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HomeMy WebLinkAbout20041713 Ver 1_Other Agency Comments_20041025 (2)86 CI 0?? DEPARTMENT OF THE ARMY Wilmington District, Corps of Engineers Post Office Box 1890 Wilmington, North Carolina 28402-1890 Action ID No. 200200769 F- ? J -) ?? - 5 kc?? ie 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