20050666 Ver 1_Request for WRC Comments_20060317

a
Re: [Fwd Re: Goose Creek: Revised MOU]
Subject: Re: [Fwd: Re: Goose Creek: Revised MOU]
From: Dave Toms <[e-mail]>
Date: Fri, 17 Mar 2006 13:59:50 -0500
To: Tom Reeder <[e-mail]>
CC: Darlene Kucken <[e-mail]>, Alan Clark <[e-mail]>, Boyd
Devane <[e-mail]>, Bill Diuguid <[e-mail]>, John Hennessy
<[e-mail]>, Mike Randall <[e-mail]>, Bradley Bennett
<[e-mail]>, Paul Rawls <[e-mail]>, Alex Marks
<[e-mail]>, Jeff Manning <[e-mail]>, Cyndi Karoly
<[e-mail]>
If the wildlife agencies didn't spend their time ignoring us, what would they do all day?
Shoot ducks, I guess.
Tom Reeder wrote:
By the way, I hope the tone of my last e-mail did not imply that I thought that Dave T and Alex
weren't doing everything possible to support our position. Obviously, they are doing everything they
can to get this group going in the right direction and I really appreciate their efforts in this difficult
process. I just don't understand why the WRC, et al, keeps ignoring what we are saying when it is
our permit. Thanks.
Tom Reeder wrote:
Our (the Wetlands and Stormwater Branch) position has not changed since our last meeting. If
the local gouts want to satisfy their obligations under the 401 they need to adopt ordinances that
reflect the requirements of the Universal Program. You are correct that they are free to adopt
anything they want in their local ordinances, but it will not satisfy their obligations under the
401 requirements. If you want me to tell them this I will be happy to. Thanks.
Dave Toms wrote:
Tom et al.,
A few things:
* At our meeting to discuss this MOU back on Feb 13 (401,
stormwater, & planning), we decided this MOU did not address the
401 and that 401 staff would work through different channels to
fulfill the 401 requirements.
* Alex Marks and I have made it very clear to the MOU facilitators
(Centralina COG) and the other agencies (FHA, DOT, USFWS, &WRC)
that DWQ wants the MOU to look like the USMP. They have a copy
of the draft rules and we have explained how the MOU could be
adjusted to make it consistent with USMP. They have chosen not
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Re: [Fwd: Re: Goose Creek: Revised MOU]
to do so.
* I think it would be best if the 401 Unit told all involved what
would satisfy the 401. I recall Hennessy saying the USMP
would. Please correct me if I remember wrong.
* On buffers: Alex and I have also been very clear that DWQ
doesn't support buffers for water quality over 100ft. Its fine
if Wildlife wants 200 or 300 foot buffers, just call them
"wildlife buffers". The MOU stakeholders have chosen to ignore
this as well. HOWEVER, the local governments appear to be
comfortable with some type of 200 foot buffer. If the local
gov's agree to implement wide buffers, I don't think DWQ should
stand in the way.
I really think 401 needs to make their requirements clear to the MOU stakeholders. Do we
need another meeting to discuss our position?
The current MOU draft is in the body of this message if others on this mailing list need
background.
-Dave
Tom Reeder wrote:
Dave -Boyd cc'd me on this response to Ron L regarding the proposed MOU to satisfy
the T&E requirements of the Monroe Bypass. It is worth mentioning that the
conditions of the 401 require the MOU to satisfy DWQ concerns for the protection of
the T&E species, not WRC's wishes based on their "guidance document." The
Wetlands and Stormwater Branch has been sending a consistent message throughout
the State for the past 6 months as to what scientifically-based, non-point source
controls that this Branch considers protective of listed species. Of course, you know
that I am referring to the Universal Program. To my knowledge, there is no science
that supports the mandate of 200 foot buffers and a maximum limit of 24% impervious
surfaces. I am not trying to cause any trouble here, and this message is directed
towards aDWQ-internal audience, but I just want everyone to be aware of the fact that
the MOU must satisfy DWQ's concerns (it is our 401), and I have serious concerns
about DWQ supporting any plan that will mandate 200 foot buffers and limit
impervious surfaces to 24%. I do not feel that the science supports this and I think it is
a very dangerous and impractical precedent. Thanks.
Subject:
Re: Goose Creek: Revised MOU
From:
Boyd Devane <boyd.devane(a`ncmail.net> <mailto:boyd.devane cLUCmaiLnet>
Date:
Fri, 17 Mar 2006 10:01:00 -0500
To:
2 of 13 3/24/2006 2:57 PM

Re: [Fwd:'Re: Goose Creek: Revised MOU]
Ron Linville <linvillcjr(a~earthl~ink.net> <ma~iltoainvilleir cr,earthlirik.net>
To:
Ron Linville <]invillejr~~eartblink.net> <mailtoainvillejr(a?earthlink.net>
CC:
Tom Reeder <Ton~.Reedcr~LncmaiLnet> <mailto:Tom.Reedcr~;ncmail.net>
Ron, I have no idea of what was meant in the document about the WS II CA. .
Although I attended one meeting of the study group, I never understood the approval
process of the document and never knew if DWQ approved it. Although Milt was in
the Planning, I never knew that "DWQ staff' recommended the 24%, so I can't speak to
what "DWQ staff' meant it's recommendation. However, the more I learn about the
impact of stormwater on water quality, I realize that it's much more important to
control stormwater than to limit imperviousness. Yes, less than 10% impervious would
be wonderful but it's just not practical. It seems to me that the science to justify 100
and 200 ft buffers over greater stormwater control is just not there. Yes, large buffers
are nice to have, and we need natural areas for wildlife, but if I were in control of this
state, I'd be requiring stormwater controls everywhere and get away from the
impervious limitations and large buffers. If we want to protect green spaces, let's do it
but if we want to protect water quality, let's do something that works. I know it sounds
like heresy but I think from a statewide perspective, pushing the low densities and large
buffers has done more damage to the overall progress of the program than it has helped
protect the environment. I am sick and tired of seeing the damage that stormwater is
doing and I believe that the focus of environmental protection policies have been
inappropriately directed toward densities and buffers - to the detriment of what needs
to be done to address the real demon of stormwater. Nothing I have said, however,
negates the fact that you have been a great force in changing people's attitudes about
the need to protect our environment. Keep up the good work.
Ron Linville wrote:
Boyd,
Questions keep coming up about the 24% cap in the WRC Guidance document. It
has come up again with the proposed Union County MOU (see below). If I
remember correctly, the 24% cap was recommended by DWQ staff when the WRC
Guidance document was developed. I believe that DWQ meant this to be WS-II,
HQW *CA* although the *CA* was not specified in the final document. Can you
verify that CA should have been indicated instead of just WS-II, HQW? I believe
you and Milt Rhodes (and possibly other DWQ staff) were involved with the
drafting process. A copy of the guidance document is attached.
Whatever you can provide to clarify this would be helpful. Shari and Mark may
have additional questions they want to ask.
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Re: [Fwd: Re: Goose Creek: Revised MOU]
Thanks,
Ron
**
*MEMORANDUM OF UNDERSTANDING*
*BETWEEN THE UNITED STATES FISH AND WILDLIFE SERVICE,
FEDERAL HIGHWAY ADMINISTRATION, NORTH CAROLINA WILDLIFE
RESOURCES COMMISSION, NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION, AND LOCAL GOVERNMENTS IN UNION COUNTY,
NORTH CAROLINA*
* *
* *
Local Gov'ts would like DWQ to be a signatory
*THIS MEMORANDUM OF UNDERSTANDING* (hereinafter referred to as the
"MOU"), is made and entered into on the date herein below last written, by and
between the *NORTH CAROLINA WILDLIFE RESOURCES COMMISSION*
(hereinafter referred to as "NCWRC"), the *U.S. FISH AND WILDLIFE
SERVICE* (hereinafter referred to as the "USFWS"), the *NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION *(hereinafter referred to as
"NCDOT"), the *FEDERAL HIGHWAY ADMINISTRATION* (hereinafter
referred to as "FHWA"), and the following North Carolina local governments:
*Town of Fairview, Town of Hemby Bridge, Town of Indian Trail, Town of
Stallings and Union County.*
*
*RECITALS:
**
*WHEREAS, *the NCDOT is proposing two roadway projects in Union County,
the Monroe Bypass (R-2559) and the Monroe Connector (R-3329), hereinafter
referred to as "the Projects";
*WHEREAS, *a federally endangered species, the Carolina heelsplitter mussel
(/Lasmigona decorate/), hereinafter referred to as "the heelsplitter" and its
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Re: [Fwd:'Re: Goose Creek: Revised MOU]
associated federally designated Critical Habitat are located within the Goose Creek
and Duck Creek watersheds within Union County, as shown on Exhibit A;
*WHEREAS, *the decline of the heelsplitter is attributed to many factors, the
primary threats to the species include* *habitat degradation, water quality
degradation, and changes in stream flow;
*WHEREAS*, increased siltation; loss of forested riparian buffer; channel and
stream bank scouring associated with increased storm-water runoff; runoff of silt,
fertilizers and other pollutants from land disturbance activities and existing land
uses; reduction in base flow caused by decreased infiltration; increased runoff and
increased pollutants from point and non-point sources; and resultant changes to
flow levels along Goose and Duck Creeks and their tributaries are the specific
threats that have been identified based on the best available science related to
stream integrity, the heelsplitter and its Critical Habitat that are associated with the
Projects;
*WHEREAS*, NCDOT; the Towns of Fairview, Hemby Bridge, Indian Trail, and
Stallings; and Union County each recognize the existing degraded habitat and
water quality does not support designated uses within the Goose Creek and Duck
Creek watersheds contributing to the ongoing decline of the heelsplitter and desire
to improve conditions and to minimize impacts of the Projects for the heelsplitter
and its federally designated Critical Habitat within the Goose Creek and Duck
Creek watersheds;
*WHEREAS*, USFWS agrees the adoption of land use ordinances incorporating
protective measures which are based on the best currently available science and
described in this MOU, are adequate to provide protection to the Carolina
heelsplitter and its designated critical habitat from the majority of negative impacts
resulting from future development in the Goose Creek and Duck Creek
watersheds;
Combine into one Whereas statement
*WHEREAS*, FHWA desires to incorporate the benefits of local government land
use ordinances as part of the environmental analysis in their biological assessment
of the effects of the projects on protected species. Local government ordinances
would be most useful to the Projects if adopted by October 31, 2006.If conditions
relied upon as part of FHWA's biological assessment for the Projects change, then
reinitiation of consultation under the Endangered Species Act may need to occur;
*WHEREAS*, as a reminder, the section 7(d) of the Endangered Species Act
requires that after the initiation of consultation the federal action agency may not
make any irreversible or irretrievable commitment of resources that limits future
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Re: [Fwd: Re: Goose Creek: Revised MOU]
options. This practice ensures that agency actions do not preclude the formulation
or implementation of reasonable and prudent alternatives that avoid jeopardizing
the continued existence of endangered or threatened species or destroying or
modifying their critical habitats.
**
*NOW THEREFORE BE IT RESOLVED,
**
That *Union County* and the *Towns of Fairview, Hemby Bridge, Indian Trail,
*and *Stallings* each adopt and put into place by October 31, 20061and use
ordinances (hereinafter referred to as "Ordinances"), in accordance with all
applicable North Carolina General Statutes, that will require new development and
redevelopment projects within the portions of the local government's respective
planning jurisdictions that are located in the Goose Creek and Duck Creek
watersheds to obtain a permit and submit a stormwater management plan for
review and approval by the applicable local government.
1.
Eliminate this summary paragraph because it is confusing. The requirements of the
Ordinances are outlined below.
Such Ordinances shall apply to new developments and existing developments for
which modifications or expansions are proposed. Specifically, such Ordinances
shall include but are not limited to:
a.
Reference to CSI document is too restrictive, many requirements are not under
local govt control
Make clear that for existing dev., 6% calculation and new standards only apply to
expansion/ modification
In cases where infrastructure construction or maintenance is funded or permitted
by local governments, the local governments will make every effort to carry out
the project in a manner that protects the quality of streams within the Goose Creek
and Duck Creek watersheds and their riparian buffer. (Information on measures to
minimize direct impacts and protect water quality and aquatic habitat for
infrastructure construction and maintenance are detailed in NCWRC's Guidance
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Re: [Fwd: Re: Goose Creek: Revised MOU]
Memorandum to Address and Mitigate Secondary and Cumulative Impacts to
Aquatic and Terrestrial Wildlife Resources and Water Quality.)_
b.
Where did the limit on 24% come from? What provisions are required for
developments with > 24% imperviousness?
New developments and existing developments for which modifications or
expansion are proposed that exceed 6% site imperviousness within the Goose
Creek or Duck Creek watersheds shall be required to include stormwater controls
designed to mimic, using best available technology, the hydrographic condition at
the site prior to the change in landscape and limit development to 24%
imperviousness. These conditions should be designed to maintain subsurface
infiltration, stream recharge, and stream stability. For multi-phase developments,
these stormwater requirements shall apply to either each phase of development or
the entire development.
c.
Either protect the entire floodplain or require the minimum buffers, not both.
Several LGs want to just protect the floodplain.
Stormwater treatment systems in that they must be designed to achieve a minimum
of 85% average removal of total suspended solids and consider systems that would
result in reducing the levels of fecal coliform, ammonia, phosphorus, nitrogen,
copper, and pesticides as these pollutants have been identified as concerns in the
Goose Creek and Duck Creek watersheds.
d. At a minimum maintain and establish a 200-foot native buffer along each side of
perennial streams and 100-foot native buffer along each side of intermittent
streams throughout the Goose Creek and Duck Creek watersheds. /In cases where
the 100-year floodplain is greater than the before mentioned minimum buffers the
full extent of the 100-year floodplain shall be protected./ Buffers should be
measured horizontally from the edge of the stream bank. If wooded buffers do not
exist, then these areas shall be revegetated or allowed to naturally revegetate (so
long as the area is pervious) to increase the functionality of the buffer. These
buffer areas shall remain free of new development. Ordinances will reference a
stream buffer map that will contain all minimum buffers along Goose and Duck
Creek.
e.
Define floodplain
Prohibit fill within the 100-year floodplain in the GooseCreek and Duck Creek
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Re: [Fwd: Re: Goose Creek: Revised MOU]
watersheds.
f. A process for variances that meet state statutory requirements and specified use
exceptions from the Ordinances will be allowed.
2. The Ordinances shall be intended to achieve similar results within the Goose
Creek and Duck Creek watersheds.
3. Prior to adoption of any such Ordinances, the NCWRC and/or the USFWS will
offer technical assistance to the local governments with regard to the drafting of
such Ordinances. Thereafter, the NCWRC and USFWS will continue to provide
technical assistance to the local governments on an as needed basis.
4.
By including this provision in the Ordinance it will not be overlooked in the future.
NCWRC and USFWS will have 30 days to comment
Draft Ordinances for each signatory local government shall be subject to review
and comment by the NCWRC and the USFWS to ensure that ordinance adoption
and implementation will result in desired end-results to promote the preservation
of the heelsplitter and its critical habitat. NCWRC and USFWS will have 30 days
to provide their comments to the appropriate local government. If comments are
not received within 30 days, the local government can assume that NCWRC and
USFWS concur with the draft Ordinance.
5. Prior to making any changes relevant to the content of this MOU to any adopted
Ordinance, the appropriate local government will provide all signatories a written
request to review and make comments on any such proposed changes. Such
provision will be incorporated into each Ordinance.
6.
Local Gov'ts would like stronger language/ specifics in this provision and for it to
explain NCDOT's role in providing this assistance.
The FHWA will consider providing assistance to the signatory local governments
to assist them in their efforts to protect the Carolina heelsplitter and its critical
habitat. Such assistance must be eligible for reimbursement, as determined by
FHWA, and must be necessary, as determined by FHWA, to reduce the estimated
impacts from the projects.
*IN WITNESS WHEREOF, *the Parties, through their duly authorized
representatives, have executed this Memorandum of Understanding, effective this
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Re: [Fwd:'Re: Goose Creek: Revised MOU]
day of , 2006.
*COUNTY* OF UNION
By
(Title)
*TOWN OF *FAIRVIEW
By
(Title)
*TOWN OF *HEMBY BRIDGE
By
(Title)
*TOWN OF *INDIAN TRAIL
By
(Title)
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Re: [Fwd: Re: Goose Creek: Revised MOU]
*TOWN OF *STALLINGS
By
(Title)
*NORTH CAROLINA* WILDLIFE RESOURCES COMMISSION
By
(Title)
*U.S.* FISH AND WILDLIFE SERVICE
By
(Title)
*FEDERAL HIGHWAY* ADMINISTRATION
By
(Title)
*N.C. DEPARTMENT OF TRANSPORTATION*
10 of 13 3/24/2006 2:57 PM

Re: [Fwd: ~Re: Goose Creek: Revised MOU]
By
(Title)
*EXHIBIT A (Map removed to keep file size small)*
**
**
-----Original Message-----
*From:* Mark D. Fowlkes [mailto:fowlkesmd(ci~carthlink.net]
*Sent:* Thursday, March 16, 2006 5:15 PM
*To:* 'Ron Linville'; 'ryan heise'; 'Rob Nichols'
*Cc:* 'James C. Borawa'
*Subject:* FW: Goose Creek: Revised MOU
FYI
-----Original Message-----
*From:* Sarah Niess [mailtoaniess(cr;centralina.org]
*Sent:* Thursday, March 16, 2006 4:41 PM
*To:* Marla J. Chambers; brena.jones(dearthlink.net
mailto:brena._jones~~earthlnkalet>; bclls~;dot.state.nc.us
<mailto:bellis~dot.state.nc.us>; dave.toms(ci,~ncmail.net
<mailto:davc.tomswncmail.nct>; Gary Peeplcs~;fws.~ov
<mailto:Gar-y Peeples~cr~fws.gov>; John Fridell(a~.fws.~ov
<mailto:Jolui Fridell(~fws.gov>; Jones, Amanda D SAW;
1Vlarella Buncick(rr;fws.gov <mailto:ll!Iarella Buncick(a?.fws.~ov>;
fowlkesmd(u-earthlink.net <mailto:fowlkesmd~r?earthlink.net>;
Rob.Ayers(u~fl~wa.dot.gov <mailto:Rob.Ayers~~thwa.dot.gov>;
Tom Augspur~er afws.gov <mailto:Tom Augspurner~ufws.gov>; Shari Bryant;
Brian Cole~?fws.gov <mailto:Brian Cole~i?.fws.~ov>;
C.Iarence.Coleman(«fhwa.dot.~ov <mailto:Clarence.Coleman(cr;fhwa_dot.gov>;
Alex Marks; Brian Cole(c~fivs.gov <mailto:Brian Cole(u`;fws.gov>; Cox, David R.
*Cc:* Al Sharp; Bill Duston; Jason Wager
*Subject:* Goose Creek: Revised MOU
All -
11 of 13 3/24/2006 2:57 PM

Re: [Fwd: Re: Goose Creek: Revised MOU]
I am attaching a revised version of the Goose Creek MOU incorporating proposed
changes and comments from the local governments for your review. These
proposed changes/comments are represented using track changes and text boxes
within the document.
After reviewing this revised MOU, we understand that you may want some
clarifications/or have questions. We are proposing a conference call next
**Wednesday, March 22 at **** lpm** to discuss this MOU. I know it is short
notice but hopefully most of you can make this call.
To participate on the conference call, call [phone] and when prompted
enter the following conference code: 7043722416.
Please let me know by the end of day Monday whether you will be able to make
this call.
Thank you,
Sarah Niess
Centralina Council of Governments
704.348.2719
Dave Toms
Basin Planner Planning Branch : Basinwide Planning Program Unit
DENR :Division of Water Quality
1617 Mail Service Center
Raleigh, NC 27699
Phone# [phone] ext. 577
Fax# [phone]
Serving the Catawba, Hiwassee, Little Tennessee, Savannah, & Yadkin-PeeDee River
Basins
Dave Toms
12 of 13 3/24/2006 2:57 PM

Re: ,[Fwd:'Re: Goose Creek: Revised MOU]
Basin Planner
Planning Branch Basinwide Planning Program Unit
DENR Division of Water Quality
1617 Mail Service Center
Raleigh, NC 27699
Phone# [phone] ext. 577
Fax# [phone]
Serving the Catawba, Hiwassee, Little Tennessee,
Savannah, & Yadkin-PeeDee River Basins
David Toms <dave.toms(c~ncmail.net>
Basin Planner
NC Department of Environment and Natural Resources
Division of Water Quality
13 of 13 3/24/2006 2:57 PM

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