20070168 Ver 2_USACE Correspondence_20100421

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DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
151 PATTON AVENUE
ROOM 208
ASHEVILLE, NORTH CAROLINA 28801-5006
REPLY TO
ATTENTION OF April 16, 2010
Regulatory Division
Action ID. 2007-200-359
Mr. Todd Black
Fall Creek Land Company
1340 Westgate Center Drive
Winston-Salem, NC 27103
Dear Mr. Black:

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Reference is made to your December 15, 2009 permit application and our subsequent
Public Notice dated January 12, 2010 which proposes the construction of two on-line
impoundments for the residential development known as Grandview Peaks, on Joe Branch Road,
near Dysartsville, in McDowell County, North Carolina. The project as proposed will impact
approximately 695 linear feet of stream channel associated with dam construction and
subsequently flood approximately 5,970 linear feet of stream channel for two lakes with surface
areas of approximately 25 acres and 9 acres. The purpose of this letter is to provide you with the
opportunity to respond to the comments received from the Public Notice and outline additional
information necessary to continue the review of your application. All the comment letters
received in response to the Public Notice are enclosed for your review and the
concerns/comments are summarized below.
A majority of the letters received were from coordinating federal/state resource agencies in
which they provided similar comments and concerns. In general, comments from the North
Carolina Wildlife Commission (NCWRC), North Carolina Division of Water Quality
(NCDWQ), U.S. Fish & Wildlife Service (USFWS), and U.S. Environmental Protection Agency
(EPA) shared concerns regarding the project's purpose/need, alternative's analysis, impacts to
water quality, and the proposed mitigation plan. Many commentors noted that the project's
purpose/need is already being met without the construction of two impoundments since over 1/3
of the lots within the 760-16t development have been sold without providing any on-site lake
impoundment amenities to date. Commentors also noted that the `no-build' alternative is the
least damaging and practicable alternative since a profit of $8 million could be realized without
the lakes' construction. Commentors also pointed out that the additional profit realized by
construction of the lakes (approximately $10 million) should not be considered as a measure to
the practicability of the alternatives and therefore the increased revenue that the project would
provide with the lakes should not be considered when assessing the `build' or `no-build'
alternatives. While some commentors agreed that on-site water features such as amenity lakes
were desirable for some home buyers, but in this case as clearly indicated by the permit
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application, these water features are not necessary for the development to be completed with a
viable profit. The Corps agrees with these concerns that have been raised regarding the project's
purpose/need and alternative's analysis.
Marty of these commentors outlined the adverse water quality effects of on-line
impoundments and expressed concern as to how the impoundments would be built and
maintained without affecting the flow and function of downstream waters. USFWS specifically
provided.comments that outlined the minimum requirements for a pre and post-construction
monitoring plan in the event that a Department of the Army permit is issued. These commentors
also stated that the mitigation plan as proposed is inadequate and should be revised to
compensate for all proposed impacts to include flooding. Commentors also noted that a majority
of the proposed plan will consist of on-site preservation to account for the flooding impacts in
which most of the preserved stream channels and buffers are located along the back of lots with
little-to-no threat of development. Commentors noted that the overall plan does not meet the
current Interagency Stream Mitigation Guidelines (April 2003) and the proposed preservation
areas does not meet the criteria outlined in the joint EPA/Corps Mitigation Rule (April 2008). In
general, the Corps agrees with the concerns regarding adverse water quality effects and the
mitigation plan proposed to offset these negative effects. Please be reminded that mitigation is
used to offset impacts to aquatic resources once the applicant has demonstrated adequate
avoidance and minimization. Further discussion and modification of your mitigation plan may be
required once we have determined that you have adequately avoided and minimized impacts to
stream channels on the site and if the proposed alternative to construct two on-line
impoundments is the least damaging and practicable alternative.
Letters from private individuals were also received to include one letter from an adjacent
property owner, Ms. Rita Guffey and a letter from the Southern Environmental Law Center
(SELC). Ms. Guffey inquired as to the how the project would affect her property and if increased
flooding and/or insurance rates would occur. SELC had similar comments to those listed above
from other state/federal agencies. Specifically, SELC stated that the 404 permit should not be
permitted as proposed because practicable alternatives exist, the mitigation plan is inadequate,
the impoundment will cause violations to state water quality standards and the project is contrary
to the public interest. With regards to the alternatives analysis, SELC noted that the analysis on
other on-site amenities such as trails and greenways was not thorough enough and pre-maturely
dismissed. Based upon the assertion that the project will create approximately $8 million in
profit without the lakes in its current state and proximity to off-site amenities like Lake James
and Lake Lure, the Corps will assume the development of on-site amenities such as trails/green
space would not significantly increase or decrease the expected profit and therefore not affect the
viability of the project. Therefore, we are not requesting this specific information be provided but
we will accept any information on this topic if you determine a clarification is necessary.
Another alternative that was raised by the NCWRC was the development of multiple,
smaller watershed ponds scattered throughout the development. NCWRC commented that the
analysis submitted in the previous application was incorrectly done which ultimately eliminated
potential locations. NCWRC recommended that the size of the watershed should be evaluated
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first to determine an adequate pond size for that location. Once this is done, then an evaluation of
whether or not these potential ponds could meet the purpose/need of the project would be
conducted. NCWRC indicated that these smaller ponds would provide most of the desired
benefits of the proposed lakes to include aesthetics, swimming, fishing, and boating. The Corps
agrees with NCWRC's recommendation on how to evaluate the potential location of smaller
watershed ponds and that this potential alternative should be pursued further if it meets the
purpose/need of the project. The Corps recommends that a more detailed alternative analysis is
conducted to determine if it could meet the purpose/need for the project. We also request that
additional information be submitted which clarifies which residents will have access to the
proposed impoundments and how these lakes will accommodate such access. This information
was requested in previous meetings and has not been supplied to date. It is unclear in the current
application if and how all residents will have access to the impoundments since plans do not
show parking areas, boating ramps, canoe launches, etc. The application does however mention
that these lakes will provide a similar recreation experience to that of Lake Lure at little to no
cost for the residents of the community. Please provide information on what the potential costs
would be to residents for homeowner's association fees, long term dam maintenance fees, lake
dredging/maintenance fees, etc. in order to actively use and maintain the lakes.
Letters were also received from The Eastern Band of the Cherokee Indians (EBCI), The
United Keetoowah Band of Cherokee Indians, and the National Marine Fisheries Service. The
United Keetoowah Band of Cherokee Indians and the National Marine Fisheries Service
commented that they have no objection to the proposed project. EBCI noted that the project is
located within the aboriginal territory of the Cherokee People and that potential cultural
resources important to the Cherokee people may be threatened due to the project. The EBCI
requested that all related archaeological and cultural resource investigatory materials, to include
Phase I reports, be submitted to them for review. This information should be submitted to the
EBCI so that we can determine if there are any potential affects to cultural resources important to
the Cherokee people.
Based on the information submitted regarding purpose/need, avoidance/minimization, and
on/off-site alternatives, the Corps still believes that the project as proposed does not justify the
impacts to aquatic resources on site and that there are reasonable and practicable alternatives that
exist that could meet your purpose/need. Based on the information we have received to date, we
can not issue a Department of the Army permit for impacts to aquatic resources if there are lesser
damaging practicable alternatives that exist. The purpose of this letter is to provide you with the
comments received in response to the Public Notice, outline our concerns and additional
information needed to make a permit decision, and provide you with an opportunity to respond in
a timely manner. Once you have submitted a response these comments, we will thoroughly
evaluate this information and make a permit decision. Requested information should be
submitted within 60 days from the date of this letter or your permit request will be withdrawn.
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If you have any questions, please contact Ms. Amanda Jones at (828)-271-7980, extension
231.
Sincerely,
Scott Jones, PWS
Chief, Asheville Regulatory Field Office
Copy furnished with enclosures:
Mr. Clement Riddle
C1earWater Environmental Consultants, Inc.
718 Oakland Street
Hendersonville, North Carolina 28791
Copy furnished (without enclosures):
Mr. Ian McMillan
North Carolina Division of Water Quality
401 Oversight & Express Review
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Mr. Brian Cole
Asheville Field Office
U.S. Fish and Wildlife Service
160 Zillicoa Street
Asheville, North Carolina 28801
Ms. Jennifer Derby
Wetlands & Marine Regulatory Section
U.S. Environmental Protection Agency Region 4
Atlanta Federal Center
61 Forsyth Street
Atlanta, Georgia 30303-8960
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Mr. Tyler Howe
Eastern Band of Cherokee Indians
Tribal Historic Preservation Office
P.O. Box 455
Cherokee, North Carolina 28719
Ms. Shannon Deaton
North Carolina Wildlife Resource Commission
Division of Inland Fisheries
1721 Mail Service Center
Raleigh, North Carolina 27699-1721