20070168 Ver 2_More Info Received_20100517

CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
May 13, 2010
Mr. Ian McMillan
NC Division of Water Quality ILR@1?6WENJ
1650 Mail Service Center MAY 1 J 2010
Raleigh, North Carolina 27699
DE" - RE: Request for More Information WERAWSMDSAi ,aF8jMVfiCH
Grandview Peaks
McDowell County, North Carolina
Action ID SAW-2007-200-359; DWQ Project # 07-0168 Ver. 2
Dear Mr. McMillan,
Please reference the letter dated April 22, 2010 (Attachment A) sent by the NC Division
of Water Quality (DWQ) in response to the letter dated March 11, 2010 submitted by
C1earWater Environmental Consultants, Inc. (CEC), on behalf of Mr. Todd Black of Fall
Creek Land Company. The permit application requested written authorization for the
impacts associated with development of the Grandview Peaks residential subdivision and
associated infrastructure including amenities lakes. The comments provided by the DWQ
are listed and discussed below.
DWQ Comment #1: "...The key water quality parameters the DWQ are concerned with
in regards to future water quality violations are - dissolved oxygen, chlorophyll-a, total
dissolved gases, temperature, fecal coliform, and pH. Again, [the DWQ], request[s] to
review the Lake Management Plans [the] Certified Lake Manager has for these proposed
impoundments. Finally, [the DWQ] understand[s the applicant] do[es] not want to
provide the DWQ [with the] complete dam design and details due to cost, however, [the
DWQ] do[es] need to review [the] proposed minimum release structure at this time, and
may condition [the] 401 Water Quality Certification such that [the] proposed impacts
may not be conducted until the DWQ has reviewed and approved [the] complete ,and
comprehensive dam design and details."
The dam designs, including the minimum water release structures, and a Lake
Management Plan have not been completed to date. The applicant feels that these
tasks will take a significant expenditure of resources and is not prepared to
complete these tasks without some assurance that the project will be approved.
Additionally, it is impossible for the applicant to determine which if any water
quality standards would be violated and to what degree; the applicant would like
to avoided extraneous expenditure of resources for the Lake Management Plan or
the Dam Design to mitigate problems that are not likely to occur.
224 South Grove Street, Suite F
Hendersonville, North Carolina 28792
Phone: 828-698-'9800 Fax: [phone]
www,cwenv.com
Mr. Ian McMillan
05.13.10
Page 2 of 4
The applicant is requesting that the NC Division of Water Quality issue the 401
Water Quality Certification for the project with the following condition.
The minimum water release plan for the proposed dam must be
approved in writing by this Office before the approved impacts
may occur. The plan must include a written explanation of the
specific discharge rate and mechanisms to provide for each
required release. The plan must also include any design
specification, details, and calculations to show that the release shall
be achieved in the given conditions. The plan shall also include
monitoring that ensures compliance. The plan and any associated
facilities, once approved, must be in place and implemented upon
completion of the dam.
This request is consistent with recently issued certifications for the Ridge at South
Mountain in Rutherford County (DWQ Project # 2007-328-381; issued November
2008), Traditions in Madison County (DWQ Project # 2008-0675; issued
December 2008), and the Franklin County Pond in Franklin County (DWQ
Project # 2008-02598; issued December 2008). All previously issued permits
mentioned above were issued with conditions and requested items that included,
minimum water release plans, final dam designs, water quality sampling protocol,
water temperature monitoring, etc. The lakes at Grandview Peaks should be
afforded the same level of review and a similar type of authorization; for the
DWQ to do any different would be inconsistent.
DWQ Comment #2: "[The applicant] did not respond to the bolded and underlined
segment from [the DWQ's] Feb 15, 2010, correspondence to [the applicant]. So, please
provide plans at a 1 '=100' scale clearly showing which lots are sold and place building
envelopes on all lots that contain wetlands or streams."
The DWQ's comment that the applicant did not respond to the above request is
not accurate. There is a clear response to this comment on page 5 of the March
11, 2010 response letter along with a figure (Figure 1 in the response) which
clearly shows which lots have been sold. Additionally, the response cited a
telephone conversation between Ms. Rebekah Newton of CEC and Mr. Ian
McMillan of the DWQ in which it was concluded that the applicant would not be
providing building envelopes for each lot with streams and wetlands. A telephone
conversation between the two above-mention parties on April 30, 2010 yielded
that same conclusion along with the DWQ confirming that they had received
Figure 1 in the March 11, 2010 response.
The afternoon of April 30, 2010, CEC received a voicemail message in which Mr.
McMillan retracted his agreement regarding the submission of building
envelopes. An email was received by CEC on May 3, 2010, which stated the
following: "As I [Mr. McMillan] stated in my telephone message to you [Ms.
Newton], please place building footprints on the lots that contain or abut the
Mr. Ian McMillan
05.13.10
Page 3 of 4
highlighted streams and reproduce at a scale of 1"=200'." A figure with
highlighted stream segments was included as an attachment in Mr. McMillan's
email for use as a reference. CEC assumes the email comment dated May 3, 2010
supersedes the previous comments. Therefore, a map showing the building
envelopes for those lots containing or abutting highlighted stream segments (as
marked by Mr. McMillan) is included for review (Figure 1). Each building
envelope denoted on the map is at least 10,500 square feet. It is doubtful that any
one homeowner will require the entire area to develop his/her lot but to show that
each lot is buildable without additional impacts to streams and wetlands, a larger
than necessary building envelop is denoted. One lot would not sustain the 10,500
square foot building envelope; this lot was combined with a neighboring lot and is
identified on the map.
It was concluded during the telephone conversation on April 30, 2010 that the
map submitted to the DWQ on March 11, 2010 which indicated which lots had
been sold (Figure I in the response) does in fact satisfy the DWQ's request for
that information.
DWQ Comment #3: "This position [lots adjacent to lakes have greater value] runs
contrary to a recent study conducted by the University of Wisconsin-Madison -
Department of Agricultural & Applied Economics, dated July 2007, regarding the effects
of dam removal on small lake communities..."
Parts of this comment are verbatim from the DWQ's February 15, 2010 Request
for Additional Information. The applicant made response to this comment and a
clear and concise rebuttal to the University of Wisconsin study on page 6-7 of the
March 11, 2010 response letter. Although the DWQ may not like or agree with
the response, this comment has been responded to and the applicant believes the
application is complete.
As stated in 33 CFR 320.4(q), "when private enterprise makes application for a
permit, it will generally be assumed that appropriate economic evaluations have
been completed, the proposal is economically viable, and it is needed in the
market place."
"Since, it is [the DWQ s] understanding based on the November 30, 2009, pre-
application meeting, that the maintenance and liability for the proposed amenity ponds
will be the Grandview Peaks HOA, is the HOA aware of this arrangement and the legal
ramifications, and if so, what operations and maintenance agreement has been presented
to the HOA? The /DWQJ requests a copy of the operation and maintenance agreement."
The Homeowners Association is aware of the pending lakes and the legal
ramifications as it is referenced in the existing recorded covenants. However, at
this time there is no operation and maintenance agreement, because the final dams
have not been designed or approved; however, the operation and maintenance of
the dam will follow the "Dam Operation, Maintenance, and Inspection Manual
Mr. Ian McMillan
05.13.10
Page 4 of 4
1985 (revised 2007)" developed by the NC Division of Land Resources, Land
Quality Section.
The DWQ's concern for the HOA is solely founded on anecdotal information
from personnel with the American Rivers organization. It is suspected that the
two examples provided are vastly different scenarios from Grandview Peaks. For
example, the indication that 10 homeowners had to share cost of dam repair can
hardly be compared to Grandview Peaks which will have 760 homeowner upon
sell-out to share the cost. The HOA at Grandview Peaks will be made aware that
dam maintenance and operations will become their responsibility as the Operation
and Maintenance Manual will specify responsibilities and also initiate a means to
escrow funds for long term maintenance.
The applicant believes the information submitted in this package addresses all issues set
forth by the DWQ in their letter dated April 22, 2010. The application submitted by the
applicant is complete and accurate. The fact that the DWQ may disagree with the
responses does not constitute an incomplete and/or inaccurate application as insisted
upon by the DWQ. The applicant is respectfully requesting that the DWQ evaluate the
application and additional information (which constitutes a complete and accurate
application); and make a certification decision for this project. Should you have any
questions or comments concerning this project please do not hesitate to contact me at
828-698-9800.
Sincerely,

Rebekah L. Newton
Project Biologist
o`
1R. C ment dle, IPW. A
Principal
Attachment A
DWQ Request for Additional Information
(dated May 3, 2010)
ulwslon of water uuaiity
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
April 22, 2010
CERTIFIED MAIL: RETURN RECEIPT REQUESTED
Mr. Todd Black
Fall Creek Land Company
P.O. Box 638
Hickory, NC 28603
Dee Freer
Secretary
DWQ Project # 07-0168, Ver. 2
McDowell County
Subject Property: Grandview Peaks Recreational Lakes
Shoal Creek [036902; 9-41-12-15-WSV]
Kelly Branch [030802, 9-41-12-2, WSV]
Weaver Branch [030802, 9-41-12-1-1, WS1V]
REQUEST FOR MORE INFORMATION
Dear Mr. Black:
On December 17, 2009, the Division of Water Quality (DWQ) received your application dated December
10, 2009, with Public Notice issued by the USACE on January 12, 2(}10, and received by the DWQ
January 12; 2010, to f ill or otherwise impact 0.73 acres of 404/wetland (0.04 acres dam fill, and 0.69
acres flooding), and 695 linear feet of stream (dam fill), and flood 5,9701inear feet of stream, to construct
two aesthetic lakes within the Grandview Lakes residential development. On March 12, 2010, the DWQ
received additional information from you, however, the DWQ has determined that your application
remains incomplete and/or provided inaccurate information as discussed below. The DWQ will require
additional information in order to process your application to impact protected wetlands and/or streams on
the subject property. Therefore, unless we receive three copies of the additional information requested
below, we will place this project on hold as incomplete until we receive this additional information. If we
do not receive the requested information, your project will be formally returned as incomplete. Please
provide the following information so that we may continue to review your project.
Additional Information Requested:
401 OversighVExpress Review Permitting unit
1650 Mail Service Cenler, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd., Raleigh, Not Carolina 27604
Phone: [phone] FAX: [phone]
Internet: http.flh2o.enr.state.nc.uslncwetlands/
To address your response to the following DWQ request from our February 15, 2010
correspondence to you, "Also on page 17, the applicant states that if at some point during their
proposed 5-year monitoring program that if water quality parameters measurements are found to
be unsatisfactory by the DWQ, the applicant will submit a contingency plan to return water-
quality parameters to satisfactory levels." How do you propose to do this and what will this
contingency plan consist of?", the DWQ requests the following: The key water quality
parameters the DWQ are concerned with in regards to future water quality violations are -
dissolved oxygen, chlorophyll a, totaled dissolved gases, temperature, fecal coliforms, and pH.
Again, we request to review the Lake Management Plans your Certified Lake Manager has for
these proposed impoundments. Finally, we understand you do not want to provide the DWQ
your complete and comprehensive dam design and details due to cost, however, we do need to
One
NOt-thCarolin,
XmiIiiiI&
An Equal Opponunify 1 Affirmahe Action Employer
review your proposed minimum release structure at this time, and may condition your 401 Water
Quality Certification such that your proposed impacts may not be conducted until the DWQ has
reviewed and approved your complete and comprehensive dam design and details.
2. You did not respond to the bolded and underlined segment from our February 15, 2010,
correspondence to you. So, please provide plans at a 1'-100' scale clearly showing which lots
are sold and please place building envelopes on all lots that contain wetlands or streams.
3. Your general response to the following request from our February 15, 2010, correspondence to you,
indicates the sole purpose for the lakes is to secure greater profit for the development. This is not a
valid rationale for the discharge of fill material into Waters of the State. Page 34 of the application
narrative states, "...when the lake is the primary amenity, lot values become heavily dependent on its
presence, and the value of lots on or in close proximity of the lake see a substantial increase in
value." flow did you determine this? This position runs contrary to a recent study conducted by the
University of Wisconsin-Madison - Department of Agricultural & Applied Economics, dated July
2007, regarding the'effects of dam, removal on small lake communities which*found the following;
The general conclusions of this research are:
Shoreline frontage along small impoundments (ponds) does not notably increase
residential property value compared to frontage along free-flowing rivers.
Residential property located near a free-flowing river is more valuable than identical
property located near an impoundment (pond). Our research estimated that property
along a free-flowing river would be worth, on average, $14,000 more than a similar
property at the site of a recently removed dam or current impoundment (pond).
The results also indicate that removing a dam does little harm to property values in
the short run (2 years in the study), and helps increase property values in the long
run, as the stream and the area along it return to a "natural" free-flowing state, or are
managed as a desirable open space such as a park.
While this research focused on a single housing market in a relatively small area, the basic
messages of these results apply to other locations as well. The study focused on coi?nmunities
that had relatively small ponds, and the results may not apply to large impoundments where
recreational activities like fishing, boating and swimming are well established.
Based on what our research found, we would expect that properties that lose their frontage on
impoundments would not decrease in value, and may in fact increase in value as their
frontage converts to frontage on a river. The value of properties that no longer have water
frontage after a dam removal depends on what replaces the area of the former impoundment.
Often, such a riverside public "greenbelt" replaces the.i mpoundment. Studies indicate open
space increases the housing values of adjacent properties, particularly if the open space is
dedicated to nature preservation and passive experiences, such as hiking and birdwatching.
a
Link: httr)://www _L__" _ _ _
According to the North Carolina State Dam Safety program, the greatest number of dams they permit
each year are for subdivisions and most are high hazard. In addition to impacts on water quality and
the aquatic community, this is presenting a huge issue for homeowners who don't realize what they're
getting into. Ownership of these dams transfers from the developer to the HOA, leaving them the
liability and responsibility for maintenance.
Mr. Todd Black and Fall Creek Land Compan
Page 3 of
April 22, 201
This Office learned from personnel with the American Rivers organization of two examples of HOA'
who have gotten into trouble with this scenario. In both cases, the dams owned by the HOA were
determined by the state to be unsafe and require repair or removal. In one case, the HOA paid over
$20K to repair the dam (were unable to pay cost of removal), and that was split only between 10
homeowners (who didn't realize they owned a dam until the inspection letter came). In the second
case, the HOA has just contacted American Rivers to see if they can get any grants to help with
removal. Unfortunately, according to American Rivers, they are #1 in a series of 5 on a small stream,
so it's unlikely American Rivers will be able to help.
Since, it is our understanding based on the November 30, 2009, pre-application meeting, that the
maintenance and liability for the proposed amenity ponds will be the Grandview Peaks HOA, is the
HOA aware of this arrangement and the legal ramifications, and if so what operations and
maintenance agreement has been presented to the HOA? This Office requests a copy of the
operations and maintenance agreement.
Please submit-thi-s infor-mation?-or-other-wise-address this-req?,zest within--30 calendar-days ofthe state ofthi.'
letter. If we do not receive this requested information within 30 calendar days of the date of this letter,
your project will be withdrawn and you will need to reapply with a new application and a new fee.
This letter only addresses the application review and does not authorize any impacts to wetlands, waters o
protected buffers. Please be aware that any impacts requested within your application are not authorized
this time) by the DWQ. Please call Mr. Ian McMillan or Ms. Amy Chapman at 919-733-1786 if you have
any questions regarding or would like to set up a meeting to discuss this matter.
Sincerely,
Ian McMillan, Acting Supervisor
401 Oversight/Express Review Permitting Unit
IJM
cc: Kevin Barnett, DWQ Asheville Regional Office
Amanda Jones, USACE Asheville Regulatory Field Office
File Copy
Jennifer Derby, Wetlands, Coastal, and Oceans Branch, Water Protection Division, U.S.
Environmental Protection Agency, 61 Forsyth Street, SW, 15th Floor, Atlanta, GA 30303
Becky Fox, 1307 Firefly Road, Whittier, NC 28789
Lynnette Batt, Associate Director for River Restoration, NC, American Rivers, 331 West Main
Street, Suite 504, Durham, NC 27701
D.J. Gerken, SELL, 29 N. Market St., Suite 604, Asheville, NC 28801
Clement Riddle, CEC, 718 Oakland Street, Hendersonville, NC 28791
Filename: 0701 G8Ver2GrandviewPeaksRecreationalLakes(McDowell)On_Hold
Grandview Peaks
EIRPM@ P-Jowmbi
IJAY 1 7 2010
DENR - WATER QUALITY
WETLANDS AND STORWWATER BRANCH
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ClearWater Environmental ConSU)tant5, 1nC• Stream and Wetland
McDowell County, 718 Oakland Street Impact Map with Building Envelopes
North Carolina Hendersonville, North Carolina 28791 Grid
828-698-9800