20180582 Ver 2_Public Notice Comments_20191005

Homewood, Sue
From: Craig Pendergrast <[e-mail]>
Sent: Saturday, October 5, 2019 12:56 PM
To: SVC_DENR.publiccomments
Cc: Nicole Hayler; Callie D. Moore;[e-mail]
Subject: [External] Cashiers Canoe Club comment letter
Attachments: Cashiers Canoe Club comment letter085.pdf
• External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to
ort.s am nc. ov
Please see the attached comment letter. I'd be pleased to speak with Karen Higgins about this and the
legal/technical/environmental considerations discussed in it. My contact information is below.
Craig K. Pendergrast
Taylor English Duma LLP 1 1600 Parkwood Circle, Suite 200, Atlanta, GA 30339
P: 678.336.7245 1 M: 404.514.1319 1 [e-mail]
Website I vCard I LinkedIn
vaKco'4 #
t'lutulktx i
% f Ranked in Chambers 2019

CRAIG PENDERGRAST
645 WILSON ROAD
ATLANTA, GEORGIA 30318
October 5, 2019
By email: [e-mail]
North Carolina Department of Environment and Natural Resources
Division of water Resources
Clean Water Action Section 401 Certification Branch
Attention: Karen Higgins
Re: Cashiers Canoe Club Application for CWA Section 404 Permit and associated CWA Section
401 Water Quality Certification
Dear Ms. Higgins:
This constitutes my comment on the Cashiers Canoe Club's application to conduct a major
dredging operation in Cashiers Lake on the upper Chattooga River. I am environmental attorney
with a specialty in water law, having practiced environmental law for over 35 years. I am also a
landowner in the area and frequent recreational user of the upper Chattooga River. I am troubled
by the sedimentation impacts on that area of the river that I have observed which have resulted
from sediment -laden storm water discharges from U.S. Forest Service and other dirt roads and
various development projects in the watershed.
The Chattooga River in this area is an Outstanding Resource Water which must by law under the
Clean Water Act (CWA) and its regulations be protected against any further degradation. As a
matter of law, no CWA permit (or similar North Carolina permit under its delegated CWA
authority) shall be granted and no CWA section 401 water quality certification shall be made by
the State of North Carolina where the activity for which a permit is sought is likely to give rise to
a degradation of water quality of the Chattooga.
Based on a simple hydrologic analysis as applied to the information contained in the applicants'
permit application, a reasonably anticipatable heavy rainfall event in the course of the proposed
dredging project will lead to the discharge into the Chattooga of lake bed sediments exposed and
disturbed by the dredging project. Accordingly, as a matter of law, NCDENR cannot lawfully
issue a CWA section 401 water quality certification for the proposed project and associated
CWA section 404 dredging permit unless a) the applicant makes a showing that the project can
and will be performed in a manner that prevents degradation of water quality in the Chattooga
River downstream of Cashiers Lake; and b) the NCDEiNR certification and all applicable federal,
state, or local permits include conditions that require the use of such means and methods as are
necessary to prevent degradation of Chattooga River water quality as a result of the project.
1

As described by the applicant's application, the proposed project will involve a land disturbance
area of 10.34 acres of which 6.11 acres will be completely denuded to expose accumulated
sediment that is currently in a stable, vegetated wetland condition. When storm water flows
impact the exposed sediment, then those storm. water flows will carry the sediment
downgradient.
During particularly heavy rainfall events, the inflows into the dredging area and into the proj ect-
lowered open water of Cashiers Lake will overwhelm the detention capacity of both the dredging
area and Cashiers Lake.
Per the application materials, the plan is to lower the lake by 4 feet during the dredging
operation. It appears that approximately 14 acres of open lake area will remain duri=ng the
project. Thus, the detention capacity for storm water purposes will be less than 56 acre-feet
because the mid-upper and side portions of the lake would have lower detention capacity than
the portion of the lake next to the dam that would have 4 feet of freeboard when the lake level is
lowered by 4 feet. It is reasonable to assume that the detention capacity of the lowered lake will
be less than 50 acre-feet. Prior to making a water quality certification determination, the
applicant should be required to provide a detailed analysis of the lowered lake's detention
capacity.
Per the application materials, 517 acres of drainage basin exist above the Frankie Allen Road
crossing at the head of the lake. That means that if there is a 1.25" (i.e., 0.104 foot) rainfall event
when soil conditions are already saturated as they often are in this high rainfall frequency area,
the resulting storm water input will be 53.85 acre-feet of storm water. This storm water input
will scour the exposed lake bed and overwhelm the detention capacity of the lowered lake.
Because the storm water flow will pick up a substantial sediment load as it scours the exposed
dredging area and other exposed lake bed portions of the lowered lake and the detention capacity
of the lowered lake will be overwhelmed, substantial sediment -laden storm water discharges will.
flow out of the lake into the Chattooga as a result of the dredging project during the frequent
instances in which rainfall events will exceed the detention capacity of the lake. The silt fences
and turbidity curtains proposed by the applicant will not prevent those discharges because the
detention capacity of the lake will be overwhelmed by sediment laden water.
With this analysis, NC DENR should not issue a water quality certification for the proposed
project unless the applicant first addresses the considerations raised by this analysis, revises its
plans to demonstrate that the project can and will be performed in a manner that prevents
degradation of Chattooga River water quality downstream of Cashiers Lake, and permit
conditions are imposed to require such anti -degradation measures.
Sincerely, `
Cr Pendergrast