Public Notice

SAW-2011-00622

Published Sept. 27, 2013
Expiration date: 10/27/2013

DISCLAIMER: Please download the attached PDF version of this notice for complete information, proper formatting, and inclusion of tables and figures.

Issue Date: September 27, 2013

Comment Deadline: October 27, 2013

Corps Action ID Number: SAW- 2011-00622

The Wilmington District, Corps of Engineers (Corps) received an application from Mallard Creek Development, Inc. seeking Department of the Army authorization to discharge dredged and/or fill material into waters of the United States, associated with constructing access and infrastructure for section VIII of the Mallard Creek residential subdivision located west of US Highway 17, at its intersection with Mallard Drive in Jacksonville, Onslow County, North Carolina.

Specific plans and location information are described below and shown on the attached plans. This Public Notice and all attached plans are also available on the Wilmington District Web Site at http://www.saw.usace.army.mil/Missions/RegulatoryPermitProgram.aspx

Applicant:

Mallard Creek Development, Inc.

Attn: Mr. John Pierce

Post Office Box 1685

Jacksonville, North Carolina 28541

       

Agent:

Pittman Soil Consulting

Attn: Mr. Haywood Pittman

1003 Gregory Fork Road

Richlands, North Carolina 28574

       

Authority

The Corps evaluates this application and decides whether to issue, conditionally issue, or deny the proposed work pursuant to applicable procedures of the following Statutory Authorities:

X - Section 404 of the Clean Water Act (33 U.S.C. 1344)

   - Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403)

   - Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413)

Location

Directions to Site: The proposed project area is an undeveloped tract west of the existing sections of the Mallard Creek residential subdivision, located west of US Highway 17, at its intersection with Mallard Drive, in Jacksonville, Onslow County, North Carolina

Project Area (acres): 49.33                        Nearest Town: Jacksonville

Nearest Waterway: UT to Hicks Run         River Basin: White Oak; HUC 03030001

Latitude and Longitude: 34.681543° N, -77.480921° W

Existing Site Conditions

The proposed project area is located within the Coastal Plain Ecoregion. The site has been historically utilized for timber and agriculture production and currently contains stands of loblolly pine and mixed deciduous forest of varying maturity. A Progress Energy transmission line easement, approximately 100-feet wide, runs through the northeastern corner of the property. Based on the North Carolina Wetland Assessment Methodology (NCWAM), wetlands on the Williamsburg Plantation property include a mosaic of Riverine Swamp Forest and Bottomland Hardwood Forest in floodplain areas of Hicks Run, and Headwater Forest wetlands in smaller stream valleys and topographic drainages higher in the landscape. Jurisdictional streams on the property include Hicks Run and two unnamed tributaries (UTs), all Relatively Permanent Waters (RPWs), which flow to Southwest Creek, a Traditionally Navigable Water.

Hicks Run and of its UTs carry the NC Division of Water Resources (NCDWR) best usage classification of "C NSW"; "C" refers to those waters protected for secondary recreation, fishing, wildlife, fish consumption, aquatic life including propagation, survival, and maintenance of biological integrity, agriculture and other uses, whereas "NSW" is a supplemental classification intended for waters needing additional nutrient management due to being subject to excessive growth of microscopic or macroscopic vegetation. There are no designated Outstanding Resource Waters (ORW), High Quality Waters (HQW), Water Supply I (WS-I), or Water Supply (WS-II) waters within 1.0 mile of the project area.

The property is bordered to the east by a UT to Hicks Run and the existing sections of Mallard Creek and South Creek residential subdivisions, to the south by undeveloped land including forest and farm fields, to the west by a UT to Hicks Run and Gamelands managed by the State of North Carolina, and to the north by Hicks Run and undeveloped forest land. The majority of the surrounding site area is a mixture of land use including residential, agricultural, managed forest, and Camp Lejeune military base on the east side of US Highway 17.

Elevation in the immediate vicinity of the site ranges from approximately 35 feet above mean sea level (MSL) in the southernmost extent of the property to 8 feet MSL along Hicks Run.         

Pittman Soil Consulting, consultant for Mallard Creek Development, Inc., conducted a jurisdictional delineation for the proposed site in 2010. The jurisdictional boundaries were verified by the Corps and surveyed and mapped by a registered land surveyor; a Jurisdictional Determination (JD) was approved on July 8, 2011 (USACE ID No. SAW-2011-00622).

Background

Four previous crossings were constructed for the Mallard Creek subdivision single and complete project. Crossing 1 was constructed in 1994 as an extension of Mandarin Trail and access to Mallard Creek section IV, and involved impacts to 0.018 acre of wetlands. Crossing 2, involving impacts to 0.2 acre of wetlands and 80 linear feet of stream, was constructed in 1998 for the Pekin Street crossing and further access to Mallard Creek section IV. Crossing 3 was constructed in 1999, and involved impacts to 0.05 acre of wetlands and for an extension of Pekin Street into Mallard Creek section VII. Crossing 4 was constructed in 2001 and involved impacts to 0.43 acre of wetlands and 80 linear feet of stream to provide emergency vehicle access to Mallard Creek section VII.

Crossings 1-3 were authorized under Nationwide Permit (NWP) number 26, and at the time were below the impact acreage threshold requiring notification; as such written verification of Corps authorization was not required. NWP 26 expired on January 5, 2000. Crossing 4 was constructed without authorization; however, this crossing was allowed to remain in place following enforcement action from this office under Corps Action ID SAW-2001-01113. Although the roadway fill and culvert for Crossing 4 has been in place since 2001, this crossing has not been paved to this date. According to the applicant, upon completion of Section VIII the crossing will be required to be paved by Onslow County. Given mitigation guidelines during the time these crossings were installed, no compensatory mitigation was required for any of these activities.

Cumulative impacts to Waters of the U.S. for the Mallard Creek subdivision single and complete project following all actions described above total 0.698 acre of wetlands and 160 linear feet of stream. Given that the current proposed impacts to Waters of the U.S., in combination with impacts from earlier phases, exceed the Nationwide Permit threshold, the current proposal to further expand Mallard Creek subdivision is subject to Individual Permit review.

Applicant’s Stated Purpose

The purpose of this project is to construct a residential subdivision.

Project Description

The applicant has proposed to discharge fill material into an additional 0.048 acre of riparian, non-riverine wetlands and 80 linear feet of streams to complete section VIII of Mallard Creek residential subdivision. No temporary impacts are proposed. The proposed impacts to Waters of the U.S. are the result of one road crossing, intended to provide access to proposed upland facilities including single family homes and associated infrastructure such as utilities and amenities.

Table 1. Existing and Proposed Permanent Waters of the U.S. Impacts Table 

   

 Impact

 

Wetland Impacts(acre)

 

Stream Impacts(linear feet)

Crossing 1: NWP 26, no notification required, 1994

   

0.018

-

Crossing 2: NWP 26, no notification required, 1998

   

0.20

80

Crossing 3: NWP 39, no notification required, 1999

   

0.05

-

Crossing 4: Installed as an unauthorized activity in 2001, resolved via enforcement action in October 2001 under SAW-2001-01113

0.43

80

Previously Constructed Total:

0.698

160

-----------------------------------------------------------------------------------------------------------------

Crossing 5 Currently Proposed:

0.048

80

 

Subdivision Total

0.746

240

The applicant submitted an Alternatives Analysis that includes No Action, No Permit and Off-site Alternatives. This information has been included with this Public Notice as well. Supplemental documentation including project plans and a narrative can be found on the District Website at http://www.saw.usace.army.mil/Missions/RegulatoryPermitProgram/PublicNotices.aspx.

Avoidance and Minimization

Avoidance and minimization efforts for Crossing 4 were documented in Action ID: SAW-2001-01113. Crossings 1-3 were below the notification thresholds of NWP 26, and thus no avoidance and minimization information was received by the Corps.

The applicant provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment for the current proposed impacts:

The proposed road crossing impacts to Waters of the U.S. would be minimized due incorporating headwalls into the design, and installing silt fencing around fill slopes and sediment traps in uplands during construction.

Compensatory Mitigation

The applicant offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:

Given the mitigation guidelines during the time Crossings 1-4 were installed, no compensatory mitigation was required for any of these activities.

The applicant proposes to mitigate for permanent wetland and stream losses through purchasing riparian, non-riverine wetland and stream credits at a 1:1 ratio from the Bachelors Delight Mitigation Bank, located approximately 11 miles north of the project area.

Essential Fish Habitat

Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, this Public Notice initiates the Essential Fish Habitat (EFH) consultation requirements. The Corps’ initial determination is that the proposed project would not effect EFH or associated fisheries managed by the South Atlantic or Mid Atlantic Fishery Management Councils or the National Marine Fisheries Service.

Cultural Resources

The applicant stated that an archeological survey was conducted on the subject property and no occurrences were found. Further, the applicant stated that the State Historic Preservation Office (SHPO) was notified about the project on July 29, 2011; however, they did not provide correspondence indicating concurrence or otherwise.

Pursuant to Section 106 of the National Historic Preservation Act of 1966, Appendix C of 33 CFR Part 325, and the 2005 Revised Interim Guidance for Implementing Appendix C, the District Engineer consulted district files and records and the latest published version of the National Register of Historic Places and initially determines that:

                -  Should historic properties, or properties eligible for inclusion in the National Register, be present within the Corps’ permit area; the proposed activity requiring the DA permit (the undertaking) is a type of activity that will have no potential to cause an effect to an historic properties.

            X  -  No historic properties, nor properties eligible for inclusion in the National Register, are present within the Corps’ permit area; therefore, there will be no historic properties affected. The Corps subsequently requests concurrence from the SHPO (or THPO).

                -  Properties ineligible for inclusion in the National Register are present within the Corps’ permit area; there will be no historic properties affected by the proposed work. The Corps subsequently requests concurrence from the SHPO (or THPO).

               -  Historic properties, or properties eligible for inclusion in the National Register, are present within the Corps’ permit area; however, the undertaking will have no adverse effect on these historic properties. The Corps subsequently requests concurrence from the SHPO (or THPO).

               -  Historic properties, or properties eligible for inclusion in the National Register, are present within the Corps’ permit area; moreover, the undertaking may have an adverse effect on these historic properties. The Corps subsequently initiates consultation with the SHPO (or THPO).

               -  The proposed work takes place in an area known to have the potential for the presence of prehistoric and historic cultural resources; however, the area has not been formally surveyed for the presence of cultural resources. No sites eligible for inclusion in the National Register of Historic Places are known to be present in the vicinity of the proposed work. Additional work may be necessary to identify and assess any historic or prehistoric resources that may be present.

  

The District Engineer’s final eligibility and effect determination will be based upon coordination with the SHPO and/or THPO, as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the Corps-indentified permit area.

Endangered Species

The U.S. Fish and Wildlife Service (USFWS) has identified the following threatened or endangered species within Onslow County: American alligator (Alligator mississippiensis), Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), shortnose sturgeon (Acipenser brevirostrum), loggerhead sea turtle (Caretta caretta), green sea turtle (Chelonia mydas), leatherback sea turtle (Dermochelys coriacea), West Indian manatee (Trichechus manatus), piping plover (Charadrius melodus), red-cockaded woodpecker (Picoides borealis), seabeach amaranth (Amaranthus pumilus), golden sedge (Carex lutea), Hirst’s panic grass (Dichanthelium hirstii), pondberry (Lindera melissifolia), rough-leaf loosestrife (Lysimachia asperulaefolia), and Cooley's meadowrue (Thalictrum cooleyi).

The applicant stated that they reviewed aerial photography, soil maps, and topographic maps, and conducted on-site surveys to evaluate the potential of the site to support federally listed threatened or endangered species or their habitat. Specifically, no suitable habitat was found for red-cockaded woodpecker, Atlantic sturgeon, shortnose sturgeon, loggerhead sea turtle, green sea turtle, leatherback sea turtle, West Indian manatee, golden sedge, rough-leaf loosestrife, Cooley’s meadowrue, Hirst’s panic grass, or pondberry on the site. The applicant stated that the U.S. Fish and Wildlife Service (USFWS) was notified about the project on September 9, 2013; however, they did not provide correspondence indicating concurrence or otherwise.

Pursuant to the Endangered Species Act of 1973, the Corps reviewed the project area, examined all information provided by the applicant and consulted the latest North Carolina Natural Heritage Database. Based on available information:

   -  The Corps determines that the proposed project would not affect federally listed endangered or threatened species or their formally designated critical habitat.

    -  The Corps determines that the proposed project may affect federally listed endangered or threatened species or their formally designated critical habitat. The Corps initiates consultation under Section 7 of the ESA and will not make a permit decision until the consultation process is complete.

 X  - The Corps is not aware of the presence of species listed as threatened or endangered or their critical habitat formally designated pursuant to the Endangered Species Act of 1973 (ESA) within the project area. The Corps will make a final determination on the effects of the proposed project upon additional review of the project and completion of any necessary biological assessment and/or consultation with the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service.

Other Required Authorizations

The Corps forwards this notice and all applicable application materials to the appropriate State agencies for review.

North Carolina Division of Water Resources (NCDWR)

The Corps will generally not make a final permit decision until the NCDWR issues, denies, or waives State Certification required by Section 401 of the Clean Water Act (PL 92-500). The receipt of the application and this public notice combined with appropriate application fee at the NCDWR Central Office in Raleigh constitutes initial receipt of an application for a 401 Water Quality Certification. A waiver will be deemed to occur if the NCDWQ fails to act on this request for certification within sixty days of the date of the receipt of this notice in the NCDWQ Central Office. Additional information regarding the Clean Water Act Certification may be reviewed at the NCDWQ Central Office, Wetlands, Buffers, Stormwater Compliance and Permitting Unit, 512 North Salisbury Street, Raleigh, North Carolina 27604-2260. All persons desiring to make comments regarding the application for certification under Section 401 of the Clean Water Act should do so, in writing, by October 14, 2013 to:

NCDWQ Central Office

Attention: Ms. Karen Higgins

(USPS mailing address): 1650 Mail Service Center, Raleigh, NC 27699-1650

 Or,

(physical address): 512 North Salisbury Street, Raleigh, North Carolina 27604

North Carolina Division of Coastal Management (NCDCM):

The application included a certification that the proposed work complies with and would be conducted in a manner that is consistent with the approved North Carolina Coastal Zone Management Program. Pursuant to 33 CFR 325.2 (b)(2) the Corps cannot issue a Department of Army (DA) permit for the proposed work until the applicant submits such a certification to the Corps and the NCDCM, and the NCDCM notifies the Corps that it concurs with the applicant’s consistency certification. As the application included the consistency certification, the Corps requests, via this Public Notice, concurrence or objection from the NCDCM.

Evaluation

The decision whether to issue a permit will be based on an evaluation of the probable impacts including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, flood plain values (in accordance with Executive Order 11988), land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people. For activities involving the discharge of dredged or fill materials in waters of the United States, the evaluation of the impact of the activity on the public interest will include application of the Environmental Protection Agency’s 404(b)(1) guidelines.

Commenting Information

The Corps of Engineers is soliciting comments from the public; Federal, State and local agencies and officials, including any consolidated State Viewpoint or written position of the Governor; Indian Tribes and other interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the Corps of Engineers to determine whether to issue, modify, condition or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment (EA) and/or an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA). Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

A copy of this Public Notice and all pertinent plans and specifications can be found at: http://www.saw.usace.army.mil/Missions/RegulatoryPermitProgram/PublicNotices.aspx or by contacting the Wilmington Regulatory Field Office at (910) 251-4633.

Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider the application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing. Requests for a public hearing shall be granted, unless the District Engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.

The Corps of Engineers, Wilmington District will receive written comments pertinent to the proposed work, as outlined above, until 5pm, October 27, 2013. Comments should be submitted to David E. Bailey, Wilmington Regulatory Field Office, 69 Darlington Avenue, Wilmington, North Carolina 28403 , at (910) 251-4469.

DISCLAIMER: Please download the attached PDF version of this notice for complete information, proper formatting, and inclusion of tables and figures.