SAW-2015-01887

Issue Date: September 30, 2016

Comment Deadline: October 31, 2016

Corps Action ID Number: SAW-2015-01887

The Wilmington District, Corps of Engineers (Corps) received an application from Halpern Development Company LLC seeking Department of the Army authorization to fill wetlands and streams for commercial and retail space, associated with Ocean Isle Beach Marketplace in Brunswick 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: Mr. Charlie Worthen

Halpern Development Company LLC

5269 Buford Highway

Atlanta, GA 30340

AGENT (if applicable): Ms. Kim Williams

Land Management Group, Inc.

3805 Wrightsville Ave. Suite 15

Wilmington, NC 28403

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)

Directions to Site: The project area is located just southeast of the intersection of Ocean Isle Beach Rd.(Hwy 904) and Hwy 179 on the mainland side of the Town of Ocean Isle Beach, Brunswick County.

Project Area (acres): 44.28                              Nearest Town: Ocean Isle Beach

Nearest Waterway: Kilbart Slough to Intracoastal Waterway

River Basin: Lumber

Latitude and Longitude: 33.9041N, -78.4380W

The 44.86-acre project area is located at the intersection of Causeway Drive (Highway 904) and Beach Drive (Highway 179) in Ocean Isle Beach, NC (Brunswick County) (Figures 1 & 2). The project area consists of all or portions of eight (8) separate parcels. According to the Brunswick County Generalized Soil Survey, the site is a mix of Wando fine sand and Leon fine sand soil types (Figure 3). Wando fine sand soils are excessively drained and usually in interstream areas. Leon fine sand soils are nearly level, poorly drained soils located in broad, smooth, interstream areas and in depressions in undulating areas.

Much of the project area is currently undeveloped and forested. An old borrow pit is located in the southwest corner of the site. A site delineation of 404 wetlands for the project area was performed by Land Management Group, Inc. and was approved by Mr. John Policarpo of the U.S. Army Corps of Engineers on January 14, 2016 (Action ID# SAW-2015-01887). Mr. Chad Coburn of the NC Division of Water Resources approved the stream determination on site. The project area contains 4.69 acres of 404 wetlands, 1,485 LF of a perennial stream (Kilbart Slough), which runs through the middle part of the wetlands, 273 LF of intermittent stream that ties into Kilbart Slough, and 205 LF of a Relatively Permanent Water (RPW). The 404 wetlands are located in the middle of the site and support a canopy of black gum (Nyssa sylvatica) and green ash (Fraxinus pennsylvanica) with a thick shrub layer composed of American hornbean (Carpinus caroliniana), loblolly bay (Gordonia lasianthus), and green ash. Uplands within the site are densely vegetated and support a canopy of loblolly pine (Pinus taeda) and tulip poplar (Liriodendron tulipifera), with loblolly pine, mockernut hickory (Carya tomentosa), and longleaf pine (P. palustris) in the shrub layer. LMG staff and Chad Coburn with DWR assessed wetlands within the site using the NC Wetland Assessment Method (WAM). Wetlands were found to rate between medium and high. Surrounding land use consists mostly of residential or undeveloped land. The Odell Williamson Municipal Airport is located north of the site, on the opposite side of Highway 179.

According to the topographic quadrangle for this area, the 404 wetlands on site flow to Kilbart Slough, which runs east off the property and then south to the Atlantic Intracoastal Waterway. Kilbart Slough is classified by the NC Division of Water Resources as SA and High Quality Waters (HQW). An SA water classification is given to tidal salt waters that are used for commercial shellfishing or marketing purposes and are also protected for all Class SC and Class SB uses. All SA waters are also HQW by supplemental classification. The HQW classification is a supplemental classification intended to protect waters which are rated excellent based on biological and physical/chemical characteristics through Division monitoring or special studies, primary nursery areas designated by the Marine Fisheries Commission, and other functional nursery areas designated by the Marine Fisheries Commission. No CAMA-regulated Areas of Environmental Concern (AEC) exist within this site.

The applicant’s stated purpose for the project is to develop a shopping center with a premium grocery store that is centrally located within Brunswick Beaches area to serve surrounding full-time residents and visitors. The desired service area would include Ocean Isle Beach, Sunset Beach, Calabash, Carolina Shores, Shallotte, Goose Creek, and Brick Landing, which are all projected to be within a ten-minute drive of the project area.

The applicant’s preferred project would construct a 39,500 sf (square foot) grocery store, 16,200 sf of retail shops, a 6,500 sf restaurant, parking facility, stormwater facilities and access ways. The applicant additionally desires four outparcels, two of which contain hotels and the other two vacant. (Figure 6 and 7)

The proposed project would impact 2.04 acres of 404 wetlands (1.7 acres Non-Riparian, 0.34 acre Riparian), 114 linear feet of perennial stream, 38 linear feet of intermittent stream, and 205 linear feet non-stream tributaries. The wetland and intermittent stream impacts are necessary to develop the building and parking placement. The perennial stream impacts are needed to provide a secondary road access, report ably desired by the tenant and Town of Ocean Isle Beach. The agent has reported that it is anticipated that the owner of tract, which in this case is not the applicant, desires to develop residential housing within the undeveloped portion of the 44 acre tract.

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

•  Culvert installation to maintain hydrologic flow of site
•  Headwalls to minimize stream impacts
•  Development of a Stormwater Plan and Sedimentation and Erosion Control Plan to minimize secondary impacts

The applicant has provided an alternatives analysis to better explain the basis of the plan development. This applicant’s analysis is available as one of the Notice attachments.

The applicant offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment: To mitigate for impacts the applicant would buy wetland (non-riparian and riparian) and stream credits from the Stone Farm Regional Mitigation Bank located within the Lumber River Basin. The applicant has proposed to purchase credits at a 1:1 ratio, impact to credit purchase.

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.

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.

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:

X - 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.

   - 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.

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 the state Certification as required by Section 401 of the Clean Water Act (PL 92-500). The receipt of the application and this public notice, combined with the appropriate application fee, at the NCDWR Central Office in Raleigh constitutes initial receipt of an application for a 401 Certification. A waiver will be deemed to occur if the NCDWR fails to act on this request for certification within sixty days of receipt of a complete application. Additional information regarding the 401 Certification may be reviewed at the NCDWR Central Office, 401 and Buffer Permitting Unit, 512 North Salisbury Street, Raleigh, North Carolina 27604-2260. All persons desiring to make comments regarding the application for a 401 Certification should do so, in writing, by 10/31/2016 to:

NCDWR Central Office

Attention: Ms. Karen Higgins, 401 and Buffer Permitting Unit

(USPS mailing address): 1617 Mail Service Center, Raleigh, NC 27699-1617

Or,

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

X - The application did not include 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 did not include the consistency certification, the Corps will request, upon receipt, concurrence or objection from the NCDCM.

   - Based upon all available information, the Corps determines that this application for a Department of Army (DA) permit does not involve an activity which would affect the coastal zone, which is defined by the Coastal Zone Management (CZM) Act (16 U.S.C. § 1453).

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.

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.

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 31, 2016. Comments should be submitted to Brad Shaver, Wilmington Regulatory Field Office, 69 Darlington Avenue, Wilmington, North Carolina 28403 , at (910) 251-4611 or mailto:brad.e.shaver@usace.army.mil.

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