20042019 Ver 3_Other Agency Comments_20110413

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
nETrLE rnoxoF: Apri18, 2011
Regulatory Division
Action ID No. SAW-2006-41244
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Anderson Creek Partners, LP,
Attn: Mr. David Levinson
125 Whispering Pines Drive
Spring Lake, North Carolina 28390
Dear Mr. Levinson:
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WETLANDS AND STORMMWTER BRANCH
Reference is made to your March 10, 2011, submittal which responded to our request for
additional information and comments received from the Public Notice for your Department of the
Army application in which you have requested a permit for impacts to stream channels and
wetlands associated with the proposed construction of an amenity lake associated with the
proposed residential development Anderson Creek South located north of Spring Lake, Harnett
County, North Carolina (N 35.28363, W -78.97333).
After careful review of the information you have provided in the March 10, 2011, submittal,
we have determined that this information is not adequate to evaluate your proposal for compliance
with the Section 404 (b)(1) Guidelines. Specifically, due to the absence of an adequate
alternatives analysis and other essential information, we are unable to determine if the proposed
alternative of the residential subdivision with the 40-acre recreational lake is the least damaging
practicable alternative. The issues addressed in this letter include 1) Project purpose, 2)
alternative analysis, 3) preferred alternative information, and 4) your response to public
comments.
1) After a detailed review of the project, we determined that the basic project purposes are
to construct a residential development and provide recreation. The project purpose as initially
stated by the applicant was to "construct a unique public recreational amenity within Anderson
Creek development to increase marketability of the proposed residential subdivision." A
component of the proposed residential community includes the proposed construction of an
on-line impoundment, which is to fulfill a recreation need. The initial project purpose as stated by
the applicant was considered inappropriate for several reasons. The Lake SOP titled:
"Information Regarding the Review and Processing of Standard Permit Applications for the
Construction of On-line Impoundments" dated March 18, 2008, (see attached), states that the
project purpose may not be defined so narrowly as to unduly restrict the alternatives analysis. As
stated in your March 10, 2011, submittal, "there is no analysis of other unique amenities. Unique,
by definition, is without having a like. We are unable to identify any other practicable unique
amenities that have wide market appeal." This statement emphasis that the initially proposed

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project purpose as stated by the applicant is inappropriate and unduly restricts the alternatives
analysis. In regards to the increased marketability provided by the amenity in the initially-stated
project purpose, in agreement with the Lake SOP, we believe that cost, rather than profit, is the
appropriate factor to be used in determining practicable alternatives in accordance with the Section
404 (b)1 Guidelines. Specifically, the Lake SOP states that:
"Corps and EPA guidance indicates that 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. In many instances, applicants
have attempted to eliminate alternatives based solely on the reduction of return on a
financial investment. While project viability is a consideration, it is the applicant's
responsibility to demonstrate why these other alternatives are not viable from a
standpoint of cost."
As such, the initially proposed purpose indicating that the amenity should "increase
marketability" is not a suitable in defining the project purpose and when discussing the
practicability of alternatives.
2) The information provided in the March 10, 2011, submittal briefly addressed a golf
alternative, the preferred lake alternative and variations of the lake alternative, including lakes
excavated in high ground, the use of existing off-site lakes and the use of existing on-site lakes.
The alternatives analysis failed to adequately address the practicability and environmental impact
of these alternatives and provided either an inadequate analysis or no analysis of other potential
amenity alternatives that may meet the project purpose. According to the Section 404(b)(1)
Guidelines, a discharge of fill material shall not be permitted "if there is a practicable alternative to
the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as
the alternative does not have other significant adverse environmental consequences." The project
purpose is considered non water-dependent and as such it is presumed that there are other
practicable alternatives that should be considered and that these alternatives may be less damaging
to the aquatic ecosystem. It is the applicant's responsibility to clearly demonstrate that no such
alternatives exist.
In our letter dated January 25, 2011, we requested a comparison of the costs, logistics,
impacts to waters of the U.S, and other data to be included in the alternatives analysis. As a
rebuttal to our request your March 10, 2011, submittal references 33CFR 320.4(q), specifically the
statement "when private enterprise makes application for a permit, it will generally be assumed
that the appropriate economic evaluations have been completed, the proposal is economically
viable and is needed in the market place." This statement is in reference to the need of a project
and does not apply when considering alternatives. Project cost is often a key factor in
determining the practicability of any alternative and it is the responsibility of the applicant to

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identify when less environmentally damaging alternatives exist and that those less-damaging
alternatives are not cost-effective solutions to meeting the purpose and need. A comprehensive
alternative analysis of practicable alternatives that meet the project purpose and identifies the least
environmental damaging alternative is required before the proposed project can be further
evaluated. This analysis should include alternatives involving purchasing property around an
existing lake within the area, such as Buffalo Lake among others, and constructing facilities to
support a sailboat school for the use of Anderson Creek South development.
3) In addition to information on an alternative analysis, further information on the preferred
alternative is required to determine the need of the preferred alternative and ensure its compliant
with Section 404(b)(1) guidelines. In our letter dated January 25, 2011, we requested additional
information on the preferred alternative, specifically, further information and documentation on
size and depth requirements for the use of the lake for a sail boat school. In your March 10, 2011
submittal you provided a letter from Capt. Jack Feeney indicating that the "project is quite
feasible." This information indicates that the project as proposed is adequate in Capt Feeney's
opinion, but still does not provide any information indicating minimum depth and size
requirements for the use of the proposed lake as a sailboat school. This information is required to
provide justification and demonstrate need for the size of the proposed 40-acre lake that is your
preferred alternative, as well as define the needs for alternative lakes that could potentially be
constructed in high ground or by using existing impoundments on site and off site. This
information is required before the application can be further evaluated.
4) Lastly, the March 10, 2011 submittal does not respond to all comments provided,
specifically comments provided by the US EPA. In addition, your submittal does not adequately
address comments concerning downstream property value. These comments will need to be
addressed before the application can be further evaluated.
In addition to the above issues, there are some other details that require clarification. These
include the mitigation plan and project plans showing the location of all road crossings. In
regards to the mitigation plan, it is understood that at this time, the mitigation plan is in the
preliminary stages of development. Prior to determining if the proposed project is compliant with
Section 404(b)(1) guidelines, the mitigation plan will have to be finalized by you and approved by
the Corps. Please note that procedurally, the primary issues discussed in this letter must be
addressed before we can further discuss the requirements for mitigation and any other issues that
are yet to be resolved.
Based on the information we have received to date, we believe there are less damaging
practicable alternatives to your present proposal that would preclude our ability to issue a
Department of the Army permit for your proposed impacts. You have the option at this time of
rebutting the basic assumption that the proposed alternative is not the least environmental
damaging proposed alternative by providing additional information regarding the alternative
analysis as well as the other information requested in this letter. This information should be

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provided on or before 25 April 2011. Your second option is to modify your proposal utilizing a
less damaging alternative. Should you pursue such a modified proposal, your modified
application should be submitted by 25 Apri12011. If you would like to withdraw your permit
application, please notify our office in writing.
Questions or comments may be addressed to Ms. Crystal Amschler, Regulatory Specialist at
(910)-251-4170.
Sincerely,
~'
S. Kenneth Jolly
Chief, Regulatory Division
Copies Furnished without Enclosures:
Wetland and Natural Resource Consultants,
Inc,
Attn: Mr. Christopher Huysman
PO Box 1492
Sparta, North Carolina 28675
Copies Furnished without Enclosures:
Ms. Becky Fox
U.S. EPA -Region 4
1307 Firefly Road
Whittier, North Carolina 28789
Ms. Jennifer Derby
Chief, Wetlands Protection Section
Water Management Division
U.S. EPA -Region 4
Ian cMillan
1 Oversight/Express Review Permitting
Unit
Division of Water Quality
NCDENR
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604
John Ellis
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Molly Ellwood
Southeast Permit Coordinator
NC Wildlife Resources Commission
127 Cardinal Dr. Ext
Wilmington, North Carolina 28405
61 Forsyth Street
Atlanta, Georgia 30303