Loading...
HomeMy WebLinkAbout20181486 Ver 1_eSAW-2018-00195 NPW_20190624Strickland, Bev From: dlutheran@segi.us Sent: Monday, June 24, 2019 12:28 PM To: Mairs, Robb L Cc: Montalvo, Sheri A Subject: [External] RE: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) Attachments: eSAW-2018-00195 NPW_MFR.pdf CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to report. spa m@nc.gov<mailto:report. spa m@nc.gov> Robb, The NWP is attached. Dana Southern Environmental Group, Inc. 5315 South College Road, Suite E Wilmington, NC 28412 Office: 910.452.2711 Mobile: 910.228.1841 (preferred) www.segi.us -----Original Message ----- From: dlutheran@segi.us <dlutheran@segi.us> Sent: Wednesday, May 8, 2019 9:30 AM To: 'Mairs, Robb L' <robb.mairs@ncdenr.gov> Cc: 'Montalvo, Sheri A' <sheri.montalvo@ncdenr.gov> Subject: FW: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) Good morning, Robb. I forgot to include you and Sheri on the submittal of our response to the USACE's RFAI. If you have any questions, please call. Thanks a bunch. Dana Southern Environmental Group, Inc. 5315 South College Road, Suite E Wilmington, NC 28412 Office: 910.452.2711 Mobile: 910.228.1841 (preferred) www.segi.us 1 -----Original Message ----- From: dlutheran@segi.us <dlutheran@segi.us> Sent: Tuesday, May 7, 2019 2:49 PM To: 'Greer, Emily C CIV USARMY CESAW (US)' <Emily.C.Greer@usace.army.mil> Subject: RE: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) Hello, Emily. Thank you, for the extra time, to get our response to you. I have attached it hereto. Please let me know if you have any questions. Dana Southern Environmental Group, Inc. 5315 South College Road, Suite E Wilmington, NC 28412 Office: 910.452.2711 Mobile: 910.228.1841 (preferred) www.segi.us -----Original Message ----- From: dlutheran@segi.us <dlutheran@segi.us> Sent: Monday, April 29, 2019 1:46 PM To: 'Greer, Emily C CIV USARMY CESAW (US)' <Emily.C.Greer@usace.army.mil> Subject: RE: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) Emily, I hate to do this, but can we get an extension? I am having a hard time getting the maps adequately prepared. Dana Southern Environmental Group, Inc. 5315 South College Road, Suite E Wilmington, NC 28412 Office: 910.452.2711 Mobile: 910.228.1841 (preferred) www.segi.us -----Original Message ----- From: Greer, Emily C CIV USARMY CESAW (US) <Emily.C.Greer@usace.army.mil> Sent: Friday, March 29, 2019 5:38 PM To: dlutheran@segi.us; rjackson.nc@gmail.com Cc: Mairs, Robb L <robb.mairs@ncdenr.gov> Subject: RE: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) CLASSIFICATION: UNCLASSIFIED Dana- Please accept this as official correspondence for the above referenced project. The following information is needed to complete the application and/or to finalize the application review. Please provide an electronic submittal of the entire application package within 30 days of this request. If a response has not been received by this time or a request has not been made for an extension, the application will automatically be withdrawn. 1. The application was still incomplete because the applicant's contact information had not been provided, as requested; however, SEGi provided the Corps with this information yesterday (3/27/19). 2. The applicant is required to electronically submit a new application package reflecting the required changes and/or additional information. It is not impracticable to make changes to an application and resubmit electronically as there have been multiple instances of an applicant resubmitting through the ePCN process in response to comments. It is incumbent upon the applicant to keep a record of their submittal, not for the agencies to have to toggle back and forth between different versions of their submittal in order to review the complete project. Please submit the entire package either through the ePCN process or by direct email to the agencies. 3. The Corps provided comment regarding the proposal to construct Secretariat Run to the eastern project boundary and referenced a statement in the application that this is not a phased project (See comment 4 below). Furthermore, the Corps stated that due to the location of jurisdictional resources at the project boundary, the applicant will only be allowed to construct a 12 -foot wide access road beginning at the lot boundary for Lots 20/21, and that the access road will not be allowed to continue beyond the driveway. The applicant provided a response stating that "...Pender County will require the adjacent tract to connect to Secretariat Run when and if it is developed..." and that the impact is "reasonably anticipated to take place and is unavoidable" and made no changes at this location, as directed. The Corps agrees that the impact is reasonably anticipated and unavoidable; however, there are key facts that the applicant's agents fails to understand about their own point. First, county requirements do not trump federal regulations. Second, it is the entire impact that is reasonably anticipated to take place, not just the portion of the impact that the applicant is proposing. Third, the applicant owns the adjacent property. Fourth, by regulation, the Corps cannot approve road construction beyond Lots 20/21 due to the location of jurisdictional resources at this location. Regulation 33 CFR 325.1(d)(2) states that all activities the applicant plans to undertake which are reasonably related to the same project and for which a DA permit would be required should be included in the same permit application. Furthermore, the regulation states that the District Engineer should reject, as incomplete, any permit application which fails to comply with this requirement. Because the applicant owns the adjacent property, there are jurisdictional resources at this location that extend beyond the project boundary, a discharge of fill is currently needed at this location, and a DA permit will be required to complete the crossing beyond the project boundary, which is reasonably related to the currently proposed project, the applicant must either follow the Corps' direction as previously stated or they must complete the crossing, terminating the road in high ground on the adjacent property, and show a reasonable development at the road's terminus. To choose the latter of these two options would mean that the project would no longer qualify for a NWP 29 because impacts would exceed 0.5 -acre and the FEMA floodline is mapped at this location (Regional Conditions 4.1.3 and 4.1.4). As such, this application is still incomplete because the project does not comply with the regulations. Please either eliminate the impact as directed or apply for an individual permit. 4. The applicant did not adequately address item 7 of the Corps' comments (See below). Does the applicant still intend to provide information to homeowners regarding how to access available uplands in a manner that would not require a permit? If so, please provide the language that will be used for review. 5. The Corps disagrees with the applicant's proposal to provide 1:1 mitigation. NCWAM guidance states that for a site to be considered intensively managed, the activity should have occurred approximately within the last 10 years. This site was last cut in or about 1993, over 25 years ago. Very few manmade drainageways exist onsite, and those that are present have not been maintained in probably over 25 years, leaving the hydrology of the site intact. Furthermore, the Corps disagrees with the applicant's assessment that the site contains limited vegetative diversity and does not promote habitat for wildlife. While the site may support a predominance of pine due to its historical use for a silviculture operation, and thus may have areas with a dense understory as a result of this past disturbance, there are more vegetative species present than what the applicant listed and an abundance of uses that wildlife can benefit from throughout various stages of their life cycle and for various reasons, such as foraging and nesting. Additionally, the habitat of this site is comparable to a plethora of other sites for which the Corps has recently required 2:1 mitigation. Please provide a mitigation credit reservation letter reflecting a 2:1 ratio for the restoration of the proposed impacts. 6. A temporary impact at H is now being proposed; however, listed impact amounts vary and the impact is not shown on the inset. Upon further review, it is actually quite difficult in some instances to see the project and project impacts on the insets. Additionally, the applicant's agents are well aware that it has been a long-standing requirement that project drawings be submitted to the Corps in 11x17" format. Please insure impact amounts are consistent throughout the submittal, show the temporary impact at H on the inset, provide the correctly sized drawings, adjust the overall map so that the drawing and the legend match, and either turn off data layers that aren't useful to the review and that also make the inset drawings too busy or darken the limits of the project at each crossing so that they are clearly discernible from other data layers. 7. A perennial stream exists at Impact 1, not an open water (ditch). Please correct in all appropriate locations within the submittal. Please show the stream on the drawings for this impact. 8. In response to item 5 of the Corps' comments (see below) concerning the depth at which culverts were planned to be buried, the applicant stated that the culverts would be set at existing grade and that these changes were reflected in the newly provided cross-section drawings; however, the drawings lack the detail needed for the Corps' review. Please update the DOT drawings originally submitted with the application to reflect the needed changes, as they are adequate for review. 9. Tributary 3 is not accurately depicted on the overall impact map. See the approved delineation map created by SEGi. Additionally, the entire length of the tributary from the point of impact located south of Saratoga Way on Lot 24 north to its terminus at the existing culvert and soil road on Lot 37 needs to be included in the total impact amount. Please provide the entire application package at your earliest convenience and feel free to contact me with any questions. Emily Greer, Regulatory Specialist Wilmington District - Wilmington Regulatory Field Office 69 Darlington Avenue, Wilmington, NC 28403 910.251.4567 (o) -----Original Message ----- From: dlutheran@segi.us [mailto:dlutheran@segi.us] Sent: Wednesday, March 27, 2019 6:10 PM To: Greer, Emily C CIV USARMY CESAW (US) <Emily.C.Greer@usace.army.mil> Subject: RE: [Non-DoD Source] RE: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) I'm sorry. I thought I sent that as part of my response. Robert H Jackson American Homesmith, LLC 919-291-8721, mobile PO Box 97365 Raleigh, NC 27624 rjackson.nc@gmail.com Southern Environmental Group, Inc. 5315 South College Road, Suite E Wilmington, NC 28412 Office: 910.452.2711 Mobile: 910.228.1841 (preferred) Blockedwww.segi.us -----Original Message ----- From: Greer, Emily C CIV USARMY CESAW (US) <Emily.C.Greer@usace.army.mil> Sent: Wednesday, March 27, 2019 5:51 PM To: dlutheran@segi.us Subject: RE: [Non-DoD Source] RE: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) CLASSIFICATION: UNCLASSIFIED Dana - I'm working on additional comments, but we need the applicant's information first. Currently, the application is still incomplete. Please provide this information at your earliest convenience. Thank you - Emily -----Original Message ----- From: dlutheran@segi.us [mailto:dlutheran@segi.us] Sent: Wednesday, March 6, 2019 6:04 PM To: Greer, Emily C CIV USARMY CESAW (US) <Emily.C.Greer@usace.army.mil> Subject: [Non-DoD Source] RE: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) Hello, Emily. Well, here ya go. I hope it is sufficient to address all of your concerns. I did the best I could on the ORM Sheet. Please call me if you have any questions. Thanks a bunch. Dana Southern Environmental Group, Inc. 5315 South College Road, Suite E Wilmington, NC 28412 Office: 910.452.2711 Mobile: 910.228.1841 (preferred) Blocked Blockedwww.segi.us -----Original Message ----- From: Greer, Emily C CIV USARMY CESAW (US) <Emily.C.Greer@usace.army.mil> Sent: Monday, December 3, 2018 6:04 PM To: Dana Lutheran <dlutheran@segi.us> Subject: SAW -2018-00195 Saratoga Subdivision NWP - Request for additional information (UNCLASSIFIED) CLASSIFICATION: UNCLASSIFIED Dana - Please accept this as official correspondence for the above referenced property. The following information is needed to complete the application and/or to finalize the application review. The applicant is required to electronically submit a new application package reflecting the required changes and/or additional information. 1. Please either show all isolated wetlands as non -jurisdictional and filled or remove them entirely from the impact map. Please note that the feature at Impact B is an isolated wetland. Please add the four stream features to the impact map and account for impacts at Impact A and for Tributary 3 located in the vicinity of Keeneland Court/Lot 37. 2. The site has been delineated and verbal approval of the delineation has been provided. Please reference the delineation and provide answers to questions 4(f) and 4(g) on the PCN. 3. A road crossing is proposed at Impact I; however, there is no indication that a culvert is being installed at this location, which is required. Please update drawings to reflect this change. 4. The applicant has proposed to construct Secretariat Run to the eastern project boundary and has stated in the application that this is not a phased project. Due to the location of jurisdictional resources immediately beyond the project boundary, the applicant will only be allowed to construct a 12 -foot wide access road beginning at the lot boundary for Lots 20/21. The access road will not be allowed to continue beyond the driveway. Impacts should be revised to show no wetland impacts on the north side of the road from the Lot 20/21 boundary. 5. At each road crossing, the applicant has proposed to bury culverts either four or six inches. Per the Wilmington District's Regional General Condition, culverts must be designed and installed so that destabilization and headcutting are minimized. Additionally, culverts in wetlands do not have to be buried. Given the elevation changes from north to south at each crossing, the Corps is concerned that the proposal to bury the culverts will result in secondary drainage effects and headcutting upslope of the crossing. Please either provide a written explanation as to why the culverts must be buried that also addresses the Corps' concerns or redesign the crossings with an adequate size and number of unburied culverts to equalize surface waters. 6. The applicant is proposing to install culverts at Impact H that will discharge into what appears to be a piped ditch before ultimately discharging south to wetlands abutting Harrison Creek. Drainage for this wetland already exists just offsite from Impact H. Construction of an additional drain will have secondary drainage effects. Burying the culvert and piping the ditch increases the likelihood of a drainage effect occurring and could also create headcutting. Please either provide a written explanation of the purpose and need for this drain that also addresses the Corps' concerns or remove it from the plans entirely. 7. In a pre -application meeting with the Corps, the applicant stated that language regarding how to access upland areas on lots with wetlands without a permit will be provided in the HOA restrictive covenants. To ensure the correct information is being disseminated to future buyers, please provide the language that will be used for the Corps' review. 8. Please revise impact labels and impact amounts, and update drawings accordingly. Also, please fill out the attached spreadsheet for project impacts and attach it as a separate document when resubmitting. 9. Please provide a compensatory mitigation credit release letter. Without justification, mitigation for wetland and perennial stream impacts should be provided at a 2:1 ratio and intermittent stream and conversion impacts should be provided at a 1:1 ratio. Please note that tree cutting on lots with wetlands with the intent to allow the buyer to maintain those areas in an herbaceous state is considered a permanent impact and should be accounted for in impact totals and mitigation provided. Please provide a new application package reflecting the required changes within 30 days of this correspondence. Feel free to contact me with any questions regarding this project. Thank you, Emily Greer, Regulatory Specialist Wilmington District - Wilmington Regulatory Field Office 69 Darlington Avenue, Wilmington, NC 28403 910.251.4567 (o) -----Original Message ----- From: Greer, Emily C CIV USARMY CESAW (US) Sent: Thursday, November 29, 2018 6:15 PM To: 'Dana Lutheran' <dlutheran@segi.us> Subject: SAW -2018-00195 Saratoga Subdivision NWP - Incomplete application notification (UNCLASSIFIED) CLASSIFICATION: UNCLASSIFIED Dana - Please accept this as official correspondence for the above referenced property. The following information is needed to complete the application and/or to finalize the application review. The applicant is required to electronically submit a new application package reflecting the required changes and/or additional information. 1. The application is incomplete because the applicant's contact information has not been provided. The prospective permittee's first and last name, address (both physical and electronic are required), and telephone number are required. Because the consultant is not the applicant, providing the consultant's information in lieu of the applicant's is not correct. Please reference NWP General Condition 32(b)(1) for the required applicant information. Please provide this information at your earliest convenience to begin the 45 day permit review process. Emily Greer, Regulatory Specialist Wilmington District - Wilmington Regulatory Field Office 69 Darlington Avenue, Wilmington, NC 28403 910.251.4567 (o) CLASSIFICATION: UNCLASSIFIED CLASSIFICATION: UNCLASSIFIED CLASSIFICATION: UNCLASSIFIED CLASSIFICATION: UNCLASSIFIED U.S. ARMY CORPS OF ENGINEERS WILMINGTON DISTRICT Action Id. SAW -2018-00195 County: Pender U.S.G.S. Quad: NC-Mooretown GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION Permittee: Saratoga Pender, LLC Robert Jackson Address: PO Box 109 Wrightsville Beach, NC 28480 Telephone Number: 919.291.8721 E-mail: ri ackson.nc(&i!mail.com Size (acres) 150 Nearest Town Hampstead Nearest Waterway Harrisons Creek River Basin Cape Fear USGS HUC 03030007 Coordinates Latitude: 34.39886 Longitude: -77.76564 Location description: The protect is located east of NC Hwy 210, west of Hoover Road, north of Island Creek Road, and south of Sleep Ford Road in Hampstead, Pender County, NC. Description of projects area and activity: This verification authorizes the permanent filling of 0.472 -acre of wetlands, 5 linear feet of perennial stream, and 0.02 -acre of relatively -permanent waters and temporary impacts to 0.004 -acre of wetland for the purpose of constructing roads and installing utilities in order to develop the Saratoga SD. Compensatory mitigation will occur at a 2:1 ratio resulting in 0.1 -acre of riparian wetland restoration credits, 0.9 -acre of non -riparian wetland restoration credits, and 10 linear feet of stream restoration credits with the Northeast Cape Fear Umbrella Mitigation Bank-Jeat and Holly Shelter tracts. Applicable Law(s): ® Section 404 (Clean Water Act, 33 USC 1344) ❑ Section 10 (Rivers and Harbors Act, 33 USC 403) Authorization: NWP 29. Residential Developments SEE ATTACHED NWP GENERAL, REGIONAL, AND/OR SPECIAL CONDITIONS Your work is authorized by the above referenced permit provided it is accomplished in strict accordance with the enclosed Conditions, your application signed and dated 10/30/2018, and the enclosed plans EX 1-5 dated 4/30/2019 and 6/13/2019. Any violation of the attached conditions or deviation from your submitted plans may subject the permittee to a stop work order, a restoration order, a Class I administrative penalty, and/or appropriate legal action. This verification will remain valid until the expiration date identified below unless the nationwide authorization is modified, suspended or revoked. If, prior to the expiration date identified below, the nationwide permit authorization is reissued and/or modified, this verification will remain valid until the expiration date identified below, provided it complies with all requirements of the modified nationwide permit. If the nationwide permit authorization expires or is suspended, revoked, or is modified, such that the activity would no longer comply with the terms and conditions of the nationwide permit, activities which have commenced (i.e., are under construction) or are under contract to commence in reliance upon the nationwide permit, will remain authorized provided the activity is completed within twelve months of the date of the nationwide permit's expiration, modification or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend or revoke the authorization. Activities subject to Section 404 (as indicated above) may also require an individual Section 401 Water Quality Certification. You should contact the NC Division of Water Resources (telephone 919-807-6300) to determine Section 401 requirements. For activities occurring within the twenty coastal counties subject to regulation under the Coastal Area Management Act (CAMA), prior to beginning work you must contact the N.C. Division of Coastal Management in Wilmington, NC, at (910) 796-7215. This Department of the Army verification does not relieve the permittee of the responsibility to obtain any other required Federal, State or local approvals/permits. If there are any questions regarding this verification, any of the conditions of the Permit, or the Corps of Engineers regulatory program, please contact Emily Greer at 910.251.4567or emily.c.greer(dusace.army.mil. GREER.EMILY.C.1385325300 Digitally signed by GREER.EMILY.C.1385325300 Corps Regulatory Official: Date:2019.06.21 16:30:22-0a'00' Date: 06/21/2019 Expiration Date of Verification: 03/18/2022 The Wilmington District is committed to providing the highest level of support to the public. To help us ensure we continue to do so, please complete the Customer Satisfaction Survey located at http://corpsmapu.usace.army.mil/cm_apex/Pp=136:4:0 Copy furnished: Agent: SEGi Dana Lutheran E-mail: dlutheran(&segi.us SPECIAL CONDITIONS SARATOGA SUBDIVISION SAW -2018-00195 1. In order to compensate for impacts associated with this permit, mitigation shall be provided in accordance with the provisions outlined on the most recent version of the attached Compensatory Mitigation Responsibility Transfer Form. The requirements of this form, including any special conditions listed on this form, are hereby incorporated as special conditions of this permit authorization. Compensatory mitigation will occur at a 2:1 ratio resulting in 0.1 -acre of riparian wetland restoration credits, 0.9 -acre of non -riparian wetland restoration credits, and 10 linear feet of stream restoration credits with the Northeast Cape Fear Umbrella Mitigation Bank-Jeat and Holly Shelter tracts. 2. The following DEED NOTIFICATION shall be recorded in the Pender County Registry of Deeds prior to the sell or conveyance of the properties referred to as Lots 1-53 within the development Saratoga Subdivision as depicted on the attached plan titled "Wetland Impact Map — EX -1, Saratoga" to include Sheets EX -1, dated April 30, 2019, prepared by Paramounte Engineering, Inc. "A portion of this lot, as determined by the Wilmington District US Army Corps of Engineers (USACE) under Action ID# SAW -2018-00195, contains waters of the U.S., including wetlands, which are subject to the permit requirements of Section 404 of the Clean Water Act (33 USC 1344). Any placement of dredged or fill material within these waters without Department of Army authorization may constitute a violation of Section 301 of the Clean Water Act (33 USC 1311). Prior to any work within the jurisdictional areas, you must contact the U. S. Army Corps of Engineers, Wilmington District Regulatory Division, Wilmington, North Carolina. This covenant is to run with the land and shall be binding on all Parties and all persons claiming under them." Property Owner Signature Owner Name: Owner Address (City, State, Zip Code): Owner Telephone: Owner Email: STATE of North Carolina County I, , a Notary Public of the State of North Carolina, County, hereby certify that owner personally appeared before me this day of and executed by above certification. Witness my hand notarial seal, this day of, 20 Notary Public My commission expires: a. The DEED NOTIFICATION shall be completed using the format provided above. Within 30 days of recording the DEED NOTIFICATION, the Permittee shall provide a copy of the recorded DEED NOTIFICATION to the Wilmington District Regulatory Division clearly showing a stamp from the appropriate official indicating the book and page at which the DEED NOTIFICATION is recorded and the date of recording. b. In the event this permit is transferred, proof of delivery of a copy of the recorded DEED NOTIFICATION(S) to the subsequent Permittee or Permittees shall be submitted to the Corps together with the notification of permit transfer. CERTIFICATE OF COMPLIANCE Action ID Number: SAW -2018-00195 County: Pender Permittee: Saratoga Pender, LLC, Robert Jackson Project Name: Saratoga SD Britton Tract NC Highway 210 Date Verification Issued: 06/21/2019 Project Manager: Emily Greer Upon completion of the activity authorized by this permit and any mitigation required by the permit, sign this certification and return it to the following address: US ARMY CORPS OF ENGINEERS WILMINGTON DISTRICT Attn: Emily Greer Wilmington Regulatory Office U.S Army Corps of Engineers 69 Darlington Avenue Wilmington, North Carolina 28403 or emily.c.greer@usace.army.mil Please note that your permitted activity is subject to a compliance inspection by a U. S. Army Corps of Engineers representative. Failure to comply with any terms or conditions of this authorization may result in the Corps suspending, modifying or revoking the authorization and/or issuing a Class I administrative penalty, or initiating other appropriate legal action. I hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and condition of the said permit, and required mitigation was completed in accordance with the permit conditions. Signature of Permittee Date 32]3-0]-2677-0000 BROWN LYLE M et al Deetl —Page 4825/0]51 Plat B-IVPege 01-04] Zoning: RA t REMAINING LAND OF 327349-3199-0000 BRITTON WOODLANDS LLC _ B"wPage 3581/240 Plat B—Paga 002210060 Zoning: RA EXCEEDS 10 ACRES I I (Community i I Septic SOLATED NON JD 1 EXISTING I Stn \\ l IMPACT A7 TRIBUTARY 2 \ 52 t1 51 1 50 I I y49 v ..I I v I. ROPOSED STRE A EMS j'ING q(J[,VEI as a5 I as IMPACT S1 (4.25 LF} — TO BRIE, RENNNlll000VEDl I 1\P — _ 111UTILITY AND ACCESS ISOLATED NON -JD TO BE IMPACTED EXISTING �l TRIBUTARY 1� 1r-- \ 5 / I IICC11� 12 13 0 1 II O I I I 1 O III ISOLATED NON J154 I I I I I I I I I I/ II 32]3-16-]803-0000 — AVENDALE PHASE aA HOA INC .—SooWP —11— 32 6-]358-0000Plat B—Page 005 10078 AVENDALE DEVELOPMENTZoning: PD Dee --P-29 -577L. B Plat B,,WPaga 00]81005 Zoning: PDEXISTING STREAM #1 (IiARRISONS CREEK) v \ HU((! A \ 31 C \ 36 \ \ \ 33 F 34 36ST \ _ _ E \ING v 40 Road Ct \ TRIBUTARY 3 G ' f— RPW (DITCD 27 Iy-!) i E f 41 26\\\ �\ PW(DITCFi) #1 42 © VCT 150 LF 450 SF) A - SCT 13300 LF (390 SF)/ —TEMPORARY 404 IMPACT EXISTING 60" _ I CULVERT STREAM noad 15 IMPACT ;oLATE>) NON -JD s� \\ \1 E 4 Wetland Impact Map - EX -1 Saratoga Pender County, North Carolina Dare: 04.30.2019 SITE DATA: TOTAL RPWIDITCH IMPACTS _ LF lana SF) A.— Jff :o LFIi�sF`� l TOTAL ND IMPARTS =20,571 SF(g.wzl AD. sF lo.aste Ac.l = sFso.owa Ac.l = FIo.o5e Ac0 = sFlo.osa AcO zan LF ryatlo.oss ]ueset ACj = sFlo.oee AcO = sF lo.ou AcO = TISRo.pTt Aol Onvntt�� _ 7sasF lo.ota Ac., TOTAL ISOLATED WETLAND IMPACTS= 0024 AC. sT"Enrol lIET 11—AA][BNN1)= ,rosF la.awnc., PARAMOUNTE 122 Cinema Drive Wilmington, N—h Carolina 28403 (9101 ]91.6'!0] (0) (91� vs1.676000 C:'71.L Scale 1"# 150' at 22" X 34' 1"= 300' at 11"X 17' North 7:7" r// I//TRIBUTARY \! IMPACT A 49 A EX. (1) 32 LF CULVERT 42 / — (TO BE REMOVED) / PROPOSED (3) 42"-/� O / Road A' 42 LF CULVERTS IMPACT O 4.25 L SF LF / -IMPACT (IMPACT Sl) L \ EXISTING IMPACT #2 13�390 SF) EXISTING TRIBUTARY 3 34 BTRIBUTARY 1 IMPACT A / IMPACT C \ \ \ \ SCALE 1"=40' (22"X34") SCALE 1"=40' (22"X34' 32 1"=80'/(11"x17") / \ V=80' (11"x17'D 1 F # /33 o 28 IMPACT IMPACT G SCALE V=40' (22"X34'D SCALE 1"-40'(22"X34") 11.=80'(11"x17") 1"=80' (11"x17°) —1 r -----I-- Future Fomemain to Community Septic OI I Drain Field (T .) I I tility and Access Easement (Typ.) 48 I 47 � I I � � I I I IMPACTS SCALE V=40' (22"X34'D V" 80' (11(11"x1T� IMPACT D & E SCALE 1"=40'(22"X34") 1"=8a(11"x17') TEMPORARY T/P CTT ?, FOR WATERMAIN 25 CONSTRUCTION H Road 'B' - - 5 BOUN a Y, TVP. ROAD B';OOMFDVIEW SCALE 1"=20(22"X34'/ 1"=40' (11"x17") W Wetland Impact Map - EX -2 Saratoga Pender County, North Carolina Dare: 06.13.2019 EXISTING 60" \ CULVERT iEe nBOveroa �owEw EXISTING UNNAMED STREAM #4 F 414 PARAMOUNTE E ~ 1 X122 _Road Cinema Dnv _ P1") 791.670 (o) (nm 791.67W (F) ua"" a: eoee� I 40' at 22^ x 34" �\ \ K IMPACT H2 T \N 20 \\\\ 21— 19 19 \ 1\ \ \\ IMPACT H SCALE V=40' (22"X34' PROPERTY BOUNDARY,^ TYP. Wetland Impact Map - EX -2 Saratoga Pender County, North Carolina Dare: 06.13.2019 EXISTING 60" \ CULVERT iEe nBOveroa �owEw EXISTING UNNAMED STREAM #4 F 414 PARAMOUNTE E ~ 1 X122 Cinema Dnv Wilmington, Nath C—Ena 28403 P1") 791.670 (o) (nm 791.67W (F) ua"" a: eoee� 40' at 22^ x 34" at 11" x'rx 1r 7L7 North V zo 4U 11 EX.CULVERT DITCH TO STAY IMPACT #1 150 LF (450 SF) 41�> I/ i 25 42 / >a IMPACT #2 DITCH TO O� X130 LF (390 SF) / STAY _ 24� �I C / 23 DITCH TO STAY (� RPW#1AND #2- SCALE 1"=40' (22"X34") V \� 1-80'(11'X17") PARAMOUNTE E o N122 Cinema Dn o Wilmington, Noah Carolina 28403 ry19) 79[.670 (a) ry1� 791.060 P NC Wetland Impact Map - EX -3 p'9cal,:l-40 ot2Tx34^ Saratoga 1.-11.1111 it �7 Pender Counyty, North Carolina " Zo-a No h Dare: 04.30.2019 ROAD W 50' PUBLIC RIGHT -OF -WAV ROAD W 50' PUBLIC RIGHT-OF-WAY ROAD W 50' PUBLIC RIGHT-OF-WAY U 6 -j WETLAND g F S J TJ STREAM WETLAND _ IMPACTAREA 3 13 3I 31 V IMPACT AREA =/ -� IMPACT AREA - IMPACT AREA J A2 IMPACT I IA1 IMPACII JJ W J W J AREAy A� I I I 3 I I 1/4" PER FT 1/4" PER FT I I PROPOSED Si IMPACT AREA SINE 1/4" PER FT 1/4" PER FT p0`7'�NOOW/y GRADE, TYP. �ON`INOWjy SLOPES3:1 PROPOSED EX. GRADE, TYP. O 30/T/ PROPOSED O EX. GRADE, TYP. PROPOSED WATER MAIN PROPOSED (3) 42"- 42 LF CULVERTS HEADWALLS W/ PROPOSED WATER MAIN PROPOSED (3) 42"- 42 LF CULVERTS RIP RAP (BURIED AT 20% = 8.4" BURIED) WINGWALLS RIP RAP PROPOSED (BURIED AT 20% = 8.4" BURIED) PROPOSED TYPICAL COLLECTOR STREET ROAD A PROPOSED TYPICAL COLLECTOR STREET ROAD A ENDWALL W/ WETLAND IMPACTS Al & A2 ENDWALL W/ STREAM IMPACT S1 WINGWALLS PROPOSED_ WINGWALLS CROSS SECTION ENDWALL W/ CROSS SECTION NOT TO SCALE WINGWALLS NOT TO SCALE ROAD W 50' PUBLIC RIGHT-OF-WAY ROAD W 50' PUBLIC RIGHT-OF-WAY 1/4" PER FT 114" PER FT OPROPOSED WATER MAIN PROPOSED CULVERTS 3I I I I TYPICAL COLLECTOR STREET ROAD A IMPACT D CROSS SECTION NOT TO SCALE pARAMOUNTE 122 Cinema Drive Wilmington, North Carolina 28403 (910) 791-6707 (0) (910) 791-6760 (F) NC License #: C-2846 Wetland Impact - EX -4 Wetland Impact Cross Sections Saratoga PROPOSED Pender, North Carolina GRADE, TYP. Da 06.13.2019 PROPOSED HEADWALLS W/ WINGWALLS CULVERT INVERTS TO BE AT GRADE WITH ADJACENT 404 WETLAND AREAS - EX. GRADE, TYP. PROPOSED HEADWALLS W/ WINGWALLS U 6 WETLAND `- J WETLAND J o Z -� IMPACT AREA - IMPACT AREA g 5 JJ 3 CULVERT INVERTS TO BE 1/4" PER FT 1/4" PER FT AT GRADE WITH ADJACENT SLOPES3:1 30/T/ 404 WETLAND AREAS � F WN -- PROPOSED O WATER MAIN EX. GRADE, TYP. PROPOSED RIP RAP PROPOSED SWALE TYPICAL COLLECTOR STREET ROAD A PROPOSED_ ENDWALL W/ IMPACT C WINGWALLS CROSS SECTION NOT TO SCALE ROAD W 50' PUBLIC RIGHT-OF-WAY 1/4" PER FT 114" PER FT OPROPOSED WATER MAIN PROPOSED CULVERTS 3I I I I TYPICAL COLLECTOR STREET ROAD A IMPACT D CROSS SECTION NOT TO SCALE pARAMOUNTE 122 Cinema Drive Wilmington, North Carolina 28403 (910) 791-6707 (0) (910) 791-6760 (F) NC License #: C-2846 Wetland Impact - EX -4 Wetland Impact Cross Sections Saratoga PROPOSED Pender, North Carolina GRADE, TYP. Da 06.13.2019 PROPOSED HEADWALLS W/ WINGWALLS CULVERT INVERTS TO BE AT GRADE WITH ADJACENT 404 WETLAND AREAS - EX. GRADE, TYP. PROPOSED HEADWALLS W/ WINGWALLS a U `- WETLAND 4 -� IMPACT AREA 1 o� 3I CULVERTINVERTS TO BE AT GRADE WITH ADJACENT 404 I WETLAND AREAS EX. GRADE, TYP. PROPOSED RIP RAP PROPOSED ENDWALL W/ WINGWALLS a ROAD W 3 50' PUBLIC RIGHT-OF-WAY U F WETLAND � r - IMPACT AREA G o� 2. IJ of F 31 SIJ S o o� z_ CROSS SECTION CULVERTINVERTS 3I r w SIJ 3I BEAT GRADE IT WITH ADJACENT 404 \I\ 31 I I I I WETLAND AREAS I --- PROPOSED I I 1/4" PER FT HEADWALL W/ ---� WINGWALLS _H1 IMPACT PROPOSED— PROPOSED O RIP RAP R FT 1/4" PER FT 3.1T/O r E n L- WETLAND 2. !R.�P.�.ED�PROPOSED CULVERTS WATER MAIN TYPICAL COLLECTOR STREET ROAD A IMPACT E & F S o o� z_ CROSS SECTION NOT TO SCALE r w SIJ 3I ROAD B 50' PUBLIC RIGHT-OF-WAY 31 I I I I TYPICAL COLLECTOR STREET ROAD B IMPACT H CROSS SECTION NOT TO SCALE ROAD W 50' PUBLIC RIGHT-OF-WAY PER FT 1/4" PER O PROPOSED �- PROPOSED CULVERT WATER MAIN PROPOSED TYPICAL COLLECTOR STREET ROAD A ENDWALL W/ IMPACT G WINGWALLS CROSS SECTION NOT TO SCALE pARAMOUNTE 122 Cinema Drive 1 Wilmington, North Carolina 28403 (910) 791-6707 (0) (910) 791-6760 (F) NC License #: C-2846 Wetland Impact - EX -5 S�= Wetland Impact Cross Sections Saratoga I Pender, North Carolina CULVERTINVERTS Dare: 06.13.2019 TO BEAT GRADE WITH ADJACENT 404 WETLAND AREAS EX. GRADE, TYP. PROPOSED HEADWALLS W/ WINGWALLS �F �F 5' S' 3 20UTILITY EASEMENT 3 I� �I WETLAND IMPACT AREA I M I � I � I I � I I � I I PROPOSED CROSS PIPE EX. GRADE, FUTURE FORCEMAIN TYP. TO COMMUNITY SEPTIC DRAIN FIELD TYPICAL IMPACT I CROSS SECTION NOT TO SCALE r E n L- WETLAND 2. p -� IMPACT AREA .2 S o o� z_ �IJ H21MPACT r w SIJ 3I 3 A I 31 I I I I I 4.11E 1/4" PER FT I I 1/4" PER FT OOO' _H1 IMPACT PROPOSED O AREA ` EX. GRADE, WATER MAIN TYP. TYPICAL COLLECTOR STREET ROAD B IMPACT H CROSS SECTION NOT TO SCALE ROAD W 50' PUBLIC RIGHT-OF-WAY PER FT 1/4" PER O PROPOSED �- PROPOSED CULVERT WATER MAIN PROPOSED TYPICAL COLLECTOR STREET ROAD A ENDWALL W/ IMPACT G WINGWALLS CROSS SECTION NOT TO SCALE pARAMOUNTE 122 Cinema Drive 1 Wilmington, North Carolina 28403 (910) 791-6707 (0) (910) 791-6760 (F) NC License #: C-2846 Wetland Impact - EX -5 S�= Wetland Impact Cross Sections Saratoga I Pender, North Carolina CULVERTINVERTS Dare: 06.13.2019 TO BEAT GRADE WITH ADJACENT 404 WETLAND AREAS EX. GRADE, TYP. PROPOSED HEADWALLS W/ WINGWALLS �F �F 5' S' 3 20UTILITY EASEMENT 3 I� �I WETLAND IMPACT AREA I M I � I � I I � I I � I I PROPOSED CROSS PIPE EX. GRADE, FUTURE FORCEMAIN TYP. TO COMMUNITY SEPTIC DRAIN FIELD TYPICAL IMPACT I CROSS SECTION NOT TO SCALE Compensatory Mitigation Responsibility Transfer Form Permittee: Saratoga Pender, LLC, Robert Jackson Action ID: SAW -2018-00195 Project Name: Saratoga SD_Britton Tract_NC Highway 210 County: Pender Instructions to Permittee: The Permittee must provide a copy of this form to the Mitigation Sponsor, either an approved Mitigation Bank or the North Carolina Division of Mitigation Services (NCDMS), who will then sign the form to verify the transfer of the mitigation responsibility. Once the Sponsor has signed this form, it is the Permittee's responsibility to ensure that to the U.S. Army Corps of Engineers (USACE) Project Manager identified on page two is in receipt of a signed copy of this form before conducting authorized impacts, unless otherwise specified below. If more than one mitigation Sponsor will be used to provide the mitigation associated with the permit, or if the impacts and/or the mitigation will occur in more than one 8 -digit Hydrologic Unit Code (HUC), multiple forms will be attached to the permit, and the separate forms for each Sponsor and/or HUC must be provided to the appropriate mitigation Sponsors. Instructions to Sponsor: The Sponsor must verify that the mitigation requirements (credits) shown below are available at the identified site. By signing below, the Sponsor is accepting full responsibility for the identified mitigation, regardless of whether or not they have received payment from the Permittee. Once the form is signed, the Sponsor must update the bank ledger and provide a copy of the signed form and the updated bank ledger to the Permittee, the USACE Project Manager, and the Wilmington District Mitigation Office (see contact information on page 2). The Sponsor must also comply with all reporting requirements established in their authorizing instrument. Permitted Impacts and Compensatory Mitigation Requirements: Permitted Impacts Requiring Mitigation* 8 -digit HUC and Basin: 03030007, Cape Fear River Basin Stream Impacts (linear feet) Wetland Impacts (acres) Warm Cool Cold Riparian Riverine Riparian Non-Riverine Non -Riparian Coastal 5 0.05 0.45 *If more than one mitigation sponsor will be used for the permit, only include impacts to be mitigated by this sponsor. Compensatory Mitigation Requirements: 8 -digit HUC and Basin: 03030007, Cape Fear River Basin Stream Mitigation (credits) Wetland Mitigation (credits) Warm Cool Cold Riparian Riverine Riparian Non-Riverine Non -Riparian Coastal 10 0.1 0.9 Mitigation Site Debited: NECFUMB Holly Shelter Bay and Jeat Tracts (List the name of the bank to be debited. For umbrella banks, also list the specific site. For NCDMS, list NCDMS. If the NCDMS acceptance letter identifies a specific site, also list the specific site to be debited). Section to be completed by the Mitigation Sponsor Statement of Mitigation Liability Acceptance: I, the undersigned, verify that I am authorized to approve mitigation transactions for the Mitigation Sponsor shown below, and I certify that the Sponsor agrees to accept full responsibility for providing the mitigation identified in this document (see the table above), associated with the USACE Permittee and Action ID number shown. I also verify that released credits (and/or advance credits for NCDMS), as approved by the USACE, are currently available at the mitigation site identified above. Further, I understand that if the Sponsor fails to provide the required compensatory mitigation, the USACE Wilmington District Engineer may pursue measures against the Sponsor to ensure compliance associated with the mitigation requirements. Mitigation Sponsor Name: Name of Sponsor's Authorized Representative: Signature of Sponsor's Authorized Representative Date of Signature Conditions for Transfer of Compensatory Mitigation Credit: • Once this document has been signed by the Mitigation Sponsor and the USACE is in receipt of the signed form, the Permittee is no longer responsible for providing the mitigation identified in this form, though the Permittee remains responsible for any other mitigation requirements stated in the permit conditions. • Construction within jurisdictional areas authorized by the permit identified on page one of this form can begin only after the USACE is in receipt of a copy of this document signed by the Sponsor, confirming that the Sponsor has accepted responsibility for providing the mitigation requirements listed herein. For authorized impacts conducted by the North Carolina Department of Transportation (NCDOT), construction within jurisdictional areas may proceed upon permit issuance; however, a copy of this form signed by the Sponsor must be provided to the USACE within 30 days of permit issuance. NCDOT remains fully responsible for the mitigation until the USACE has received this form, confirming that the Sponsor has accepted responsibility for providing the mitigation requirements listed herein. • Signed copies of this document must be retained by the Permittee, Mitigation Sponsor, and in the USACE administrative records for both the permit and the Bank/ILF Instrument. It is the Permittee's responsibility to ensure that the USACE Project Manager (address below) is provided with a signed copy of this form. • If changes are proposed to the type, amount, or location of mitigation after this form has been signed and returned to the USACE, the Sponsor must obtain case-by-case approval from the USACE Project Manager and/or North Carolina Interagency Review Team (NCIRT). If approved, higher mitigation ratios may be applied, as per current District guidance and a new version of this form must be completed and included in the USACE administrative records for both the permit and the Bank/ILF Instrument. Comments/Additional Conditions: A letter from NECFUMB, confirming their willing and able to accept the applicants compensatory mitigation responsibility, dated 4/25/2019 was included with the preconstruction notification. This form is not valid unless signed below by the USACE Project Manager and by the Mitigation Sponsor on Page 1. Once signed, the Sponsor should provide copies of this form along with an updated bank ledger to: 1) the Permittee, 2) the USACE Project Manager at the address below, and 3) the Wilmington District Mitigation Office, Attn: Todd Tugwell, 11405 Falls of Neuse Road, Wake Forest, NC 27587 (email: todd. tugwell@usace. army. mil). Questions regarding this form or any of the permit conditions may be directed to the USACE Project Manager below. USACE Project Manager: Emily Greer USACE Field Office: Wilmington Regulatory Office US Army Corps of Engineers 69 Darlington Avenue Wilmington, North Carolina 28403 Email: emily.c.greer@usace.army.mil GREER.EMILY.C.138532 Digitally signed by GREER.EMI LY.C.1385325300 5300 Date: 2019.06.21 16:31:02 -04'00' USACE Project Manager Signature 06/21/2019 Date of Signature Current Wilmington District mitigation guidance, including information on mitigation ratios, functional assessments, and mitigation bank location and availability, and credit classifications (including stream temperature and wetland groupings) is available at http://ribits.usace.army.mil NORTHEAST CAPE FEAR UMBRELLA MITIGATION BANK Agent: Land Management Group 3805 Wrightsville Avenue, Suite 15 Wilmington, NC 28403 Credit Reservation Letter April 25, 2019 SEGi Attn. Dana Lutheran 5315 South College Road Wilmington, NC 28412 Project: Saratoga Subdivision (Britton Tract) — Pender County, NC Dear Dana: The Northeast Cape Fear Umbrella Mitigation Bank (Bank) is providing preliminary acceptance to supply mitigation credits for proposed impacts to stream and wetlands associated with the Saratoga Subdivision Project located in Pender County, NC (conditional upon receipt of payment as outlined below). Please refer to the table below depicting the type and quantity of credits requested and reserved for your project. Mitigation Type Stream Non- Riparian Wetland Riparian Wetland Credit Source Credits Reserve Fee Per Unit Fee Jeat ` 20.0 I $507.32 $10,146.40 I Holly Shelter Bay 0.9 $60,187.45 $54,168.71 Jeat 0.1 $60,187.45 $6,018.75 li Total $70,333.86 I Based upon receipt of your credit request transmitted on April 25, 2019, the Bank will reserve 20 stream credit, 0.1 riparian wetland credits, and 0.9 non -riparian wetland credits for a period of up to 90 days from the date of this letter. Note that requests to reserve credits beyond 90 days will require a deposit. Please contact us if you need a reservation to extend beyond the 90 -day period. Upon request for credit transfer, the Bank will issue an invoice in the amount of $70,333.86. Upon receipt of payment, the Bank will provide an executed Transfer of Credit Certificate for the total amount of credits invoiced and paid for. If you have any questions or need additional information, please contact me by phone at (910) 452-0001 or by email at cpreziosi@lmgroup.net. Sincerely, Northeast Cape Fear Umbrella Mitigation Bank Christian Preziosi Land Management Group (agent) Northeast Cape Fear Umbrella Mitigation Bank c/o Land Management Group 3805 Wrightsville Avenue, Suite 15 Wilmington, NC 28403 1 Determination of Jurisdiction: A. ❑ There are waters, including wetlands on the above described project area that may be subject to Section 404 of the Clean Water Act (CWA) (33 USC § 1344) and/or Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403). This preliminary determination is not an appealable action under the Regulatory Program Administrative Appeal Process (Reference 33 CFR Part 331). However, you may request an approved JD, which is an appealable action, by contacting the Corps district for further instruction. Please note, if work is authorized by either a general or nationwide permit, and you wish to request an appeal of an approved JD, the appeal must be received by the Corps and the appeal process concluded prior to the commencement of any work in waters of the United States and prior to any work that could alter the hydrology of waters of the United States. B. ❑ There are Navigable Waters of the United States within the above described project area subject to the permit requirements of Section 10 of the Rivers and Harbors Act (RHA) (33 USC § 403) and 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. C. ® There are waters, including wetlands within the above described project area that are 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. D. ❑ The jurisdictional areas within the above described project area have been identified under a previous action. Please reference jurisdictional determination issued DATE. Action ID: FILE NUMBER. Basis For Determination: See the approved jurisdictional determination form dated 6/21/2019. Remarks: None. 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 jurisdiction determinations as indicated in B and C above). This correspondence constitutes an approved jurisdiction 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 Phone: (404) 562-5137 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 08/20/2019. **It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this correspondence.** GREER.EMILY.C.1385325300 Digitally signed by GREEK.EMILY.C.1385325300 Corps Regulatory Official: Date: 2019.06.2116:31:21-04'00' Emily Greer Date of JD: 6/21/2019 Expiration Date of JD: 06/19/2024 NOTIFICATION OF ADMINISTRATIVE APPEAL OPTIONS AND PROCESS AND REQUEST FOR APPEAL Applicant: Sarato a Pender, LLC, Robert Jackson File Number: SAW -2018-00195 Date: 06/21/2019 Attached is: See Section below LAPPROVED PROFFERED PERMIT Standard Permit or Letter of ermission A RED PERMIT Standard Permit or Letter of ermission B DENIAL C JURISDICTIONAL DETERMINATION D I NARY JU I CDICTIONAL DL T ENATION E SECTION I - The following identifies your rights and options regarding an administrative appeal of the above decision. Additional information may be found at or htip://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx or the Corps regulations at 33 CFR Part 331. A: INITIAL PROFFERED PERMIT: You may accept or object to the permit. • ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. • OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer. 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 • ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit. • APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section 1I 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 11 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. • ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD. • APPEAL: If you disagree with the approved JD, you may appeal the approved JD under the Corps of Engineers Administrative Appeal Process by completing Section Il 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 11 - 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 have questions regarding this decision and/or the If you only have questions regarding the appeal process you may appeal process you may contact: also contact: District Engineer, Wilmington Regulatory Division Mr. Jason Steele, Administrative Appeal Review Officer Attn: Emily Greer CESAD-PDO Wilmington Regulatory Office U.S. Army Corps of Engineers, South Atlantic Division U.S Army Corps of Engineers 60 Forsyth Street, Room 10M 15 69 Darlington Avenue Atlanta, Georgia 30303-8801 Wilmington, North Carolina 28403 Phone: (404) 562-5137 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 opportuni to participate in all site investigations. Date: Telephone number: Signature of appellant oragent. For appeals on Initial Proffered Permits send this form to: District Engineer, Wilmington Regulatory Division, Attn: Emily Greer, 69 Darlington Avenue, Wilmington, North Carolina 28403 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 1OM15, Atlanta, Georgia 30303-8801 Phone: (404) 562-5137 APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): 6/21/2019 B. DISTRICT OFFICE, FILE NAME, AND NUMBER: Wilmington District, Britton Tract NC Highway 210, SAW -2018-00195 C. PROJECT LOCATION AND BACKGROUND INFORMATION: Site is located on the east side of NC Highway 210 of the Avendale Subdivision in Hampstead, Pender County, NC. State: North Carolina County/parish/borough: Pender County City: Hampstead Center coordinates of site (lat/long in degree decimal format): Lat. 34.3954°N, Long. -77.7701° W Universal Transverse Mercator: 18 245342.45 3809477.71 Name of nearest waterbody: Harrisons Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Harrison's Creek Name of watershed or Hydrologic Unit Code (HUC): Northeast Cape Fear, 03030007 ® Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. ❑ Check if other sites (e.g., offsite mitigation sites, disposal sites, etc...) are associated with this action and are recorded on a different JD form: D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): ❑ Office (Desk) Determination. Date: ® Field Determination. Date(s): 02/28/2018 SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There Are no "navigable waters of the U.S." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] ❑ Waters subject to the ebb and flow of the tide. ❑ Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There Are no "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): ' ❑ TNWs, including territorial seas ❑ Wetlands adjacent to TNWs ❑ Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs ❑ Non-RPWs that flow directly or indirectly into TNWs ❑ Wetlands directly abutting RPWs that flow directly or indirectly into TNWs ❑ Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs ❑ Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs ❑ Impoundments of jurisdictional waters ❑ Isolated (interstate or intrastate) waters, including isolated wetlands b. Identify (estimate) size of waters of the U.S. in the review area: Non -wetland waters: linear feet, wide, and/or acres. Wetlands: acres. c. Limits (boundaries) of jurisdiction based on: Pick List Elevation of established OHWM (if known): Non-regulated waters/wetlands (check if applicable):3 ® Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain: There are six depressional wetlands located on onsite that are isolated and non -jurisdictional. These wetlands total 0.49 -acre (JD10.03-ac; JD2 0.04 -ac; JD3 0.1 -ac; JD4 0.07 -ac; JD5 0.21 -acre; JD6 0.04 -ac) and are surrounded entirely by uplands. The wetlands are separated from the TNW (Harrison's Creek) by approximately 1.5 miles. The nearest tributary to the TNW is approximately 740 feet from the wetlands. Additionally, the isolated wetlands are separated from the larger onsite wetlands by approximately 150 linear feet. These features are known as limestone sinks and were observed to have no surface connection to nearby waters and do not appear to provide Boxes checked below shall be supported by completing the appropriate sections in Section III below. s For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months). ' Supporting documentation is presented in Section III.F. -2 - habitat or have a substantial ecological interconnection to the nearest tributary and the TNW based on their size and landscape positions. SECTION III: CWA ANALYSIS A. TNWs AND WETLANDS ADJACENT TO TNWs The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section III.A.1 and Section IILD.1. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2 and Section IILD.1.; otherwise, see Section III.B below. 1. TNW Identify TNW: Summarize rationale supporting determination: Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent': B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non -navigable tributaries of TNWs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section III.D.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.1 for the tributary, Section IILB.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.0 below. 1. Characteristics of non-TNWs that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: Pick List Drainage area: Pick List Average annual rainfall: inches Average annual snowfall: inches (ii) Physical Characteristics: (a) Relationship with TNW: ❑ Tributary flows directly into TNW. ❑ Tributary flows through Pick List tributaries before entering TNW. Project waters are Pick List river miles from TNW. Project waters are Pick List river miles from RPW. Project waters are Pick List aerial (straight) miles from TNW Project waters are Pick List aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: 4 Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the and West. -3 - Identify flow route to TNW5: Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: ❑ Natural ❑ Artificial (man-made). Explain: ❑ Manipulated (man -altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: feet Average depth: feet Average side slopes: -- Primary tributary substrate composition (check all that apply): ❑ Silts ❑ Sands ❑ Concrete ❑ Cobbles ❑ Gravel ❑ Muck ❑ Bedrock ❑ Vegetation. Type/O/. cover: ❑ Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain: Presence of nm/riffle/pool complexes. Explain: Tributary geometry: I& Lim Tributary gradient (approximate average slope): % (c) Flow: Tributary provides for: 0 Estimate average number of flow events in review area/year: - Describe flow regime: Other information on duration and volume: Surface flow is: -. Characteristics: Subsurface flow: -. Explain findings: ❑ Dye (or other) test performed: Tributary has (check all that apply): ❑ Bed and banks ❑ OHWM6 (check all indicators that apply): ❑ clear, natural line impressed on the bank ❑ the presence of litter and debris ❑ changes in the character of soil ❑ destruction of terrestrial vegetation ❑ shelving ❑ the presence of wrack line ❑ vegetation matted down, bent, or absent ❑ sediment sorting ❑ leaf litter disturbed or washed away ❑ scour ❑ sediment deposition ❑ multiple observed or predicted flow events ❑ water staining ❑ abrupt change in plant community ❑ other (list): ❑ Discontinuous OHWM.7 Explain: If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction (check all that apply): ❑ High Tide Line indicated by: ❑ Mean High Water Mark indicated by: ❑ oil or scum line along shore objects ❑ survey to available datum; ❑ fine shell or debris deposits (foreshore) ❑ physical markings; ❑ physical markings/characteristics ❑ vegetation lines/changes in vegetation types. ❑ tidal gauges ❑ other (list): (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain: Identify specific pollutants, if known: 5 Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. 'A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 'Ibid. -4 - (iv) Biological Characteristics. Channel supports (check all that apply): ❑ Riparian corridor. Characteristics (type, average width): ❑ Wetland fringe. Characteristics: ❑ Habitat for: ❑ Federally Listed species. Explain findings: ❑ Fish/spawn areas. Explain findings: ❑ Other environmentally -sensitive species. Explain findings: ❑ Aquatic/wildlife diversity. Explain findings: 2. Characteristics of wetlands adjacent to non-TNW that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: acres Wetland type. Explain: Wetland quality. Explain: Project wetlands cross or serve as state boundaries. Explain: (b) General Flow Relationship with Non-TNW: Flow is: JIM. Explain: Surface flow is: - Characteristics: Subsurface flow: M 17. Explain findings: ❑ Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: ❑ Directly abutting ❑ Not directly abutting ❑ Discrete wetland hydrologic connection. Explain: ❑ Ecological connection. Explain: ❑ Separated by berm/barrier. Explain: (d) Proximity (Relationship) to TNW Project wetlands are Pick List river miles from TNW. Project waters are Pick List aerial (straight) miles from TNW. Flow is from: lick List. Estimate approximate location of wetland as within the - floodplain. (ii) Chemical Characteristics: Characterize wetland system (e.g., water color is clear, brown, oil film on surface; water quality; general watershed characteristics; etc.). Explain: Identify specific pollutants, if known: (iii) Biological Characteristics. Wetland supports (check all that apply): ❑ Riparian buffer. Characteristics (type, average width): ❑ Vegetation type/percent cover. Explain: ❑ Habitat for: ❑ Federally Listed species. Explain findings: ❑ Fish/spawn areas. Explain findings: ❑ Other environmentally -sensitive species. Explain findings: ❑ Aquatic/wildlife diversity. Explain findings: 3. Characteristics of all wetlands adjacent to the tributary (if an All wetland(s) being considered in the cumulative analysis: Approximately acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (Y/N) Size (in acres) Directly abuts? (Y/N) Size (in acres) -5 - Summarize overall biological, chemical and physical functions being performed: C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and discussed in the Instructional Guidebook. Factors to consider include, for example: • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or floodwaters to TNWs, or to reduce the amount of pollutants or flood waters reaching a TNW? • Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW? • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that support downstream foodwebs? • Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or biological integrity of the TNW? Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented below: 1. Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary itself, then go to Section III.D: 2. Significant nexus findings for non-RPW and its adjacent wetlands, where the non-RPW flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section III.D: 3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section IIID: D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERSIWETLANDS ARE (CHECK ALL THAT APPLY): 1. TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: ❑ TNWs: linear feet, wide, Or acres. ❑ Wetlands adjacent to TNWs: acres. 2. RPWs that flow directly or indirectly into TNWs. ❑ Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: ❑ Tributaries of TNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional. Data supporting this conclusion is provided at Section III.B. Provide rationale indicating that tributary flows seasonally: Provide estimates for jurisdictional waters in the review area (check all that apply): ❑ Tributary waters: linear feet wide. ❑ Other non -wetland waters: acres. Identify type(s) of waters: 3. Non-RPWss that flow directly or indirectly into TNWs. ❑ Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a TNW is jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional waters within the review area (check all that apply): 'See Footnote # 3. -6 - Tributary waters: linear feet, wide. ❑ Other non -wetland waters: acres. Identify type(s) of waters: Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. ❑ Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. ❑ Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: ❑ Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section III.B and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: acres. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. ❑ Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this conclusion is provided at Section III.C. Provide acreage estimates for jurisdictional wetlands in the review area: acres. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. ❑ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional wetlands in the review area: acres. Impoundments of jurisdictional waters.' As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. ❑ Demonstrate that impoundment was created from "waters of the U.S.," or ❑ Demonstrate that water meets the criteria for one of the categories presented above (1-6), or ❑ Demonstrate that water is isolated with a nexus to commerce (see E below). E. ISOLATED [INTERSTATE OR INTRA -STATE] WATERS, INCLUDING ISOLATED WETLANDS, THE USE, DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY): to ❑ which are or could be used by interstate or foreign travelers for recreational or other purposes. ❑ from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. ❑ which are or could be used for industrial purposes by industries in interstate commerce. ❑ Interstate isolated waters. Explain: ❑ Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): ❑ Tributary waters: linear feet, wide. ❑ Other non -wetland waters: acres. Identify type(s) of waters: ❑ Wetlands: acres. F. NON -JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): ❑ If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engineers Wetland Delineation Manual and/or appropriate Regional Supplements. ® Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. ® Prior to the Jan 2001 Supreme Court decision in "SWANCC," the review area would have been regulated based solely on the "Migratory Bird Rule" (MBR). 9 To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. 10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos. -7- ❑ Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: ❑ Other: (explain, if not covered above): Provide acreage estimates for non jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional judgment (check all that apply): ❑ Non -wetland waters (i.e., rivers, streams): linear feet, wide. ❑ Lakes/ponds: acres. ❑ Other non -wetland waters: acres. List type of aquatic resource: ® Wetlands: 0.49 acres. Provide acreage estimates for non jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): ❑ Non -wetland waters (i.e., rivers, streams): linear feet, wide. ❑ Lakes/ponds: acres. ❑ Other non -wetland waters: acres. List type of aquatic resource: ❑ Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check all that apply - checked items shall be included in case file and, where checked and requested, appropriately reference sources below): ® Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: Key Map, Wetlands and Tributaries dated 3/1/18 ® Data sheets prepared/submitted by or on behalf of the applicant/consultant. ® Office concurs with data sheets/delineation report. ❑ Office does not concur with data sheets/delineation report. ❑ Data sheets prepared by the Corps: ❑ Corps navigable waters' study: ® U.S. Geological Survey Hydrologic Atlas: ❑ USGS NHD data. ® USGS 8 and 12 digit HUC maps. ❑ U.S. Geological Survey map(s). Cite scale & quad name: 1:24K; Mooretown ® USDA Natural Resources Conservation Service Soil Survey. Citation: NRCS Web Soil Survey ® National wetlands inventory map(s). Cite name: USFWS Online Wetland Mapper ❑ State/Local wetland inventory map(s): ® FEMA/FIRM maps: FEMA.gov ❑ 100 -year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) ® Photographs: ® Aerial (Name & Date): ESRI 11/20/17, NC One Map 11/20/17, Google Earth 2016 or ® Other (Name & Date): current LiDAR ❑ Previous determination(s). File no. and date of response letter: ❑ Applicable/supporting case law: ❑ Applicable/supporting scientific literature: ❑ Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD: APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): 6/21/2019 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:Wilmington District, Saratoga SD—Britton Tract_NC Highway 210—Robert Jackson, SAW -2018-00195 C. PROJECT LOCATION AND BACKGROUND INFORMATION: Britton Tract State:NC County/parish/borough: Pender City: Hampstead Center coordinates of site (lat/long in degree decimal format): Lat. 34.39861 ° N, Long. -77.76487° W. Universal Transverse Mercator: Name of nearest waterbody: Harrisons Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Harrisons Creek Name of watershed or Hydrologic Unit Code (HUC): Cape Fear 03030007 ® Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. ❑ Check if other sites (e.g., offsite mitigation sites, disposal sites, etc...) are associated with this action and are recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): ❑ Office (Desk) Determination. Date: ® Field Determination. Date(s): 02/08/2018 SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There Are no "navigable waters of the U.S." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] ❑ Waters subject to the ebb and flow of the tide. ❑ Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There Are "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): ' ❑ TNWs, including territorial seas ❑ Wetlands adjacent to TNWs ® Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs ❑ Non-RPWs that flow directly or indirectly into TNWs ® Wetlands directly abutting RPWs that flow directly or indirectly into TNWs ® Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs ❑ Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs ❑ Impoundments of jurisdictional waters ❑ Isolated (interstate or intrastate) waters, including isolated wetlands b. Identify (estimate) size of waters of the U.S. in the review area: Non -wetland waters: (Tributary 3=711 If, Tributary 4=2,100 If) = 2,811 linear feet: —3 width (ft) and/or acres. Wetlands: (Wetland 2=8.32 ac; Wetland 3=0.85 ac; Wetland 4=0.87; Wetland 5=0.42 ac; Wetland 6=24.48 ac; Wetland 7=0.11 ac; Wetland 8=0.04 ac) = 35.09 acres. c. Limits (boundaries) of jurisdiction based on: 1987 Delineation Manual Elevation of established OHWM (if known): 2. Non-regulated waters/wetlands (check if applicable):3 ❑ Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain: ' Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months). a Supporting documentation is presented in Section III.F. SECTION III: CWA ANALYSIS A. TNWs AND WETLANDS ADJACENT TO TNWs The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section III.A.1 and Section III.D.1. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2 and Section III.D.1.; otherwise, see Section III.B below. 1. TNW Identify TNW: . Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent': B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non -navigable tributaries of TNWs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section IILD.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.1 for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.0 below. 1. Characteristics of non-TNWs that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: 150 acres Drainage area: 150 acres Average annual rainfall: 52 inches Average annual snowfall: 2 inches (ii) Physical Characteristics: (a) Relationship with TNW: ® Tributary flows directly into TNW. ❑ Tributary flows through Pick List tributaries before entering TNW. Project waters are 1 (or less) river miles from TNW. Project waters are 1 (or less) river miles from RPW. Project waters are 1 (or less) aerial (straight) miles from TNW. Project waters are 1 (or less) aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: Identify flow route to TNW': The onsite waters flow directly into the TNW, Harrisons Creek (point of TNW designation located offsite). ' Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the and West. ' Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: ® Natural ❑ Artificial (man-made). Explain: ❑ Manipulated (man -altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: 3 feet Average depth: 2 feet Average side slopes: 3:1 . Primary tributary substrate composition (check all that apply): ® Silts ❑ Sands ❑ Concrete ❑ Cobbles ❑ Gravel ❑ Muck ❑ Bedrock ❑ Vegetation. Type/% cover: ❑ Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain: Banks are stable. Presence of run/riffle/pool complexes. Explain: Channels are manmade and do not exhibit typical stream characteristics. Tributary geometry: Relatively straight Tributary gradient (approximate average slope): % (c) Flow: Tributary provides for: Seasonal flow Estimate average number of flow events in review area/year: 20 (or greater) Describe flow regime: perennial. Other information on duration and volume: Surface flow is: Discrete and confined. Characteristics: Channelized systems. Subsurface flow: Unknown. Explain findings: ❑ Dye (or other) test performed: Tributary has (check all that apply): ® Bed and banks ® OHWM' (check all indicators that apply): ® clear, natural line impressed on the bank ❑ the presence of litter and debris ❑ changes in the character of soil ❑ destruction of terrestrial vegetation ❑ shelving ❑ the presence of wrack line ❑ vegetation matted down, bent, or absent ❑ sediment sorting ® leaf litter disturbed or washed away ❑ scour ❑ sediment deposition ❑ multiple observed or predicted flow events ❑ water staining ❑ abrupt change in plant community ❑ other (list): ❑ Discontinuous OHWM.' Explain: If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction (check all that apply): ❑ High Tide Line indicated by: ❑ Mean High Water Mark indicated by: ❑ oil or scum line along shore objects ❑ survey to available datum; ❑ fine shell or debris deposits (foreshore) ❑ physical markings; ❑ physical markings/characteristics ❑ vegetation lines/changes in vegetation types. ❑ tidal gauges ❑ other (list): (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain: Water was observed to be clear. Identify specific pollutants, if known: 'A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 'Ibid. (iv) Biological Characteristics. Channel supports (check all that apply): ❑ Riparian corridor. Characteristics (type, average width): ® Wetland fringe. Characteristics: Forested. ® Habitat for: ❑ Federally Listed species. Explain findings: ❑ Fish/spawn areas. Explain findings: ❑ Other environmentally -sensitive species. Explain findings: ® Aquatic/wildlife diversity. Explain findings: Foraging/nesting area for amphibians, reptiles, and mammels. 2. Characteristics of wetlands adjacent to non-TNW that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: 35.09 acres Wetland type. Explain: Pocosin, Headwater wetland. Wetland quality. Explain: Good, historical disturbance. Project wetlands cross or serve as state boundaries. Explain: (b) General Flow Relationship with Non-TNW: Flow is: Perennial flow. Explain: Wetlands were observed to have overland sheetflow with their respective tributaries or with wetlands directly abutting onsite tributaries or confined through culverts. Surface flow is: Overland sheetflow Characteristics: Adjacent wetlands were observed to have overland sheetflow to wetlands abutting RPW. Abutting wetlands were observed to have overland sheetflow or discrete and confined flow through culverts. Subsurface flow: Unknown. Explain findings: ❑ Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: ® Directly abutting ® Not directly abutting ® Discrete wetland hydrologic connection. Explain: Wetlands were observed to be flowing through non - jurisdictional pathways to wetlands directely abutting the RPW. ❑ Ecological connection. Explain: ❑ Separated by berm/barrier. Explain: (d) Proximity (Relationship) to TNW Project wetlands are 1 (or less) river miles from TNW. Project waters are 1 (or less) aerial (straight) miles from TNW. Flow is from: Wetland to/from navigable waters. Estimate approximate location of wetland as within the 100 - 500 -year floodplain. (ii) Chemical Characteristics: Characterize wetland system (e.g., water color is clear, brown, oil film on surface; water quality; general watershed characteristics; etc.). Explain: Water was observed clear following recent rains. Identify specific pollutants, if known: (iii) Biological Characteristics. Wetland supports (check all that apply): ❑ Riparian buffer. Characteristics (type, average width): ® Vegetation type/percent cover. Explain:90% coverage in the understory, 65% upper canopy. Mixed hardwoods, loblolly, fetterbush. ® Habitat for: ❑ Federally Listed species. Explain findings: ❑ Fish/spawn areas. Explain findings: ❑ Other environmentally -sensitive species. Explain findings: ® Aquatic/wildlife diversity. Explain findings:Foraging/nesting area for amphibians, reptiles, and mammels. 3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: 7 Approximately ( 35.09 ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN) Size (in acres) Wetland 2 Y 8.32 Wetland 5 N 0.42 Wetland 3 Y 0.85 Wetland 6 Y 24.48 Wetland 4 Y 0.87 Wetland 7 N 0.11 Wetland 8 N 0.04 Summarize overall biological, chemical and physical functions being performed: A variety of biological functions are being performed which include providing breeding grounds and shelter for terrestrial species, and foraging areas for wetland dependent species. The wetlands are essential in providing organic carbon in the form of primary productivity to downstream waters, resulting in the nourishment of the downstream food web. Chemical — The wetlands in the review area are providing the important function of removal of excess nutrients which are contributed by runoff from the surrounding uplands, reducing nitrogen and phosphorus loading downstream, and effectively preventing oxygen depletion that can result from eutrophication. Physical — The wetlands in the review area are performing flow maintenance functions, including retaining runoff inflow and storing flood water temporarily. Flow maintenance results in the reduction of downstream peak flows (discharge and volume), helping to maintain seasonal flow volumes. Based on the functions described above and their importance to the biological , chemical, and physical integrity of the traditional navigable waters of Harrisons Creek, it has been determined that there is a Significant Nexus between the review area Relevant Reach (Unnamed Tributary to Harrisons Creek) and its adjacent wetlands (Wetlands 5, 7, and 8) and the downstream TNW (Harrisons Creek). C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and discussed in the Instructional Guidebook. Factors to consider include, for example: • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to TNWs, or to reduce the amount of pollutants or flood waters reaching a TNW? • Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW? • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that support downstream foodwebs? • Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or biological integrity of the TNW? Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented below: Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary itself, then go to Section IILD: Significant nexus findings for non-RPW and its adjacent wetlands, where the non-RPW flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section IILD: 3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section IILD: D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL THAT APPLY): TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: ❑ TNWs: linear feet width (ft), Or, acres. ❑ Wetlands adjacent to TNWs: acres. RPWs that flow directly or indirectly into TNWs. ® Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Tributaries 3 and 4 have been observed by the consultant to have year-round flow. ❑ Tributaries of TNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional. Data supporting this conclusion is provided at Section III.B. Provide rationale indicating that tributary flows seasonally: Provide estimates for jurisdictional waters in the review area (check all that apply): ® Tributary waters: 2,811 linear feet 3 width (ft). ❑ Other non -wetland waters: acres. Identify type(s) of waters: Non-RPWss that flow directly or indirectly into TNWs. ❑ Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a TNW is jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional waters within the review area (check all that apply): ❑ Tributary waters: linear feet width (ft). ❑ Other non -wetland waters: acres. Identify type(s) of waters: Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. ® Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. ® Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Wetlands are contiguous with no natural or manmade barrier. ❑ Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section III.13 and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: 34.52 acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. ® Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this conclusion is provided at Section III.C. Provide acreage estimates for jurisdictional wetlands in the review area: 0.57 acres. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. ❑ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional wetlands in the review area: acres. Impoundments of jurisdictional waters.9 As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. ❑ Demonstrate that impoundment was created from "waters of the U.S.," or ❑ Demonstrate that water meets the criteria for one of the categories presented above (1-6), or 'See Footnote # 3. v To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. ❑ Demonstrate that water is isolated with a nexus to commerce (see E below). E. ISOLATED [INTERSTATE OR INTRA -STATE] WATERS, INCLUDING ISOLATED WETLANDS, THE USE, DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY):" ❑ which are or could be used by interstate or foreign travelers for recreational or other purposes. ❑ from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. ❑ which are or could be used for industrial purposes by industries in interstate commerce. ❑ Interstate isolated waters. Explain: ❑ Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): ❑ Tributary waters: linear feet width (ft). ❑ Other non -wetland waters: acres. Identify type(s) of waters: ❑ Wetlands: acres. F. NON -JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): ❑ If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engineers Wetland Delineation Manual and/or appropriate Regional Supplements. ❑ Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. ❑ Prior to the Jan 2001 Supreme Court decision in "SWANCC," the review area would have been regulated based solely on the "Migratory Bird Rule" (MBR). ❑ Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: ❑ Other: (explain, if not covered above): Provide acreage estimates for non jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional judgment (check all that apply): ❑ Non -wetland waters (i.e., rivers, streams): linear feet width (ft). ❑ Lakes/ponds: acres. ❑ Other non -wetland waters: acres. List type of aquatic resource: ❑ Wetlands: acres. Provide acreage estimates for non jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): ❑ Non -wetland waters (i.e., rivers, streams): linear feet, width (ft). ❑ Lakes/ponds: acres. ❑ Other non -wetland waters: acres. List type of aquatic resource: ❑ Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check all that apply - checked items shall be included in case file and, where checked and requested, appropriately reference sources below): ® Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: Key Map of Wetlands dated 3/1/18; Key Map, Wetlands and Tributaries dated 2/9/18. ® Data sheets prepared/submitted by or on behalf of the applicant/consultant. ® Office concurs with data sheets/delineation report. ❑ Office does not concur with data sheets/delineation report. ❑ Data sheets prepared by the Corps: ❑ Corps navigable waters' study: ❑ U.S. Geological Survey Hydrologic Atlas: ❑ USGS NHD data. ❑ USGS 8 and 12 digit HUC maps. 10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos. ® U.S. Geological Survey map(s). Cite scale & quad name: Mooretown, 1:24k. ® USDA Natural Resources Conservation Service Soil Survey. Citation: NRCS Web Soil Survey. ® National wetlands inventory map(s). Cite name: USFWS Online Wetland Mapper. ❑ State/Local wetland inventory map(s): ® FEMA/FIRM maps: FEMA.gov. ❑ 100 -year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) ® Photographs: ® Aerial (Name & Date): ESRI 11/20/17, NC One Map 11/20/17, Google Earth 2016. or ® Other (Name & Date): current LiDAR. ❑ Previous determination(s). File no. and date of response letter: ❑ Applicable/supporting case law: ❑ Applicable/supporting scientific literature: ❑ Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD: APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION I: BACKGROUND INFORMATION A. REPORT COMPLETION DATE FOR APPROVED JURISDICTIONAL DETERMINATION (JD): 6/21/2019 B. DISTRICT OFFICE, FILE NAME, AND NUMBER:Wilmington District, Saratoga SD—Britton Tract_NC Highway 210—Robert Jackson, SAW -2018-00195 C. PROJECT LOCATION AND BACKGROUND INFORMATION: Britton Tract State:NC County/parish/borough: Pender City: Hampstead Center coordinates of site (lat/long in degree decimal format): Lat. 34.39861 ° N, Long. -77.76487° W. Universal Transverse Mercator: Name of nearest waterbody: Harrisons Creek Name of nearest Traditional Navigable Water (TNW) into which the aquatic resource flows: Harrisons Creek Name of watershed or Hydrologic Unit Code (HUC): Cape Fear 03030007 ® Check if map/diagram of review area and/or potential jurisdictional areas is/are available upon request. ❑ Check if other sites (e.g., offsite mitigation sites, disposal sites, etc...) are associated with this action and are recorded on a different JD form. D. REVIEW PERFORMED FOR SITE EVALUATION (CHECK ALL THAT APPLY): ❑ Office (Desk) Determination. Date: ® Field Determination. Date(s): 02/08/2018 SECTION II: SUMMARY OF FINDINGS A. RHA SECTION 10 DETERMINATION OF JURISDICTION. There Are no "navigable waters of the U.S." within Rivers and Harbors Act (RHA) jurisdiction (as defined by 33 CFR part 329) in the review area. [Required] ❑ Waters subject to the ebb and flow of the tide. ❑ Waters are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. Explain: B. CWA SECTION 404 DETERMINATION OF JURISDICTION. There Are "waters of the U.S." within Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in the review area. [Required] 1. Waters of the U.S. a. Indicate presence of waters of U.S. in review area (check all that apply): ' ❑ TNWs, including territorial seas ❑ Wetlands adjacent to TNWs ® Relatively permanent waters2 (RPWs) that flow directly or indirectly into TNWs ❑ Non-RPWs that flow directly or indirectly into TNWs ® Wetlands directly abutting RPWs that flow directly or indirectly into TNWs ® Wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into TNWs ❑ Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs ❑ Impoundments of jurisdictional waters ❑ Isolated (interstate or intrastate) waters, including isolated wetlands b. Identify (estimate) size of waters of the U.S. in the review area: Non -wetland waters: (Tributary 1&2=1,316 If, Stream 1=3,168 If) = 4,484 linear feet: 3-8 width (ft) and/or acres. Wetlands: (Wetland 1=16.66 ac; Wetland 5=0.42 ac; Wetland 6=24.47 ac) = 41.55 acres. Limits (boundaries) of jurisdiction based on: 1987 Delineation Manual Elevation of established OHWM (if known): Non-regulated waters/wetlands (check if applicable):3 ® Potentially jurisdictional waters and/or wetlands were assessed within the review area and determined to be not jurisdictional. Explain: There are six depressional wetlands located on onsite that are isolated and non -jurisdictional. These wetlands total 0.49 -acre (JD1 0.03 -ac; JD2 0.04 -ac; JD3 0.1 -ac; JD4 0.07 -ac; JD5 0.21 -acre; JD6 0.04 -ac) and are surrounded entirely by uplands. The wetlands are separated from the TNW (Harrison's Creek) by approximately 1.5 miles. The ' Boxes checked below shall be supported by completing the appropriate sections in Section III below. 2 For purposes of this form, an RPW is defined as a tributary that is not a TNW and that typically flows year-round or has continuous flow at least "seasonally" (e.g., typically 3 months). a Supporting documentation is presented in Section III.F. nearest tributary to the TNW is approximately 740 feet from the wetlands. Additionally, the isolated wetlands are separated from the larger onsite wetlands by approximately 150 linear feet. These features are known as limestone sinks and were observed to have no surface connection to nearby waters and do not appear to provide habitat or have a substantial ecological interconnection to the nearest tributary and the TNW based on their size and landscape positions. SECTION III: CWA ANALYSIS A. TNWs AND WETLANDS ADJACENT TO TNWs The agencies will assert jurisdiction over TNWs and wetlands adjacent to TNWs. If the aquatic resource is a TNW, complete Section III.A.1 and Section III.D.1. only; if the aquatic resource is a wetland adjacent to a TNW, complete Sections III.A.1 and 2 and Section III.D.1.; otherwise, see Section III.B below. 1. TNW Identify TNW: . Summarize rationale supporting determination: 2. Wetland adjacent to TNW Summarize rationale supporting conclusion that wetland is "adjacent': B. CHARACTERISTICS OF TRIBUTARY (THAT IS NOT A TNW) AND ITS ADJACENT WETLANDS (IF ANY): This section summarizes information regarding characteristics of the tributary and its adjacent wetlands, if any, and it helps determine whether or not the standards for jurisdiction established under Rapanos have been met. The agencies will assert jurisdiction over non -navigable tributaries of TNWs where the tributaries are "relatively permanent waters" (RPWs), i.e. tributaries that typically flow year-round or have continuous flow at least seasonally (e.g., typically 3 months). A wetland that directly abuts an RPW is also jurisdictional. If the aquatic resource is not a TNW, but has year-round (perennial) flow, skip to Section III.D.2. If the aquatic resource is a wetland directly abutting a tributary with perennial flow, skip to Section IILD.4. A wetland that is adjacent to but that does not directly abut an RPW requires a significant nexus evaluation. Corps districts and EPA regions will include in the record any available information that documents the existence of a significant nexus between a relatively permanent tributary that is not perennial (and its adjacent wetlands if any) and a traditional navigable water, even though a significant nexus finding is not required as a matter of law. If the waterbody4 is not an RPW, or a wetland directly abutting an RPW, a JD will require additional data to determine if the waterbody has a significant nexus with a TNW. If the tributary has adjacent wetlands, the significant nexus evaluation must consider the tributary in combination with all of its adjacent wetlands. This significant nexus evaluation that combines, for analytical purposes, the tributary and all of its adjacent wetlands is used whether the review area identified in the JD request is the tributary, or its adjacent wetlands, or both. If the JD covers a tributary with adjacent wetlands, complete Section III.B.1 for the tributary, Section III.B.2 for any onsite wetlands, and Section III.B.3 for all wetlands adjacent to that tributary, both onsite and offsite. The determination whether a significant nexus exists is determined in Section III.0 below. 1. Characteristics of non-TNWs that flow directly or indirectly into TNW (i) General Area Conditions: Watershed size: 150 acres Drainage area: 150 acres Average annual rainfall: 52 inches Average annual snowfall: 2 inches (ii) Physical Characteristics: (a) Relationship with TNW: ® Tributary flows directly into TNW. ❑ Tributary flows through Pick List tributaries before entering TNW. Project waters are 1 (or less) river miles from TNW. Project waters are 1 (or less) river miles from RPW. Project waters are 1 (or less) aerial (straight) miles from TNW. Project waters are 1 (or less) aerial (straight) miles from RPW. Project waters cross or serve as state boundaries. Explain: Identify flow route to TNW': The onsite waters flow directly into the TNW, Harrisons Creek (point of TNW designation located offsite). ' Note that the Instructional Guidebook contains additional information regarding swales, ditches, washes, and erosional features generally and in the and West. ' Flow route can be described by identifying, e.g., tributary a, which flows through the review area, to flow into tributary b, which then flows into TNW. Tributary stream order, if known: (b) General Tributary Characteristics (check all that apply): Tributary is: ® Natural ❑ Artificial (man-made). Explain: ❑ Manipulated (man -altered). Explain: Tributary properties with respect to top of bank (estimate): Average width: 8 feet Average depth: 3-4 feet Average side slopes: 3:1 . Primary tributary substrate composition (check all that apply): ® Silts ® Sands ❑ Concrete ❑ Cobbles ❑ Gravel ® Muck ❑ Bedrock ❑ Vegetation. Type/% cover: ❑ Other. Explain: Tributary condition/stability [e.g., highly eroding, sloughing banks]. Explain: Banks are stable. Presence of run/riffle/pool complexes. Explain: Found within Harrisons Creek, not RPWs. Tributary geometry: Meandering Tributary gradient (approximate average slope): % (c) Flow: Tributary provides for: Seasonal flow Estimate average number of flow events in review area/year: 20 (or greater) Describe flow regime: perennial. Other information on duration and volume: Surface flow is: Discrete. Characteristics: Subsurface flow: Unknown. Explain findings: ❑ Dye (or other) test performed: Tributary has (check all that apply): ® Bed and banks ® OHWM' (check all indicators that apply): ® clear, natural line impressed on the bank ❑ the presence of litter and debris ❑ changes in the character of soil ❑ destruction of terrestrial vegetation ® shelving ❑ the presence of wrack line ❑ vegetation matted down, bent, or absent ❑ sediment sorting ® leaf litter disturbed or washed away ❑ scour ® sediment deposition ❑ multiple observed or predicted flow events ❑ water staining ❑ abrupt change in plant community ❑ other (list): ❑ Discontinuous OHWM.' Explain: If factors other than the OHWM were used to determine lateral extent of CWA jurisdiction (check all that apply): ❑ High Tide Line indicated by: ❑ Mean High Water Mark indicated by: ❑ oil or scum line along shore objects ❑ survey to available datum; ❑ fine shell or debris deposits (foreshore) ❑ physical markings; ❑ physical markings/characteristics ❑ vegetation lines/changes in vegetation types. ❑ tidal gauges ❑ other (list): (iii) Chemical Characteristics: Characterize tributary (e.g., water color is clear, discolored, oily film; water quality; general watershed characteristics, etc.). Explain: Water was observed to be clear. Identify specific pollutants, if known: 'A natural or man-made discontinuity in the OHWM does not necessarily sever jurisdiction (e.g., where the stream temporarily flows underground, or where the OHWM has been removed by development or agricultural practices). Where there is a break in the OHWM that is unrelated to the waterbody's flow regime (e.g., flow over a rock outcrop or through a culvert), the agencies will look for indicators of flow above and below the break. 'Ibid. (iv) Biological Characteristics. Channel supports (check all that apply): ❑ Riparian corridor. Characteristics (type, average width): ® Wetland fringe. Characteristics: Forested. ® Habitat for: ❑ Federally Listed species. Explain findings: ❑ Fish/spawn areas. Explain findings: ❑ Other environmentally -sensitive species. Explain findings: ® Aquatic/wildlife diversity. Explain findings: Foraging/nesting area for amphibians, reptiles, and mammels. 2. Characteristics of wetlands adjacent to non-TNW that flow directly or indirectly into TNW (i) Physical Characteristics: (a) General Wetland Characteristics: Properties: Wetland size: 41.55 acres Wetland type. Explain: Pocosin, Headwater wetland. Wetland quality. Explain: Good, historical disturbance. Project wetlands cross or serve as state boundaries. Explain: (b) General Flow Relationship with Non-TNW: Flow is: Perennial flow. Explain: Wetlands were observed flowing following recent rain events. Surface flow is: Overland sheetflow Characteristics: Adjacent wetlands were observed to have overland sheetflow to wetlands abutting RPW. Abutting wetlands were observed to have overland sheetflow or discrete and confined flow through culverts. . Subsurface flow: Unknown. Explain findings: ❑ Dye (or other) test performed: (c) Wetland Adjacency Determination with Non-TNW: ® Directly abutting ® Not directly abutting ® Discrete wetland hydrologic connection. Explain: Adjacent wetlands were observed to be flowing through non - jurisdictional pathways (overland sheetflow) to wetlands directely abutting the RPW. ❑ Ecological connection. Explain: ❑ Separated by berm/barrier. Explain: (d) Proximity (Relationship) to TNW Project wetlands are 1 (or less) river miles from TNW. Project waters are 1 (or less) aerial (straight) miles from TNW. Flow is from: Wetland to/from navigable waters. Estimate approximate location of wetland as within the 100 - 500 -year floodplain. (ii) Chemical Characteristics: Characterize wetland system (e.g., water color is clear, brown, oil film on surface; water quality; general watershed characteristics; etc.). Explain: Water was observed clear following recent rains. Identify specific pollutants, if known: (iii) Biological Characteristics. Wetland supports (check all that apply): ® Riparian buffer. Characteristics (type, average width): -200-300 feet; wooded. ® Vegetation type/percent cover. Explain: 90% coverage in the understory, 65% upper canopy. Mixed hardwoods, loblolly, fetterbush. ® Habitat for: ❑ Federally Listed species. Explain findings: ❑ Fish/spawn areas. Explain findings: ❑ Other environmentally -sensitive species. Explain findings: ® Aquatic/wildlife diversity. Explain findings:Foraging/nesting area for amphibians, reptiles, and mammels. 3. Characteristics of all wetlands adjacent to the tributary (if any) All wetland(s) being considered in the cumulative analysis: 3 Approximately ( 41.55 ) acres in total are being considered in the cumulative analysis. For each wetland, specify the following: Directly abuts? (YIN) Size (in acres) Directly abuts? (YIN) Size (in acres) Wetland 1 Y 16.66 Wetland 5 N 0.42 Wetland 6 Y 24.47 Summarize overall biological, chemical and physical functions being performed: A variety of biological functions are being performed which include providing breeding grounds and shelter for terrestrial species, and foraging areas for wetland dependent species. The wetlands are essential in providing organic carbon in the form of primary productivity to downstream waters, resulting in the nourishment of the downstream food web. Chemical — The wetlands in the review area are providing the important function of removal of excess nutrients which are contributed by runoff from the surrounding uplands, reducing nitrogen and phosphorus loading downstream, and effectively preventing oxygen depletion that can result from eutrophication. Physical — The wetlands in the review area are performing flow maintenance functions, including retaining runoff inflow and storing flood water temporarily. Flow maintenance results in the reduction of downstream peak flows (discharge and volume), helping to maintain seasonal flow volumes. Based on the functions described above and their importance to the biological , chemical, and physical integrity of the traditional navigable waters of Harrisons Creek, it has been determined that there is a Significant Nexus between the review area Relevant Reach (Unnamed Tributary to Harrisons Creek) and its adjacent wetlands (Wetland 5) and the downstream TNW (Harrisons Creek). C. SIGNIFICANT NEXUS DETERMINATION A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by any wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical, and biological integrity of a TNW. For each of the following situations, a significant nexus exists if the tributary, in combination with all of its adjacent wetlands, has more than a speculative or insubstantial effect on the chemical, physical and/or biological integrity of a TNW. Considerations when evaluating significant nexus include, but are not limited to the volume, duration, and frequency of the flow of water in the tributary and its proximity to a TNW, and the functions performed by the tributary and all its adjacent wetlands. It is not appropriate to determine significant nexus based solely on any specific threshold of distance (e.g. between a tributary and its adjacent wetland or between a tributary and the TNW). Similarly, the fact an adjacent wetland lies within or outside of a floodplain is not solely determinative of significant nexus. Draw connections between the features documented and the effects on the TNW, as identified in the Rapanos Guidance and discussed in the Instructional Guidebook. Factors to consider include, for example: • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to carry pollutants or flood waters to TNWs, or to reduce the amount of pollutants or flood waters reaching a TNW? • Does the tributary, in combination with its adjacent wetlands (if any), provide habitat and lifecycle support functions for fish and other species, such as feeding, nesting, spawning, or rearing young for species that are present in the TNW? • Does the tributary, in combination with its adjacent wetlands (if any), have the capacity to transfer nutrients and organic carbon that support downstream foodwebs? • Does the tributary, in combination with its adjacent wetlands (if any), have other relationships to the physical, chemical, or biological integrity of the TNW? Note: the above list of considerations is not inclusive and other functions observed or known to occur should be documented below: Significant nexus findings for non-RPW that has no adjacent wetlands and flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary itself, then go to Section IIID: Significant nexus findings for non-RPW and its adjacent wetlands, where the non-RPW flows directly or indirectly into TNWs. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section III.D: 3. Significant nexus findings for wetlands adjacent to an RPW but that do not directly abut the RPW. Explain findings of presence or absence of significant nexus below, based on the tributary in combination with all of its adjacent wetlands, then go to Section IIID: D. DETERMINATIONS OF JURISDICTIONAL FINDINGS. THE SUBJECT WATERS/WETLANDS ARE (CHECK ALL THAT APPLY): TNWs and Adjacent Wetlands. Check all that apply and provide size estimates in review area: ❑ TNWs: linear feet width (ft), Or, acres. ❑ Wetlands adjacent to TNWs: acres. RPWs that flow directly or indirectly into TNWs. ® Tributaries of TNWs where tributaries typically flow year-round are jurisdictional. Provide data and rationale indicating that tributary is perennial: Harrisons Creek and tributaries 1 and 2 have been observed flowing year round, as they drain a very large watershed area. ❑ Tributaries of TNW where tributaries have continuous flow "seasonally" (e.g., typically three months each year) are jurisdictional. Data supporting this conclusion is provided at Section IILB. Provide rationale indicating that tributary flows seasonally: Provide estimates for jurisdictional waters in the review area (check all that apply): ® Tributary waters: 4,484 linear feet 3-8width (ft). ❑ Other non -wetland waters: acres. Identify type(s) of waters: Non-RPWss that flow directly or indirectly into TNWs. ❑ Waterbody that is not a TNW or an RPW, but flows directly or indirectly into a TNW, and it has a significant nexus with a TNW is jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional waters within the review area (check all that apply): ❑ Tributary waters: linear feet width (ft). ❑ Other non -wetland waters: acres. Identify type(s) of waters: Wetlands directly abutting an RPW that flow directly or indirectly into TNWs. ® Wetlands directly abut RPW and thus are jurisdictional as adjacent wetlands. ® Wetlands directly abutting an RPW where tributaries typically flow year-round. Provide data and rationale indicating that tributary is perennial in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Wetlands are contiguous with no natural or manmade barrier. ❑ Wetlands directly abutting an RPW where tributaries typically flow "seasonally." Provide data indicating that tributary is seasonal in Section IILB and rationale in Section III.D.2, above. Provide rationale indicating that wetland is directly abutting an RPW: Provide acreage estimates for jurisdictional wetlands in the review area: 41.13 acres. 5. Wetlands adjacent to but not directly abutting an RPW that flow directly or indirectly into TNWs. ® Wetlands that do not directly abut an RPW, but when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisidictional. Data supporting this conclusion is provided at Section III.C. Provide acreage estimates for jurisdictional wetlands in the review area: 0.42 acres. Wetlands adjacent to non-RPWs that flow directly or indirectly into TNWs. ❑ Wetlands adjacent to such waters, and have when considered in combination with the tributary to which they are adjacent and with similarly situated adjacent wetlands, have a significant nexus with a TNW are jurisdictional. Data supporting this conclusion is provided at Section III.C. Provide estimates for jurisdictional wetlands in the review area: acres. Impoundments of jurisdictional waters.' As a general rule, the impoundment of a jurisdictional tributary remains jurisdictional. ❑ Demonstrate that impoundment was created from "waters of the U.S.," or ❑ Demonstrate that water meets the criteria for one of the categories presented above (1-6), or ❑ Demonstrate that water is isolated with a nexus to commerce (see E below). 'See Footnote # 3. v To complete the analysis refer to the key in Section III.D.6 of the Instructional Guidebook. E. ISOLATED [INTERSTATE OR INTRA -STATE] WATERS, INCLUDING ISOLATED WETLANDS, THE USE, DEGRADATION OR DESTRUCTION OF WHICH COULD AFFECT INTERSTATE COMMERCE, INCLUDING ANY SUCH WATERS (CHECK ALL THAT APPLY): 10 ❑ which are or could be used by interstate or foreign travelers for recreational or other purposes. ❑ from which fish or shellfish are or could be taken and sold in interstate or foreign commerce. ❑ which are or could be used for industrial purposes by industries in interstate commerce. ❑ Interstate isolated waters. Explain: ❑ Other factors. Explain: Identify water body and summarize rationale supporting determination: Provide estimates for jurisdictional waters in the review area (check all that apply): ❑ Tributary waters: linear feet width (ft). ❑ Other non -wetland waters: acres. Identify type(s) of waters: ❑ Wetlands: acres. F. NON -JURISDICTIONAL WATERS, INCLUDING WETLANDS (CHECK ALL THAT APPLY): ❑ If potential wetlands were assessed within the review area, these areas did not meet the criteria in the 1987 Corps of Engineers Wetland Delineation Manual and/or appropriate Regional Supplements. ® Review area included isolated waters with no substantial nexus to interstate (or foreign) commerce. ® Prior to the Jan 2001 Supreme Court decision in "SWANCC," the review area would have been regulated based solely on the "Migratory Bird Rule" (MBR). ❑ Waters do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction. Explain: ❑ Other: (explain, if not covered above): Provide acreage estimates for non jurisdictional waters in the review area, where the sole potential basis of jurisdiction is the MBR factors (i.e., presence of migratory birds, presence of endangered species, use of water for irrigated agriculture), using best professional judgment (check all that apply): ❑ Non -wetland waters (i.e., rivers, streams): linear feet width (ft). ❑ Lakes/ponds: acres. ❑ Other non -wetland waters: acres. List type of aquatic resource: ® Wetlands: 0.49 acres. Provide acreage estimates for non jurisdictional waters in the review area that do not meet the "Significant Nexus" standard, where such a finding is required for jurisdiction (check all that apply): ❑ Non -wetland waters (i.e., rivers, streams): linear feet, width (ft). ❑ Lakes/ponds: acres. ❑ Other non -wetland waters: acres. List type of aquatic resource: ❑ Wetlands: acres. SECTION IV: DATA SOURCES. A. SUPPORTING DATA. Data reviewed for JD (check all that apply - checked items shall be included in case file and, where checked and requested, appropriately reference sources below): ® Maps, plans, plots or plat submitted by or on behalf of the applicant/consultant: Key Map, Wetlands and Tributaries dated 3/1/18. ® Data sheets prepared/submitted by or on behalf of the applicant/consultant. ® Office concurs with data sheets/delineation report. ❑ Office does not concur with data sheets/delineation report. ❑ Data sheets prepared by the Corps: ❑ Corps navigable waters' study: ❑ U.S. Geological Survey Hydrologic Atlas: ❑ USGS NHD data. ❑ USGS 8 and 12 digit HUC maps. ® U.S. Geological Survey map(s). Cite scale & quad name: Mooretown, 1:24k. ® USDA Natural Resources Conservation Service Soil Survey. Citation: NRCS Web Soil Survey. ® National wetlands inventory map(s). Cite name: USFWS Online Wetland Mapper. ❑ State/Local wetland inventory map(s): 10 Prior to asserting or declining CWA jurisdiction based solely on this category, Corps Districts will elevate the action to Corps and EPA HQ for review consistent with the process described in the Corps/EPA Memorandum Regarding CWA Act Jurisdiction Following Rapanos. ® FEMA/FIRM maps: FEMA.gov. ❑ 100 -year Floodplain Elevation is: (National Geodectic Vertical Datum of 1929) ® Photographs: ® Aerial (Name & Date): ESRI 11/20/17, NC One Map 11/20/17, Google Earth 2016. or ® Other (Name & Date): current LiDAR. ❑ Previous determination(s). File no. and date of response letter: ❑ Applicable/supporting case law: ❑ Applicable/supporting scientific literature: ❑ Other information (please specify): B. ADDITIONAL COMMENTS TO SUPPORT JD: s • ♦ Wetland - y tttk 3.3 I I Wetland 1 N ,a 16.66 ac. i ' Isollated, Non -JD 1 0.03 J -o !,� Pocosin Upland Data Point 'A + N I Wetland Pocosin Wetland Data PointI - Wetland 3 0.87 ac o • - d 0.85 ac. f `p Wetland 5'�+�7 Gfd - m 0.84 ac. %7� 2 -o v Isolated, Non -JD 2 0.04 9 ' e Wetland 7 u• m Wetland 8 Isolated, Non -JD 3 0.11 ac. 0.04 ac. 0.1 Isolated on -JD 6 a N Isolated, Non -JD 4 t0d 0.07 ; Isolated, Non-JD5 .�..+ dr17,t♦.+M�^. N 07 Swamp Forest Upland Data Point s . Swamp Forest Wetland Data Point 0 ,•,• "0 Wetland 6 48.95 ac. t r Me � 4 G Wetland 2 Welland1 3:3 ac. w ;wJ � - Wetland - Wouand3 0.81a R. 0.85 ao..,. 2 frond ;�.;i,>>4id i aft i � L Wetland 8 Iselatod 0.04 (JD 2) Q1. &gtpe Well pd 1� w A Wetland 9, Isolated -,r ,Wetland 12 00% LL04ac. (JD 33 4r0:11 ac.Y-ijjF-+t� nPlt n a Wetland 13, Isolated g1 w T1 Wetland 10, lea _ 0.04 at. (ID 6) Watlatld 11, Isolated w, Mist. (JD 5) r Ott i e. P6 Ab, '� .ta .j Wet and�,tdsolated +/� o-• ac. (JD 1) i G Wetland 2 Welland1 3:3 ac. w ;wJ � - Wetland - Wouand3 0.81a R. 0.85 ao..,. 2 frond ;�.;i,>>4id i aft i � L Wetland 8 Iselatod 0.04 (JD 2) Q1. &gtpe Well pd 1� w A Wetland 9, Isolated -,r ,Wetland 12 00% LL04ac. (JD 33 4r0:11 ac.Y-ijjF-+t� nPlt n a Wetland 13, Isolated g1 w T1 Wetland 10, lea _ 0.04 at. (ID 6) Watlatld 11, Isolated w, Mist. (JD 5) r Ott i e. P6 Ab, '� NATIONWIDE PERMIT 29 DEPARTMENT OF THE ARMY CORPS OF ENGINEERS FINAL NOTICE OF ISSUANCE AND MODIFICATION OF NATIONWIDE PERMITS FEDERAL REGISTER AUTHORIZED MARCH 19, 2017 Residential Developments. Discharges of dredged or fill material into non- tidal waters of the United States for the construction or expansion of a single residence, a multiple unit residential development, or a residential subdivision. This NWP authorizes the construction of building foundations and building pads and attendant features that are necessary for the use of the residence or residential development. Attendant features may include but are not limited to roads, parking lots, garages, yards, utility lines, storm water management facilities, septic fields, and recreation facilities such as playgrounds, playing fields, and golf courses (provided the golf course is an integral part of the residential development). The discharge must not cause the loss of greater than 1/2 -acre of non -tidal waters of the United States. The discharge must not cause the loss of more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds the district engineer waives the 300 linear foot limit by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects. This NWP does not authorize discharges into non -tidal wetlands adjacent to tidal waters. The loss of stream bed plus any other losses of jurisdictional wetlands and waters caused by the NWP activity cannot exceed 1/2 -acre. Subdivisions: For residential subdivisions, the aggregate total loss of waters of United States authorized by this NWP cannot exceed 1/2 -acre. This includes any loss of waters of the United States associated with development of individual subdivision lots. Notification: The permittee must submit a pre -construction notification to the district engineer prior to commencing the activity. (See general condition 32.) (Authorities: Sections 10 and 404) NATIONWIDE PERMIT GENERAL CONDITIONS The following General Conditions must be followed in order for any authorization by a NWP to be valid: 1. Navi _ ag tion. (a) No activity may cause more than a minimal adverse effect on navigation. (b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States. (c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. 2. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity's primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements. 3. Spawning. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized. 4. Mi rg atory Bird Breeding Areas. Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable. 5. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWPs 4 and 48, or is a shellfish seeding or habitat restoration activity authorized by NWP 27. 6. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see section 307 of the Clean Water Act). 2 7. Water Supply Intakes. No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization. 8. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable. 9. Management of Water Flows. To the maximum extent practicable, the pre - construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre -construction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities). 10. Fills Within 100 -Year Floodplains. The activity must comply with applicable FEMA -approved state or local floodplain management requirements. 11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance. 12. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low -flow or no -flow, or during low tides. 13. Removal of Temporary Fills. Temporary fills must be removed in their entirety and the affected areas returned to pre -construction elevations. The affected areas must be revegetated, as appropriate. 14. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable NWP general conditions, as well as any activity -specific conditions added by the district engineer to an NWP authorization. 15. Single and Complete Project. The activity must be a single and complete project. The same NWP cannot be used more than once for the same single and complete project. 16. Wild and Scenic Rivers. (a) No NWP activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a "study river" for possible inclusion in the system while the river is in an official study status, 3 unless the appropriate Federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status. (b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a "study river" for possible inclusion in the system while the river is in an official study status, the permittee must submit a pre -construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river. The permittee shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status. (c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). Information on these rivers is also available at: hqp://www.rivers.gov/. 17. Tribal Rights. No NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. 18. Endangeredpecies. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which "may affect" a listed species or critical habitat, unless ESA section 7 consultation addressing the effects of the proposed activity has been completed. Direct effects are the immediate effects on listed species and critical habitat caused by the NWP activity. Indirect effects are those effects on listed species and critical habitat that are caused by the NWP activity and are later in time, but still are reasonably certain to occur. (b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. If pre -construction notification is required for the proposed activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA. (c) Non-federal permittees must submit a pre -construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally -listed endangered or threatened species or designated critical habitat, the pre - construction notification must include the name(s) of the endangered or threatened species that 2 might be affected by the proposed activity or that utilize the designated critical habitat that might be affected by the proposed activity. The district engineer will determine whether the proposed activity "may affect" or will have "no effect" to listed species and designated critical habitat and will notify the non- Federal applicant of the Corps' determination within 45 days of receipt of a complete pre- construction notification. In cases where the non -Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the activity, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification that the proposed activity will have "no effect" on listed species or critical habitat, or until ESA section 7 consultation has been completed. If the non -Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species-specific permit conditions to the NWPs. (e) Authorization of an activity by an NWP does not authorize the "take" of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the FWS or the NMFS, the Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word "harm" in the definition of "take" means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. (f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre -construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required. (g) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the FWS and NMFS or their world wide web pages at http://www.fws.gov/ or http://www.fws.gov/i/ipac and http://www.nmfs.noaa.gov/pr/species/esa/ respectively. 19. Mi rg atory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring their action complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting appropriate local office of the U.S. Fish and Wildlife Service to determine applicable measures to reduce impacts to migratory 5 birds or eagles, including whether "incidental take" permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity. 20. Historic Properties. (a) In cases where the district engineer determines that the activity may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. (b) Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act. If pre -construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106. (c) Non-federal permittees must submit a pre -construction notification to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre -construction notification must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of, or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre -construction notifications, district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted in the PCN and these identification efforts, the district engineer shall determine whether the proposed NWP activity has the potential to cause effects on the historic properties. Section 106 consultation is not required when the district engineer determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a)). Section 106 consultation is required when the district engineer determines that the activity has the potential to cause effects on historic properties. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect. Where the non -Federal applicant has identified historic properties on which the activity might have the potential to cause effects and so notified the Corps, the non -Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that NHPA section 106 consultation has been completed. IN (d) For non-federal permittees, the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre -construction notification whether NHPA section 106 consultation is required. If NHPA section 106 consultation is required, the district engineer will notify the non -Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non -Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps. (e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C. 306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties. 21. Discovery of Previously Unknown Remains and Artifacts. If you discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this permit, you must immediately notify the district engineer of what you have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 22. Designated Critical Resource Waters. Critical resource waters include, NOAA- managed marine sanctuaries and marine monuments, and National Estuarine Research Reserves. The district engineer may designate, after notice and opportunity for public comment, additional waters officially designated by a state as having particular environmental or ecological significance, such as outstanding national resource waters or state natural heritage sites. The district engineer may also designate additional critical resource waters after notice and opportunity for public comment. (a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, and 54, notification is required in accordance with general condition 32, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal. 7 23. Mitigation. The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal: (a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal. (c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed 1/10 -acre and require pre -construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity -specific waiver of this requirement. For wetland losses of 1/10 -acre or less that require pre -construction notification, the district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in only minimal adverse environmental effects. (d) For losses of streams or other open waters that require pre -construction notification, the district engineer may require compensatory mitigation to ensure that the activity results in no more than minimal adverse environmental effects. Compensatory mitigation for losses of streams should be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult -to -replace resources (see 33 CFR 332.3(e)(3)). (e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, the restoration or maintenance/protection of riparian areas may be the only compensatory mitigation required. Restored riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it is not possible to restore or maintain/protect a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or maintaining/protecting a riparian area along a single bank or shoreline may be sufficient. Where both wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of minimization or compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses. (f) Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332. (1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in no more than minimal adverse environmental effects. For the NWPs, the preferred mechanism for providing compensatory mitigation is mitigation bank credits or in - N. lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and type of mitigation bank or in -lieu credits are not available at the time the PCN is submitted to the district engineer, the district engineer may approve the use of permittee -responsible mitigation. (2) The amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR 332.3(f)). (3) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, aquatic resource restoration should be the first compensatory mitigation option considered for permittee -responsible mitigation. (4) If permittee -responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWT verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) through (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)). (5) If mitigation bank or in -lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided. (6) Compensatory mitigation requirements (e.g., resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan (see 33 CFR 332.4(c)(1)(ii)). (g) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2 -acre, it cannot be used to authorize any NWP activity resulting in the loss of greater than 1/2 -acre of waters of the United States, even if compensatory mitigation is provided that replaces or restores some of the lost waters. However, compensatory mitigation can and should be used, as necessary, to ensure that an NWP activity already meeting the established acreage limits also satisfies the no more than minimal impact requirement for the NWPs. (h) Permittees may propose the use of mitigation banks, in -lieu fee programs, or permittee -responsible mitigation. When developing a compensatory mitigation proposal, the permittee must consider appropriate and practicable options consistent with the framework at 33 CFR 332.3(b). For activities resulting in the loss of marine or estuarine resources, permittee -responsible mitigation may be environmentally preferable if there are no mitigation banks or in -lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the permittee. For permittee -responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management. (i) Where certain functions and services of waters of the United States are permanently adversely affected by a regulated activity, such as discharges of dredged or fill 9 material into waters of the United States that will convert a forested or scrub -shrub wetland to a herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse environmental effects of the activity to the no more than minimal level. 24. Safety of IMpoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non -Federal applicants to demonstrate that the structures comply with established state dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety. 25. Water Quality. Where States and authorized Tribes, or EPA where applicable, have not previously certified compliance of an NWP with CWA section 401, individual 401 Water Quality Certification must be obtained or waived (see 33 CFR 330.4(c)). The district engineer or State or Tribe may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal degradation of water quality. 26. Coastal Zone Mana eg ment. In coastal states where an NWP has not previously received a state coastal zone management consistency concurrence, an individual state coastal zone management consistency concurrence must be obtained, or a presumption of concurrence must occur (see 33 CFR 330.4(d)). The district engineer or a State may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements. 27. Regional and Case -By -Case Conditions. The activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in its section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act consistency determination. 28. Use of Multiple Nationwide Permits. The use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit. For example, if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the United States for the total project cannot exceed 1/3 -acre. 29. Transfer of Nationwide Permit Verifications. If the permittee sells the property associated with a nationwide permit verification, the permittee may transfer the nationwide permit verification to the new owner by submitting a letter to the appropriate Corps district office to validate the transfer. A copy of the nationwide permit verification must be attached to the letter, and the letter must contain the following statement and signature: "When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terms and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To 10 validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below." (Transferee) (Date) 30. Compliance Certification. Each permittee who receives an NWP verification letter from the Corps must provide a signed certification documenting completion of the authorized activity and implementation of any required compensatory mitigation. The success of any required permittee -responsible mitigation, including the achievement of ecological performance standards, will be addressed separately by the district engineer. The Corps will provide the permittee the certification document with the NWP verification letter. The certification document will include: (a) A statement that the authorized activity was done in accordance with the NWP authorization, including any general, regional, or activity -specific conditions; (b) A statement that the implementation of any required compensatory mitigation was completed in accordance with the permit conditions. If credits from a mitigation bank or in -lieu fee program are used to satisfy the compensatory mitigation requirements, the certification must include the documentation required by 33 CFR 332.3(1)(3) to confirm that the permittee secured the appropriate number and resource type of credits; and (c) The signature of the permittee certifying the completion of the activity and mitigation. The completed certification document must be submitted to the district engineer within 30 days of completion of the authorized activity or the implementation of any required compensatory mitigation, whichever occurs later. 31. Activities Affecting Structures or Works Built by the United States. If an NWP activity also requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers (USAGE) federally authorized Civil Works project (a "USACE project"), the prospective permittee must submit a pre -construction notification. See paragraph (b)(10) of general condition 32. An activity that requires section 408 permission is not authorized by NWP until the appropriate Corps office issues the section 408 permission to alter, occupy, or use the USACE project, and the district engineer issues a written NWP verification. 32. Pre -Construction Notification. (a) Timing. Where required by the terms of the NWP, the prospective permittee must notify the district engineer by submitting a pre - construction notification (PCN) as early as possible. The district engineer must determine if the PCN is complete within 30 calendar days of the date of receipt and, if the PCN is determined to be incomplete, notify the prospective permittee within that 30 day period to request the additional information necessary to make the PCN complete. The request must specify the information needed to make the PCN complete. As a general rule, district engineers will request additional information necessary to make the PCN complete only once. However, if the 11 prospective permittee does not provide all of the requested information, then the district engineer will notify the prospective permittee that the PCN is still incomplete and the PCN review process will not commence until all of the requested information has been received by the district engineer. The prospective permittee shall not begin the activity until either: (1) He or she is notified in writing by the district engineer that the activity may proceed under the NWT with any special conditions imposed by the district or division engineer; or (2) 45 calendar days have passed from the district engineer's receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. However, if the permittee was required to notify the Corps pursuant to general condition 18 that listed species or critical habitat might be affected or are in the vicinity of the activity, or to notify the Corps pursuant to general condition 20 that the activity might have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification from the Corps that there is "no effect" on listed species or "no potential to cause effects" on historic properties, or that any consultation required under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or section 106 of the National Historic Preservation Act (see 33 CFR 330.4(8)) has been completed. Also, work cannot begin under NWPs 21, 49, or 50 until the permittee has received written approval from the Corps. If the proposed activity requires a written waiver to exceed specified limits of an NWT, the permittee may not begin the activity until the district engineer issues the waiver. If the district or division engineer notifies the permittee in writing that an individual permit is required within 45 calendar days of receipt of a complete PCN, the permittee cannot begin the activity until an individual permit has been obtained. Subsequently, the permittee's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2). (b) Contents of Pre-Construction Notification: The PCN must be in writing and include the following information: (1) Name, address and telephone numbers of the prospective permittee; (2) Location of the proposed activity; (3) Identify the specific NWP or NWP(s) the prospective permittee wants to use to authorize the proposed activity; (4) A description of the proposed activity; the activity's purpose; direct and indirect adverse environmental effects the activity would cause, including the anticipated amount of loss of wetlands, other special aquatic sites, and other waters expected to result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; a description of any proposed mitigation measures intended to reduce the adverse environmental effects caused by the proposed activity; and any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings for linear projects that require Department of the Army authorization but do not require pre-construction notification. The description of the proposed activity and any proposed mitigation measures should be sufficiently detailed to allow the district engineer to determine that the adverse environmental effects of the activity will be no more than minimal and to determine the need for compensatory mitigation or other mitigation measures. For single and complete linear projects, the PCN must include the quantity of anticipated losses of wetlands, other special aquatic sites, and other waters for each single and complete crossing of those wetlands, other special aquatic sites, and other waters. 12 Sketches should be provided when necessary to show that the activity complies with the terms of the NWP. (Sketches usually clarify the activity and when provided results in a quicker decision. Sketches should contain sufficient detail to provide an illustrative description of the proposed activity (e.g., a conceptual plan), but do not need to be detailed engineering plans); (5) The PCN must include a delineation of wetlands, other special aquatic sites, and other waters, such as lakes and ponds, and perennial, intermittent, and ephemeral streams, on the project site. Wetland delineations must be prepared in accordance with the current method required by the Corps. The permittee may ask the Corps to delineate the special aquatic sites and other waters on the project site, but there may be a delay if the Corps does the delineation, especially if the project site is large or contains many wetlands, other special aquatic sites, and other waters. Furthermore, the 45 day period will not start until the delineation has been submitted to or completed by the Corps, as appropriate; (6) If the proposed activity will result in the loss of greater than 1/10 -acre of wetlands and a PCN is required, the prospective permittee must submit a statement describing how the mitigation requirement will be satisfied, or explaining why the adverse environmental effects are no more than minimal and why compensatory mitigation should not be required. As an alternative, the prospective permittee may submit a conceptual or detailed mitigation plan. (7) For non -Federal permittees, if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, the PCN must include the name(s) of those endangered or threatened species that might be affected by the proposed activity or utilize the designated critical habitat that might be affected by the proposed activity. For NWP activities that require pre -construction notification, Federal permittees must provide documentation demonstrating compliance with the Endangered Species Act; (8) For non -Federal permittees, if the NWP activity might have the potential to cause effects to a historic property listed on, determined to be eligible for listing on, or potentially eligible for listing on, the National Register of Historic Places, the PCN must state which historic property might have the potential to be affected by the proposed activity or include a vicinity map indicating the location of the historic property. For NWP activities that require pre -construction notification, Federal permittees must provide documentation demonstrating compliance with section 106 of the National Historic Preservation Act; (9) For an activity that will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a "study river" for possible inclusion in the system while the river is in an official study status, the PCN must identify the Wild and Scenic River or the "study river" (see general condition 16); and (10) For an activity that requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers federally authorized civil works project, the pre -construction notification must include a statement confirming that the project proponent has submitted a written request for section 408 permission from the Corps office having jurisdiction over that USACE project. (c) Form of Pre -Construction Notification: The standard individual permit application form (Form ENG 4345) may be used, but the completed application form must clearly indicate that it is an NWP PCN and must include all of the applicable information required in paragraphs (b)(1) through (10) of this general condition. A letter containing the required information may also be used. Applicants may provide electronic files of PCNs and 13 supporting materials if the district engineer has established tools and procedures for electronic submittals. (d) Agency Coordination: (1) The district engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the activity's adverse environmental effects so that they are no more than minimal. (2) Agency coordination is required for: (i) all NWP activities that require pre - construction notification and result in the loss of greater than 1/2 -acre of waters of the United States; (ii) NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre - construction notification and will result in the loss of greater than 300 linear feet of stream bed; (iii) NWP 13 activities in excess of 500 linear feet, fills greater than one cubic yard per running foot, or involve discharges of dredged or fill material into special aquatic sites; and (iv) NWP 54 activities in excess of 500 linear feet, or that extend into the waterbody more than 30 feet from the mean low water line in tidal waters or the ordinary high water mark in the Great Lakes. (3) When agency coordination is required, the district engineer will immediately provide (e.g., via e-mail, facsimile transmission, overnight mail, or other expeditious manner) a copy of the complete PCN to the appropriate Federal or state offices (FWS, state natural resource or water quality agency, EPA, and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will have 10 calendar days from the date the material is transmitted to notify the district engineer via telephone, facsimile transmission, or e-mail that they intend to provide substantive, site-specific comments. The comments must explain why the agency believes the adverse environmental effects will be more than minimal. If so contacted by an agency, the district engineer will wait an additional 15 calendar days before making a decision on the pre -construction notification. The district engineer will fully consider agency comments received within the specified time frame concerning the proposed activity's compliance with the terms and conditions of the NWPs, including the need for mitigation to ensure the net adverse environmental effects of the proposed activity are no more than minimal. The district engineer will provide no response to the resource agency, except as provided below. The district engineer will indicate in the administrative record associated with each pre -construction notification that the resource agencies' concerns were considered. For NWP 37, the emergency watershed protection and rehabilitation activity may proceed immediately in cases where there is an unacceptable hazard to life or a significant loss of property or economic hardship will occur. The district engineer will consider any comments received to decide whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5. (4) In cases of where the prospective permittee is not a Federal agency, the district engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by section 305(b)(4)(B) of the Magnuson -Stevens Fishery Conservation and Management Act. (5) Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre -construction notifications to expedite agency coordination. DISTRICT ENGINEER'S DECISION 1. In reviewing the PCN for the proposed activity, the district engineer will determine whether the activity authorized by the NWP will result in more than minimal 14 individual or cumulative adverse environmental effects or may be contrary to the public interest. If a project proponent requests authorization by a specific NWP, the district engineer should issue the NWP verification for that activity if it meets the terms and conditions of that NWP, unless he or she determines, after considering mitigation, that the proposed activity will result in more than minimal individual and cumulative adverse effects on the aquatic environment and other aspects of the public interest and exercises discretionary authority to require an individual permit for the proposed activity. For a linear project, this determination will include an evaluation of the individual crossings of waters of the United States to determine whether they individually satisfy the terms and conditions of the NWP(s), as well as the cumulative effects caused by all of the crossings authorized by NWP. If an applicant requests a waiver of the 300 linear foot limit on impacts to streams or of an otherwise applicable limit, as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51, 52, or 54, the district engineer will only grant the waiver upon a written determination that the NWP activity will result in only minimal individual and cumulative adverse environmental effects. For those NWPs that have a waivable 300 linear foot limit for losses of intermittent and ephemeral stream bed and a 1/2 -acre limit (i.e., NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52), the loss of intermittent and ephemeral stream bed, plus any other losses of jurisdictional waters and wetlands, cannot exceed 1/2 -acre. 2. When making minimal adverse environmental effects determinations the district engineer will consider the direct and indirect effects caused by the NWP activity. He or she will also consider the cumulative adverse environmental effects caused by activities authorized by NWP and whether those cumulative adverse environmental effects are no more than minimal. The district engineer will also consider site specific factors, such as the environmental setting in the vicinity of the NWP activity, the type of resource that will be affected by the NWP activity, the functions provided by the aquatic resources that will be affected by the NWP activity, the degree or magnitude to which the aquatic resources perform those functions, the extent that aquatic resource functions will be lost as a result of the NWP activity (e.g., partial or complete loss), the duration of the adverse effects (temporary or permanent), the importance of the aquatic resource functions to the region (e.g., watershed or ecoregion), and mitigation required by the district engineer. If an appropriate functional or condition assessment method is available and practicable to use, that assessment method may be used by the district engineer to assist in the minimal adverse environmental effects determination. The district engineer may add case -specific special conditions to the NWP authorization to address site- specific environmental concerns. 3. If the proposed activity requires a PCN and will result in a loss of greater than 1/10 -acre of wetlands, the prospective permittee should submit a mitigation proposal with the PCN. Applicants may also propose compensatory mitigation for NWP activities with smaller impacts, or for impacts to other types of waters (e.g., streams). The district engineer will consider any proposed compensatory mitigation or other mitigation measures the applicant has included in the proposal in determining whether the net adverse environmental effects of the proposed activity are no more than minimal. The compensatory mitigation proposal may be either conceptual or detailed. If the district engineer determines that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are no more than minimal, after considering mitigation, the district engineer will notify the permittee and 15 include any activity -specific conditions in the NWP verification the district engineer deems necessary. Conditions for compensatory mitigation requirements must comply with the appropriate provisions at 33 CFR 332.3(k). The district engineer must approve the final mitigation plan before the permittee commences work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation. If the prospective permittee elects to submit a compensatory mitigation plan with the PCN, the district engineer will expeditiously review the proposed compensatory mitigation plan. The district engineer must review the proposed compensatory mitigation plan within 45 calendar days of receiving a complete PCN and determine whether the proposed mitigation would ensure the NWP activity results in no more than minimal adverse environmental effects. If the net adverse environmental effects of the NWP activity (after consideration of the mitigation proposal) are determined by the district engineer to be no more than minimal, the district engineer will provide a timely written response to the applicant. The response will state that the NWP activity can proceed under the terms and conditions of the NWP, including any activity -specific conditions added to the NWP authorization by the district engineer. 4. If the district engineer determines that the adverse environmental effects of the proposed activity are more than minimal, then the district engineer will notify the applicant either: (a) that the activity does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (b) that the activity is authorized under the NWP subject to the applicant's submission of a mitigation plan that would reduce the adverse environmental effects so that they are no more than minimal; or (c) that the activity is authorized under the NWP with specific modifications or conditions. Where the district engineer determines that mitigation is required to ensure no more than minimal adverse environmental effects, the activity will be authorized within the 45 -day PCN period (unless additional time is required to comply with general conditions 18, 20, and/or 31, or to evaluate PCNs for activities authorized by NWPs 21, 49, and 50), with activity -specific conditions that state the mitigation requirements. The authorization will include the necessary conceptual or detailed mitigation plan or a requirement that the applicant submit a mitigation plan that would reduce the adverse environmental effects so that they are no more than minimal. When compensatory mitigation is required, no work in waters of the United States may occur until the district engineer has approved a specific mitigation plan or has determined that prior approval of a final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation. FURTHER INFORMATION 1. District Engineers have authority to determine if an activity complies with the terms and conditions of an NWP. 2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law. 3. NWPs do not grant any property rights or exclusive privileges. 4. NWPs do not authorize any injury to the property or rights of others. 5. NWPs do not authorize interference with any existing or proposed Federal project (see general condition 31). 16 DEFINITIONS Best management practices (BMPs): Policies, practices, procedures, or structures implemented to mitigate the adverse environmental effects on surface water quality resulting from development. BMPs are categorized as structural or non-structural. Compensatory mitigation: _ The restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved. Currently serviceable: Useable as is or with some maintenance, but not so degraded as to essentially require reconstruction. Direct effects: Effects that are caused by the activity and occur at the same time and place. Discharge: The term "discharge" means any discharge of dredged or fill material into waters of the United States. Ecological reference: A model used to plan and design an aquatic habitat and riparian area restoration, enhancement, or establishment activity under NWP 27. An ecological reference may be based on the structure, functions, and dynamics of an aquatic habitat type or a riparian area type that currently exists in the region where the proposed NWP 27 activity is located. Alternatively, an ecological reference may be based on a conceptual model for the aquatic habitat type or riparian area type to be restored, enhanced, or established as a result of the proposed NWP 27 activity. An ecological reference takes into account the range of variation of the aquatic habitat type or riparian area type in the region. Enhancement: The manipulation of the physical, chemical, or biological characteristics of an aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s). Enhancement results in the gain of selected aquatic resource function(s), but may also lead to a decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic resource area. Ephemeral stream: An ephemeral stream has flowing water only during, and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow. Establishment (creation): The manipulation of the physical, chemical, or biological characteristics present to develop an aquatic resource that did not previously exist at an upland site. Establishment results in a gain in aquatic resource area. High Tide Line: The line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm. Historic Property: Any prehistoric or historic district, site (including archaeological site), building, structure, or other object included in, or eligible for inclusion in, the National 17 Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria (36 CFR part 60). Independent utility: A test to determine what constitutes a single and complete non- linear project in the Corps Regulatory Program. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a multi -phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility. Indirect effects: Effects that are caused by the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Intermittent stream: An intermittent stream has flowing water during certain times of the year, when groundwater provides water for stream flow. During dry periods, intermittent streams may not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow. Loss of waters of the United States: Waters of the United States that are permanently adversely affected by filling, flooding, excavation, or drainage because of the regulated activity. Permanent adverse effects include permanent discharges of dredged or fill material that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a waterbody. The acreage of loss of waters of the United States is a threshold measurement of the impact to jurisdictional waters for determining whether a project may qualify for an NWP; it is not a net threshold that is calculated after considering compensatory mitigation that may be used to offset losses of aquatic functions and services. The loss of stream bed includes the acres or linear feet of stream bed that are filled or excavated as a result of the regulated activity. Waters of the United States temporarily filled, flooded, excavated, or drained, but restored to pre - construction contours and elevations after construction, are not included in the measurement of loss of waters of the United States. Impacts resulting from activities that do not require Department of the Army authorization, such as activities eligible for exemptions under section 404(f) of the Clean Water Act, are not considered when calculating the loss of waters of the United States. Navigable waters: Waters subject to section 10 of the Rivers and Harbors Act of 1899. These waters are defined at 33 CFR part 329. Non -tidal wetland: A non -tidal wetland is a wetland that is not subject to the ebb and flow of tidal waters. Non -tidal wetlands contiguous to tidal waters are located landward of the high tide line (i.e., spring high tide line). Open water: For purposes of the NWPs, an open water is any area that in a year with normal patterns of precipitation has water flowing or standing above ground to the extent that an ordinary high water mark can be determined. Aquatic vegetation within the area of flowing or standing water is either non -emergent, sparse, or absent. Vegetated shallows are considered to be open waters. Examples of "open waters" include rivers, streams, lakes, and ponds. Ordinary High Water Mark: An ordinary high water mark is a line on the shore established by the fluctuations of water and indicated by physical characteristics, or by other appropriate means that consider the characteristics of the surrounding areas. Perennial stream: A perennial stream has flowing water year-round during a typical year. The water table is located above the stream bed for most of the year. Groundwater is the In primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow. Practicable: Available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. Pre -construction notification: A request submitted by the project proponent to the Corps for confirmation that a particular activity is authorized by nationwide permit. The request may be a permit application, letter, or similar document that includes information about the proposed work and its anticipated environmental effects. Pre -construction notification may be required by the terms and conditions of a nationwide permit, or by regional conditions. A pre - construction notification may be voluntarily submitted in cases where pre -construction notification is not required and the project proponent wants confirmation that the activity is authorized by nationwide permit. Preservation: The removal of a threat to, or preventing the decline of, aquatic resources by an action in or near those aquatic resources. This term includes activities commonly associated with the protection and maintenance of aquatic resources through the implementation of appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic resource area or functions. Protected tribal resources: Those natural resources and properties of traditional or customary religious or cultural importance, either on or off Indian lands, retained by, or reserved by or for, Indian tribes through treaties, statutes, judicial decisions, or executive orders, including tribal trust resources. Re-establishment: The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former aquatic resource. Re-establishment results in rebuilding a former aquatic resource and results in a gain in aquatic resource area and functions. Rehabilitation: The manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural/historic functions to a degraded aquatic resource. Rehabilitation results in a gain in aquatic resource function, but does not result in a gain in aquatic resource area. Restoration: The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former or degraded aquatic resource. For the purpose of tracking net gains in aquatic resource area, restoration is divided into two categories: re-establishment and rehabilitation. Riffle and pool complex: Riffle and pool complexes are special aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a course substrate in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize pools. Riparian areas: Riparian areas are lands next to streams, lakes, and estuarine- marine shorelines. Riparian areas are transitional between terrestrial and aquatic ecosystems, through which surface and subsurface hydrology connects riverine, lacustrine, estuarine, and marine waters with their adjacent wetlands, non -wetland waters, or uplands. Riparian areas provide a variety of ecological functions and services and help improve or maintain local water quality. (See general condition 23.) 19 Shellfish seeding: The placement of shellfish seed and/or suitable substrate to increase shellfish production. Shellfish seed consists of immature individual shellfish or individual shellfish attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may consist of shellfish shells, shell fragments, or other appropriate materials placed into waters for shellfish habitat. Single and complete linear project: A linear project is a project constructed for the purpose of getting people, goods, or services from a point of origin to a terminal point, which often involves multiple crossings of one or more waterbodies at separate and distant locations. The term "single and complete project" is defined as that portion of the total linear project proposed or accomplished by one owner/developer or partnership or other association of owners/developers that includes all crossings of a single water of the United States (i.e., a single waterbody) at a specific location. For linear projects crossing a single or multiple waterbodies several times at separate and distant locations, each crossing is considered a single and complete project for purposes of NWT authorization. However, individual channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies, and crossings of such features cannot be considered separately. Single and complete non-linear project: For non-linear projects, the term "single and complete project" is defined at 33 CFR 330.2(i) as the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers. A single and complete non-linear project must have independent utility (see definition of "independent utility"). Single and complete non-linear projects may not be "piecemealed" to avoid the limits in an NWT authorization. Stormwater management: Stormwater management is the mechanism for controlling stormwater runoff for the purposes of reducing downstream erosion, water quality degradation, and flooding and mitigating the adverse effects of changes in land use on the aquatic environment. Stormwater management facilities: Stormwater management facilities are those facilities, including but not limited to, stormwater retention and detention ponds and best management practices, which retain water for a period of time to control runoff and/or improve the quality (i.e., by reducing the concentration of nutrients, sediments, hazardous substances and other pollutants) of stormwater runoff. Stream bed: The substrate of the stream channel between the ordinary high water marks. The substrate may be bedrock or inorganic particles that range in size from clay to boulders. Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not considered part of the stream bed. Stream channelization: The manipulation of a stream's course, condition, capacity, or location that causes more than minimal interruption of normal stream processes. A channelized stream remains a water of the United States. Structure: An object that is arranged in a definite pattern of organization. Examples of structures include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent mooring structure, power transmission line, permanently moored floating vessel, piling, aid to navigation, or any other manmade obstacle or obstruction. Tidal wetland: A tidal wetland is a jurisdictional wetland that is inundated by tidal waters. Tidal waters rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water 20 surface can no longer be practically measured in a predictable rhythm due to masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the high tide line. Tribal lands: Any lands title to which is either: 1) held in trust by the United States for the benefit of any Indian tribe or individual; or 2) held by any Indian tribe or individual subject to restrictions by the United States against alienation. Tribal rights: Those rights legally accruing to a tribe or tribes by virtue of inherent sovereign authority, unextinguished aboriginal title, treaty, statute, judicial decisions, executive order or agreement, and that give rise to legally enforceable remedies. Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1) Guidelines. They are areas that are permanently inundated and under normal circumstances have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a variety of vascular rooted plants in freshwater systems. Waterbody: For purposes of the NWPs, a waterbody is a jurisdictional water of the United States. If a wetland is adjacent to a waterbody determined to be a water of the United States, that waterbody and any adjacent wetlands are considered together as a single aquatic unit (see 33 CFR 328.4(c)(2)). Examples of "waterbodies" include streams, rivers, lakes, ponds, and wetlands. 21 FINAL 2017 REGIONAL CONDITIONS NOTICE ABOUT WEB LINKS IN THIS DOCUMENT - The web links (both internal to our Wilmington District and any external links to collaborating agencies) in this document are valid at the time of publication. However, the Wilmington District Regulatory Program web page addresses, as with other agency web sites, may change over the timeframe of the five year Nationwide Permit renewal cycle, in response to policy mandates or technology advances. While we will make every effort to check on the integrity of our web links and provide re -direct pages whenever possible, we ask that you report any broken links to us so we can keep the page information current and usable. We apologize in advanced for any broken links that you may encounter, and we ask that you navigate from the Regulatory home page (Regulatory Permit Program Wetlands and Streams) of the Wilmington District Corps of Engineers, to the "Permits " section of our web site to find links for pages that cannot be found by clicking directly on the listed web link in this document. Final 2017 Regional Conditions for Nationwide Permits (NWP) in the Wilmington District 1.0 Excluded Waters The Corps has identified waters that will be excluded from the use of all NWP's during certain timeframes. These waters are: 1.1 Anadromous Fish Spawning Areas Waters of the United States identified by either the North Carolina Division of Marine Fisheries (NCDMF) or the North Carolina Wildlife Resources Commission (NCWRC) as anadromous fish spawning areas are excluded during the period between February 15 and June 30, without prior written approval from the Corps and either NCDMF or NCWRC. 1.2 Trout Waters Moratorium Waters of the United States in the designated trout watersheds of North Carolina are excluded during the period between October 15 and April 15 without prior written approval from the NCWRC, or from the Eastern Band of Cherokee Indians (EBCI) Fisheries and Wildlife Management (FWM) office if the project is located on EBCI trust land. (See Section 2.7 for information on the designated trout watersheds). 1.3 Sturgeon Spawning Areas as Designated by the National Marine Fisheries Service (NMFS) Waters of the United States designated as sturgeon spawning areas are excluded during the period between February 1 and June 30, without prior written approval from the NMFS. 22 2.0 Waters Requiring Additional Notification The Corps has identified waters that will be subject to additional notification requirements for activities authorized by all NWPs. These waters are: 2.1 Western NC Counties that Drain to Designated Critical Habitat For proposed activities within waters of the United States that require a Pre -Construction Notification (PCN) and are located in the sixteen counties listed below, permittees must provide a copy of the PCN to the U.S. Fish and Wildlife Service (USFWS), 160 Zillicoa Street, Asheville, North Carolina 28801. This PCN must be sent concurrently to the U.S. Fish and Wildlife Service and the Corps Asheville Regulatory Field Office. Please see General Condition 18 for specific notification requirements related to the Endangered Species Act and the below website for information on the location of designated critical habitat. Counties with tributaries that drain to designated critical habitat that require notification to the Asheville U.S. Fish and Wildlife Service: Avery, Cherokee, Forsyth, Graham, Haywood, Henderson, Jackson, Macon, Mecklenburg, Mitchell, Stokes, Surry, Swain, Transylvania, Union and Yancey. Website and office addresses for Endangered Species Act Information: The Wilmington District has developed the following website for permittees which provides guidelines on how to review linked websites and maps in order to fulfill NWP General Condition 18 requirements: http://www.saw.usace.army.mil/Missions/Re_ug lator3PennitPro_ra�m/AgencyCoordination/ESA.a Permittees who do not have internet access may contact the appropriate U.S. Fish and Wildlife Service offices listed below or Corps at (910) 251-4633: Asheville U.S. Fish and Wildlife Service Office counties: All counties west of and including Anson, Stanly, Davidson, Forsythe and Stokes Counties. U.S. Fish and Wildlife Service Asheville Field Office 160 Zillicoa Street Asheville, NC 28801 Telephone: (828) 258-3939 Raleigh U.S. Fish and Wildlife Service Office counties: all counties east of and including Richmond, Montgomery, Randolph, Guilford, and Rockingham Counties. U.S. Fish and Wildlife Service Raleigh Field Office Post Office Box 33726 23 Raleigh, NC 27636-3726 Telephone: (919) 856-4520 2.2 Special Designation Waters Prior to the use of any NWP, except NWP 3, that involves a discharge of dredged or fill material in any of the following identified waters and/or adjacent wetlands in North Carolina, permittees shall submit a PCN to the District Engineer prior to commencing the activity (see General Condition 32). The North Carolina waters and wetlands that require additional notification requirements are: "Outstanding Resource Waters" (ORW) or "High Quality Waters" (HQW) as designated by the North Carolina Environmental Management Commission; "Primary Nursery Areas" (PNA), including inland PNA, as designated by the North Carolina Marine Fisheries Commission and the NCWRC; or wetlands adjacent to these waters. Definitions of ORW, HQW and PNA waters can be found in the North Carolina State Administrative Code, Title 15A, Subchapters 2B and IOC (15A NCAC 02B, 15A NCAC IOC) and at the following World Wide Web page: http://reports. oah. state.nc.us/ncac. asp?folderName=\Title%2015A%20- %20Environmental%20Quality&lookUpError=l5A%20NCAC%20000%20. Surface water classifications for waters in North Carolina can be viewed at the North Carolina Division of Water Resources website or at the following World Wide Web Page: https:Hdeq.nc. gov/about/divisions/water-resources/planning/classification- standards/classifications Permittees who do not have internet access may contact the Corps at (910) 251- 4633. 2.3 Coastal Area Management Act (CAMA) Areas of Environmental Concern Non-federal permittees for any NWP in a designated "Area of Environmental Concern" (AEC) in the twenty (20) counties of Eastern North Carolina covered by the North Carolina Coastal Area Management Act (CAMA) must also obtain the required CAMA permit. Development activities for non-federal projects may not commence until a copy of the approved CAMA permit is furnished to the appropriate Wilmington District Regulatory Field Office (Wilmington Field Office — 69 Darlington Avenue, Wilmington, NC 28403, (910) 251-4802 or Washington Field Office — 2407 West 5th Street, Washington, NC 27889, (910) 251-4610). 2.4 Barrier Islands Prior to the use of any NWP on a barrier island of North Carolina, permittees must submit a PCN to the District Engineer prior to commencing the activity (see General Condition 32). 2.5 Mountain or Piedmont Bogs Prior to the use of any NWP in a Bog, as classified by the North Carolina Wetland Assessment Methodology (NCWAM), permittees shall submit a PCN to the District Engineer prior to commencing the activity (see General Condition 32). The latest version of NCWAM can be 24 viewed on the Corps RIBITS (Regulatory In -lieu Fee and Bank Information Tracking System) website or at the following World Wide Web Page: hqps://ribits.usace.anny.mil/ribits gpex/Vp=l07:27:0::NO::: 2.6 Animal Waste Facilities Prior to use of any NWP for construction of animal waste facilities in waters of the United States, including wetlands, permittees shall submit a PCN to the District Engineer prior to commencing the activity (see General Condition 32). 2.7 Trout Waters Prior to any discharge of dredge or fill material into streams, waterbodies or wetlands within the 294 designated trout watersheds of North Carolina, the permittee shall submit a PCN (see General Condition 32) to the District Engineer prior to commencing the activity, unless other thresholds are established in the Regional Conditions in Section 4 (Additional Regional Conditions for Specific Nationwide Permits). The permittee shall also provide a copy of the notification to the appropriate NCWRC office, or to the EBCI FWM Office (if the project is located on EBCI trust land), to facilitate the determination of any potential impacts to designated Trout Waters. Notification to the Corps will include a statement with the name of the NCWRC or EBCI FWM biologist contacted, the date of the notification, the location of work, a delineation of wetlands and waters, a discussion of alternatives to working in the mountain trout waters, why alternatives were not selected, and, if applicable, a plan to provide compensatory mitigation for all unavoidable adverse impacts to mountain trout waters. NCWRC and NC Trout Watersheds: NCWRC Contact** Counties that are entirely within Trout Watersheds* Counties that are partially within Trout Watersheds* Mountain Coordinator Alleghany Jackson Burke McDowell Balsam Depot Ashe Macon Buncombe Mitchell 20830 Great Smoky Avery Swain Caldwell Polk Mountain Expressway Graham Transylvania Cherokee Rutherford Waynesville, NC 28786 Haywood Watauga Clay Surry Telephone: (828) 558-6011 Henderson Wilkes Madison Yancey For NCDOT Projects: NCDOT Coordinator 206 Charter. Street Albemarle, NC 28001 Telephone: (704) 982-9181 25 *NOTE: To determine notification requirements, contact the Corps Asheville Regulatory Field Office at (828) 271-7980 or view maps for each County at the following World Wide Web page: hqp://www.saw.usace.army.mil/Missions/Re ulatory-Permit-Pro rg am/Agency- Coordination/Trout/. **If a project is located on EBCI trust land, submit the PCN in accordance with Section 3.14. Contact the Corps Asheville Regulatory Field Office at (828) 271-7980 with questions. 2.8 Western NC Waters and Corridors The permittee shall submit a PCN (see General Condition 32) to the District Engineer prior to commencing the activity in waters of the United States if the activity will occur within any of the following identified waters in western North Carolina, within 0.5 mile on either side of these waters, or within 0.75 mile of the Little Tennessee River, as measured from the top of the bank of the respective water (i.e., river, stream, or creek): Brasstown Creek Burningtown Creek Cane River Caney Fork Cartoogechaye Creek Chattooga River Cheoah River Cowee Creek Cullasaja River Deep Creek Ellijay Creek French Broad River Garden Creek Hiwassee River Hominy Creek Iotla Creek Little Tennessee River (within the river or within 0.75 mile on either side of this river) Nantahala River Nolichucky River North Fork French Broad River North Toe River Nottley River Oconaluftee River (portion not located on trust/EBCI land) Peachtree Creek Shooting Creek Snowbird Creek South Toe River Stecoah Creek Swannanoa River Sweetwater Creek all Tuckasegee River (also spelled Tuckaseegee or Tuckaseigee) Valley River Watauga Creek Watauga River Wayah Creek West Fork French Broad River To determine notification requirements, contact the Corps Asheville Regulatory Field Office at (828) 271-7980 or view maps for all corridors at the following World Wide Web page: http://www.saw.usace.army.mil/Missions/Re_u�ry-Permit-Pro_rg am/Agency- Coordination/Desi nag ted-Special-Waters.aspx 3.0 List of Corps Regional Conditions for All Nationwide Permits The following conditions apply to all Nationwide Permits in the Wilmington District: 3.1 Limitation of Loss of Stream Bed NWPs may not be used for activities that may result in the loss or degradation of more than 300 total linear feet of stream bed, unless the District Engineer has waived the 300 linear foot limit for ephemeral and intermittent streams on a case-by-case basis and has determined that the proposed activity will result in minimal individual and cumulative adverse impacts to the aquatic environment. Waivers for the loss of ephemeral and intermittent streams must be in writing and documented by appropriate/accepted stream quality assessments*. This waiver only applies to the 300 linear feet threshold for NWPs. This Regional Condition does not apply to NWP 23 (Approved Categorical Exclusions). *NOTE: Permittees should utilize the most current methodology prescribed by Wilmington District to assess stream function and quality. Information can be found at: hqps://ribits.usace.army.mil/ribits gpex/Vp=l07:27:0::NO::: 3.2 Mitigation for Loss of Stream Bed For any NWP that results in a loss of more than 150 linear feet of stream, the permittee shall provide a mitigation proposal to compensate for more than minimal individual and cumulative adverse impacts to the aquatic environment. For stream losses of 150 linear feet or less that require a PCN, the District Engineer may determine, on a case-by-case basis, that compensatory mitigation is required to ensure that the activity results in minimal adverse effect on the aquatic environment. 3.3 Pre -construction Notification for Loss of Streambed Exceeding 150 Feet Prior to use of any NWP for any activity which impacts more than 150 total linear feet of perennial stream, intermittent or ephemeral stream, the permittee shall submit a PCN to the District Engineer prior to commencing the activity (see General Condition 32). This applies to 27 NWPs that do not have specific notification requirements. If a NWP has specific notification requirements, the requirements of the NWP should be followed. 3.4 Restriction on Use of Live Concrete For all NWPs which allow the use of concrete as a building material, live or fresh concrete, including bags of uncured concrete, may not come into contact with the water in or entering into waters of the United States. Water inside coffer dams or casings that has been in contact with wet concrete shall only be returned to waters of the United States after the concrete is set and cured and when it no longer poses a threat to aquatic organisms. 3.5 Requirements for Using Riprap for Bank Stabilization For all NWPs that allow for the use of riprap material for bank stabilization, the following measures shall be applied: 3.5.1. Where bank stabilization is conducted as part of an activity, natural design, bioengineering and/or geoengineering methods that incorporate natural durable materials, native seed mixes, and native plants and shrubs are to be utilized to the maximum extent practicable. 3.5.2. Filter cloth must be placed underneath the riprap as an additional requirement of its use in North Carolina waters. The placement of filter fabric is not required if the riprap will be pushed or "keyed" into the bank of the waterbody. A waiver from the specifications in this Regional Condition may be requested in writing. The waiver will only be issued if it can be demonstrated that the impacts of complying with this Regional Condition would result in greater adverse impacts to the aquatic environment. 3.5.3. The placement of riprap shall be limited to the areas depicted on submitted work plan drawings. 3.5.4. The riprap material shall be clean and free from loose dirt or any pollutant except in trace quantities that would not have an adverse environmental effect. 3.5.5. It shall be of a size sufficient to prevent its movement from the authorized alignment by natural forces under normal conditions. 3.5.6. The riprap material shall consist of clean rock or masonry material such as, but not limited to, granite, marl, or broken concrete. 3.6 Requirements for Culvert Placement 3.6.1 For all NWPs that involve the construction/installation of culverts, measures will be included in the construction/installation that will promote the safe passage of fish and other aquatic organisms. The dimension, pattern, and profile of the stream above and below a pipe or culvert should not be modified by altering the width or depth of the stream profile in connection with the construction activity. The width, height, and gradient of a proposed culvert should be sufficient to pass the average historical low flow and spring flow without adversely altering flow velocity. Spring flow is the seasonal sustained high flow that typically occurs in the spring. Spring flows should be determined from gage data, if available. In the absence of such data, bank -full flow can be used as a comparable indicator. In Public Trust Areas of Environmental Concern (AEC) and/or the Estuarine Waters AEC as designated by the Coastal Area Management Act (CAMA): All pipes/culverts must be sufficiently sized to allow for the burial of the bottom of the culvert at least one foot below normal bed elevation. Circular Culvert 12 Inches T Invert Rias (Dlamr) In all other areas: Culverts greater than 48 inches in diameter will be buried at least one foot below the bed of the stream. Culverts 48 inches in diameter or less shall be buried to maintain aquatic passage and to maintain passage during drought or low flow conditions, and every effort shall be made to maintain the existing channel slope. Culverts must be designed and constructed in a manner that minimizes destabilization and head cutting. Destabilizing the channel and head cutting upstream should be considered and appropriate actions incorporated in the design and placement of the culvert. A waiver from the depth specifications in this condition may be requested, in writing, by the permittee and issued by the Corp; this request must be specific as to the reasons(s) for the request. The waiver will be issued if it can be demonstrated that the proposed design would result in less impacts to the aquatic environment. All counties: Culverts placed within riparian and/or riverine wetlands must be installed in a manner that does not restrict the flow and circulation patterns of waters of the United States. 29 Culverts placed across wetland fills purely for the purposes of equalizing surface water do not have to be buried, but the culverts must be of adequate size and/or number to ensure unrestricted transmission of water. 3.6.2 Bank -full flows (or less) shall be accommodated through maintenance of the existing bank - full channel cross sectional area. Additional culverts or culvert barrels at such crossings shall be allowed only to receive bank -full flows. Approach Fill Roadway Culvert buried BankfuE belowstreambed - - - - - to appropriate depth (if required). Bafflef Strum Blockage Bottom 3.6.3 Where adjacent floodplain is available, flows exceeding bank -full should be accommodated by installing culverts at the floodplain elevation. Additional culverts or culvert barrels at such crossings should not be buried, or if buried, must have sills at the inlets to ensure that they only receive flows exceeding bank -full. 3.6.4 Excavation of existing stream channels shall be limited to the minimum necessary to construct or install the proposed culvert. The final width of the impacted stream at the culvert inlet and outlet should be no greater than the original stream width. A waiver from this condition may be requested in writing; this request must be specific as to the reason(s) for the request. The waiver will be issued if the proposed design would result in less impacts to the aquatic environment and/or if it can be demonstrated that it is not practicable to restore the final width of the impacted stream at the culvert inlet and outlet to the width of the original stream channel. 3.6.5 The width of the culvert shall be comparable to the width of the stream channel. If the width of the culvert is wider than the stream channel, the culvert shall include baffles, benches and/or sills to maintain the width of the stream channel. A waiver from this condition may be requested in writing; this request must be specific as to the reason(s) for the request. The waiver will be issued if it can be demonstrated that it is not practicable or necessary to include baffles, benches or sills and the design would result in less impacts to the aquatic environment. 3.7 Notification to NCDEQ Shellfish Sanitation Section Permittees shall notify the NCDEQ Shellfish Sanitation Section prior to dredging in or removing sediment from an area closed to shell fishing where the effluent may be released to an area open for shell fishing or swimming in order to avoid contamination from the disposal area and cause a temporary shellfish closure to be made. Such notification shall also be provided to the appropriate Corps Regulatory Field Office. Any disposal of sand to the ocean beach should occur between November I and April 30 when recreational usage is low. Only clean sand 30 should be used and no dredged sand from closed shell fishing areas may be used. If beach disposal were to occur at times other than stated above or if sand from a closed shell fishing area is to be used, a swimming advisory shall be posted, and a press release shall be issued by the permittee. 3.8 Submerged Aquatic Vegetation Impacts to Submerged Aquatic Vegetation (SAV) are not authorized by any NWP, except NWP 48, unless EFH Consultation has been completed pursuant to the Magnuson -Stevens Fisheries Conservation and Management Act (Magnuson -Stevens Act). Permittees shall submit a PCN (See NWP General Condition 32) to the District Engineer prior to commencing the activity if the project would affect SAV. The permittee may not begin work until notified by the Corps that the requirements of the Magnuson -Stevens Act have been satisfied and that the activity is authorized. 3.9 Sedimentation and Erosion Control Structures and Measures All PCNs will identify and describe sedimentation and erosion control structures and measures proposed for placement in waters of the United States. The structures and measures should be depicted on maps, surveys or drawings showing location and impacts to jurisdictional wetlands and streams. 3.10 Restoration of Temporary Impacts to Stream Beds Upon completion of work that involves temporary stream impacts, streambeds are to be restored to pre -project elevations and widths using natural streambed material such that the impacted stream reach mimics the adjacent upstream and downstream reach. The impacted area shall be backfilled with natural streambed material to a depth of at least 12 inches or to the bottom depth of the impacted area if shallower than 12 inches. An engineered in -stream structure or material can be used to provide protection of a buried structure if it provides benefits to the aquatic environment and can be accomplished by a natural streambed design. A permittee may request a waiver of this condition if it is determined a buried structure needs significant physical protection beyond those provided in this condition. This condition does not apply to NWP 27 — Aquatic Habitat Restoration, Enhancement, and Establishment Activities. 3.11 Restoration of Temporary Impacts to Stream Banks Upon completion of work involving temporary stream bank impacts, stream banks are to be restored to pre -project grade and contours or beneficial grade and contours if the original bank slope is steep and unstable. Natural durable materials, native seed mixes, and native plants and shrubs are to be utilized in the restoration. Natural designs which use bioengineered and/or geo- engineered methods are to be applied. An engineered structure or material can be used to provide protection of a buried structure if it provides benefits to the stream bank environment, provided it is not in excess of the minimum amount needed for protection and does not exceed an average of one cubic yard per running foot placed along the bank below the plane of the ordinary high water mark. A permittee may request a waiver of this condition if it is determined a buried structure 31 needs significant physical protection beyond those provided in this condition. This condition does not apply to NWP 27 — Aquatic Habitat Restoration, Enhancement, and Establishment Activities. 3.12 Federal Navigation Channel Setbacks and Corps Easements 3.12.1 Authorized structures and fills located in or adjacent to Federally authorized waterways will be constructed in accordance with the latest setback criteria established by the Wilmington District Engineer. You may review the setback policy at hitp://www.saw.usace.army.mil/Missions/Navigation/Setbacks.aWx. This general permit does not authorize the construction of hardened or permanently fixed structures within the Federally Authorized Channel Setback, unless the activity is approved by the Corps. The permittee shall submit a PCN (see General Condition 32) to the District Engineer prior to the construction of any structures or fills within the Federally Authorized Channel Setback. 3.12.2 The permittee shall obtain a Consent to Cross Government Easement from the Wilmington District's Land Use Coordinator prior to any crossing of the Corps easement and/or prior to commencing construction of any structures, authorized dredging or other work within the right-of-way of, or in proximity to, a federally designated disposal area. The Land Use Coordinator may be contacted at: CESAW-OP-N, 69 Darlington Avenue, Wilmington, North Carolina 28403-1343, email: SAWWeb-NAV(d),usace.army.mil 3.13 Northern Long-eared Bat — Endangered Species Act Compliance The Wilmington District, U.S. Army Corps of Engineers has consulted with the United States Fish and Wildlife Service (USFWS) in regards to the threatened Northern long-eared bat (NLEB) (Myotis septentrionalis) and Standard Local Operating Procedures for Endangered Species (SLOPES) have been approved by the Corps and the USFWS. This condition concerns effects to the NLEB only and does not address effects to other federally listed species and/or federally designated critical habitat. A. Procedures when the Corps is the lead federal* agency for a project: The permittee must comply with (1) and (2) below when: • the project is located in the western 41 counties of North Carolina, to include non- federal aid North Carolina Department of Transportation (NCDOT) projects, OR; • the project is located in the 59 eastern counties of North Carolina, and is a non- NCDOT project. *Generally, if a project is located on private property or on non-federal land, and the project is not being funded by a federal entity, the Corps will be the lead federal agency due to the requirement to obtain Department of the Army authorization to impact waters of the United States. If the project is located on federal land, contact the Corps to determine the lead federal agency. 32 (1) A permittee using a NWP must check to see if their project is located in the range of the NLEB by using the following website: http://www.fws.gov/midwest/endangered/mammals/nleb/pdf/WNSZone.pdf. If the project is within the range of the NLEB, or if the project includes percussive activities (e.g., blasting, pile driving, etc.), the permittee is then required to check the appropriate website in the paragraph below to discover if their project: • is located in a 12 -digit Hydrologic Unit Code area ("red HUC" - shown as red areas on the map), AND/OR; • involves percussive activities within 0.25 mile of a red HUC. Red HUC maps - for the western 41 counties in NC (covered by the Asheville Ecological Services Field Office), check the project location against the electronic maps found at: http://www.fws.aov/asheville/htmis/project_review/NLEB_ in WNC.html. For the eastern 59 counties in NC (covered by the Raleigh Ecological Services Field Office), check the project location against the electronic maps found at: h!Ltps://www.fws.gov/raleigh/NLEB RFO.html. (2) A permittee must submit a PCN to the District Engineer, and receive written authorization from the District Engineer, prior to commencing the activity, if the activity will involve as of the following: • tree clearing/removal, construction/installation of wind turbines in a red HUC, AND/OR; • bridge removal or maintenance, unless the bridge has been inspected and there is no evidence of bat use, (applies anywhere in the range of the NLEB), AND/OR: . percussive activities in a red HUC, or within 0.25 mile of a red HUC. The permittee may proceed with the activity without submitting a PCN to either the Corps or the USFWS, provided the activity complies with all applicable NWP terms and general and regional conditions, if the permittee's review under A.(1) and A.(2) above shows that the project is: located outside of a red HUC (and there are no percussive activities), and the activity will NOT include bridge removal or maintenance, unless the bridge has been inspected and there is no evidence of bat use, OR; located outside of a red HUC and there are percussive activities, but the percussive activities will not occur within 0.25 -mile of a red HUC boundary, and the activity will NOT include bridge removal or maintenance, unless the bridge has been inspected and there is no evidence of bat use, OR; 33 located in a red HUC, but the activity will NOT include: tree clearing/removal; construction/installation of wind turbines; bridge removal or maintenance, unless the bridge has been inspected and there is no evidence of bat use, and/or; aM percussive activities. B. Procedures when the USACE is not the lead federal agency: For projects where another federal agency is the lead federal agency - if that other federal agency has completed project -specific ESA Section 7(a)(2) consultation for the NLEB, and has (1) determined that the project would not cause prohibited incidental take of the NLEB, and (2) completed coordination/consultation that is required by the USFWS (per the directions on the respective USFWS office's website), that project may proceed without notification to either the USACE or the USFWS, provided all General and Regional Permit Conditions are met. The NLEB SLOPES can be viewed on the USACE website at the following World Wide Web Page: hqp://www.saw.usace.army.mil/Missions/Regulatory-Permit-Pro rg am/Ag_ency- Coordination/ESA/. Permittees who do not have internet access may contact the USACE at (9 10) 251-4633. 3.14 Work on Eastern Band of Cherokee Indians Land All PCNs submitted for activities in waters of the United States on Eastern Band of Cherokee Indians (EBCI) trust land (i.e., Qualla Boundary and non-contiguous tracts of trust land), must comply with the requirements of the latest MOU between the Wilmington District and the Eastern Band of Cherokee Indians. 4.0 Additional Regional Conditions for Specific Nationwide Permits 4.1 NWP #29 - Residential Developments. 4.1.1 Discharges in perennial streams, intermittent streams and wetlands for stormwater management facilities are prohibited under this NWP. 4.1.2 Single-family recreational facilities are not authorized by this NWP. Recreational facilities that are incorporated into the residential development plan and will serve the residents of the entire development can be authorized by this NWP. 4.1.3 Discharges of dredged or fill material into waters of the United States, including wetlands, within the floodway* resulting in permanent above -grade fills are not authorized by this NWP. *NOTE: Floodway means the area designated and/or regulated by Federal, state, or local requirements to provide for the discharge of the base flood so the cumulative increase in water surface elevation is no more than a designated height identified by the regulating entity within the 100 -year floodplain. 34 4.1.4 Discharges of dredged or fill material into waters of the United States, including wetlands, within the mapped FEMA 100 -year floodplain resulting in permanent above -grade fills are not authorized by this NWP. 4.1.5 This NWP may not be used to authorize discharges of dredged or fill material into waters of the United States that have been identified or designated by the State of North Carolina as: High Quality Waters (HQW), including only SA, PNA, WS -I and WS -II waters. Coastal Wetlands as defined by North Carolina's Coastal Area Management Act. Wetlands adjacent to SA, PNA, WS -1 and/or WS -II waters. *NOTE: Definitions of HQW, SA, PNA, WS -I, WS -II waters and Coastal Wetlands can be found in the North Carolina State Administrative Code, Title 15A, Subchapters 2B and IOC (15A NCAC 0213, 15A NCAC IOC) and at the following World Wide Web page: hqp://reports. oah. state.nc.us/ncac. asp?folderName=\Title%2015A%20- %20Environmental%20Quality&lookUpError=l5A%20NCAC%20000%20. Surface water classifications for waters in North Carolina can be viewed at the North Carolina Division of Water Resources website or at the following link: https:Hdeq.nc.gov/about/divisions/water- resources/planning/classification-standards/classifications. Permittees who do not have internet access may contact the Corps at (910) 251- 4633. 4.1.6 If riprap stabilization is needed, it should be placed only on the stream banks, or, if it is necessary to be placed in the stream bed, the finished top elevation of the riprap should not exceed that of the original stream bed. 4.1.7 Utility lines authorized by this NWP shall comply with the terms and conditions, including regional conditions, of NWP 12. 35