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
Action ID No. 200200769
July 19, 2002
Mr. Lewis Holding, Nassau Corporation, Post Office Box 151, Raleigh, North Carolina
27609 has applied for an After-the-Fact Department of the Army (DA) Permit to DISCHARGE
FILL MATERIAL INTO 0.18 ACRES OF SECTION 404 WETLANDS, WHICH 0.057 ACRES
IS PRESENTLY FILLED, TO FACILITATE THE CONSTRUCTION OF A RESIDENTIAL
HOME on Lot 113, Dolphin Ridge Subdivision, on Outrigger Court, off Coast Guard Road, in
headwater wetlands adjacent to Bogue Sound, in Emerald Isle, Carteret County, North Carolina.
The following description of the work is taken from data provided by the applicant and
from observations made during a May 1, 2002 field inspection by a representative of the Corps of
Engineers. The stated purpose of the project is to elevate the property for the construction of a
single-family residence and to provide a higher grade around the home.
In it's current condition, the lot has been recently filled with approximately 2,500 square
feet (0.057 Ac) of sand material in preparation of developing the lot. Additional fill material is
being requested to accommodate a driveway, home, and yard. The previous fill activity was
conducted with the assumption that the September 5, 1991 verified wetland survey plat remained
applicable. To date, this survey is not valid and our reassessment of the lot revealed
jurisdictional wetlands are present on the majority of the lot (only exception is along the road
shoulder). The attached plan, showing the building envelope and driveway, are depicted on this
expired 1991 survey. This proposal should be reviewed in the content that the entire lot is
jurisdictional wetlands. No mitigation is proposed for the wetland impacts.
The lot is predominantly void of any canopy trees and underbrush. There are scattered
remnants of herbaceous sedge and rush species. Some of the lot has been excavated and the
majority of the area contains shallow open water areas. Hydrological input to the wetland area is
precipitation and stormwater run-off, but is predominantly driven by groundwater. The
underlying hydric wetland soil type is mapped as Duckston fine sand, which is frequently
flooded. This soil type is characterized as poorly drained with a 0 to 2 percent slope that occurs
within the swale areas of a coastal dune-swale complex.
Nassau Corporation is the original developer of this subdivision, and has sold all but 27 of
the 121 lots within the development. In the initial construction of the subdivision, our office
issued a Nationwide Permit No. 26 in July of 1990 for 3.0 acres of wetland impacts. At this
time, it is uncertain how much of the 3.0 acres have been impacted. This issued permit was
conditioned to incorporate covenants to restrict and prohibit additional impacts to jurisdictional
waters and wetlands, which Nassau is in compliance. Please note that the proposal is within
wetlands not registered in the subdivision's declaration of restrictive covenants.
The applicant has determined that the proposed work is consistent with the North Carolina
Coastal Zone Management Plan and has submitted this determination to the North Carolina
Division of Coastal Management (NCDCM) for their review and concurrence. This proposal
shall be reviewed for the applicability of other actions by North Carolina agencies such as:
a. The issuance of a Water Quality Certification under Section 401 of the Clean Water Act
by the North Carolina Division of Water Quality (NCDWQ).
b. The issuance of a permit to dredge and/or fill under North Carolina General Statute 113-
229 by the North Carolina Division of Coastal Management (NCDCM).
c. The issuance of a permit under the North Carolina Coastal Area Management Act
(LAMA) by the North Carolina Division of Coastal Management (NCDCM) or their delegates.
d. The issuance of an easement to fill or otherwise occupy State-owned submerged land
under North Carolina General Statute 143-341 (4), 146-6, 146-11, and 146-12 by the North
Carolina Department of Administration and the North Carolina Council of State.
e. The approval of an Erosion and Sedimentation Control Plan by the Land Quality
Section, North Carolina Division of Land Resources (NCDLR), pursuant to the State
Sedimentation Pollution Control Act of 1973 (NC G.S. 113 A-50-66).
The requested Department of the Army (DA) permit will be denied if any required State or
local authorization and/or certification are denied. No DA permit will be issued until a State
coordinated viewpoint is received and reviewed by this agency. Recipients of this notice are
encouraged to furnish comments on factors of concern represented by the above agencies directly
to the respective agency, with a copy furnished to the Corps of Engineers.
This notice initiates the Essential Fish Habitat (EFH) consultation requirements of the
Magnuson-Stevens Fishery Conservation and Management Act. The District Engineer's initial
determination is that the proposed project would not adversely impact EFH or associated
fisheries managed by the South Atlantic or Mid Atlantic Fishery Management Councils or the
National Marine Fisheries Service (NMFS).
This application is being considered pursuant to Section 404 of the Clean Water Act (33
U.S.C. 1344). Any person may request, in writing within the comment period specified in the
notice, that a public hearing be held to consider this application. Requests for public hearing
shall state, with particularity, the reasons for holding a public hearing.
The District Engineer, based on available information, is not aware that the proposed
activity will affect species, or their critical habitat, designated as endangered or threatened
pursuant to the Endangered Species Act of 1973.
The decision whether to issue a permit will be based on an evaluation of the probable
impacts, including cumulative impacts, of the proposed activity and its intended use on the public
interest. Evaluation of the probable impacts which the proposed activity may have on the public
interest requires a careful weighing of all those factors which become relevant in each particular
case. The benefits which reasonably may be expected to accrue from the proposal must be
balanced against its reasonably foreseeable detriments. The decision whether to authorize a
proposal, and if so the conditions under which it will be allowed to occur, are therefore decided
by the outcome of the general balancing process. That decision should reflect the national
concern for both protection and utilization of important resources. All factors which may be
relevant to the proposal must be considered including the cumulative effects of it. Among those
are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural
values, fish and wildlife values, flood hazards and flood plain values (according to Executive
Order 11988), land use, navigation, shore erosion and accretion, recreation, water supply and
conservation, water quality, energy needs, safety, food and fiber production, mineral needs,
considerations of property ownership, and, in general, the needs and welfare of the people. For
activities involving the placement of dredged or fill materials in waters of the United States, a
permit will be denied if the discharge that would be authorized would not comply with the
Environmental Protection Agencies'404(b)(1) guidelines. Subject to the preceding sentence and
any other applicable guidelines or criteria, a permit will be granted unless the District Engineer
determines that it would be contrary to the public interest.
The Corps of Engineers is soliciting comments from the public; Federal, State and local
agencies and officials; Indian Tribes and other interested parties to consider and evaluate the
impacts of this proposed activity. Any comments received will be considered by the Corps of
Engineers to decide whether to issue, modify, condition or deny a permit for this proposal. To
make this decision, comments are used to assess impacts on endangered species, historic
properties, water quality, general environmental effects and the other public interest factors listed
above. Comments are used in the preparation of an Environmental Assessment (EA) and/or an
Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act
(NEPA). Comments are also used to determine the need for a public hearing and to determine
the overall public interest of the proposed activity.
Additional information regarding the Clean Water Act certification may be reviewed at the
offices of the Environmental Operations Section, North Carolina Division of Water Quality
(NCDWQ), Salisbury Street, Archdale Building, Raleigh, North Carolina. Copies of such
materials will be furnished to any person requesting copies upon payment of reproduction costs.
All persons desiring to make comments regarding the application for Clean Water Act
certification should do so in writing delivered to the North Carolina Division of Water Quality
(NCDWQ), 1621 Mail Service Center, Raleigh, North Carolina 27699-1621, on or before August
9, 2002, Attention: Mr. John Dorney.
Written comments pertinent to the proposed work, as outlined above, will be received in
this office, Attention: Mickey T. Sugg, until 4:15 p.m., August 16, 2002, or telephone (910)
251-4811.
Action ID No.: 200200769
Applicant: Mr. Lewis Holding, Nassau Corporation, Post Office Box 151, Raleigh North
Carolina 27609.
Proposed Work: To discharge fill material into 0.18 acres of Section 404 wetlands, which 0.057
acres is presently filled, to facilitate the construction of a residential home and driveway on Lot
113, Dolphin Ridge Subdivision, on Outrigger Court, off Coast Guard Road, in headwater
wetlands adjacent to Bogue Sound, in Emerald Isle, Carteret County, North Carolina.
58 Lists of addresses that requested All NC Public Notices and Addresses receiving
Notices for Wilmington Field office
1 US Representative Walter B. Jones, Jr., 422 Cannon House Office Building,
Washington, DC 20515
1 Postmaster, Emerald Isle NC 28594
1 Mr. Frank Rush, Town of Emerald Isle, 7500 Emerald Drive, Emerald Isle NC
28594
1 Mr. Doug Huggett, DCM, NCDENR
1 Mr. Ronald Mikulak, EPA, Atlanta, GA
1 Mr. Frank Sheffield, Jr., Ward and Smith, 1001 College Court, New Bern NC
28562
1 CESAW-CO-R/ Mickey Sugg
65 TOTAL
Mr. Doug Huggett
Division of Coastal Management
North Carolina Department of
Environment and Natural Resources
1638 Mail Service Center
Raleigh, North Carolina 27699-1638
Mr. Ronald Mikulak, Chief
Wetlands Section - Region IV
Water Management Division
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
Ms. Kathy Matthews
Wetlands Section- Region IV
U.S. Environmental Protection Agency
980 College Station Road
Athens, Georgia 30605
CESAW-CO-E
Instructions to Word Processing: This is Card Letter 4. Attach application after copies have
been made and letter is ready to be assembled. Please insert date in Paragraph 3, 60 days from
the date of this letter.
July 16, 2002
Regulatory Division
Action ID. 200200769
Mr. John Dorney
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
1621 Mailing Service Center
Raleigh, North Carolina 27699-1621
Dear Mr. Dorney:
Enclosed is the application of Lewis Holding, Nassau Corporation, Post Office 151,
Raleigh, North Carolina 27602, for a Department of the Army (DA) Permit to discharge fill
material into 0.18 acres of Section 404 wetlands, which 0.057 acres is presently filled, to
facilitate the construction of a residential home and driveway on Lot 113, Dolphin Ridge
Subdivision, on Outrigger Court, off Coast Guard Road, in headwater wetlands adjacent to
Bogue Sound, in Emerald Isle, Carteret County, North Carolina.
Your receipt of this letter verifies your acceptance of a valid request for certification in
accordance with Section 325.2(b)(ii) of our administrative regulations.
We are considering authorizing the proposed activity pursuant to Section 404 of the Clean
Water Act, and we have determined that a water quality certification may be required under the
provisions of Section 401 of the same law. A Department of the Army permit will not be granted
until the certification has been obtained or waived.
In accordance with our administrative regulations, 60 days after receipt of a request for
certification is a reasonable time for State action. Therefore, if you have not acted on the request
by **, 1995, the District Engineer will deem that waiver has occurred.
Thank you for your time and cooperation. Please contact me at telephone (910) 251-4811, if
you have any questions.
Sincerely,
Mickey Sugg
Project Manager
Copies Furnished (without enclosure):
Mr. Doug Huggett
Division of Coastal Management
North Carolina Department of
Environment and Natural Resources
1638 Mail Service Center
Raleigh, North Carolina 27699-1638
SUSPENSE
Seno-rita. This is a MOA cardletter 33. Thank You.
----------------
August 16, 2002
Regulatory Division
Action ID No. 200200769
Mr. Lewis Holding, Nassau Corporation
Post Office Box 151
Raleigh, North Carolina 27609
Dear Mr. Holding:
Please reference your after-the-fact application for the Department of the Army (DA) authorization
to discharge fill material into 0.18 acres of Section 404 wetlands on Lot 113, in Dolphin Ridge
Subdivision, on Outrigger Court, adjacent to headwater wetlands of Bogue Sound, Emerald Isle, Carteret
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, practical alternative; second, taking appropriate and practical steps to reduce impacts on
waters and wetlands; and finally, compensation for remaining unavoidable impacts to the extent
appropriate and practical. 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.
b. It is necessary for you to have taken all appropriate and practicable steps to minimize wetland losses.
Please indicate all that you have done, especially regarding development and modification of plans and
proposed construction techniques, to minimize adverse impacts.
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. Please indicate your plan to mitigate for the projected, unavoidable loss of waters or
wetlands or provide information as to the absence of any such appropriate and practicable measures.
The aforementioned, requested information 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 State and Federal commenting agencies may recommend design modifications.
If you have questions or comments, please do not hesitate to contact me at telephone (910) 251-
4811, Wilmington Regulatory Field Office.
Sincerely,
Mickey Sugg
Project Manager
Copies Furnished:
Mr. Kathy Matthews
Wetlands Regulatory Section- Section IV
U.S. Environmental Protection Agency
980 College Station Road
Athens, Georgia 30605
Mr. Doug Huggett
Division of Coastal Management
North Carolina Department of
Environment and Natural Resources
1638 Mail Service Center
Raleigh, North Carolina 27699-1638
Mr. John Dorney
Division of Water Quality
North Carolina Department of
Environment and Natural Resources
1621 Mail Service Center
Raleigh, North Carolina 27699-1621
Ms. Joanne Steenhuis
Division of Water Quality
North Carolina Department of
Environment and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Mr. Garland Pardue
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. David McHenry
North Carolina Wildlife Resource Commission
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Frank Sheffield
Ward and Smith
Post Office Drawer 867
New Bern, North Carolina 28563
March 5, 2003
Regulatory Division
Action ID. 200200769
Mr. Lewis Holding, Nassau Corporation
Post Office Box 151
Raleigh, North Carolina 27609
Dear Mr. Holding:
This letter serves to respond to your agent's, Mr. Frank Sheffield of Ward and
Smith, September 23, 2002 letter concerning the avoidance, minimization, and mitigation
sequencing for your After-the-Fact permit request. The proposal is to place fill material
into 0.18 acres of Section 404 wetlands for the construction of a single-family residence
and driveway, on Lot 113, in Dolphin Ridge Subdivision, on Outrigger Court, adjacent to
headwater wetlands of Bogue Sound, Emerald Isle, Carteret County, North Carolina.
Also, please reference my November 22, 2002 telephone conversation with Mr. Sheffield
concerning this issue.
In our August 19, 2002 letter, you were informed of our 404(b)(1) guideline
requirements and our memorandum of agreement (MOA) with U.S. Environmental
Protection Agency for activities conducted in Section 404 wetlands and waters. These
requirements and the MOA outline the avoidance, minimization, and mitigation
sequencing for which your proposal must comply with prior to the authorization of any
wetland impacts.
Mr. Sheffield's September response to our letter stated the following: 1) The
wetland area claimed as jurisdiction by our office was recently created and has a low
environmental value; 2) There is question whether the area, recently determined, meets
the definition of a wetland; 3) There are no practical alternatives to filling wetlands on
this lot and it is your position that the development of other remaining lots is not a
legally-required alternative to Lot 113; 4) The filling of 0.18 acres is the minimum
needed to have a building pad and driveway for a suitably-sized residential structure; 5)
The area proposed to be filled was not included in the original delineation; 6) To
compensate for the wetland impacts, you propose to make in-lieu payment to the North
Carolina Wetlands Restoration Program (WRP); 7) It is your position that the
development of Lot 113 should be exempt due to vested rights determination; and 8) If
proposal is not exempt, justification exists for the issuance of Nationwide Permit 39
(NWP) for the work.
In the discussion with Mr. Sheffield, it is our position that the majority of Lot 113
has always been jurisdictional wetlands subject to our regulatory authority. This decision
was based upon the following: evaluation of the soil profile; the thickness of the A-
Horizon and the amount of organics in the soil; the vegetation that exists, particularly the
larger trees; onsite conditions, the amount of inundation and landscape positioning;
Carteret County Soil Survey; 1989 aerial photo; and during construction photos. We also
disagree that the wetland has low value. The ridge and swale maritime forest complex in
North Carolina, which exists along Coast Guard Road, is an unique ecosystem along the
east coast and has experienced significant development pressure for the last several
decades. The wetlands within the project area provide excellent amphibian and reptile
habitat, as well as waterfowl, egret, heron, and songbird habitat. Additionally, the
wetlands provide water quality functions and excellent flood/stormwater storage and
conveyance, and are located within a major swale or wetland trough. Flooding issues
have become a critical component to the residents off Coast Guard Road. The
cumulative filling of the wetland areas, specifically within the major drainage swales, is
expected to only exacerbate the flooding problems.
In a conversation with the Carteret County Health Department, our office was
informed that you do not have approval for a septic waste system on Lot 113. Prior to
any issuance of a permit from our office, you must first obtain authorization from
Carteret County Health Department. This vital information aids our office in determining
the practicability of constructing a residence on Lot 113.
We understand your position that this lot was incorporated with the overall
economic value of the subdivision development, and that it was originally considered to
contain enough high ground to construct a residence. Our office cannot account for the
reason the original delineation or survey mistakenly omitted the project area as being
mostly jurisdictional wetlands. But as you know, the original verified survey expired
years ago and is no longer valid. In fact, I inspected the remaining lots, under your
ownership, and found that some of the wetland lines, depicted on the revised March 11,
1991 survey, are not accurate. Most of these appear to have been previously filled,
perhaps under our NWP No. 26 issued to you on July 20, 1990 for the initial development
of Dolphin Ridge. It is our position that you should redelineate all wetlands on the
remaining 27 lots to ensure the accuracy of the line. Information on the extent of
wetlands in these areas is necessary to allow us to consider the potential cumulative
impacts from additional fill within wetlands on these remaining lots.
Our office disagrees with your determination that your current proposal has taken
all practicable steps to minimize wetland impacts. As discussed with Mr. Sheffield, it is
your responsibility to demonstrate that you have exhausted all practicable onsite
alternatives and have minimized to the maximum extent practicable. The term
practicable is defined in terms of cost, technology, and logistics. If your initial
development cost analysis and lot layout was based on the premise that Lot 113 was
upland and that understanding was considered in determining development/sales cost of
each lot, you need to disclose this. It is my understanding that Lot 113 is not under
contract with a potential buyer. If this is the case, please further explain why you are
unable to relocate this home site to another lot more suitable for building or a lot resulting
in no wetland impacts.
Concerning your minimization efforts, you have inadequately demonstrated the
need to impact 0.18 acres of jurisdictional wetlands. According to the letter, the
proposed area is the minimal amount to meet the subdivision minimum size
requirements. Yet, this size requirement was not provided. It is our experience and
position that your amount requested far exceeds an area needed for the construction of a
single-family residence and driveway. Further consideration must be given to reducing
foundation size and building upward, and evaluating the alternative of a pile supported
home over the wetlands. Additionally, your proposed driveway must be redesigned to
further reduce wetland impacts. If there are building setbacks off the road right-of-way
and property boundaries, it is in your best interest to provide them.
In regards to mitigation, your proposal to make payment to the State's WRP is not
considered a practicable alternative at this time. We are unaware of WRP having any
mitigation opportunities within Emerald Isle or along Bogue Banks Barrier Island. As
discussed with Mr. Sheffield, you must exhaust all onsite, in-kind practicable mitigation
alternatives prior to other options. It is our position that you restore previously impacted
wetlands or look at wetland creation possibilities within Dolphin Ridge Subdivision. In
reviewing your proposal cumulatively with your previous impacted activities, we have
determined that compensatory mitigation will be required prior to the issuance of a
Department of the Army permit.
In your conclusions, we do not concur with your assessment that activity on Lot
113 should be exempt under a vested rights theory, or that the proposal should be eligible
for our NWP No. 39. Our regulations do not include any exemption for activities that
have a vested rights determination. For the use of NWP 39, our office issued you a NWP
No. 26 on July 20, 1990 for initial development of Dolphin Ridge, which included 3.77
acres of wetland impacts for access roads and lot fills. In assessing the impacts, your
request will be reviewed cumulatively with the previously permitted activities as a single
and complete project with shared utilities. In respective, your past activities have
exceeded the maximum 0.5 acre limit of wetland impacts, resulting in your ineligibility
for NWP No. 39.
Upon reviewing the present information, it has been determined that you have not
adequately addressed our August correspondence regarding our MOA and the
compliance of the Clean Water Act Section 404(b)(1) Guidelines discussing practicable
avoidance, minimization, and mitigation. If you feel that you can provide additional
information to rebut our determination, please submit your comments or any information
regarding your proposal within 2 weeks from the receipt of this letter.
Your attention to this matter is greatly appreciated. If you have any questions or
concerns, please do not hesitate to contact me at (910) 251-4811, Wilmington Regulatory
Field Office.
Copies furnished:
Mr. John Dorney
North Carolina Division of
Water Quality
1621 Mail Service Center
Raleigh, North Carolina 27699
Ms. Noelle Lutheran
Division of Water Quality
North Carolina Department of
Environment and Natural Resource
127 Cardinal Drive Extension
Wilmington, North Carolina 28405-
3845
Ms. Kathy Matthews
U.S. Environmental Protection Agency
Region IV
Wetlands Protection Section
61 Forsyth Street
Atlanta, Georgia 30303
Ms. Doug Huggett
Division of Coastal Management
North Carolina Department of
Environment and Natural Resource
1638 Mail Service Center
Raleigh, North Carolina 27699-1638
Mr. Garland Pardue
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Sincerely,
Mickey Sugg
Project Manager
Mr. David McHenry
North Carolina Wildlife Resource
Commission
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Frank Sheffield
Ward and Smith
Post Office Drawer 867
New Bern, North Carolina 28563
Ms. Carol Angus, Planning and
Inspections
Town of Emerald Isle
7500 Emerald Isle
Emerald Isle, North Carolina 28594-
9320
Mr. Frank Rush, Town Manager
Town of Emerald Isle
7500 Emerald Isle
Emerald Isle, North Carolina 28594
Mr. Ryan Davenport, Inspector
Carteret County Health Department
3820 Bridges Street, Suite A
Morehead City, North Carolina 28557