20070168 Ver 2_More Info Received_20100518

CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
May 13, 2010
Ms. Amanda Jones
US Army Corps of Engineers
151 Patton Avenue, Room 208 MAY 1
Asheville, North Carolina 28801 8 2010
RE: Response to Corps Comments
Grandview Peaks
McDowell County, North Carolina
Action ID SAW-2007-200-359; DWQ Project # 07-0168 Ver. 2
Dear Ms. Jones,
Please reference the letter dated April 16, 2010 (Attachment A) sent by the US Army
Corps Of Engineers (Corps) in response to the permit application submitted by
ClearWater 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 Corps
are listed and discussed below.
Project Purpose and Need; and Alternatives Analysis
The applicant is confident in the alternatives analysis submitted with the permit
application. The applicant described three potential locations for the residential
development along with six potential amenities. The "Open Water" amenity was
further subdivided into three alternatives. An extensive alternatives analysis was
included in the application and the applicant believes that it is thorough, complete,
and in accordance with the "Information regarding the Review and Processing of
Standard Permit Applications for the Construction of On-Line Impoundments"
(March 18, 2008) and the Section 404(b)(1) Guidelines. Although commenters
focus primarily on the profitability of the project, six amenity criteria were
identified in the permit application. Inclusion or exclusion of an amenity was
based on these criteria, not solely on profitability which is linked to the economic
feasibility of the project.
The WRC expressed concern about the way the watershed pond analysis was
conducted. The WRC recommended that the watershed size be determined first.
The applicant determined the approximate size of each watershed above each
224 South Grove Street, Suite F
Hendersonville, North Carolina 28792
Phone: [phone] Fax: [phone]
www.cwenv.com
Ms. Amanda Jones
05.13.10
Page 2 of 6
jurisdictional stream using 5-foot contours and GIS. Fifty-two watersheds were
analyzed. The watershed sizes range from approximately 1 acre to approximately
65 acres. Using the Natural Resources Conservation Service (MRCS)
recommendation that 0.6 acre of drainage area will yield 1 acre-foot of water, a
volume of water (in acre-feet) was determined for each watershed. For our
region, the NRCS also recommends a minimum pond depth of 6-7 feet. A 6-foot
minimum pond depth was assumed and a surface area for each watershed and
pond volume was calculated. Calculated surface areas range from approximately
0.5 acre to 6.5 acres. An example of how these surface areas were determined is
attached for review (Figure 1). Of the approximately 52 watersheds evaluated,
only 3 yield a surface area over 3 acres. The largest watershed pond surface area
calculated is approximately 6.5 acres with an average depth of 6 feet.
The option to use upland, watershed lakes was considered. In theory, smaller
lakes could be constructed upstream of jurisdictional steam limits. The lakes
would be filled with stormwater and rainfall only. Watershed lakes are not a
viable option for one or more of the following reasons: not enough watershed
area to keep lake filled, adverse cost, and/or unsightly location within the
development. Small watershed ponds do not provide the surface area desired by
Grandview Peaks and the watershed sizes do not support large ponds. Even
though the methodology to determine the watershed pond sizes is slightly
different than the first analysis, the conclusion is the same as stated in the permit
application.
Additionally, according to the NC Cooperative Extension Service and NC
Wildlife Resources Commission Pond Management Guide, watershed lakes are
more likely to have problems with muddy water, high siltation rates, rapid
fluctuations in flow rates, aquatic weeds, temperature fluctuations, and wild fish
invasions. They are also highly susceptible to drought conditions. Maintenance
of several small watershed lakes would be cumbersome and put an undue burden
on residents of the community.
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." The potential of increased profits as it relates to absorption rates is
significant when justifying impacts for the proposed lakes at Grandview Peaks.
The economic analysis proposed as a part of the impact justification in the permit
application makes it appear that an $8.8 million dollar profit will be made without
construction of the lakes and that with the proposed lakes profit will be $18.3
million dollars. Economic conditions are not static; yet, economic analysis is
required to validate projects such as this one. To simplify the analysis,
assumptions are made and best case scenarios are assumed. A dynamic system of
supply and demand, fluctuating interest rates, changing construction costs
become static values on paper for review purposes.
Ms. Amanda Jones
05.13.10
Page 3 of 6
The anticipated gross profit in the tables assumes a best case market where lots
are reliably selling for the list price. At the onset of development, lots were
predicted to sell out in 5-6 years with amenity lakes completed. Grandview Peaks
has been selling lots for approximately 4 years and has sold approximately 1/3 of
the lots. At the current absorption rate, sell out will not occur for an additional 8
years.
The commenters fail to acknowledge the economic realty that loan payments,
contractor payments, overhead, and the like must be paid each month whether or
not any lots are sold. If lots do not sell well during a particular month, payments
must be made with "profit" from previous months. Profit from individual lot
sales is important and needed because profit is necessary to offset slower lots
sales and absorption rates. Additional years of financing and marketing costs,
without the lakes, will substantially reduce the potential for profitability of the
development, if it is profitable at all. True development profit is not realized until
all lots are sold and is difficult to estimate in the economic downturn.
The construction of the two proposed lakes could yield an increase in gross profits
of nearly $10 million (if lots were sold in the expected time frame), with a
percentage increase of over 100% (increasing from $8,827,106 to $18,324,896).
Without question, the financial implications are significant. Given the current
economic conditions, the projected potential for profitability of the project
without lakes is questionable. There are numerous factors that play into the
overall profitability of the development as it stands now, with the current market
being the most critical. As stated previously, due to the numerous bankruptcies of
developments with similar holdings, it is anticipated that the real estate market
will be flooded with similar lots at significantly reduced prices throughout the
coming years, making it unlikely the development will be able to maintain its
current price point. If the applicant dropped lot prices by 10%, their profits would
be reduced by approximately 25%, and a 20% price drop would result in a loss of
approximately 50% of the profits. These discounts can readily be seen by
comparing list prices of lots in developments versus the actual negotiated sale
price. If a drop in price of 20% was coupled with a continuing sluggish economy,
the resulting cost of loan encumbrance could cause the developer to fall heavily
into the red, requiring them to enter into bankruptcy. Presence of the lakes
increases the average price of lot sales, keeps them at a higher level, and
decreases absorption rates.
The lakes play a vital role in the sustainability and survivability of Grandview
Peak's business structure on two main fronts. First, it gives them a commodity
that few, if any, other competing developments have in their land inventory, thus
sheltering them from the flood of steeply discounted lots. Second, the increase in
potential profitability will add substantial security from loss of cash flow, and
enable them to seek assistance from lenders more readily if needed due to the
increased property values. Due to the current state of the economy, it is logical to
Ms. Amanda ]ones
05.13.10
Page 4 of 6
conclude that the lake amenities fall into a categorical listing of necessity for this
project.
Mitigation
The applicant has submitted a stream mitigation plan that is consistent with past
projects and the Stream Mitigation Guidelines (2003). In regards to impacts from
flooding, mitigation guidance states: "In some cases, the Wilmington District has
issued permits with less than the recommended mitigation ratios when a majority
of the impacts are from flooding of stream channels. The rationale has been that
although the aquatic resource has been substantially altered, (changed from a
flowing (lentic) aquatic habitat to an open water (lotic) aquatic habitat), that
aquatic resource is not lost." Because the applicant believes that aquatic
resources are not lost as a result of the construction of the impoundments, a 1:1
mitigation ratio was proposed. A 2:1 ratio was proposed for all "hard" impacts at
the site (direct impacts associated with the dams and road crossings).
The applicant has proposed payment into EEP at a 1:1 ratio for direct impacts
associated with the dams; flooding constitutes a secondary impact and has been
proposed to be mitigated for through preservation. Additional mitigation credits
for dam impacts are included in the on-site preservation, as well. Additionally,
avoidance at the site totals 68,390 linear feet of streams and 1.55 acres of wetland.
The applicant believes the mitigation proposed (avoidance, minimization,
compensatory) in the permit application meets or exceeds all guidelines set forth
by the US Army Corps of Engineers (Corps) and the DWQ.
Minimization of impacts was discussed in the permit application. As stated in the
permit application submitted by MACTEC on January 17, 2007, construction of
up to five impoundments was considered and planned during the initial stages of
the development. That permit application described and applied for impacts
associated with three impoundments (6 acres, 25 acres, and 9 acres) totaling 8,023
linear feet of stream impacts and 0.60 acres of wetland impacts. During the
course of the permitting process, Lake 1 (6 acres) was eliminated from the site
plan. This elimination reduced impacts to 6,966 linear feet and 0.60 acre of
wetland, a 13% decrease in impacts. During CEC's evaluation of the submitted
permit application, it was discovered that the estimated impacts for the
preliminary dam design and associated flooding were incorrect. Reevaluation of
the dams and flooding decreased the impacts associated by 301 linear feet, an
additional decrease of 4% (for lake impacts only). Permit impacts proposed in the
January 17, 2007 permit application totaled 8,023 linear feet for dams and
flooding. The current proposal includes 6,665 linear feet of stream impacts for
dams and flooding. This is a decrease of 1,358 linear feet; an approximately 17%
decrease in impacts.
Ms. Amanda Jones
05.13.10
Page 5 of 6
Adverse Water Quality Effects
The applicant is aware of the State water quality standards. The water quality
monitoring plan proposed in the permit application is in accordance with the
North Carolina Division of Water Quality (DWQ), Wetlands and Stormwater
Branch's "Predictability Study Protocol for Sampling Reference Impoundments -
DRAFT" (Protocol) dated February 28, 2008. The proposed water quality
monitoring plan is also consistent with water quality monitoring plans proposed
and recently approved by the DWQ for similar impoundments. Two reference
impoundments were sampled in support of the lake proposed at the Ridge at
South Mountain. This data was evaluated and will be used to determine design
criteria for the dam which will prevent similar problems in the lake once it is
constructed. These reference impoundments are comparable to the lakes
proposed at Grandview Peaks and dam specifications will be developed
accordingly. As indicated in the permit application, features incorporated into the
dam will include a cold-water release, a low-flow release pipe, anti-seep collars,
and an outfall designed to aerate release water. Additionally, the applicant has
proposed the development of a Lake Management Plan by a certified lake
manager. It is the opinion of the applicant that the lakes at Grandview Peaks can
be designed and built to reduce impacts to water quality.
Home Owners Association and Lake Access
Each home owner at Grandview Peaks will have lake access. Currently, no lots
around either lake have been sold. Upon approval of the lakes, at least one lot
adjacent to the larger lake will be designated as a community lake access location
and will provide low impact parking and associated infrastructure.
The Home Owners Association (HOA) is aware of the pending lakes as it is
referenced in the existing recorded covenants. However, at this time there is no
operation and maintenance agreement, because the dams have not been designed
or approved; however, the operation and maintenance of the dam will.follow the
"Dam Operation, Maintenance, and Inspection Manual 1985 (revised 2007)"
developed by the NC Division of Land Resources, Land Quality Section.
The HOA at Grandview Peaks has been 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. Current lot and homeowners are aware of the proposed
lakes and are fully in support of them. Community dues are approximately $300
per year. The HOA has been made aware that dues will increase once the lakes
are approved, and the HOA has the authority to raise rates. As an example, if
dues were to increase $200-$300 dollars per year (which is a reasonable increase
for the use of lake amenities), revenues from dues would increase by $152,000-
$228,000 per year. Lake maintenance and operations can be covered by this
Ms. Amanda )ones
05.13.10
Page 6 of 6
amount and reserves rolled over in years where maintenance (beyond what is
routine) is not required.
The applicant believes the information submitted in this package addresses all issues set
forth by the SELC in their letter dated February 12, 2010. Should you have any questions
or comments concerning this project please do not hesitate to contact me at 828-698-
9800.
Sincerely,
J ox4
w'- k :;--- I .
Rebekah L. Newton R. Cle ent Rid e, . Biologist Principal
Grandview Peaks - Example Watershed Pond Calculation
Watershed Size = 18.5 acres \
18.5 acres * 0.6 = 11 acre-feet of water
11 acre-feet of water * 43,560 = 479,160 cubic feet (volume of water)
479,160 cubic feet / 6 feet depth of water = 79,860 square feet surface area \ ti ,
79,860 square feet / 43,560 = 1.8 acre surface area of pond
I
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Property Line
Streams fry' ' ?t J/?. 0 250 500 1,000 1,500
Feet
Contours l - %I i ?? y?'tr
CearWater Environmental Consultants, Inc. Watershed Pond Calculatio
McDowell County, 224 South Grove Street, Suite F Example
North Carolina Hendersonville, North Carolina 28792 Figure 1
828-698-9800
Attachment A
Corps Comments
(dated April 16, 2010)
.
g
..
REPLY TO
A7[ MON OF!
Regulatory Division
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
151 PA rON AVENUE
ROOM 208
ASHEVILLE, NORTH CAROLINA 28801-5006
April 16, 2010
Action ID. 2007-200-359
Mr. Todd Black
Fall Creek Land Company
1340 Westgate Center Drive
Winston-Salem, NC 27103
Dear Mr. Black:
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
3
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
purposelneed 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 maybe 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.
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
CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
May 13, 2010
Ms. Amanda Jones
US Army Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801
RE: Response to SELC Comments
Grandview Peaks MAY g 2olo
McDowell County, North Carolina
Action ID SAW-2007-200-359; DWQ Project # 07-0168 Ver. 2
Dear Ms. Jones,
Please reference the letter dated February 12, 2010 (Attachment A) sent by the Southern
Environmental Law Center (SELC) in response to the permit application 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
SELC are listed and discussed below.
SELC Comment: "There exist less damaging practical alternatives to the proposed
impacts."
The applicant is confident in the alternatives analysis submitted with the permit
application. The applicant described three potential locations for the residential
development along with six potential amenities. The "Open Water" amenity was
further subdivided into three alternatives. An extensive alternatives analysis was
included in the application and the applicant believes that it is thorough, complete,
and in accordance with the "Information regarding the Review and Processing of
Standard Permit Applications for the Construction of On-Line Impoundments"
(March 18, 2008) and the Section 404(b)(1) Guidelines. Although SELC focuses
on the profitability of the project, six amenity criteria were identified in the permit
application. Inclusion or exclusion of an amenity was based on these criteria, not
solely on profitability which is linked to the economic feasibility of the project.
SELC attempts to make the point that justification of impacts and the choosing of
a preferred alternative cannot be based on profit. As stated in 33 CFR 320.4(q),
"when private enterprise makes application for a permit, it will generally be
224 South Grove Street, Suite F
Hendersonville, North Carolina 28792
Phone: [phone] Fax: [phone]
www.cwenv.com
Ms. Amanda Jones
05.13.10
Page 2 of 5
assumed that appropriate economic evaluations have been completed, the
proposal is. economically viable, and it is needed in the market place" The
potential of increased profits as it relates to absorption rates is significant when
justifying impacts for the proposed lakes at Grandview Peaks. The economic
analysis proposed as a part of the impact justification in the permit application
makes it appear that an $8.8 million dollar profit will be made without
construction of the lakes and that with the proposed lakes profit will be $18.3
million dollars. Economic conditions are not static; yet, economic analysis is
required to validate projects such as this one. To simplify the analysis,
assumptions are made and best case scenarios are assumed. A dynamic system of
supply and demand, fluctuating interest rates, and changing construction costs
become static values on paper for review purposes.
The anticipated gross profit in the tables assumes a best case market where lots
are reliably selling for the list price. At the onset of development, lots were
predicted to sell out in 5-6 years with amenity lakes completed. Grandview Peaks
has been selling lots for approximately 4 years and has sold approximately 1/3 of
the lots. At the current absorption rate, sell out will not occur for an additional 8
years.
The SELC fails to acknowledge the economic reality that loan payments,
contractor payments, overhead, and the like must be paid each month whether or
not any lots are sold. If lots do not sell well during a particular month, payments
must be made with "profit" from previous months. Profit from individual lot
sales is important and needed because profit is necessary to offset slower lots
sales and absorption rates. Additional years of financing and marketing costs,
without the lakes, will substantially reduce the potential for profitability of the
development, if it is profitable at all. True development profit is not realized until
all lots are sold and is difficult to estimate in the economic downturn.
The construction of the two proposed lakes could yield an increase in gross profits
of nearly $10 million (if lots were sold in the expected time frame), with a
percentage increase of over 100% (increasing from $8,827,106 to $18,324,896).
Without question, the financial implications are significant. Given the current
economic conditions, the projected potential for profitability of the project
without lakes is questionable. There are numerous factors that play into the
overall profitability of the development as it stands now, with the current market
being the most critical. As stated previously, due to the numerous bankruptcies of
developments with similar holdings, it is anticipated that the real estate market
will be flooded with similar lots at significantly reduced prices throughout the
coming years, making it unlikely the development will be able to maintain its
current price point. If the applicant dropped lot prices by 10%, their profits would
be reduced by approximately 25%, and a 20% price drop would result in a loss of
approximately 50% of the profits. These discounts can readily be seen by
comparing list prices of lots in developments versus the actual negotiated sale
price. If a drop in price of 20% was coupled with a continuing sluggish economy,
Ms. Amanda Jones
05.13.10
Page 3 of 5
the resulting cost of loan encumbrance could cause the developer to fall heavily
into the red, requiring them to enter into bankruptcy. Presence of the lakes
increases the average price of lot sales, keeps them at a higher level, and
decreases absorption rates.
The lakes play a vital role in the sustainability and survivability of the Grandview
Peaks business structure on two main fronts. First, it gives them a commodity
that few, if any, other competing developments have in their land inventory, thus
sheltering them from the flood of steeply discounted lots. Second, the increase in
potential profitability will add substantial security from loss of cash flow, and
enable them to seek assistance from lenders more readily if needed due to the
increased property values. Due to the current state of the economy, it is logical to
conclude that the lake amenities fall into a categorical listing of necessity for this
project.
SELC Comment: "The proposed mitigation is inadequate."
The applicant has submitted a stream mitigation plan that is consistent with past
projects and the Stream Mitigation Guidelines (2003). SELC quotes the
Wilmington District's On-Line impoundment guidance as stating "flooding of a
special aquatic site (i.e. riffle-pool complexes) or any aquatic resources can be as
detrimental as fill." SELC fails to acknowledge that the guidance also states: "In
some cases, the Wilmington District has issued permits with less than the
recommended mitigation ratios when a majority of the impacts are from flooding
of stream channels. The rationale has been that although the aquatic resource has
been substantially altered, (changed from a flowing (lentic) aquatic habitat to an
open water (lotic) aquatic habitat), that aquatic resource is not lost." Because the
applicant believes that aquatic resources are not lost as a result of the construction
of the impoundments, a 1:1 mitigation ratio was proposed. A 2:1 ratio was
proposed for all "hard" impacts at the site (direct impacts associated with the
dams and road crossings).
The applicant has proposed payment into EEP at a 1:1 ratio for direct impacts
associated with the dams; flooding constitutes a secondary impact and has been
proposed to be mitigated for through preservation. Additional mitigation credits
for dam impacts are included in the on-site preservation, as well.
Stand-alone preservation as misunderstood by the SELC is not proposed for the
site. Preservation is proposed in combination with payment into the EEP. The
EEP will enhance or restore stream segments within the same Hydrologic Unit
Code as the project. The EEP acceptance letter which indicates the target
watershed was included with the permit application.
Ms. Amanda Jones
05.13.10
Page 4 of 5
Streams at the site are worthy of preservation. The project site was previously
owned by Champion Paper. Forestry and logging operations are often exempt
from State and Federal regulations and the site could have easily been logged with
little regard to streams present on site. Additionally, streams with a Class C
designation are afforded no buffer by the DWQ. Although stream segments are in
platted lots, this offers no protection to streams from over zealous lot owners.
These stream corridors could be deforested and mowed lawns could be present up
to the water's edge with no repercussions. The willingness of the applicant to put
almost all of the remaining streams on site into preservation ensures that even
streams afforded no buffer by the DWQ are preserved in perpetuity. A 30-foot
buffer is the minimum requirement according to the Stream Mitigation
Guidelines; however, the applicant has included some stream segments with 60-
foot buffers. This increase in buffer width is above and beyond what is required
by the guidance.
Additionally, the Stream Mitigation Guidelines specifically state that the
mitigation ratio required for preservation is 2.5:1 to 5:1. The applicant has
proposed a 9:1 ratio which is above and beyond what is required by the
guidelines; the applicant has proposed an additional 27,575 linear feet (5 miles) of
preservation, beyond what is in compliance with the mitigation guidelines, for this
project.
The applicant believes the mitigation proposed in the permit application meets or
exceeds all guidelines set forth by the US Army Corps of Engineers (Corps) and
the DWQ.
SELC Comment: "The proposed activities will result in the violation of State water
quality standards."
The applicant is aware of the State water quality standards. The water quality
monitoring plan proposed in the permit application is in accordance with the
North Carolina Division of Water Quality (DWQ), Wetlands and Stormwater
Branch's "Predictability Study Protocol for Sampling Reference Impoundments -
DRAFT" (Protocol) dated February 28, 2008. The proposed water quality
monitoring plan is also consistent with water quality monitoring plans proposed
and recently approved by the DWQ for similar impoundments. Two reference
impoundments were sampled in support of the lake proposed at the Ridge at
South Mountain. This data was evaluated and will be used to determine design
criteria for the dam which will prevent similar problems in the lake once it is
constructed. These reference impoundments are comparable to the lakes
proposed at Grandview Peaks and dam specifications will be developed
accordingly. As indicated in the permit application, features incorporated into the
dam will include a cold-water release, a low-flow release pipe, anti-seep collars,
and an outfall designed to aerate release water. Additionally, the applicant has
proposed the development of a Lake Management Plan by a certified lake
manager. SELC states that given "the data shows repeated violations of water
Ms. Amanda Jones
05.13.10
Page 5 of 5
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." This statement is incorrect, the lake at the Ridge at South Mountain
has not been constructed; therefore, it is impossible that the lake at the Ridge at
South Mountain has violated water quality standards. Additionally, it is doubtful
that the two reference impoundment were designed or constructed with the
preservation of water quality in mind. The referenced impoundments also have
different surrounding land uses (i.e. agricultural and pastoral). It is the opinion of
the applicant that the lakes at Grandview Peaks can be designed and built to
reduce impacts to water quality.
SELC Comment: "The Falls Creekproject cannot survive public interest review."
The project as proposed is not contrary to the public interest. Each of the 21
public interest factors was discussed individually in Section 13 of the permit
application. It is the understanding of the applicant that the Corps reviews Public
Interest Considerations in every permit application and determines if projects are
contrary to the public interest. As stated in 33 CFR 320.4(q), "the District
Engineer in appropriate cases, may make an independent review of the need for
the project from the perspective of the overall public interest. The economic
benefits of many projects are important to the local community and contribute to
needed improvements in the local economic base, affecting factors such as
employment, tax revenues, community cohesion, community services, and
property values."
The applicant believes the information. submitted in this package addresses all issues set
forth by the SELC in their letter dated February 12, 2010. Should you have any questions
or comments concerning this project please do not hesitate to contact me at 828-698-
9800.
Sincerely,
'I vC ?„eUr-?'OVL.
Rebekah L. Newton
Project Biologist
R. Clement Ri dle,
Principal
Attachment A
SELC Response to Public Notice
(dated February 12, 2010)
4 Southern 29 N.'M2rket'St., Suite 6t)4:
AibW1Ie NC -18801
Environmental: lh: c828, 258-2023
Faic::(828?'258-202
LaW Center [e-mail].
February 12,2010'
ViaFirSt Class Mail Fait and Email
Amanda-Jones
Army Corps of Engineers
151 Patton Avenue Room 208
AshT.-Al ,.NC'28'801.5006
Amtmda.D.Jones @saw02 usate:army.miI
Ian McMillian
1611 Mall SErvice Center
Raleigh PVC 276.99-1617
ian.mcmillan&cman.net
Rt -Falls Creek Land Coinpany - SAW-2007-200=359.
Dear. Ms: Jones:
Please.accept these comments on. bebalf of the Western North. Carolina Alliance. in
responseto-the'Army Corps, January. 12; 2010 request for'comments:
The Western North Carolina Alliance' is gi non-profit orgmuzation..with the primary
goals of proteciifig.'and preserving the natuial• enVironrribht: and. mountain streams :of
Western. North Carolina. The, Western North Carolina ,Alkance includes. members. who
reside in the vicinity of the.pfoposed-pioject.arch: and-nia4y onore who recieate in.thde e
areas and appreciate- them for- their scenic beauty, hiking, wildlife viewing, 'spiritual
renewal, acid other recreational and editcafional;,activities..
We urge the Army Corps and the. Division -of 'Water Quality ta.acknowledge that they
cannot;. consistent with. the mandate of the` Section 404(b)(1) 9ui46 . es and' stattr
regulations, issue' a Department of the Army' or''40.1 -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
inadequate,. and the proposed impoundniont. Will.-cause violations Of'*te water quality
'standards.
I, There Exist Less Dama ' Practical Alternatives To The Pro osed Im 'acts.
Falls Creek Land Company proposes to construct a resid6ntial development in
McDowell County, NC..(Application at l3.) Because Fallstreek Land Company has
available to it practical alternatives toy impouliding pibuhtam streams thatw ill fulfill its'
project purpose, it cannot obtain a Departraent 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 $here is a
"practicable alternative ... which would have a less adverse impact on the aquatic
ecosystem." 40 CFR 230.10(6). Under this prohibition, "practical alternatives" are those
that are "available and capable -of being dorie after taking into consideration cost, existing
technology, and logistics in light-of overall project purposes." 40 C.F.R.: §'
230.1Q(a)(2)(2006).
The Guidelines' establish rebuttable' presumptions that (i) alternatives for-non-water
dependent alternatives that do not
dependent activities. that do.not involve wetlands exist; .
involve wetlands have less adversdImpact od-the aquatic environment. 40 C.F.R. §
230:10(4)(3). Special aquatic .sites (riffle/pool complexes) :likely-wi11 be impacted by the
proposed fill and impoundment. The purpose of thefalls Creek project-is-re; sideatial
development which, even when proposed.wiih water amenities, is not.a water dependent
activity. (July 2009 SOP at 15) Accordingly,.no.permit may be.issued-unless Falls Creek
overcomes these regulatory presumptions that alternatives exist that•have less impact on
the aquatic environment.
Furthermore, the Wilmington District has finalized a policy for the applicatiorn of this
standai;d to on-line impoundments. of mountain streams. See Information Regarding the
keview and Processing of gtandard Permit Applications for the Construction of On-Line.
Impoundments ( 'are h.1$, 200$). The Falls Creek proposal fails to meet the
requirements of either the 401(b)(1.) guideline or•tfie W4mhi;gtonDDisirict's' policy.
.Similarly, the Division of Water Quality may issue a 461 Certification for an impact
to surface waters only upon finding, in applicable,patt, that '(1) the"impacthas "no
practical alternative" and (2) the project:"will. minimize adverse-impacts to the surface
waters based -on consideration of existing topography,. vegetation, fish grid wildlife
resources, and hydrological conditions." 15A ICCC. Adn- in. Code 02H.05b6(b). If an
impact will remove existing uses from a water; miriimization:of impacts -can be
demonstrated by showing-that the.impacts are requiied. duo to (1) the."spatial and
dimensional requirements of the project;" (2 the "location-of any existing structural or
natural features that may dictate the placeinerit, or configuration.-of the:proposed'ptoject,"
or (3) the "purpose of the project. and how the purpose relates to placement, configuration
or density." Id. at .0506(g). A lack of praatiaal 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
cannotbe practically accomplished in a manner-whieh would avoid-. or result in less
adverse impact to surface waters or wetlands" Id. ai .0506(f)' (emphasis added),
Because practical alternatives exist, Falls Creek cannot meet the standards for 401
certification.
While Falls Creek offers a passing summary of other amenities considered, it rejects
several without any accounting of costs and return sufficient to compare the viability of
those -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 3740)
under the Corps and EPA 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
axed Plantation Landing--which were handed down by the Headquarters of the Army
Corps of Engineers in 1990,, the Director of Civil Works deeided this very issue, Both
:applicants proposed to build extensive residential housing.deveiopments and neither
wanted to eliminate any part of their developments to lessen wetlands impacts. In no
uncertain terns, Corps Headquarters.stated in both cases that the. size ofthe
developments had to be questioned, In Old Cutler Bay the Director of Civil. Works:staied
in his decision that the Corps should look beyond:the particular economic situation of the
applicant to determine whether a: sealed-down version of the proposed project would be
viable for-a-typical" applicant. That is, even if Falls Creek could riot make an economic
return on its. residential development if it had to eliminate some of the. components, the
real test is whether 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 profitableas 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 ofbeing done" without the added cost of the amenity ponds. Of course, the
Army Corps must independently evaluate the Applicant's cost ' -rejections, Utdhns for
getter Transportation v. U.S D.O.T.., 305 F.3d 11.52,1161(10` Cir. 2002), and may well
find-that this gross profit is understated. Futtherm.orei if the option of no amenity returns
a substantial.gross profit, the Applicant surely cannot dismiss so easily the other
residential amenities briefly weighed and quickly rejected in theApplication. 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 fora reduction in size; configuration. or density of the proposed
activity and all alternative designs ... 15A N.C. Admin. Code 02H.0506(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 impoundineirts, in formerly "lake front"
property had. no appreciable impact on property values and that proximity to free-flowing.
water contribute as'niuch to property values as'did proximity to impoundments. See Bill
Provencher, Helen'Srakinos, and Tanya Meyer, Does. Small Darn Removal Affect Local
Properly Values? An Empirical Analysis, UnNeisity of Wisconsii>-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
inipoundmeiiN (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.
I1. The proposed o itigation is inadequate.
No permit may be issued under § 404 if the discharge of. dredged or fill material will
"cause or contribute•tq. significant degradation of the waters of the United States:" 40
dR - 232.10(c). Notwithstanding this prohibition, the Corp§ 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 Ohnsted Falls. 435 RX 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 02H.
0506(b), (h). The regulations direct DWQ to 'coordinate mitigation requirements with
other permitting agencies. that are requiring mitigation for a specific project." Id 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 U.S.
Environmental Protection Agency established Stream Mitigation Guidelines
4
("Guidelines") to "provide the regulated community of North Carolina with joint and
consistent, [U.S. Army Corps of Engineers, Wilmington District] and DWQ stream
mitigation guidance." See Stream litigation Guidelines (April 2003).aO.t
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
Mitigation Guidelines, the Wilmington District's On-Line Impoundment. guidance and
ACE.and DWQ 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 On-Line Impoundment guidance notes; "flooding of a special aquatic site (i.e.
rifle pool complexes) or any aquatic resources can be as detrimental as a fill." Indeed, as
described in greater detail in the following section on water 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 with any other'impact.
The streams on the Falls Creek property are. designated by DWQ as "Class C' -and
some carry supplemental designation's as water supply watersheds. Under the. Strea{n
Mitigation Guidelines, streams assessed with good-water quality must irie 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
to impacts at.a 2:1 ratio. (Application at 46.) Falls Creek nonetheless proposes to
mitigate for flooding impacts to the same waters at only a 1:1 ratio, underestimating 'its
mitigation 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;o#igation obligation even as calculated in the. Application. Falls Creek offers only
695 feet of'actual restoration or,enhancemerit (through'the EEP programs) for its extensive
impacts. By comparison, the project will cause 6,775 'If cf impact from flooding and fill,
require 7,5801f of 'stream mitigation units under, the Applicatit's, own- calculations and
13,550 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 Creek 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
Falls Creek as the vast majority of its mitigation package is not acceptable as
compensatory mitigation because (1) the stream segments preserved afe not high-value
stredds for which preservation is appropriate, (2) the extent of the buffers preserved are
inadequate under DWQ Guidelines and will not protect water quality, and (3) the buffers
preserved are not under threat of development.
'The'Guidelines are available at
hap:/hinirmsemusace.arnry.n:itAi,etlatdslmlllgatlonlstrearn ntlttgatlon.hlm.
First, the preservation offered by Falls Creek is inadequate because the
preservation is proposed for streams not identified as "high value." DWQ has defines
streiim'preservation as the "[p]rotection of ecologically important streams" that may
include. ."protection of upland buffer areas adjacent to streams." Guidelines at 1'0.
Bedause.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. Id. The Guidelinesallnw;
however, that "[under 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
pitservatioii only when "the preserved resources will augment the functions ofnewly
established; restored or enhanced aquatic resources." (1tGL 020-2 at4:) 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 affbWed 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 of their
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.miniriium 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 maybe
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 plaoe into buffers those.
stream segments that are- not impacted by. the scope of its developments.. Having been
subdivided and parceled out, those lots are 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
"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 treads
and that are not the consequence of actions under the permit applicant's control" (RGL
02-2 at 5). Falls Creek has not made the appropriate showing. There is no evidence that
such a development, once subdivided into large.lots with associated infzastructure built
out is subject to further development and subdivision pressure in this watershed or
anywhere 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 peorosed activities-will result-in tlieviolatian of State water quality
standards.
The Corps cannot.approve the Grandview Peaks' permit applicationbecausethe act
of iinpounding.these streams will result in the violation of State water quality standards.
40 CFR 23.0.10(b) ("[n]o discharge of dredged or fill material shall be permitted if it
[c]auses or contributes ... to violations of any applicable State water quality standard"):
Moreover, the Corps cannot apprbve the permit because the North Carolina,DWQ cannot.
certify that-the proposed activities will comply with State water-quality standards. See 33
USCA §1331(a)(1).
The.proposed'stream impoundments ultimately will cause violations of multiple state
water quality standardsforthesc streams.. Artificial'impoundments 'disrupt natural
drainage-systems and serve as settling basins for sediments:' Virginia Cooperative.
Bkiensi6n, Guide to Understanding and Managing )lakes: Part I (Physical
edu/,gubs/fisheries/420-538/420-538.html. Asa result,
Measurements), httj):f/www.ext:.51
`"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 impoundment§
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 mgt with a minimum spontaneous value of not less than 4.0 mg/L.
15AN.C. Admin. Code 02B.0211(3)(b). The.tuibidity, standard requires that turbidity
-not,exceed 50 Nephelornetric Turbidity Units (NM in streams not designated as.troiit.
waters-and 10 NTUI in streams, lakes or reservoirs designated as trout waters. For lakes
and reservoirs not designated as trout waters, the turbidity shall riot exceed .25 NTU. 15A
N.C,.Admin. Code 02B.021 l (3)(k). Lake waters.inaybe, allowed to have lower values
for dissolved oxygen-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..04 degrees F) above the natural water temperature
and in no case can it exceed 29 degrees C for mountain streams. BA N.C. Admin. Code
02B.0211(3)0). State standards for fecal coliform state that "fecal col-forms shall not
exceed a geometric mean of 200/100ml(14 count) based upon at least five consecutive
7
samples examined during any 30 day period, nor exceed 400/100ml in more than 20
percent of the. samples examined during such period." 15A N.C. Admin. Code
02B.0211(3)(e). Finally, state standards for chlorophyll a (an indication of nutrient
pollution) require that no "greater than 40 ug/1 for lakes, reservoirs, and othei waters
,subject to growths of macroscopic or microscopic vegetation not designated as trout
waters, and not greater-than 15 uO for lakes, reservoirs, and other waters subject to
growths of macroscopic or microscopic vegetation designated as trout waters (not
#applicable to lakes or reservoirs less than 10 acres in surface area). 1 SA N.C. Admin.
'Code 02B.0211(3)(a). Because impoundment of these cold-water mountain streams will
cause inefeases in temperature and dissolved oxygen and may lead to elevated levels of
fecal coliform and nutrients, Grandview Peaks' permit 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 coliform, dissolved
oxygen, turbidity, and temperature. The two lakes in the study are comparable to..tbe
larger proposed impoundment for Grandview Peaks: 16'actes & 21.5 acres. Th.e'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 . f8 mg/L, well below the state standard of not less than 4.0 mgt.
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
2,5,90 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 brit also to
provide information about the impact of these types of impoundments on North Carolina
streariis. 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 impoundment's 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 statemater 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-tenn'or
long-term basis shall be considered to be violating a water quality standard." 15A
N.C.A.C_ 2B.0211(1), (2).. "Biological integrity means the ability of an aquatic
ecosystem to support and maintain abalanced and indigenous community of organisms
having species composition, diversity, population densities and functional organization
similar to that of reference conditions." 15A N.C.A.C. 2B..0200(11). 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
requirement of water quality standards that the biological integrity of all waters must be
maintained.
IV. The FaHs Creek Project Cannot Survive Publie Interest Review.
Under the Corps' regulations, 33 C.F.R. § 320.4(6)(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 froit the proposal"against the proposal's "ieasonably foregeeable detr'iments." Id.
The Corps considers "the public and private peed" for the proposed project and "the
practicability of using reasonable alternative locations and methods to accomplish the
objective:' 33 C.F.R. § 320.4(a)(2)() and (ii). A permit may not be issued -where it
would be 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 project cannot be justified in light of the. meager public
benefit or market function it provides.
V. Conclusion
For the foregoing reasons, the Corpse must deny the, permit application :and the
Division of Water Quality must deny the Applicant's request for 401 Certification: If the
Corps or DWQ continue to consider the application, a public hearing is necessary to'fully
ventilate the serious deficiencies in the proposed development plan.
Sincerely,
Austin DJ Ger en
Southern Environmental Law Center
29 N. Market St.. Suite 604
Asheville, NC 28801
828-258-2023
[e-mail]
Brianna Kay Bond
Southerd Environmental Law Center
-200 West Franklin Street, Suite 330
Chapel Hill, NC 27516
(9.19)967-1450
9
Counsel for
Western North .Carolina Alliance;
J.ulie.Mayfield,.Ekecoye Director
29 N. Market: St,,.Suite 610
Asheville, XC: 28801.
10
CLEARWATER ENVIRONMENTAL CONSULTANTS, INC.
May 13, 2010
Ms. Amanda Jones
US Army Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801
MPy ? $ zoo
RE: Response to FWS Comments
Grandview Peaks- McDowell County, North Carolina
Action ID SAW-2007-200-359; DWQ Project # 07-0168 Ver. 2
Dear Ms. Jones,
Please reference the letter dated February 12, 2010 (Attachment A) sent by the US Fish
and Wildlife Service (FWS) in response to the
permit behalf of lira ti odd suBlack of bmitted
Fall
C1earWater Environmental Consultants, Inc. (C EC), on
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 FWS
are listed and discussed below.
FWS Comment - Fish and Wildlife Resources:
"[The FWS] oppose[s] 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 the
reservoir site." AND "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 applicant is aware that construction of an impoundment constitutes a loss of
natural stream function. To offset these losses, the applicant has proposed a
mitigation plan in accordance with the Stream Mitigation Guidelines which
includes preservation of on-site streams and payment into the NC Ecosystem
Enhancement Program. Additionally, the dams will be designed to reduce
downstream water quality impacts. Features incorporated into the dam will
include a cold-water release, a low-flow release pipe, anti-seep collars, and an
outfall designed to aerate release water.
224 South Grove Street, Suite F
Hendersonville, North Carolina 28792
Phone: [phone] Fax: [phone]
www.cwenv.com
Ms. Amanda ]ones
05.13.10
Page 2 of 6
"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 even if the temperature is appropriate."
The design parameters for the cold water release (located within 1-2 feet of the
bottom, but not on the bottom) mentioned in the permit application comes directly
from the NC Wildlife Resources Commission Instream Impoundment Guidelines
(July 2006). If this guideline is not acceptable to the agencies, the applicant
requests additional information and guidance on the placement of cold water
release devices. Additionally, the dams will be designed with an outfall that
aerates release water. This device will eliminate poorly oxygenated water from
entering stream reaches below the dams.
"The applicant does not indicate that studies have been conducted to determine the
natural stream conditions at the proposed project site or downstream of the project site.
Baseline data must be collected and used to show whether dams 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."
The water quality monitoring plan proposed in the permit application is in
accordance with the North Carolina Division of Water Quality (DWQ), Wetlands
and Stormwater Branch's "Predictability Study Protocol for Sampling Reference
Impoundments - DRAFT" (Protocol) dated February 28, 2008. Data provided in
the application is from similar impoundments. Currently, baseline monitoring
data is not required or proposed as a part of the project. The water quality
monitoring plan that is proposed is consistent with water quality monitoring plans
proposed and approved by the DWQ for similar impoundments.
"The applicant has yet to provide any evidence that the construction of the two dams and
subsequent lakes will not cause water quality degradation and potential harm to special
aquatic sites; therefore, [the FWS] recommend[s] that stringent measures be taken to
completely avoid impacting the streams on this property.
The applicant is aware that construction of an impoundment constitutes an impact
to streams. To offset these impacts, the applicant has proposed a mitigation plan
in accordance with the Stream Mitigation Guidelines which includes preservation
of on-site streams and payment into the NC Ecosystem Enhancement Program.
FWS Comment - Monitoring
"Though the sampling and testing criteria proposed are a good place to start, [the FWS]
do[es] not believe the proposed measures are sufficient for monitoring all the effects the
dams will have on the downstream resources and stream channel stability."
Ms. Amanda Jones
05.13.10
Page 3 of 6
The water quality monitoring plan proposed in the permit application is in
accordance with the North Carolina Division of Water Quality (DWQ), Wetlands
and Stormwater Branch's "Predictability Study Protocol for Sampling Reference
Impoundments - DRAFT" (Protocol) dated February 28, 2008. The water quality
monitoring plan is also consistent with water quality monitoring plans proposed
and approved by the DWQ for similar impoundments.
FWS Comment - Purpose and Need
"[The FWS] believe[s] that amenities can include a wide range of features that provide
attractiveness and add value to a development. For this reason, [the FWS] believe[s]
there are a wide range of alternative amenities that could be constructed and/or that
already exist to increase the attractiveness and value of this proposed development."
The applicant is confident in the alternatives analysis submitted with the permit
application. The applicant described three potential locations for the residential
development along with six potential amenities. The "Open Water" amenity was
further subdivided into three alternatives. An extensive alternatives analysis was
included in the application and the applicant believes that it is thorough, complete,
and in accordance with the "Information regarding the Review and Processing of
Standard Permit Applications for the Construction of On-Line Impoundments"
(March 18, 2008) and the Section 404(b)(1) Guidelines.
"According to the information cited from the Grandview Peaks website..., numerous
amenities including open-water and other recreational opportunities exist within a short
distance of the development." AND "... the proposed lakes are not mentioned anywhere
on the website."
The Grandview Peaks website is an advertising tool used by the applicant. It is in
the applicant's best interest to aggressively promote the development and
surrounding area in order to get prospective buyers interested in the community.
Although the lakes are not mentioned on the Grandview Peaks website, lakes are
very much a selling point of this development for the reasons stated in the
application; however, because the lakes have not been approved for construction
and the applicant cannot ensure their construction, officially advertising them on
the website might be considered misrepresentation and might be illegal.
Prospective customers who visit the development are informed about the lakes as
were people who have already purchased lots in the subdivision. Regulations
governing interstate land sales limit what may be advertised about a development
to the general public. To keep lot owners up to date on the lake proposal and
approval process, a copy of the permit application is available at the sales office
located within the development. Although they cannot legally be and are not
officially advertised, the lakes are an integral part of this community.
Ms. Amanda ]ones
05.13.10
Page 4 of 6
FWS Comment - Alternatives Analysis/Impact Justification
"[The FWS] believe[s] the increased revenue that the project would provide with the
amenity lakes should not be considered when assessing the `build' or `no-build'
alternatives."
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." The applicant is confident in the alternatives analysis submitted
with the permit application. The applicant described three potential locations for
the residential development along with six potential amenities. The "Open
Water" amenity was further subdivided into three alternatives. An extensive
alternatives analysis was included in the application and the applicant believes
that it is thorough, complete, and in accordance with the "Information regarding
the Review and Processing of Standard Permit Applications for the Construction
of On-Line Impoundments" (March 18, 2008) and the Section 404(b)(1)
Guidelines.
Decline of the most recent real estate boom began the latter half of 2007, with the
final result being a deep recession with numerous developers declaring
bankruptcy. The real estate boom had been one of the greatest growths in real
estate, with North Carolina being one of the leaders in mountain development
sales. With economic decline, large numbers of bankruptcies in the vicinity of
Grandview Peaks in the mountains of North Carolina and Tennessee has flooded
the market with countless lots in foreclosure. In response, banks are selling
foreclosed lots for a fraction of the lots initial value. As a result, the strong price
point for such lots has declined. These lots are very typical of lots in Grandview
Peaks. Grandview Peaks lake lots have poor forest quality and limited to no view.
This has made it exceedingly difficult even for financially responsible companies
such as Fall Creek Land Company to go unaffected throughout this downturn as
potential buyers given the choice of two similar lots will chose the less expensive
lot. Due to this flood of comparable, discounted lots into the market, Fall Creek
Land Company has come to realize the importance of separating their lots from
the other typical lots on the market today. Amenity lakes serve this purpose and
give the development a chance to weather through this turbulent market.
The impact of the proposed recreational lakes within the Grandview Peaks
development is significant. Not only does it give the development a unique
marketability in an exceptionally turbulent environment, but it also enhances the
potential for a significant increase in gross profit per lot, which would be an
absolute necessity if the market continues to slow and the developer has to carry
large amounts of debt service over time. The ability to financially withstand the
markets ups and downs is crucial to the long term success of the project. What
appears to be a short term profit on individual lot sales may be lost if overhead,
interest, marketing costs, etc. cannot be paid in a timely manner for the overall
project debt. Another important factor is absorption rate. With the lakes, the
Ms. Amanda Jones
05.13.10
Page 5 of 6
project was proposed to sell out in 5-6 years. Approximately 1/3 of the lots have
sold in 4 years. At the current absorption rate, lots will take an additional 8 years
to sell which may put the overall financial feasibility of completing the project in
jeopardy.
"If [the FWS is] 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, [the FWS] believe[s] the applicant should also analyze and address the loss of
potential hunting expenditures."
Loss of hunting expenditures is irrelevant for this project. All property that
comprises Grandview Peaks is privately owned and was privately owned prior to
purchase. For obvious safety reasons, hunting is not and would not be permitted
in a residential community regardless as to whether the lakes are proposed or not.
"[The FWS] believe[s] the statement made by the applicant that the amenity (on-site
lakes) will have little to no cost to 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 impoundments."
Lots around the lakes will command a higher price; however, a wide range of lot
prices will be available to potential buyers and all lot and home owners regardless
of lot price will have access to the lake amenity. Potential buyers have the choice
to purchase a lot with a higher price, which may be lake front, but not every lot
purchaser will spend an additional $100,000 to utilize the lakes as suggested by
the FWS. Although the FWS believes that the additional cost for lake front lots is
"quite costly", purchasers of the lots around the lake will voluntarily choose to
take on that cost and pay the price the lots command.
"The applicant compares the costs for using motorized boats on Lake Lure, which is
irrelevant because the application later states that only nonmotorized boats will be
allowed on the lakes at Grandview Peaks. The IPA also states... that Lake Lure and Lake
James will not provide a private lake experience.' The purpose of the projects is to
construct a residential development with amenities; privacy is not a purpose or
justification."
Motorized and non-motorized fees were discussed so that reviewers could
understand the range and breadth of usage fees that are required to utilize Lake
Lure facilities. The FWS fails to recognize in their letter that the permit
application clearly states that non-motorized boat permit fees start at $22 per year
or $11 per day; and that the Town of Lake Lure only issues 50 non-residential
permits per year. Use of Lake Lure facilities is highly regulated by the Town of
Lake Lure and may not be accessible to all or any residents at Grandview Peaks.
The prohibition of motorized boats on the lakes proposed at Grandview Peaks is
one characteristic that sets the proposed lakes apart from Lake Lure and Lake
James.
Ms. Amanda ]ones
05.13.10
Page 6 of 6
A lack of the "private lake experience" was not the only reason Lake Lure and
Lake James were excluded as viable alternatives. As stated in the application,
amenity criteria included location and accessibility; and economic feasibility. As
indicated in the permit application, the chosen amenity needs to be located within
the residential development in an aesthetically pleasing locale and accessible to
all residents of the community. Additionally, the chosen amenity should meet the
amenity criteria at a reasonable cost and create opportunity to earn a reasonable
return on investments from the site for this type of development when taking into
consideration absorption rates and increased costs of lots when an amenity is
present. Lake Lure and Lake James do not constitute on-site amenities.
Additionally, the applicant has to take into consideration the real market
competition for home buyers within the region, including the sector of home
buyers which desire on-site, water-based recreational amenities at an affordable
price.
FWS Comment - Cumulative Impacts
"[The FWS] do[es] not agree with the secondary and cumulative effects analysis
contained in the IPA. [The FWS] also believe[s] the cumulative analysis of the proposed
project is incomplete."
The applicant has submitted a Secondary and Cumulative Effects statement that is
consistent with Secondary and Cumulative Effects statements include in all permit
applications submitted by CEC. The FWS has asked for an analysis of all
impoundments in the basin. Fall Creek Land Company should not be held
accountable for impacts that have occurred in the past, not on their property, and
not financially funded by the company. Nor should the existence of lakes in the
same HUC preclude Fall Creek Land Company from submitting a permit
application to construct lakes on their property. It is estimated by the North
Carolina Department of Environmental and Natural Resources that there are
approximately 16,093,440 linear feet of streams in the Catawba River Basin.
Impacts proposed for the dams include 695 linear feet of streams. Secondary
impacts due to flooding include 5,970 linear feet of streams. Impacts proposed at
Grandview Peaks are minor and constitute impacts to a relatively abundant
resource.
The applicant believes the information submitted in this package addresses all issues set
forth by the FWS in their letter dated February 12, 2010. Should you have any questions
or comments concerning this project please do not hesitate to contact me at 828-698-
9800.
Sincerely,
RR. en dd e4
Rebekah L. Newton
Project Biologist Principal
Attachment A
FWS Response to Public Notice
(dated February 12, 2010)
0:/12/2010 11:23 FAX [phone] Tom As.heville,NC
TO T
United States TDeputmtent of the Interior
? a
FISH AND WILDLIFE SERVICE
y - ,e Asheville Field Office
4 cH a ' 160 Zillicoa Street
Asheville, North Carolina 28801
Februany ::2, 2010
Us. Amanda Jones
Asheville Regulatory Field Office
U.S. Army Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Dear Ms. Jones:
Q002
Subject: Site Assessment for the Proposed Cons6metion of Two Impoundments at the
Grandview Peaks Subdivision, Joe Branch Road, Southeast of Dysartsville, McDowell
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 Creels 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 •F. all Creels
Land Company. This report is submitted in accordance 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 Endaugere:l 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 Creels 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 construct two earthen dams (heights of 40 feet and
96 feet, respectively) for the creation of two amenity lakes (9 acres and 25 acres in size,
respectively). The project site is primarily mountainous and wooded, with areas of early
successional forest from previous clear-cutting activities.. The headwaters of Hoppers -Creek,
Weaver Branch, Shoal Creels, Kelly Branch, South Muddy.Creek, and Big Camp Creek are on
the site. The site contains about 2.16 acres of uretlands and about 54,392 linear feet (la) of
stream channel. To construct the takes, the applicant is proposing to impact about 6,6651f of
02/12/2010 11:24 FAX [phone] USFWS Asheville.NC Q 003
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 lalces 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 the reservoir
site. The effects of impoundments result in changes in fish and maeroinvertebrate communities,
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 lilcely 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 downmearn 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,
02/12/2010 11:24 FAX [phone] USFIRS Asheville,NC IM004
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 impoundments. 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 evvn if the temperature is appropriate.
On page 17, the applicant states that "Residual flaw 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
'raimic the natural conditions (temperature regimes, seasonal flows, sediment transport, etc.) as
closely as possible to minimize/avoid downstream impacts. The application does not indicate
that studies have been conducted to determine the natural stream conditions at the proposed
project site or downstream of the project site. Baseline data must be collected and used to show
whether dams 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 discharge 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 of the two
dams and subsequent lakes will not cause water quality degradation and potential harm 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 contributing to the
general overall environmental health or vitality of the entire ecosystem of a region.
02/1.2/2010 11:25 FAX [phone] uSFWS As.hvrIIIe,NC IM005
1. All monitoring and surveys should start 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 include cross-sectional surveys, pebble counts, bank-full
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 of the 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 increase 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.fallereeldand.coml), we found the•following
statements:
The natural beauty of the area can be enjoyed year-round malting it an
outdoorsman's paradise. Lake Lure and Lake James are nearby lakes where you
can enjoy swimming, boating, fishing, hiking, 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, billing to shopping and
much, much more.
R4006
02/12/2010 11:25 FAX [phone] USFWS Arhevill.e.NC
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.... Enj 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. Cleghori Plantation, Silver Creek Plantation,
Meadow Brook, and Fairfield Mountains, ;.we 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, North Carolina's largest state park,
with over thirty thousand acres open to the public. Hiking, mountain bilcing,
fishing, swimming, and horseback riding aye just ai 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 momitains, perhaps even to the
quaint town of Morganton. It is just 20 mrotautes away, after all, close to sky-blue
Lake James' 150 miles of shoreline. Chalk up the clarity to careful planning 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 tlae Grandview Peaks web site listed above, numerous
amenities including open-water :and other recreational opportunities exist within a short distance
of the development. Also, according to the web site, it is these amenities that make the
development special, attractive, and valuable. The web site contradicts the IPA with regard to
the need for the proposed lakes for recreation and an 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/ltmpact.lustification - During our review of the previous application in
2007, we included comments 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
contract. Yet the master plan shown on the Fall Cmelc Land Company's web site at that time
02/12/2010 11:25 FAX [phone] USFws Ao.heville,NC .007
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, and 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 by stating higher than expected costs 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" alternati* can be accomplished with consideration of
the cost of the alternative to the applicant, then the: alternative is practicable (40 CFR Section
230.10 (2)). Within the CFR 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- sums 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 aind/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 bring 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 travel, food
and lodging, and $145 million (13 percent) was spent on specialty equipment (boats, vans,
trucks, etc.). Given these numbers, over 75 percen: 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 years of age had expenditures relating to freshwater fishing. Given that only about
150 part-time residents, primarily second homes (a,scording to the IPA), may have expenditures
6
D2/12/2010 11:26 FAX [phone] USFws AE•heville,NC IM 008
related to fishing, we find it difficult to believe that 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 fores'ted 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 should. also analyze and address the loss of potential
hunting expenditures.
In Alternative Option 1 on page 25 of the IPA, the applicant uses unrelated costs to justify the
impacts of the project and to dispute the legitimacy of the "no-build" alternative. The IPA states
that "On site amenities require less cost, less time.. and expenditures of fewer resources by
residents." It goes on to say: "The ability of Crrandview 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 is -xrelevant
because the application later states that only nonmotorized boats will be allowed on the: lakes at
Grandview Peaks. The IPA also states, after much promotion on the applicant's web site, that
Lake Lure and Lake James will not provide a "private lake experience." The purpose 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,econda ry 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 58 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 major 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 are under 14 feet and are not considered "high
hazard" (data for these dams, and impact 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 dams 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 HUC of the
proposed project and found that about 110 acres of impoundments occur in the 14-digit HUC?
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., farm ponds and
dams smaller than 14 feet in height) in the North Carolina Dams spreadsheet and some of the data gaps that exist
within the spreadsheet.
02/12/2010 11:26 FAX [phone] USF{9S Asheville,NC [ 009
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 than 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 analysis of the 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 for the on-site on-line lakes option. Because the
purpose and need statement (residential development with amenities) and the impact 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, we believe the no-build alternative is the
most practicable. Therefore, we recommend that sny 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,
/'Brian P. Cole
Field Supervisor
...... ....._.____......_.._.
02/12/2010 11:26 FAX [phone] USFWS Ashevi1]e,NC @010
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, SwannanDa, NC 28778
Ms. Becky Foy:, U.S. Environmental Protection Agency, 1349 Firefly Road, Whittier, NC 28789
9
Cr.T. A R W ATER ENVIRONMENTAL CONSULTANTS, INC.
May 13, 2010
Ms. Amanda Jones
US Army Corps of Engineers
151 Patton Avenue, Room 208 MAY 18 2010
Asheville, North Carolina 28801
RE: Response to WRC Comments
Grandview Peaks
McDowell County, North Carolina
Action ID SAW-2007-200-359; DWQ Project # 07-0168 Ver. 2
Dear Ms. Jones,
Please reference the letter dated February 12, 2010 (Attachment A) sent by the NC
Wildlife Resources Commission (WRC) in response to the permit application 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
WRC are listed and discussed below.
WRC Comment #1- Reduced Stream Quality and Quantity:
"Impoundments trap sediments, nutrients, and large woody debris, prevent their normal
processing by rivers, and cut off transport to larger downstream water bodies. Although
trapping of fine sediments can prevent downstream habitat deterioration, elimination of
sand, gravel, and cobble transport often causes channel erosion and instability in
'sediment starved' streams."
The applicant proposes to complete a Lake Management Plan prior to
construction of the lakes. The plan will be developed by a Certified Lake
Manager and will include plans to manage sediments and nutrients along with
other parameters.
The lakes offer a unique opportunity to protect water quality as the entire
watershed of the proposed lakes is owned by the applicant.
"Impoundments can reduce stream flow, which in turn reduces downstream habitat
quality and quantity." AND "Commission staff expressed concern that the lakes would
markedly diminish stream flows below the lakes, particularly during drought. This
224 South Grove Street, Suite F
Hendersonville, North Carolina 28792
Phone: [phone] Fax: [phone]
wvvw.cwenv.com
Ms. Amanda ]ones
05.13.10
Page 2 of 5
concern was not addressed in the application other than a notation that a minimum 7Q10
flow would be maintained at all times. Dam and spillway designs and flow monitoring
along with lake management protocols were not presented to explain how this flow would
be accomplished in perpetuity."
Sections 9.3 of the permit application provides a brief discussion about items that
will be incorporated in the dam design and Lake Management Plan.
As mentioned in the permit application, the design for the dams and the 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 this task without some assurance that the project will be approved. This
approach to the project is similar to previously approved lake projects such as
Traditions and the Ridge at South Mountain.
As requested by the NC Division of Water Quality (DWQ), a minimum water
release plan will be included with the dam designs. In the past, 7Q10 minimum
flows have been acceptable to the DWQ and the US Army Corps of Engineers
(Corps). The applicant will work with the DWQ to develop a minimum flow
release plan that is acceptable.
"Use of impoundments for irrigation can appreciably reduce downstream flow,
particularly during drought when irrigation use is typically high."
The impoundments are not proposed to be used for irrigation.
"Sediment from construction of the lakes and routine dredging operations would likely
degrade aquatic habitat. A considerable amount of earthwork would be required to
construct the proposed dams and the potential for erosion and sedimentation downstream
of the site would be high.
Sedimentation from construction of the dam and routine dredging (which is not
proposed as a part of the application) would be temporary in nature. Additionally,
permits would be required for any dredging that would occur at the site in the
future. Future dredging permits, if dredging is needed, will be reviewed by the
resource agencies at the time of submittal. Dredging is not proposed as a part of
this project and is not anticipated to be proposed in the near future. Earthwork at
the site would require approval of a sediment and erosion control plan by the NC
Division of Land Resources (DLR). The applicant will comply with the sediment
and erosion control plan along with any additional conditions bestowed by the
DLR.
WRC Comment #2 - Elimination and Fragmentation of Habitat
"The lakes would eliminate quality stream habitats and create blockages or impediments
to aquatic life movements. Riparian areas and wetlands are some of the most productive
habitats for neotropical birds, woodcock and a variety of salamanders and reptiles"
Ms. Amanda Jones
05.13.10
Page 3 of 5
The applicant realizes that lakes would eliminate streams and wetlands at the site.
To offset these impacts, the applicant has proposed a mitigation plan that
preserves 62,000 linear feet of on-site streams (over 11.5 miles) and 1.55 acres of
on-site wetlands. Payment into EEP is also proposed. This mitigation plan helps
to preserve the very habitats the WRC is most concerned about at the site. It is
unlikely that the streams and wetlands on site would fall under a preservation
mechanism which protects waters in perpetuity if mitigation was not proposed as
a part of this project.
WRC Comment #3 - Inadequate Compensatory Mitigation
"[The WRC] believes more of the mitigation should entail enhancement or restoration
work that would have tangible and long-term habitat improvement outside of the area of
proposed impact."
The mitigation plan proposed by the applicant is in accordance with Corps and
DWQ guidelines; and the Stream Mitigation Guidelines (2003).
Additionally, the Stream Mitigation Guidelines (2003) state that the mitigation
ratio required for preservation is 2.5:1 to 5:1. The applicant has proposed a 9:1
ratio which is above and beyond what is required by the guidelines; the applicant
has proposed an additional 27,575 linear feet (5 miles) of preservation, beyond
what is in compliance with the mitigation guidelines, for this project.
The applicant believes the mitigation proposed in the permit application meets or
exceeds all guidelines set forth by the Corps and DWQ.
WRC Comment 44 - Other Alternatives
"Construction of 0.5 to 2 acre ponds with small and relatively inexpensive dams should
be possible at the chosen locations as well as several other sites on the property."
The analysis of watershed ponds was completed by MACTEC. It is the
understanding of CEC, that the locations of these ponds were discussed at an on-
site meeting between the Corps and MACTEC. Of the watershed pond locations
discussed, the largest watershed was approximately 17 acres. This acreage is less
than optimal for a pond of substantial size. Ponds of 0.5 to 2 acres would not
provide for the same type of amenity that is currently proposed.
Additionally, according to the NC Cooperative Extension Service and NC
Wildlife Resources Commission Pond Management Guide, watershed lakes are
more likely to have problems with muddy water, high siltation rates, rapid
fluctuations in flow rates, aquatic weeds, temperature fluctuations, and wild fish
invasions. They are also highly susceptible to drought conditions. Maintenance
of several small watershed lakes would be cumbersome and put an undue burden
on residents of the community.
Ms. Amanda Jones
05.13.10
Page 4 of 5
"Ponds that may not remain full year-round should be considered as project
alternatives."
The applicant has no intention of building ponds that will remain wet seasonally.
As an amenity in the community, residents will expect to be able to use the lakes
at their discretion any time of the year for the activity of their choosing.
Additionally, receding lake levels are looked upon as unaesthetic and makes
boating, swimming, and other recreational activities unappealing and/or
unavailable.
A downstream minimum flow plan will be included with the dam designs to
ensure maintenance of flow below the dam and a Lake Management Plan will
dictate lake levels.
"The southern part of the largest proposed lake appears to be a possible location for an
off-line pond, yet it was not evaluated in the application."
A discussion of the off-line pond alternative was included in Section 10.2.2 F.
The excavation of lake sites was considered. This project site consists of up to
three potential lake sites that are located in uplands, avoiding impacts to
jurisdictional streams and wetlands. The preferred aspects of the locations
include being capable of supporting an ideal lake depth of at least 6 to 10 feet
without rock excavation, an area providing ground waters and/or surface runoff
capable of supporting a relatively static water level, and an area providing
relatively flat topography to maximize lake area while minimizing soil excavation
and placement.
The potential for excavated lakes on this property is limited. The lake site could
be located in any of the upper reaches of the multiple drainage basins supplying
the streams, or on adjacent flat areas and in alluvial floodplains out of streams and
wetlands. In upland basins in the vicinity of the project, the typical depth to
groundwater is greater than 10 feet. The terrain is relatively incised, preventing a
balanced excavation of large lake sites while encouraging steep slopes and
negligible shallow water areas. Both surface runoff and groundwater from wells
or excavation would appear to be inadequate or too costly to be considered a
feasible option. The surface water discharge in upland areas is limited by the size
of the contributing watershed. The only way to provide enough runoff control is
to impound further in the watershed.
Excavated lake sites in the floodplains of major streams on the property have
some potential to provide a continuous water supply. The floodplains have
relatively flat areas, relatively shallow ground water, access to some runoff from
contributing watersheds, and more fertile soils. The limiting factors are the lack
of large contiguous areas in alluvial habitats on the subject property. The largest
areas are along the larger tributaries with meandering stream beds and adjacent
wetlands and seepages. These resources would have to be buffered from the
Ms. Amanda Jones
05.13.10
Page 5 of 5
vegetation removal and large soil excavation operation necessary to dig out a
large lake. The significant soil disturbance associated with this project has
potential for temporary impacts to adjacent streams and waters during high flow
events that could occupy and scour the excavated lake during and after
construction. The long narrow nature of the potential excavation sites exacerbate
the potential for impacts to adjacent streams, to include loss of shading vegetation
and loss of essential active floodplain for streams to grade and meander. The cost
of hauling excavated material from large lake footprints is inhibiting to the
project.
The applicant believes the information submitted in this package addresses all issues set
forth by the WRC in their letter dated February 12, 2010. Should you have any questions
or comments concerning this project please do not hesitate to contact me at 828-698-
9800.
Sincerely,
-onku-'oA-
Rebekah L. Newton
Project Biologist
R. ment rJOS.
Principal
Attachment A
DWQ Response to Public Notice
(dated February 15, 2010)
® North Carolina Wildlife Resources Commission
February 12, 2010
Gordon Myers, Executive Director
W. 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 Quality, 401 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 Development
McDowell County
Action ID No. 2007-200-359
DWQ No. 07-0168v2
Dear Mr. Jones and Mr. McMillan:
Clearwater Environmental consultants requested an individual 404 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 Wildlife Coordination Act (48 Stat. 401, as amended;
16 U.S.C. 661-667d).
In 2007, Mr. Todd Black proposed construction of three lakes in the Grandview Peaks residential development
near Dysartsville in McDowell County. Permits were not issued for that proposed design. The new design
proposes two lakes of 9 and 25 acres that would fill or flood about 6,675 feet of tributaries and 0.73 acre of
wetlands in the South Muddy Creek and Hoppers Creek watersheds. 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. Compensatory mitigation for wetlands would
include 0.5 acre of EEP credit and 1.55 acre of on-site preservation.
Mailing Address: Division of Inland Fisheries - 1721 Mail Service Center - r meign, im- 6 / u77-, / Z' Telephone: [phone] - Fag: [phone]
Black Page 2 February 2010
The project proposal notes that the primary purpose of the lakes is to provide recreational opportunities for the
subdivision's residents. Within 18 miles there are four tremendous recreational sites, including South
Mountain State Park, Lake James, Lake James State Park, and Lake Lure. These sites provide opportunities for
fishing, hiking, wildlife viewing, picnicking, biking, and boating. The applicant should consider these current
local amenities when evaluating the cost of impacting wildlife resources and the mitigation.
The adverse environmental effects of impoundments are well documented and include blocking aquatic life
migration routes, habitat fragmentation, alteration of natural hydrologic and geomorphic regimes, degradation
of water quality, declines in biodiversity, alteration of natural food webs, and disruption of riparian plant
communities (Baxter 1977; Ward and Stanford 1979, and references therein; Tyus 1990; Yeager 1993; Ligon et
at. 1995; Pringle 1997; Benstead et al. 1999; Pringle et al. 2000; Blough et al. 2004). The proposed lakes
would result in marry of these effects. Therefore, in accordance with the statutory charge to conserve the
wildlife resources and inland fisheries in North Carolina (G.S.113-132), the Commission objects to the lake
construction as proposed and recommends that a 404 Permit and 401 Certification not be issued for the
following reasons:
1. Reduced stream qualit?d quantity
impoundments trap sediments, nutrients, and large woody debris, prevent their normal processing by rivers,
and out off transport to larger downstream water bodies (Yeager 1993; Tyus 1999; Blough et al. 2004).
They also interrupt invertebrate drift and organic material transport. Although trapping of fine sediments
can prevent downstream habitat deterioration, elimination of sand, gravel, and cobble transport often causes
channel erosion and instability in "sediment-starved" streams. Impoundments can reduce stream flow,
which in turn reduces downstream habitat quantity and quality. Use of impoundments for irrigation can
appreciably reduce downstream flow, particularly during droughts when irrigation use is typically highest.
At the November 11, 2009 pre-application meeting for the project, Commission staff expressed concern
that the lakes would markedly diminish stream flows below the lakes, particularly during drought. This
concern was not addressed in the application other than a notation that a minimum 7Q10 flow would be
maintained at all times. Dam and spillway designs and flow monitoring along withlake management
protocols were not presented to explain how this flow would be accomplished in perpetuity.
Sediment from construction of the lakes and routine, dredging operations would likely degrade aquatic
habitat. The harmful effects of sedimentation on aquatic systems are well-documented (Waters 1995). A
considerable amount of earthwork would be required to construct the proposed dams and the potential for
erosion and sedimentation downstream of the site would be high. Lake dredging occurs periodically on
many small lakes and often causes considerable sedimentation.
2. Elimination and fragmentation of habitat
The lakes would eliminate quality stream habitats and create blockages or impediments to aquatic life
movements. Riparian areas and wetlands are some of the most productive habitats for many neotropical
birds, woodcock, and a variety of salamanders and reptiles. Woodcock are a wetland and riparian area
dwelling species that has declined significantly in the eastern United States since the 1960's because of
habitat loss. Riparian areas also are primary travel corridors for many species of wildlife that are impeded
by or unable to pass impoundments. Contiguous habitat areas are fragmented when impoundments are
constructed. Often the smaller, isolated habitat patches that are created when these habitats are fragmented
can no longer support some species.
Black
3. Inadequate Compensatory Mitigation
Page 3 February 2010
The streams on the property have forested watersheds and range in quality from poor to excellent. On-site
preservation accounts for the majority of the mitigation and lies within the proposed area to be impacted by
this project. Currently, the proposed preservation area has contiguous and vegetated riparian buffers which
are not proposed to be protected under their preservation status. The remaining on-site stream habitat
values will likely decrease due to 1) fragmentation by the lakes and road crossings and 2) sedimentation
and increased stormwater discharge as the watersheds are developed. We believe that more of the
mitigation should entail enhancement or restoration work that would have tangible and long-term habitat
improvements outside of the area of proposed impact. This could be accomplished by restoring and
enhancing degraded streams on the property with buffer preservation or purchasing additional stream
mitigation credits from a mitigation bank or EEP. We would like to see a minimum of 1 to 1 restoration or
enhancement provided for each linear foot of stream loss.
4. Other alternatives
The possibility of building small watershed ponds that fill with run-off instead of impoundments on
perennial or intermittent streams was not adequately considered. According to the application, watershed
ponds in ephemeral drains were evaluated in four unspecified locations. However, the analyses were
apparently conducted by determining a desired pond size at each location rather than first considering the
acreage of the watershed at each location and sizing the ponds accordingly. About 2040 acres of wooded
drainage area, less if the area is grass, is needed for each 1 acre of pond (North Carolina Cooperative
Extension Service and North Carolina Wildlife Resources Commission 1999). Impervious surfaces from
roads and homes in developments can reduce the drainages area needed for ponds. Based on this
information, construction of 0.5 to 2 acre ponds with smaller and relatively inexpensive dams should be
possible at the chosen locations as well as several other sites on the property. There are numerous
watershed ponds on farms and residential properties throughout much of McDowell County and the upper
piedmont of North Carolina.
Maintenance of a permanently full pool is usually desirable with ponds and lakes, but for the purpose of
this project, we question whether it is necessary or even feasible. Specifically, ponds built in watersheds
too small to maintain a full pool year-round would nonetheless be filled most years from late fall to
summer. These "three season" ponds would provide most of the desired benefits of the proposed lakes
(e.g. aesthetics, fishing, swimming, boating,..). When water levels recede from late summer to fall there
would be wet soil habitat in dewatered fringes of the ponds. This habitat would attract wildlife and support
wildlife viewing, which is another project objective. If built, the proposed lakes would also experience
water level fluctuations, particularly during droughts, if a downstream minimum flow is required and
maintained. Therefore, ponds that may not remain full year-round should be considered as project
alternatives.
As with watershed ponds, off-line ponds supplied with gravity fed or pumped water from streams were
dismissed largely based on predetermined pond sizes. Again, to be effective, this evaluation should first
consider what size pond is appropriate based on terrain and other landscape conditions. The southern part
of the largest proposed lake appears to be a possible location for an off-line pond, yet it was not evaluated
in the application.
Black
Page 4 February 2010
There are many potential locations on the property where watershed or off-line ponds could be constructed
with no or considerably less impacts to streams than large impoundments. Thorough evaluation of less
damaging alternatives is necessary for the project to be consistent with 401b guidelines.
Thank you for the opportunity to review and comment on this permit action. If there are any questions
regarding these comments, please contact Dave McHenry at [phone] extension 24.
Sincerely,
Shannon L. Deaton, Manager
Division of Inland Fisheries
cc: Mrs. Becky Fox, U.S. Environmental Protection Agency
Mr. B. Tompkins, U.S. Fish and Wildlife Service, Asheville
Mr. Todd Black, Fall Creek Land Company
Citations
Baxter, R. M. 1977. Environmental effects of dams and impoundments. Annual Review of Ecology and
Systematics 8:255-283
.
Benstead, J. P., J. G. March, C. M. Pringle., and F. N. Scatena. 1999. Effects of a low-head dam and water
abstraction on migratory tropical stream biota. Ecological Applications 9:656-668.
Blough, H., T. Bigford, and J. Haynes. 2004. AFS Policy Statement on Dam Removal.
hU://www.fisheries.org.
Cooper, T.R., and K. Parker. 2009. American woodcock population status, 2009. U.S. Fish and Wildlife
Service, Laurel, Maryland, 15 pp.
Ligon, F. K., W. E. Dietrich, and W. J. Trush. 1995. Downstream ecological effects of dams, a
geomorphic perspective. Bioscience 45:183-192.
North Carolina Cooperative Extension Service and North Carolina Wildlife Resources Commission 1999).
Pond Management Guide. http://www.ncwildlife-org/pgO3_Fishingrnnages/PONDMAN5.PDF
Pringle, C. M. 1997. Exploring how disturbance is transmitted upstream: going against the flow. Journal
of the North American Benthological Society 16:425-438.
Pringle, C. M., M. C. Freeman, and B. J. Freeman. 2000. Regional effects of hydrologic alterations on
riverine macrobiota in the new world: tropical-temperate comparisons. Bioscience 50:807-823.
Tyus, H. M 1990. Effects of altered stream flows on fishery resources. Fisheries 15(3)18-20.
Tyus, H. M. 1999. AFS Policy Statement on Effects of Altered Stream Flows on Fishery Resources.
hbp://www.fisheries.ore.
Ward, J. V., and J. A. Stanford, editors. 1979. The Ecology of Regulated Streams. Plenum Press, New
York.
Waters, T.F. 1995. Sediment in streams: sources, biological effects, and control. American Fisheries
Society Monograph 7, American Fisheries Society, Bethesda, Maryland. 251 p.
Yeager, B. L. 1993. Dams. Pages 57-114. In C. F. Bryan and D. A. Rutherford, editors. Impacts on
wannwater streams: Guidelines for evaluation. Southern Division, American Fisheries Society,
Little Rock, Arkansas.