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Public Notices

Under the Corps' Regulatory Program, a public notice is the primary method for advising all interested parties of a proposed activity for which a permit is sought. Soliciting comments and information necessary to evaluate the probable impacts on the public interest. Public notices are also published to inform the public about new or proposed regulations, policies, guidance or permit procedures.

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SPK-2000-75112, Public Notice of Permit Application, Neils Lunceford, Inc., Summit County, CO

Regulatory Division
Published Jan. 4, 2021
Expiration date: 2/3/2021

Comment Period:  January 4, 2021 – February 3, 2021

SUBJECT:  The U.S. Army Corps of Engineers, Sacramento District, (Corps) is evaluating a permit application for the discharge of dredged or fill material and/or work in approximately 1.23 acres of WOTUS to construct a landscaping business operations yard. This notice is to inform interested parties of the proposed activity and to solicit comments.

AUTHORITY:  This application is being evaluated under Section 404 of the Clean Water Act for the discharge of dredged or fill material in waters of the United States.

APPLICANT:      Neils Lunceford, Inc.
                            Attn: Mr. Jeff Lunceford, CEO
                            PO Box 2130
                            Silverthorne, CO 80498
                            (970) 485 -1169

LOCATION:  The approximately 10.02-acre project site is located in wetlands and an intermittent channel within the Town of Silverthorne, at 981 Adams Avenue, directly west of the intersection of 9th Street and Adams Avenue, within the SW ¼ SW ¼ of Section 1, Township 5 South, Range 78 West, 6th Principal Meridian, centered at 39.640206° Latitude, -106.080397° Longitude, Summit County, Colorado, and can be seen on the Dillion USGS 1:24K Topographic Quadrangle.

PROJECT DESCRIPTION:  The applicant is proposing to develop the subject parcel for a landscaping business operations yard for material and equipment storage, project staging, nursery, and retail sales space. The proposed activity entails leveling and surfacing of the site with appropriate fill for landscape operations and minor building structures. The site would be accessed from Adams Avenue along the east side of the parcel and no temporary impacts are proposed. The proposed development will permanently impact approximately 53,578 square feet (1.23 acres) of palustrine wetland, 562 linear feet of an unnamed intermittent drainage channel and will have a net fill amount of 7,700 cubic yards. The applicant has identified the purpose is to construct a landscaping business operations yard for material and equipment storage, project staging, nursery, and retail sales space in a commercially-zoned area within Summit County that is at least 6.0 acres in size. The applicant believes that Summit County has the continued need for businesses that provide landscaping services. The attached drawings provide additional project details.


Site History.  The subject parcel has been the subject of a number of wetland delineations and Department of the Army permitting actions, beginning 19 years ago, when Hickey Motors, the original property owner, was issued a Nationwide Permit (NWP) 39 – Commercial Developments on July 16, 2001, for the construction of a parking lot along Adams Avenue at the eastern boundary of the proposed project site. The Hickey Motors Permit (SPK-2000-75112) required that 0.25 acre of herbaceous wetlands be constructed as compensatory mitigation on site. However, the mitigation was not constructed. When Spraddle Creek Automotive subsequently purchased the property, they assumed responsibility for the 0.25 acre of compensatory wetland mitigation. An updated Wetland Mitigation Plan was developed in 2008, and the site was developed in August 2009. The mitigation site was monitored annually through the 2014 growing season and the Final Wetland Monitoring Report was submitted to the Corps in May 2015 and accepted as successful. Since the applicant purchased the subject parcel in October 2019, they have operated portions under Town of Silverthorne (Town) Planning Commission approvals by placing road base and pit run gravel over approximately 1.99-acres of uplands areas, outside of a 25-ft setback from existing wetlands. The applicant has not re-graded the site to alter drainage or hydrological characteristics of the property, merely re-surfaced work areas to facilitate operations as approved by the Town. Additionally, the applicant has also installed a 270-square foot retail kiosk/bathroom structure (with Town water and sewer service) as well as temporary and mobile structures that are used within the existing developed area: two temporary green houses, three 40-ft storage containers, and one 20-ft storage container. Other portions of the existing developed areas are used for project staging, material stockpiling (soil and mulch), equipment storage, trees & nursery, landscaping rock, and parking. On March 25, 2020, the Corps verified an updated delineation of waters of the U.S., as requested by the applicant.

Environmental Setting.  There are approximately 2.58 acres of palustrine emergent (i.e., 0.03 acre) and scrub-shrub (i.e., 2.55 acres) wetlands and 811 linear feet of unnamed intermittent channel within the project area. The 10.02-acre irregularly shaped parcel is bisected by a small unnamed intermittent drainage channel that flows north through the central portion of the property before exiting the northern boundary and flowing into the Blue River. Within the parcel, the channel has an average width of approximately 18-24 inches. Approximately 100 feet west of the channel, the project site is characterized by a steep east-facing hillside that contains a fen wetland near the southeastern corner. The fen area is situated above and entirely outside of the area of disturbance under any Alternative, and investigative work conducted to date appears to support the contention that permanent shallow groundwater is limited to the fen area. The seeps in this area also contribute water to the unnamed drainage. The eastern portion of the project site has gentle topography that slopes and drains to the northeast. Elevations of the parcel range from a high of approximately 8,840 feet on the hillside near the western boundary to a low of approximately 8,713 feet where the unnamed drainage exits the project site.

Alternatives.  A number of project alternatives, including a no-action alternative and the applicant’s preferred alternative to construct a landscaping business (with an operations yard for material and equipment storage, project staging, nursery, and retail sales space), will be evaluated in accordance with NEPA (33 CFR Part 230) (USACE NEPA Regulations) and 33 CFR Part 325, Appendix B (NEPA Implementation Procedures for USACE Regulatory Projects). The applicant has provided the following alternatives that are currently being analyzed.

  1. No-Action Alternative (Alternative A):  The No Action alternative would limit the development of the subject parcel to developing only upland areas. Of the 10.02-acre parcel, the western 3.12 acres (i.e., 31 percent of the parcel) has excessively steep slopes, often more than 20-percent grade; and the applicant believes these areas are not suitable for the proposed development. On the more level developable terrain, approximately 1.83 acres is mapped as jurisdictional wetlands, and under the No Action alternative, would not be developed.  Further, some of these more level areas which are also uplands are not accessible given property boundaries and the locations of wetlands. This would leave 3.76 acres of the parcel available for use and additional proposed development; or 38 percent of the 10.02-acre parcel. The applicant believes the parcel does not provide adequate space (i.e., 6.00 acres) to build a landscaping business operations yard at this location without impacting wetlands. Alternative A appears not meet the need of the applicant, and under this alternative the applicant would still need to find other suitable lands in the region to support their operations. Details regarding the development of Alternative A are included in the drawings provided.
  2. Off-site Alternative:  The applicant purchased the 10.02-acre subject parcel during fall of 2019. At that time and currently, the applicant believes that there are no practicable alternative sites within Summit County limits available for purchase for a 6.00-acre outdoor landscaping business operations yard. The applicant has provided data that compares the purchase prices of all of the available commercial properties in Summit County at the time of purchase of the subject parcel. At the time of the purchase, the applicant determined there were 23 options for purchasing commercially zoned land in Summit County. The 23 available commercial properties were screened by the applicant based on size, cost, and availability and were determined inappropriate. Currently, the applicant believes that the subject parcel presents the applicant’s only practicable alternative site for a commercial development in Summit County. Details regarding the Off-site alternative screening are included in the documents provided.
  3. On-site Alternative B:  Alternative B, or pursuit of an NWP 39-Commercial Developments, would entail the fill of up to 0.50 acre of wetlands on the parcel. This alternative would increase the total developable area over Alternative A by approximately 0.97 acre, to 4.73 acres. The increase in developable acreage is greater than 0.5 acre due to the wetland fill making some otherwise inaccessible uplands developable. Development and construction activities would be similar in scale and scope as Alternative A, but would include the fill of up to 0.50 acre of wetlands. Fill volumes in wetlands would include approximately 1,000 cubic yards of pit run, and 500 cubic yards of road base. Permanent impacts in this alternative would be more than a 0.10 acre, therefore the applicant would still be required to offset unavoidable impacts through compensatory mitigation. Alternative B would result in a total 4.73 acres of development; this alternative would provide some, but not all, of the acreage and space that the applicant needs (i.e., 6.00 acres). Under this alternative, the applicant would still need approximately one additional acre from some other property to provide the minimum 6.00 acres needed to conduct their operations. The applicant believes that, given that their operations would be split between two different properties or locations, there are also logistical and operational constraints which would further reduce the suitability of this Alternative. To accommodate their full need, the applicant would then need to find other lands to use or reduce their commercial operations. Details regarding the development and reclamation of Alternative B are included in the drawings provided.
  4. On-site Alternative C (applicant’s preferred alternative):  Alternative C would entail the development of the parcel to create approximately 6.00 acres of useable area for applicant’s commercial landscaping operations, including the fill of 1.23 acres of jurisdictional wetlands and the permanent relocation of approximately 562 linear feet of non-wetland waters of the U.S. The proposed action has been modified to incorporate development in more upland areas and minimize unnecessary impacts to wetlands. The design incorporates current engineered standards to ensure long term functionality of the area, and further minimize other potential indirect or off-site environmental impacts. The applicant has identified this alternative as preferred due to their belief that it results in less environmental impacts when compared to other practicable alternatives.  Details regarding the development and reclamation of Alternative C are included in the drawings provided.

Mitigation.  The Corps requires that applicants consider and use all reasonable and practical measures to avoid and minimize impacts to aquatic resources. If the applicant is unable to avoid or minimize all impacts, the Corps may require compensatory mitigation. The applicant has proposed to purchase wetland mitigation credits at a 4:1 ratio at Finger Rock Preserve (FRP), a Corps’-approved wetland mitigation bank located in southern Routt County.

OTHER GOVERNMENTAL AUTHORIZATIONS:  Water quality certification or a waiver, as required under Section 401 of the Clean Water Act from the Colorado Department of Public Health and Environment is required for this project. The applicant has indicated they have applied for certification.

HISTORIC PROPERTIES:  Based on the available information (including applicant's report titled Neils Lunceford Landscaping, A Class III Cultural Resource Inventory in Summit County, Colorado), no cultural resources were identified within the project's area of potential effect. The Corps will initiate consultation with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act, as appropriate.

ENDANGERED SPECIES:  The project would not affect any Federally-listed threatened or endangered species or their critical habitat that are protected by the Endangered Species Act. The Corps will initiate consultation with the U.S. Fish and Wildlife Service, pursuant to Section 7 of the Endangered Species Act, as appropriate.

ESSENTIAL FISH HABITAT:  The proposed project would not adversely affect Essential Fish Habitat (EFH) as defined in the Magnuson-Stevens Fishery Conservation and Management Act.

The above determinations are based on information provided by the applicant and our preliminary review.

EVALUATION FACTORS:  The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the described 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 described activity, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the described activity 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, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people. The activity's impact on the public interest will include application of the Section 404(b)(1) guidelines promulgated by the Administrator, Environmental Protection Agency (40 CFR Part 230).

The Corps is soliciting comments from the public, Federal, State, and local agencies and officials, 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 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 other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

SUBMITTING COMMENTS:  Written comments, referencing Public Notice SPK-2000-75112 must be submitted to the office listed below on or before February 5, 2021.

Tyler R. Adams, Project Manager
US Army Corps of Engineers, Sacramento District
Colorado West Regulatory Section, 400 Rood Avenue, Room 224, Grand Junction, Colorado 81501

The Corps is particularly interested in receiving comments related to the proposal's probable impacts on the affected aquatic environment and the secondary and cumulative effects. Anyone may request, in writing, that a public hearing be held to consider this application. Requests shall specifically state, with particularity, the reason(s) for holding a public hearing. If the Corps determines that the information received in response to this notice is inadequate for thorough evaluation, a public hearing may be warranted. If a public hearing is warranted, interested parties will be notified of the time, date, and location. Please note that all comment letters received are subject to release to the public through the Freedom of Information Act. If you have questions or need additional information please contact the applicant or the Corps' project manager Tyler R. Adams, (970) 243-1199 X 1013,   

Attachments: 6 drawings