20070168 Ver 2_USFWS Comments_20100212

02/12/2010 11:23 FAX [phone] USFWS As.heville,NC
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United States Deputmtent of the Interior
FISH AND WILDLIFE SERVICE
CH Asheville Field Office
160 Zillicoa Street
Asheville, North, Carolina 28801
February ..2, 2010
Ms. Amanda Jones
Asheville Regulatory Field Office
U.S. Array Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Dear Ms. Jones:
9 002
Subject: Site Assessment for the Proposed CO11SVUCtiarl of Two Impoundments at the
Grandview Peaks Subdivision, Joe Branch Road, Southeast of Dysartsville, ??IcDowell
County, North Carolina (ORM ID SAW 2007-200-359)
This is the report of the U.S. Fish and Wildlife Service and the Department of the Interior on the
U.S. Army Corps of Engineers' (Corps) Public Notice of an Individual Permit Application (IPA)
submitted by Fall Creek Land Company, represented by ClearWater Environmental Consultants,
Inc. On March 15, 2007, we responded to a Public Notice of an IPA for the proposed project. In
July 2009, the Fall Creek Land Company withdrew their previous application. We received a
copy of the most recent IPA in December 2009. Information for this report is based on a review
of the Corps' Public Notice issued on January 12, 2010, and the IPA submitted by Fall. Creek
Land Company. This report is submitted in ae,:ordance with the provisions of the Fish and
Wildlife Coordination Act, as amended (16 U.S.C. 661-667e); the National Environmental
Protection Act; and section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C.
1531-1543) (Act).
Project Description - The purpose of the proposed development is to provide residential
housing with amenities. To accomplish this, Fall Creek Land Company is proposing to develop
a 1,830-acre residential development known as Grandview Peaks, with about 760 single-family
lots. The applicant is also proposing to constnuct two earthen dams (heights of 40 feet and
96 feet, respectively) for the creation of two amenity lakes (9 acres and 25 acres ill size,
respectively). The project site is primarily mountainous acid wooded, with areas of early
successional forest from previous clear-cutting activities. The headwaters of Hoppers Creek,
Weaver Branch, Shoal Creek, Kelly Branch, South Muddy.Creek, and Big Camp Creek are on
the site. The site contains about 2.16 acres of w,--aands and about 54,392 linear feet (la) of
stream channel. To construct the lakes, the applicant is proposing to impact about 6,6651f of
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stream channel and about 0.73 acre of wetlands. Aquatic impacts associated with road
construction total about 1101f.
Federally Listed Species - Based on the information provided, we agree that no listed species or
their habitats occur on the site and that the proposed project will not affect endangered or
threatened species or their habitats. Therefore, we believe the requirements under section 7 of
the Act are fulfilled. However, obligations under section 7 of the Act must be reconsidered if:
(1) new information reveals impacts of this identified action that may affect listed species or
critical habitat in a manner not previously considered, (2) this action is subsequently modified in
a manner that was not considered in this review, or (3) a new species is listed or critical habitat is
determined that may be affected by the identified action.
Fish and Wildlife Resources - We oppose the construction of in-line structures such as the
proposed lakes because they significantly alter both aquatic and terrestrial habitat. The
conversion of a free-flowing stream to a lake results in the loss of natural stream functions, alters
the hydrology, and affects native ecosystem processes within and downstream of tae reservoir
site. The effects of impoundments result in changes in fish and macroinvertebral:e,;om.munities,
often favoring nonindigenous species; species that require clean gravel and sand substrates are
lost. In addition, dams result in the fragmentation and isolation of populations of species, acting
as effective barriers to the natural upstream and downstream expansion or recruitment of fish
species. This reduction in range and isolation of populations greatly increases the vulnerability
of a species to extirpation. It reduces a species' ability to respond to changes (natural or
manmade) within its enviromnent and to recover from impacts (large or repeated small-scale
impacts) to its numbers that a species with widely dispersed, interconnected healthy populations
would likely be able to overcome.
On page 14 of the IPA, the applicant states that "When a lake is created, new habitat is created."
However, the "new habitat" that is created is a cause for concern, not justification to build a lake.
Lakes are not a naturally occurring feature in the Southern Appalachian Mountains. Because
lakes are not natural in this area, they provide aquatic habitat to nonnative and invasive species
that could impact the native aquatic flora and fauna that occur upstream and downstream of the
project site. Although the habitat will remain in an aquatic state, the fauna and ecosystem
functions associated with streams are not similar and cannot be "replaced" with the associated
fauna and functions from an impoundment.
The majority of native aquatic species are adapted to stream conditions (flowing, highly
oxygenated water and coarse sand, gravel, and rocky bottoms). The impoundments created by
the construction of dams eliminate spawning and foraging habitat. Water depth increases, flow
decreases, and silt accumulates on the bottom. Impoundments not only destroy riverine habitat
within the impounded portion of the stream but also alter the quality and stability of the upstream
and downstream reaches by adversely affecting water flow regimes, velocities, temperature,
chemistry, sediment transport, and nutrient cycles. Page 16 of the IPA states that "The applicant
will minimize temperature deviations from upstream ambient conditions by incorporating a cold
water release into the dam designs." It goes on to state that "Cold water bottom withdrawal
devices will be within 1-2 feet of the bottom, but not on the bottom. This design will prevent
buildup of poorly oxygenated water and improve water quality in the lake." From our research,
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and from the tables containing the results of the applicant's research on area lakes, dissolved
oxygen levels generally decrease over 60 percent from the surface to depths of 4 meters. The
proposed dams are 40 and 96 feet in height. Given the size of the proposed dams and the
expected water depth at the dams, we believe that a water withdrawal structure placed 1 to 2 feet
from the bottom of the lake will draw water that will have very low dissolved oxygen levels. We
do not believe that a bottom withdrawal structure is the answer to water temperature issues
caused by the impounchnents. Just because water is withdrawn from the depths of a lake does
not mean that the temperature conditions will be the same as downstream temperature
conditions. Further, the deoxygenated water typically withdrawn from greater depths may be
unsuitable to downstream aquatic organisms ev.-n if the temperature is appropriate.
On page 17, the applicant states that "Residual flow in the stream below the dam will be
maintained when filling the lakes to protect aquatic life. The applicant will partially opening
[sic] the gate valve during the filling process." The dam should be designed and constructed to
mimic the natural conditions (temperature regimes, seasonal flows, sediment transport, etc.) as
closely as possible to minimize/avoid downstream impacts. The application does .riot indicate
that studies have been conducted to determine the natural stream conditions at the proposed
project site or downstream of the project site. Basaine data must be collected and used to show
whether clams can be designed to ensure that the dams are built to mimic the natural conditions
found downstream of the project site and to avoid impacts to downstream aquatic, resources.
According to the guidelines set forth in 40 CFR (Code of Federal Regulations) Section 230.45,
riffle and pool complexes are considered special aquatic sites.' Section 230.45 (b) of 40 CFR
covers the possible loss of values that can occur from the discharge of fill material into special
aquatic sites such as the riffle-pool complexes and wetlands. It states that the disci-.
tar
ge of fill
material can adversely impact and/or eliminate riffle and pool areas by reducing the aeration and
filtration capabilities at the discharge site and downstream, reduce stream habitat diversity, and
may retard repopulation of the discharge site through excessive sedimentation and the creation of
unsuitable habitat. The applicant has yet to provide any evidence that the construction 3f the two
dams and subsequent lakes will not cause water quality degradation and potential rearm to special
aquatic sites; therefore, we recommend that stringent measures be taken to completely avoid
impacting the streams on this property.
Monitoring - The applicant is proposing a 5-year water quality monitoring plan to begin in
August after the lakes are filled. Though the sampling and testing criteria proposed are a good
place to start, we do not believe the proposed measures are sufficient for monitoring all the
effects the dams will have on the downstream resources and stream channel stability. We
believe any monitoring plan for this project, if it is permitted, should include the following
measures:
140 CFR, Section 230.3 (q-1) - Special aquatic sites are geographic areas, large or small, possessing special
ecological characteristics of productivity, habitat, wildlife protection, or other important and easily disrupted
ecological values. These areas are generally recognized as significantly influencing or positively contribi?ting to the
general overall environmental health or vitality of the entire ecosystem of a region.
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1. All monitoring and surveys should s'tar't before: any construction begins on the
project to establish baseline data and should continue for a minimum of
5 years after construction.
2. Geomorphological characteristics should be measured both upstream and
downstream of the project site.
3. Measures should uiclude cross-sectional surveys, pebble counts, bank-fiill
discharge calculations, longitudinal profiles, and flow measurements.
4. Photo documentation sites should be established to document any changes to
the stream channels.
5. Aquatic organism (benthic, fish, etc.) sampling should be conducted upstream
and downstream of the project site.
We would appreciate being given an opportunity to review and comment on any future
monitoring proposals if this project is permitted.
Purpose and Need - The stated overall purpose ofthe proposed development is to develop a
viable, upscale residential community with amenities in McDowell County. We believe that
amenities can include a wide range of features that provide attractiveness and add value to a
development. For this reason, we believe there are a wide range of alternative amenities that
could be constructed and/or that already exist to i icrease the attractiveness and value of this
proposed development. Section 404 (b)(1) guidelines prohibit the filling of wetlands or streams
for nonwater-dependent activities when practicable alternatives exist. We do not believe the
on-line amenity lakes are water-dependent activities because practicable alternative amenities
exist that would avoid impacts to aquatic resources. Therefore, we do not believe the "Purpose
and Need" statement in the IPA justifies the aquatic impacts associated with this project. We do
not believe that the stated need for the lakes--to provide an amenity to the development--should
be used to evaluate the purpose and need for the lakes. While reviewing the current advertising
web site for Grandview Peaks (http://www.fallereekland.com/), we found the-following
statements:
The natural beauty of the area can be enjoyed year-round making it an
outdoorsman's paradise. Lake Lure and Lake James are nearby lakes where you
can enjoy swimming, boating, fishing, liking, and much more. The nearby Green
River is ideal for canoeing and is state stocked, providing excellent fishing.
The lakes are terrific. The waters of Lake Lure & Lake James are, in a word,
perfect. Very clean and clear and the perfect temperature for water activities.
They also support some of the best fish populations you will find anywhere.
Other recreation in the area range from hiking to rafting, biking to shopping and
much, much more.
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All forms of recreation and entertainment are available to our property owners
within a short 20 to 40 minute drive. Grandview Peaks is located in the heart of
Western North Carolina, and rather than provide a few on site amenities, we have
invested in being in the middle of a vast area of wilderness recreation.... Bnj oy
a scenic hiking trail to a remote waterfall or picnic at a gazebo in one of our
common areas while taking in a spectacular mountain vista.
Golf is plentiful in the area. Cleghom Plantation, Silver Creek Plantation,
Meadow Brook, and Fairfield Mountains, are a few of the premier public courses.
Within an hour's drive we have a dozen trout streams, and two major lakes.
Some of the best hiking in the east including the Daniel Boone Trail (which
traverses over Grandfather Mountain), the Appalachian Trail, and Linville Gorge
(one of only three federal wilderness areas east of the Rocky Mountains). Just to
our east is the South Mountain State Park., l',lort h Carolina's largest state park,
with over thirty thousand acres open to the public. Hiking, mountain biking,
fishing, swimming, and horseback riding ace just a. few things the park offers. To
our north there is excellent skiing at Sugar Mountain and Beech Mountain.
On a clear day it's possible to see miles over mountains, perhaps even to the
quaint town of Morganton. It is just 20 iminutes away, after all, close to sky-blue
Lake James' 150 miles of shoreline. Chalk up the clarity to careful planting on,
Fall Creek Land Company's part.
Before you ever set foot on your lot, our owners explored every inch. They
assessed the land and ensured it to be well-placed and buildable. The expertly
plotted lots range in size from 1-10 acres and are all completely buildable,
competitively priced and breathtakingly scenic. All lots consider big views.
Words don't describe the beauty adequately. View famed mountain sunsets and
sunrises from your picturesque log cabin or custom-built forest estate.
According to the information cited from tl:te Grandview Peaks web site listed above, numerous
amenities including open-water and other recreational opportunities exist within a c1ltort distance
of the development. Also, according to the web site, it is these amenities that make the
development special, attractive, and valuable. Ue web site contradicts the IPA with regard to
the need for the proposed lakes for recreation and Em aesthetically pleasing and functioning
environment. The web site further states that the development offers "a wide variety of home
sites available offering beautiful mature hardwoods, small streams, seclusion, and breathtaking
mountain views," but the proposed lakes are not mentioned anywhere on the web site. 'For these
reasons, we do not believe that the creation of the lakes is essential to the success of the
development.
Alternatives Analysis/Impact Justification - During our review of the previous application in
2007, we included conunents in our letter pertaining to the fact that a portion of the development
had been constructed and a large portion (over one-third) .of the lots had been sold or were under
conlract. Yet the master plan shown on the Fall Creek Land Company's web site at that time
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showed no proposals for lakes. Therefore, it appears that the project is economically viable
because lots are already being sold and homes have been and are being constructed. By the time
the applicant had withdrawn the 2007 IPA, a 25-acre lake and a 9-acre lake were being proposed
in the same locations as currently proposed. The: previous IPA stated that the purpose for the
lakes was to provide fire suppression, recreation, :rnd an irrigation source for homes, and the
current IPA states that the primary purpose of the lakes is to provide a recreational amenity and
economic profitability (boost the profit that can be made from the project due to the recent
economic downturn that the country has experienced). We understand that the Corps cannot take
the withdrawn application into account with the current application. However, the applicant is
trying to justify the currently proposed impacts'oy stating higher than expected cots for the
project during an economy that is clearly not as strong as it was in 2007, when the IPA was
submitted.
The tables on pages 38 and 39 of the IPA clearly show that the development is profitable without
-the proposed lakes. Though the economic feasibility of the alternatives has to be assessed, if an
alternative (in this case, the "no-build" alternative:i can be accomplished with consideration of
the cost of the alternative to the applicant, then the: alternative is practicable (40 CPR Section
230.10 (2)). Within the CPR there is no consideration :for increased/decreased revenue margins
from project alternatives. The fact that the applicant will profit over $8 million without the lakes
indicates that there is no loss of direct expenditures by the applicant with the "no-build"
alternative; and the fact that the applicant can make more money by having the lakes is not a
measure as to the practicability of the alternative. Therefore, we believe the increased revenue
that the project would provide with the amenity lakes should not be considered when assessing
the "build" or "no-build" alternatives.
We believe the applicant's statement on page 31- stuns up the impact justification best. The
applicant states that "Water features are extremely desirable for private residences." Page 40
goes on to state that "Without the lake, it [the development] would likely take 6 or 9 years for the
project to sell out." We agree that water features are desirable to some buyers, but they are not
needed and/or necessary for the proposed development to be completed with a profit.
On page 41 of the IPA, the applicant used information from the 2001 National Survey of Fishing,
Hunting, and Wildlife-Associated Recreation, conducted by the U.S. Fish and Wildlife Service,
to show the increased revenue the lakes would brir:.g to the area. Though the information
provided is accurate on a statewide level, it has been misinterpreted by the applicant and inflates
the amount of revenue that could be brought to the local area by the proposed project. The
expenditures associated with wildlife viewing should not be factored into the justification
because there is already an abundance of wildlife on the site (as indicated on page 9 of the IPA).
Therefore, the lakes will not increase the amount of expenditures for wildlife viewing. Of the
$1.1 billion spent in North Carolina for fishing; $693 million (62 percent) was for gavel, food
and lodging, and $145 million (13 percent) was sp;:nt on specialty equipment (boats, vans,
trucks, etc.). Given these numbers, over 75 perce:rr' of the $1.1 billion statewide was spent on
items that do not relate to expenditures that will be made by residents of a private/gated
development. Using the national average, about 10 percent of the U.S. population who are over
16 }ears of age had expenditures relating to freshwater fishing. Given that only about:
150 part-time residents, primarily second homes (a,,cording to the IPA), may have,-.xpenditures
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related to fishing, we find it difficult to believe thal.. the creation of the lakes will provide any
economic boost to the local economy. Also, this :section of the IPA did not include an analysis of
the potential hunting expenditures that will be lost: by changing the land use from - orested to
residential development. If we are to accept that any increases to the local economy, though
insignificant, will be gained by the increased fishing expenditures from the residents of
Grandview Peaks, we believe the applicant shou"16 . also analyze and address the loss of potential
hunting expenditures.
In Alternative Option I on page 25 of the IPA, the applicant uses unrelated costs to justify the
impacts of the project and to dispute the legitirnacy of the "no-build" alternative. The IPA states
that "On-site amenities require less cost, less tirne, nd expenditures of fewer resources by
residents." It goes on to say: "The ability of Grandview Peaks to provide a similar amenity at
little to no cost for its residents is very desirable to potential residents of the community." We
believe the statement made by the applicant that the amenity (on-site lakes) will have little to no
cost to the residents is false. The extra $100,000 for lots located around the lake will be quite
costly to the residents, as will the maintenance and upkeep of the dam and impoundment. The
application then compares costs for using motorized boats on Lake Lure, which :Ls'xrelevant
because the application later states that only nonrnotorized boats will be allowed on thr: lakes at
Grandview Peaks. The IPA also states, after much promotion on the applicant's web site, that
Lahe Lure and Lake James will not provide a "private lake experience." The ptuTose of the
project is to construct a residential development with amenities; privacy is not a purpose or
justification.
Cumulative Impacts - We do not agree with the secondary and cumulative effects analysis
contained in the IPA. We also believe the cumulative analysis of the proposed project is
incomplete. The cumulative analysis on page 53 of the IPA concentrates mainly on land mass
percentages, not impacts to aquatic resources. The analysis simply states that "impacts
associated with the project and its effects cumulatively on the watersheds will be minimal.
Activities.at Grandview Peaks should not result in a maior impairment of the water resources on
site or interfere with the productivity and water quality of the existing aquatic ecosystem."
However, recent research conducted by this office has shown that there are about 610 dams in
the Catawba River.(8-digit HUC) basin in North Carolina that are registered in the state:'s dam
safety inventory. This does not include dams that ire under 14 feet and are not considered "high
hazard" (data for these dams, aid iinpact amounts in river miles, is still being collected), so we
feel safe in saying that the number of dams in the Catawba. River basin in North Carolina is
substantially higher than 610. Using the information in the registered darns database only, we
calculated that over 80,000 acres of impoundment surface area have been created in the basin.
We also conducted an inventory of existing impoundments within the 14-digit H_ JC of the
proposed project and found that about 110 acres of impoundments occur in the 14-digit HUC.2
Again, we believe this number is higher because it does not include smaller impoundments (e.g.,
farm ponds) that exist within the watershed. Using the annual Class A pan evaporation rate for
2We believe this number is much higher, given the number of dams that were not counted (e.g., faun ponds and
dams smaller than 14 feet in height) in the North Carolina Dams spreadsheet and some of the date gaps that exist
within the spreadsheet.
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the Catawba basin (60 inches), we calculated the evaporative loss of the 110 acres of
impoundments to be about 385 acre feet. That equates to about 343,705 gallons of evaporative
water loss each day. Using the 170 gallon per day/per person usage in North Carolina„ that is
enough water for about 2,021 people. The 34 acres of impoundments proposed in the current
IPA would increase the documented surface area. acreage in the 14-digit HUC by almost
30 percent. That would increase the amount of evaporative loss in the watershed by 106,000
gallons per day. The evaporation loss will adversely affect the quantity of water available to
downstream reaches.
Dams and impoundments cause adverse impacts to river and stream systems, and those adverse
impacts are compounded with each new impoundment that is constructed in a watershed. We
believe the cumulative effects of those impacts along with the increased evaporation caused by
impoundments is resulting, and will continue to result, in major impairments to the water
quantity and quality in the Catawba basin. We recommend that the Corps consider a more
extensive review and analysis of the cumulative impacts of dams and impoundments tlian is
provided in the current IPA. We believe a review should include the total number of
impoundments in the basin, the total number of river miles that have been impounded, a
cumulative biological and ecological impact an;?dysis of tine dams in the basin, and
documentation to prove that dams and impoundments do not cause secondary impacts to
downstream aquatic resources.
Because the application is written with bias toward constructing the on-site lakes, it does not
provide an objective analysis of the practicable alternatives or the impacts associated with
construction of the two lakes. We believe the alternatives analysis presented in the IPA is
incomplete and does not justify the need far the ors-site on-line lakes option. Because the
purpose and need statement (residential development with amenities) and the imycact justification
(increased profit) for the proposed lakes as shown in the IPA are not valid, we do not believe the
lakes as proposed are a water-dependent activity nor are they necessary for the success of the
Grandview Peaks development. Because a portion of the development is already constructed and
lots are already selling and the recreational needs of the residents can be met with the. on-site and
nearby amenities and resources currently available,1;ve believe the no-build alternative is the
most practicable. Therefore, we recommend that siny permits for the constructio_a of-these
impoundments be denied.
We appreciate the opportunity to provide these comments. If we can be of assistance or if you
have any questions, please do not hesitate to contact Mr. Bryan Tompkins of our staff' at
828/258-3939, Ext. 240. In any future correspondence concerning this project, please reference
our Log Number 4-2-06-200.
Sincerely,
$rian P. Cole
Field Supervisor
02/12/2010 11:26 FAX [phone] USFWS Ashevil]e,NC [a010
cc:
Mr. David McHenry, Mountain Region Reviewer, North Carolina Wildlife Resources
Commission, 20830 Great Smoky Mtn. Expressway, Waynesville, NC 28786
Mr. Kevin Barnett, North Carolina Department of Environment and Natural Resources, Division
of Water Quality, 2090 U.S. Highway 70, SwannLmoa, NC 28778
Ms, Becky Fox, U.S. Environmental Protection Agency, 1349 Firefly Road, Whittier, NC 28789
9
INLAND FISH Fax [phone] Feb 12 2010 17'35-) P.02
North Carolina Wildlife'rIesouirces Commission
Gordon Myers, Ex:: c. tine Director
February 12, 2010
Mr. Scott Jones
U.S, Army Corps of Engineers, Regulatory Branch
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Mr. Ian McMillan
NCDENR, Division of Water Qualicr, 407 Unit
1628 Mail Service Center
Raleigh, North Carolina 27699-1628
SUBJECT: Mr. Todd Black, Fall Creek Land Company
Individual 404 Permit Application
Propose lakes at Grandview Peaks D:Ye loprnmit
McDowell County
Action 11D No. 2007-200-359
DWQ No. 07-0168v2
Dear Mr. Jones and Mr. McMillan:
Clearwater Environmental Consultants requested an Individual 40=4 Permit and 401 Water Quality
Certification on behalf of Mr. Todd Black of Fall Creek Land Company. Comments from the North
Carolina Wildlife Resources Commission (Commission,', are! provided under provisions of the Clean Water
Act of 1977 (33 U.S.C. 466 et. seq.) and the Fish and 'fVillli:te Coordination Act (48 Sfax. 401, as amended;
16 U.S.C. 661-667d),
In 1007, Mr. Todd Black proposed construction of three lakes in fle Grandview Peaks residt;w,.ta &velopment
near Dysartsville in McDowell County. Permits were not issued 11)r that proposed desig2. The sieve design
proposes two lakes of 9 and 25 acres that would fill or :flood abou: 6,675 feet of tributaries and 0.13 acre of
wetlands in the South Muddy Creek and Hoppers Creel;. wa:ershe,:ls. Compensatory mitigation for streams
would include purchase of 695 feet of credits from the North Carolina Ecosystem Enhancement Program (EEP)
and on-site preservation of 62,000 feet of stream channels. ;;:o:npensatory mitigation for wetlands would
include 0.5 acre of EEP credit and 1.55 acre of on-site presorvaticn.
Mailing Address: Division of Inland Fisheries a 172 l Mail Service Center - Raleigh, NC -2:76;-9-1721
Telephone: [phone] - Fax: [phone]