20081342 Ver 1_Public Comments_20081009

October 7, 2008
Corps of Engineers
Attn: James Lastinger
Raleigh Regulatory Field Office
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
Dear Mr. Lastinger,
Pamlico-Tar River Foundation
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OCT g 2008
DENR - WATER UUALI 1 Y
WETLANDS AND STORMWATER BRANCH
The Pamlico-Tar River Foundation submits the following continents regarding the proposed dam construction
and impact to jurisdictional wetlands by applicant Carlton Midyette in Franklin County. The proposed project is
located on an existing 400 acre fann. The UT proposed to be dammed to make a recreational lake drains to
Cedar Creek. The impacts include 0.322 acres of wetlands and 2,165 linear feet of perennial stream channel. In
the public notice, Mr. Midyette proposed only preservation as the sole form of impact mitigation.
The Pamlico=Tar River Foundation, founded in 1981, is a grassroots environmental organization representing
2500 members and a licensed member of Waterkeeper Alliance, Inc. Our mission is to enhance and protect the
Pamlico-Tar River watershed through education, advocacy, and research. The Pamlico-Tar RIVERKEEPER® is a
full time river advocate who monitors and protects the river and serves as a scientific and educational resource
to all the people living in the watershed.
To begin, PTRF completely rejects the project that will dam a free-flowing perennial stream channel in order to
make a private, recreational lake. This UT to Cedar Creek is known habitat for a federally listed endangered
species, the Dwarf Wedge mussel. As noted by the Wildlife Resource Conunission, all headwater areas that
flow into these occupied habitats should receive special management Cedar Creek may also be habitat for the
State endangered yellow lampmussel, and the State threatened Triangle Floater.
Mr. Midyett's pennit application must be denied because other practicable alternatives exist to the proposed
impoundment of a perennial stream, the proposed mitigation plan is inadequate, and the proposed impoundment
will cause violations of state water quality standards.
The Corps cannot issue a permit for activities for which there is a less damaging alternative.
The Corps cannot issue a pennit for impounding streams if there is a "practicable alternative
... which would have a less adverse impact on the aquatic ecosystem." Mr. Midyette proposes to construct a 10+
recreational lake, for what we assume to be for private use, in Franklin County. This proposed amenity would
impact 2,165 linear feet of stream channel. Mr. Midyette's basic project purpose of constructing this recreational
lake can be fulfilled with other practicable
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alternatives that would have no impact on the aquatic ecosystems of Cedar Creek and its tributaries. An
alternative is practicable if it is "available and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project purposes." An off-line pond is one such reasonable
alternative that would avoid impacts to aquatic resources. Although the Corps' public notice does not indicate
whether special aquatic sites, such as riffle/pool complexes will be affected by the proposed fill and
impoundment, such impacts seem likely given the nature of this small piedmont stream.
No permit may be issued under § 404 if the discharge of dredged or fill material will "cause or contribute to
significant degradation of the waters of the United States." Notwithstanding this prohibition, the Corps has the
authority to issue a permit if unavoidable impacts are mitigated such that, on balance, there is no significant
degradation to the waters of the United States.
The mitigation proposal offered by Mr. Midyette is inadequate. The applicant proposes to meet part of its
mitigation obligation by preservation of 20 acres of Tar-Pamlico buffer. Because these areas already are
protected from development by existing laws, they are not eligible for compensatory mitigation through
preservation.
Additionally, the mitigation plan submitted by the applicant fails to meet North Carolina's requirements for §
401 certification. The Department of Water Quality of the North Carolina Department of Environment and
Natural Resources ("DWQ") may issue a § 401 certification if, among other things, the activity "provides for
replacement of [unavoidable losses of] existing uses through mitigation. As DWQ notes in its guidance policy,
"DWQ may limit the use of preservation in the context of stream mitigation since aquatic life uses are not being
replaced with preservation." May 2000 Interim DWQ Policy on Stream Mitigation Options. DWQ defines
"preservation" as "the protection of a relatively undisturbed stream and its associated buffer ... beyond that
presewly required by u regidulmy program." Id. (emphasis added).
The Corps cannot approve the applicant's pen-nit application because the act of impounding this stream will
result in the violation of State water quality standards. The proposed stream impoundment ultimately will cause
violations of multiple state water quality standards for this stream. State standards require minimum dissolved
oxygen levels for Class C waters of not less than a daily average of 5.0 ing/L with a minimum spontaneous
value of not less than 4.0 mg/L. State standards for temperature in Class C waters prohibit increases exceeding
2.8 degrees C above the natural water temperature. The alteration of a free-flowing perennial stream channel to
a 10+ recreational lake could cause increases in temperature and the lowering of dissolved oxygen, the permit
must be denied.
For the reasons mentioned above, the Corps must deny the permit application. We appreciate the opportunity to
comment.
Sincerely,

Heather Jacobs
Pamlico-Tar RIVERKEEPER
Pamlico-Tar River Foundation
cc: John Dorney, DWQ
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