20070168 Ver 2_Public Comments_20100212

Mcmillan, Ian
From: DJ Gerken [[e-mail]]
Sent: Friday, February 12, 2010 4:51 PM
To: 'Jones, Amanda D SAW; Mcmillan, Ian
Cc: 'Julie Mayfield'; Kay Bond
Subject: Falls Creek Land Co - SAW-2007-200-359
Attachments: Falls Creek Land Co. WNCA Comments.pdf
Please accept the attached comments on behalf of the Western North Carolina Alliance. A
hard copy is in route via first class mail.
Thank you,
DJ Gerken
DJ Gerken
Southern Environmental Law Center
dj ?e? rken a,selcnc.org
29 N. Market St., Suite 604
Asheville, NC 28801
Tel: [phone]
Fax: [phone]
$+x,++ Southern 29 N. Market St., Suite 604
hiiviro 1I11ental Pshe (828) 2 2 28801
: (8258-2023
Fax: [phone]
- LdVV Center [e-mail]
1^ebruary 12, 2010
Via First Class Mail. Fax and Email
Amanda Jones
Army Corps of Engineers .
151 Patton Avenue Room 208
Asheville, NC 28801-5006
Amanda. D..cones;iz::smv02.usace.army. miI
lan McMillian
1617 Mail Service Center
Raleigh, NC 27699-1617
ian.mcmillaniincmail.net
Re: Falls Creek Land Company -- SAW-2007-200-)59
Dear Is, Jones:
Please accept these comments on behalf of the Western North Carolina Alliance in
response to the Army Corps' January 12, 2010 request for comments.
The %Vestern North Carolina Alliance is a non-profit organization with the primary
"odls of protecting and preserving the natural environment and mountain streams of
Western North Carolina. The Western North Carolina Alliance includes members who
reside in the vicinity of the proposed project area and many more who recreate in these
areas and appreciate them for their scenic beauty, hiking, wildlife viewing, spiritual
reneNval. and other recreational and educational activities.
urge the Armv Corps and the Division of Water Quality to acknowledge that they
cannot, consistent with the mandate of the Section 404(b)(1) guidelines and state
regulations, issue a Department of the Army or 401 Certification, respectively, for the
Grandview Peaks project as currently proposed because practicable alternatives exist to
the proposed impoundments of mountain streams, the proposed mitigation plan is
inadeciuate. and the proposed impoundment will cause violations of state water quality
standards.
I. There Exist Less Damning Practical Alternatives To The Proposed Impacts.
Falls Creek Land Company proposes to construct a residential development in
McDowell County, NC. (Application at 13) Because Falls Creek Land Company has
available to it practical alternatives to impounding mountain streams that will fulfill its
project purpose, it cannot obtain a Department of the Army permit or a 401 Water Quality
Certification from the Division of Water Quality.
The Army Corps cannot issue a permit for impounding streams if there is a
"practicable alternative ... which would have a less adverse impact on the aquatic
ecosystem." 40 CFR 230.10(a). Under this prohibition, "practical alternatives- are those
that are "available and capable of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes." 40 C.F.R.
230. 1 0(a)(2)(2006).
The Guidelines establish rebuttable presumptions that (i) alternatives for non-water
dependent activities that do not involve wetlands exist; and (ii) alternatives that do not
involve wetlands have less adverse impact on the aquatic environment. 40 C.F.R. 5
230.10(a)(3). Special aquatic sites (riffle/pool complexes) likely will be impacted by the
proposed fill and impoundment. The purpose of the Falls Creek project is residential
development which, even when proposed with water amenities, is not a water dependent
activity. (July 2009 SOP at 15) Accordingly, no permit may be issued unless Falls Creek
overcomes these regulatory presumptions that alternatives exist that have less impact on
the aquatic environment.
Furthermore, the Wilmington District has finalized a policy for the application of this
standard to on-line impoundments of mountain streams. See Information Regarding the
Review and Processing of Standard Permit Applications for the Construction of On-Line
Impoundments (March 18. 2008). The Falls Creek proposal fails to meet the
requirements of either the 401(b)(1) guideline or the Wilmington District's policy.
Similarly, the Division of Water Quality may issue a 401 Certification for an impact
to surface waters only upon finding, in applicable part, that (1) the impact has "no
practical alternative" and (2) the project "will minimize adverse impacts to the surface
waters based on consideration of existing topography, vegetation, fish and wildlife
resources, and hydrological conditions." 15AN.C. Admin. Code 02f-1.0506(b). It' an
impact will remove existing uses from a water, minimization of impacts can be
demonstrated by showing that the impacts are required due to (1) the "spatial and
dimensional requirements of the project," (2) the "location of any existing structural or
natural features that may dictate the placement or configuration of the proposed project."
or (3) the "purpose of the project and how the purpose relates to placement, configuration
or density." Id. at .0506(g). A lack of practical alternatives can be established by
"demonstrating that, considering the potential for a reduction in size, configuration or
density of the proposed activity and all alternative designs the basic project purpose
cannot be practically accomplished in a manner which would avoid or result in less
adverse impact to surface waters or wetlands." Id. at .0506(f) (emphasis added).
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Because practical alternatives exist, Falls Creek cannot meet the standards for 401
cer,ificatlon.
While Falls Creek offers a passing summary of other amenities considered, it rejects
seVeral «ithout any accounting of costs and return sufficient to compare the viability of
mdse alternatives to the Applicant's preferred amenity of on-line stream impoundments.
The Applicant's showing is inadequate to overcome the regulatory presumption that
practical alternatives exist which will cause less impact to aquatic resources.
In the end. the Applicant's core justification for these on-line impoundments is the
greater- profit that can be achieved with the impoundments. While the cost to the
applicant and the viability of the project are factors legitimately to be considered by the
Army Corps and DWQ as they weigh the Applicant's avoidance arguments and available
alternatives, neither agency should appropriately be focused on the prospect for greater
profit. (Application at 37-40)
Under the Corps and IPA guidance as well as the Wilmington District's guidance
document for on-line impoundments, a reduced return on financial investment from the
perspective of a particular applicant is not an appropriate basis upon which to eliminate
otherwise practical alternatives. In two Section 404 Elevation decisions--Old Cutler Bay
and Plantation handing--which were handed down by the Ieadquarters of the Army
Corps of lrlgineers in 1990. the Director of'Civil Works decided this very issue. Both
applicants proposed to build extensive residential housing developments and neither
wanted to eliminate any part of their developments to lessen wetlands impacts. In no
uncertain terms, Corps Headquarters stated in both cases that the size of the
developments had to be questioned. In Old Cutler Bay the Director of Civil Works stated
in his decision that the Corps should look beyond the particular economic situation of the
applicant to determine whether a scaled-down version of the proposed project would be
viable for a ..typical" applicant. That is, even if Falls Creek could not make an economic
return on its residential development if it had to eliminate some of the components, the
real test is v.0hether the typical applicant could do so. According to the Corps
headquarters. "Districts should not focus too heavily on the specific profitability
statements of the particular applicant before them." Army Corps of Engineers, Old Cutler
Bay Associates Section 404 Elevation Decision, 6 (Oct. 9, 1990).
In this case, however, the application itself confirms that the project is viable without
stream impoundments, even if it is not as profitable as the applicant would hope. On the
information submitted, the Applicant projects an $8.8 million gross profit on the project
Without the stream impoundments. There is no question that the development is viable
and "capable ol'being done" without the added cost of the amenity ponds. Of course, the
,Army Corps must independently evaluate the Applicant's cost projections Ctcrl?r2s fit
hct!cr Trunspor!ulion 1•. U.S. RUT., 3051~.3d 1152, 1161 (10` Cir. 2002), and may well
ilnd that this gross profit is understated. Furthermore, if the option of no amenity returns
<} substantial gross profit, the Applicant surely cannot dismiss so easily the other
residential amenities briefly weighed and quickly rejected in the Application. In
particular, the Application dismisses trail systems, off-site amenities and other options as

impractical because they would render no return for their added cost. Where even a
project with no residential amenity returns a viable profit, the Applicant must provide
more detailed cost and profit estimates for the rejected amenities to demonstrate that the
will not produce a viable project.
Similarly Division of Water Quality regulations require an applicant for 401
Certification to pursue less environmentally damaging alternatives unless it demonstrates
those alternatives cannot practically achieve the applicants "basic project purpose" after
"considering the potential for a reduction in size, configuration or density of the proposed
activity and all alternative designs ...." 15A N.C. Admin. Code 0211.0500(f). North
Carolina clearly requires consideration of alternatives that will reduce the density and
size of the proposed project. Thus, for the reasons articulated above, a viable alternative
(development without amenity ponds) that would turn a substantial ($8.8 million) profit
despite a massive downturn in demand for high-end mountain residential development is
an alternative that must be taken, if it will have less impact on the aquatic environment.
In addition, the applicant has offered no analysis of the value of siting residential
properties in proximity to the streams themselves. A recent study of 400 dam removal
sites found that removing dams and eliminating impoundments in formerly "lake front-
property had no appreciable impact on property values and that proximity to free-flowing
water contribute as much to property values as did proximity to impoundments. See Bill
Provencher, Helen Srakinos, and Tanya Meyer, Does Stnall Dam Reinoi?ai;lffect Local
Property Nalues? An Empirical Analysis, University of Wisconsin-Madison Dept of'
Agricultural and Applied Economics Staff Paper No. 501 (July 2006). The application
emphasizes the recreation value of fishing associated with the proposed amenity
impoundments (Application at 41) but offers no comparison to fishing access in the
streams themselves or on nearby properties to which access could be secured by the
acquisition of easements for the benefit of residents in the development.
IL The proposed mitigation is inadequate.
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.' 40
CFR 232.10(c). 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. See City of Olmsted Falls, 435 1%3d at
638.
Similarly, Division of Water Quality regulations provide that DWQ may issue a
401 Certification only upon finding that, where there are "unavoidable losses." the
project "provides for replacement of existing uses through mitigation." 15A NCAC 0211.
0506(b), (h). The regulations direct DWQ to "coordinate mitigation requirements with
other permitting agencies that are requiring mitigation for a specific project." lei. In
keeping with this mandate, DWQ has, in collaboration with the Army Corps of
Engineers ("ACE"), the N.C. Wildlife Resources Commission ("WRC"), and the t!.S.
Environmental Protection Agency established Stream Mitigration Guiclelines
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("Guidelines"} to "provide the regulated community of North Carolina with joint and
consistent, IU.S. Army Corps of Engineers, Wilmington District] and DWQ strearn
mitigation guidance."See Stream 111ifigation Guidelines (April 2003) at 3.1
The Guidelines set uniform DWQ and ACE standards both as to the amount of
mitigation required for impacts to certain streams and the forms of mitigation accepted.
The proposed mitigation offered by Falls Creek is inadequate under the Stream
%littigadon Guidelines, the Wilmington District's On-Line Impoundment guidance and
ACE and Dot-"Q regulatory authorities.
At the outset, Falls Creek understates the amount of stream mitigation units
required to offset its proposed impacts, by treating flooding impacts as subject to a
reduced mitigation obligation as compared to impacts caused by fill. As the Wilmington
District's Can-Line Impoundment guidance notes, "flooding of a special aquatic site (i.e.
riffle-pool complexes) or any aquatic resources can be as detrimental as a fill." Indeed, as
described in ureater detail in the following section on eater quality standards, on-line
impoundments are highly likely to cause violations of numerical and narrative water
quality standards applicable to the free-flowing stream and eliminating a use for which
mitigation is required, as Nvith any other impact.
The streams on the Falls Creek property are designated by DWQ as "Class C" and
some carry supplemental designations as water supply watersheds. Under the Stream
aliti??uli?jl? Guidelines, streams assessed with good water quality must me mitigated on a
2:1 ratio. Falls Creek apparently concedes that streams impacted by its proposed
impoundments are "good' quality streams because it proposes to mitigate for fill related
it) impacts at a 2:1 ratio. (Application at 46.) Falls Creek nonetheless proposes to
mitigate for hooding impacts to the same waters at only a 1:1 ratio, underestimating its
gation obligation by as much as 5,970 linear feet of stream mitigation units.
Furthermore, the mitigation offered by Falls Creek is grossly inadequate to meet
its mitigation obligation even as calculated in the Application. Falls Creek offers only
09*? feet of actual restoration or enhancement (through the EEP program) for its extensive
impacts. By comparison, the project will cause 6,775 if of impact from flooding and fill,
require 7,580 if of'stream mitigation units under the Applicant's own calculations and
1 3.»0 if of stream mitigation units when flooding impacts are properly treated as
equivalent to fill impacts. The only substantive restoration or enhancement proposed by
Falls (,'reek is through the EEP with no assurance that the mitigation will benefit the
watershed impacted by the Falls Creek project. The stream preservation offered by the
l'alls Creek as the vast majority of its mitigation package is not acceptable as
compensatory mitigation because (1) the stream segments preserved are not high-value
streams for «hich preservation is appropriate, (2) the extent of the buffers preserved are
inadequate under MN"Q Guidelines and will not protect water quality, and (3) the buffers
preserved are not under threat of development.
The O'zai k/ines arv available at
-'W?e ..,uir.H,Y IcVtarntY.In iL'`tiacrtun?ls?mitigalio?z"strec?m_nritigutk?n.han.
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First, the preservation offered by Falls Creek is inadequate because the
preservation is proposed for streams not identified as "high value." DWQ has defines
stream preservation as the "[p]rotection of ecologically important streams" that may
include "protection of upland buffer areas adjacent to streams." Guidelines at 10.
Because stream preservation does not replace lost uses, it typically "should be used in
combination with restoration or enhancement activities," which are preferred forms of
mitigation because they restore lost uses on degraded streams. 141. The Guidelines allow,
however, that "[u]nder exceptional circumstances, preservation may stand alone where
high value waters will be protected or ecologically important waters may be subject to
development pressure." Id. Stand alone preservation is generally most acceptable when
applied to nationwide and regional general permits, not individual permits like the Falls
Creek project. See id.. In any event stand-alone preservation is appropriate only for
certain high-value streams enumerated by the Guidelines. No high-value streams exist on
the Falls,Creek property for which stand-alone preservation is appropriate under the
Guidelines. See Guidelines at 16.
Similarly, Corps guidance states that districts should consider credit for
preservation only when "the preserved resources will augment the functions of newly
established, restored or enhanced aquatic resources." (RGI.020-2 at 4.) Stand alone
preservation will be counted for compensatory mitigation credit only in "exceptional
circumstances" where the preserved resources "perform important ... functions, the
protection and maintenance of which is important to the region" and the preserved
resources are "under demonstrable threat." (Id.) The streams which Falls Creek proposes
to preserve do not perform functions important to the region such that their preservation
can be afforded credit as compensatory mitigation.
Second, the 30-foot of the buffers offered as stream preservation by Falls Creek
are inadequate under the Guidelines and inadequate to replace uses lost as a result oftheir
project. The Guidelines provide that buffer protection is generally used to "enhance the
recovery `and protection of stream mitigation projects," like restoration and enhancement
projects. Guidelines at 17. Thus, "a protected buffer of a minimum of. . . 30 feet on
mountain streams" is required at enhancement and restoration mitigation sites.
Guidelines at 17. Where, however, "stand-alone stream preservation is proposed as
mitigation, additional buffer width of at least two times the base requirement may be
required." Id. Because Falls Creek proposes to offer stand-alone stream preservation.
unconnected to stream restoration or enhancement, buffers of a minimum -of 60 feet are
needed.
Third. the buffer areas proposed to be "protected" by Falls Creek as preservation
are not under threat of development. Falls Creek proposes to place into buffers those
stream segments that are not impacted by the scope of its developments. Having been
subdivided and parceled out, those lots arc at minimal risk of future development. Falls
Creek states plainly in its application that the entirety of its project area will be divided
into a subdivision with large wooded lots providing each lot owner with private open
space. Corps Regulatory Guidance emphasizes that preservation is appropriate as stand
alone credit only when aquatic resources are under demonstrable threat and that
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..existence of a demonstrable threat will be based on clear evidence of destructive land
use changes that are consistent with local and regional (i.e., watershed) land use trends
and that are not the consequence of actions under the permit applicant's control." (RGL
02-2 at 5) halls Creek has not made the appropriate showing. 'T'here is no evidence that
such a development, once subdivided into large lots with associated infrastructure built
out is subject to further development and subdivision pressure in this watershed or
azlywhere in western North Carolina.
Accordingly, Falls Creek is not entitled to the permit it seeks without a substantial
revision and expansion of its proposed mitigation package.
III. 'The proposed activities will result in the violation of State water quality
standards.
The Corps cannot approve the Grandview Peaks' permit application because the act
of* impounding these streams will result in the violation of State water quality standards.
40 C FR 230.10(b) ("I n]o discharge of dredged or fill material shall be permitted if it:
( c Iauses or contributes ... to violations of any applicable State water quality standard").
Moreovcr, the Corps cannot approve the permit because the North Carolina UWQ cannot
certify that the proposed activities will comply with State water quality standards. Secs 33
1331(a)(1).
The proposed stream impoundments ultimately will cause violations of multiple state
vater quality siandards for these streams. Artificial impoundments "disrupt natural
drainage systems and serve as settling basins for sediments." Virginia Cooperative
Extension, Guide to Understanding and Managing Lakes: Part I (Physical
Measurements), lltt ?v",NN,ext.vt.edu/pubs/fisheries,'420-5 )8/420-538.htnil. As a result,
"they are more susceptible to heavy sedimentation than are natural lakes." As high loads
of suspended sediments are transported into lakes and begin to settle they increase water
temperatures and lower dissolved oxygen levels. Id.
The water quality standards most likely to be violated by the proposed impoundments
include dissolved oxygen, turbidity, temperature, fecal coliform, and chlorophyll a. State
standards require minimum dissolved oxygen levels for Class C waters of not less than a
daily average of 5.0 mg/L with a minimum spontaneous value of not less than 4.0 mg/L.
I SA N.C. Admin. Codc 0213.0211(3)(b). The turbidity standard requires that turbidity
not exceed 50 I'v`ephelometric "Turbidity Units (NTU) in streams not designated as trout
waters and 10 NI't_) in streams, lakes or reservoirs designated as trout waters. For lakes
and reservoirs not designated as trout waters, the turbidity shall not exceed 25 NTU. 15A
N.C. Admin. Code 0213.0211(3)(k). Lake waters may be allowed to have lower values
f«r dissolved oxvOen and higher values for turbidity, but only when they are "caused by
natural conditions." Id. State standards for temperature in Class C waters prohibit
increases exceeding 2.8 degrees C (5.0=1 degrees 1;) above the natural water temperature
and in no case can it exceed 29 degrees C for mountain streams. 15A N.C. Admin. Code
0213.021 l(3)(j). State standards for fecal coliform state that "fecal coliforms shall not
exceed a gcometric mean of'200/100m1(Mf count) based upon at least five consecutive
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samples examined during any 30 day period, nor exceed 400/1 OOmI in more than 20
percent of the samples examined during such period." 15A N.C. Admin. Code
0213.0211(3)(c). Finally, state standards for chlorophyll a (an indication of nutrient
pollution) require that no "greater than 40 ug/1 for lakes, reservoirs. and other waters
subject to growths of macroscopic or microscopic vegetation not designated as trout
waters, and not greater than 15 ug/1 for lakes, reservoirs, and other waters subject to
orowths of macroscopic or microscopic vegetation designated as trout waters (not
applicable to lakes or reservoirs less than 10 acres in surface area). 15A N.C..Admin.
Code 0213.0211(3)(x). Because impoundment of these cold-water mountain streams will
cause increases in temperature and dissolved oxygen and may lead to elevated levels of
fecal coliform and nutrients, Grandview Peaks' pen-nit must be denied.
Recently, DWQ received impoundment water quality sampling results from the
Ridge at South Mountain development. See Letter from Clearwater Environmental
Consultants to Ian McMillian, NC Division of Water Quality (August 3, 2009) (on file
with the NC Division of Water Quality). The Ridge at South Mountain was required to
conduct a lake study that includes monitoring for nutrients, fecal colifor,n, dissolved
oxygen, turbidity, and temperature. The two lakes in the study are comparable to the
larger proposed impoundment for Grandview Peaks: 16 acres & 21.5 acres. The results
from the first season of sampling show consistent violations of the water quality
standards for temperature, turbidity, and dissolved oxygen. The dissolved oxygen levels
were as low as .18 mg/I., well below the state standard of not less than 4.0 mg/L.
Temperature exceeded 29 degrees on a fairly consistent basis as did fecal coliform and
chlorophyll a levels. Repeated turbidity violations were recorded with the highest at
2,590 NTU which is 100 times higher than the 25 NTU standard for lakes. DWQ
required'the lake study to gather data not only about this site specifically but also to
provide information about the impact of these types of impoundments on North Carolina
streams. Given that the data shows repeated violations of water quality standards for the
Ridge at South Mountain, it is reasonable to assume that the proposed impoundments at
Grandview Peaks will have the same water quality problems. "Therefore, the Corps must
deny the applicant's 404 permit because DWQ cannot certify that this project will not
violate state water quality standards.
Finally, water quality standards applicable to all waters identify "best usage of
waters" to include "maintenance of biological integrity" and further state "[t]he waters
shall be suitable for aquatic life propagation and maintenance of biological integrity....
sources of water pollution which preclude any of these uses on either a short-term or
long-term basis shall be considered to be violating a water quality standard." 1 5A
N.C.A.C. 2B.0211(l ), (2). "Biological integrity means the ability of an aquatic
ecosystem to support and maintain a balanced and indigenous community of organisins
having species composition, diversity, population densities and functional organization
similar to that of reference conditions." 15A N.C.A.C. 2B.0200(I 1). Headwater streams
and wetlands host a wide variety of plants and aquatic life and loss of free flowing
streams and wetlands translates to lost habitat. Impounding headwater mountain streams
to create amenities for housing developments may have detrimental impacts on aquatic
life such as freshwater mussels and native fish species and thus contravenes the
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requirement of water quality standards that the biological integrity of all waters must be
111lintalnc?i.
I V. The Palls Creek Proiect Cannot Survive Public Interest Review.
Under the Corps' regulations, 33 C.F.R. § 320.4(a)(1), the Corps is required to
conduct a "public interest review" of all permit applications, evaluating "the probable
impacts. including cumulative impacts, of the proposed activity and its intended use on
the public interest." The Corps balances "benefits which reasonably may be expected to
accrue from the proposal" against the proposal's "reasonably foreseeable detriments." Id.
The Coles considers "the public and private need" for the proposed project and "the
practicability of using reasonable alternative locations and methods to accomplish the
ohjcctive." 33 C.F.R. § 320.4(a)(2)(i) and (ii). A permit may not be issued where it
would he contrary to the public interest.
As the Application itself concedes, McDowell County specifically and western North
Carolina generally are currently flooded with a glut of subdivided lots in high end
mountaintop residential subdivisions with amenities. The adverse impacts to aquatic
resources attributable to this prrJect cannot be justified in light of the meager public
benellt or market function it provides.
V. Conclusion
For the foregoing reasons, the Corps must deny the permit application and the
Division of Rater Quality must deny the Applicant's request for 401 Certification. If the
Corps or D% Q continue to consider the application, a public hearing is necessary to fully
ventilate the serious deficiencies in the proposed development plan.
Sincerely,
Austin DJ Gerken
Southern Environmental Law Center
29 N. Market St., Suite 604
Asheville, NC 28801
828-258-2023
djgerken ri)selcnc.org
Brianna Kay Bond
Southern Environmental Law Center
200 West Franklin Street, Suite 330
Chapel Hill, NC 27516
[phone]
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C01117.4e1 fof-
Western North Carolina Alliance.
Julie Mayfield, Executive Director
29 N. Market St., Suite 610
Asheville. NC 28801
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