20070168 Ver 2_EPA Comments_20100408

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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ATLANTA FEDERAL CENTER
Z;F o2 61 FORSYTH STREET
?11< PROtATLANTA, GEORGIA 30303-8960
April 8, 2010
Ms. Amanda Jones
U.S. Army Corps of Engineers
151 Patton Avenue
Asheville, North Carolina 28801
Subject: Grandview Peaks Residential Development
Proposed Construction of Two Impoundments
McDowell County, North Carolina
Corps ORM ID: SAW-2007-200-359
Dear Ms. Jones:
The U.S. Environmental Protection Agency (EPA) has reviewed the Public Notice (PN)
for Grandview Peaks residential community in McDowell County, North Carolina. Although we
were not able to provide comments during the comment period, we are providing our comments
at this time and request that they be considered during the U.S. Army Corps of Engineers (Corps)
review process. This project was announced in a February 14, 2007, PN, which was
subsequently withdrawn by the applicant in July 2009. The applicant reapplied in December
2009 and the current PN was issued on January 12, 2010. The applicant proposes to construct 2
amenity lakes with a size of 25 and 9 acres in conjunction with a residential community. The
lakes will impact 6,665 linear feet (if) of streams consisting of fill for 2 dams (6951f) and
flooding impacts (5,970 If). There will also be 0.73 acres of wetlands impacted from the
construction of the lakes. An additional 1101f will be impacted from road and infrastructure
development.
The aquatic impacts associated with impoundments are well documented in the scientific
literature and range from fragmentation of aquatic species habitat, to water quality impacts both
up and downstream of an impoundment. In addition to the destruction of the riverine habitat
within the impounded area, there are also adverse effects on flow regimes, velocities,
temperature, dissolved oxygen, chlorophyll levels, sediment transport, nutrient cycles, etc. The
following two citations contain recent studies conducted by two Southeastern states, Tennessee
and North Carolina, addressing water quality impacts from impoundments:
(envlittp://www.tn.gov/envirotunent/wpc/publications/pdf/isp_report.pdf and,
Selected Bibliography - Stream Impoundment Perspectives, North Carolina Division of Water
Quality, June 2008).
On March 25, 2008, the Wilmington District placed a document on PN entitled,
Information Regarding the Review and Processing gf'Standard Permit Applications for the
Construction of On-Line Impoundments Within the Wilmington District. As this document
states, according to the Clean Water Act (CWA) Section 404(b) (1) Guidelines, for a project to
be water dependent, it must require access, proximity to, or siting within a special aquatic site to
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fulfill its basic project purpose. The applicant's stated overall project purpose is to develop a
viable, upscale, residential community with amenities in McDowell County, North Carolina.
From our review of the project information, there is the opportunity to develop on-site amenities
which do not require impacts to waters of the U.S. The development's own website
(http://fallcreekland.com/) also discusses numerous amenities in the vicinity of the residential
development, including nearby lakes, hiking trails, mountain biking, golfing, etc. and discusses
the beautiful location of the development itself. In fact, the website states the following,
"...rather than provide a few onsite amenities, we have invested in being in the middle of a vast
area of wilderness recreation." The development appears to be viable without the presence of the
lakes since the applicant will profit over $8 million without the lake construction. From the
information we have reviewed concerning the proposed project, we do not believe water
dependency is necessary for this project to fulfill its project purpose. Therefore, practicable
alternatives that do not involve a discharge into special aquatic sites and are less damaging to the
aquatic ecosystem are presumed to be available.
In the determination of the least environmentally damaging practicable alternative
(LEDPA), the decision often revolves around the issue of practicability. Alternatives that have
less or no impact to waters of the U.S. will generally be considered to be less environmentally
damaging from a CWA 404 perspective than alternatives which impact waters of the U.S.
Practicability is defined as being "...available and capable of being done after taking into
consideration cost, existing technology and logistics in light of overall project purpose." As
Wilmington District's Standard Operating Procedure for online impoundments states, "...in
making the determination of reasonable/practicable cost, we should focus not on a particular
applicant's financial standing, investment or market share but rather the characteristics of the
project and whether the projected cost of an alternative is substantially greater than the costs
normally associated with the particular type of project." A reduction on financial return does not
make an alternative nonviable from a cost perspective. The fact that the applicant will profit
over $8 million without the lakes, indicates the project is viable from a cost standpoint without
the construction of the amenity lakes. Also, the cost evaluation for the lake construction should
include costs associated with lake development, maintenance, including sediment removal, water
quality maintenance, etc., and mitigation costs.
Also, EPA has significant concerns that the effect of conversion of these streams into lakes
could result in the elimination of existing uses of the streams in and downstream of the area of
the proposed project, including the segments of the streams that could become the tailrace waters
of the reservoirs during and after impoundment. The conversion may also require a change in
the designated uses that are currently assigned to these streams in North Carolina water quality
standards. Prior to the conversion, it must be demonstrated that such a conversion complies with
all aspects and requirements of North Carolina's antidegradation policy (at North Carolina
Division of Water Administrative Code Section 15A NCAC 02B .0201), as well as any other
applicable provision of North Carolina's water quality standards regulation.
The PN does not contain a conceptual mitigation plan, however from other project
information we have reviewed, it appears the majority of the proposed mitigation is for the
preservation of on-site stream channels. As stated in the joint EPA/Corps Mitigation Rule (April
10, 2008), preservation may be used for mitigation when the following criteria are met:
2
1. Resources provide important physical, chemical, or biological functions for the
watershed;
2. Resource contribute significantly to the ecological sustainability of the watershed;
3. Resources are under threat of destruction or adverse modifications; and
4. Shall be done in conjunction with aquatic resource restoration or enhancement activities,
or, if stand alone, only where resource has been identified as a high priority resource
using a watershed approach and with higher compensation ratios.
For the proposed preservation to be used as mitigation for the proposed impact, it should meet all
of the above criteria. We have several concerns with the proposed use of on-site preservation to
provide mitigation for the stream impacts associated with the amenity lake construction. The
preservation of the remaining on-site stream channels is essentially avoidance and minimization,
which is a requirement for all 404 projects with the caveat that the preserved area, if used for
mitigation, will carry a protective mechanism. A review of the site maps, included with the PN,
indicates that much of the preserved areas are on individual lot property lines and often at the
back of the lots. Given this, we do not think that these areas proposed for preservation will be
under serious threat of destruction. Although we have not seen the mitigation plan, but it appears
from the site maps, that the applicant is proposing 50 foot buffers for the preservation areas.
From our knowledge of the proposed preservation, we would consider it to be "stand alone" and
so the requirements of bullet 4 would apply. Also, the North Carolina Stream Mitigation
Guidelines states, "where stand alone stream preservation is proposed, as mitigation, additional
buffer width of at least two times the base requirement may be required." Has the quality of the
on-site streams been evaluated using the Wilmington District Stream Quality Assessment form?
Streams ranking as good or excellent should have a 2 or 3 (respectively) mitigation requirement
multiplier to be used with the restoration, enhancement and preservation ratios required in the
North Carolina Stream Mitigation Guidelines.
EPA greatly appreciates your consideration of these comments outside of the PN
comment period. From the project information we have reviewed, we do not believe the
applicant preferred alternative is water dependent and there appear to be LEDPA for the
proposed development to be viable without impact to 6,665 if of flowing streams from the
creation of two amenity impoundments. Therefore, we do not believe the'applicant's preferred
alternative is the LEDPA for the proposed project. We also do not believe the proposed
mitigation adequately compensates for the project impacts. Therefore, we recommend the permit
request for the construction of the two online impoundments be denied. Should you have
questions, feel free to coordinate with Becky Fox of my staff at 828.497.3531 or at
[e-mail].
Sincerely,
I L;'I'
Je er S. erby
Chief,
Wetlands and Marine Regulatory Section