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Home My WebLink About20042019 Ver 4_Other Agency Comments_20130215l DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS 69 DARLINGTON AVENUE WILMINGTON, NORTH CAROLINA 28403 -1343 REPLY TO ATTENTION OF February 11, 2013 Regulatory Division Action ID No SAW- 2006 -41244 Mr. David Levinson Anderson Creek Partners, LP 125 Whispering Pines Drive Spring Lake, North Carolina 28390 Dear Mr. Levinson: O ,A - D-o 1 q V `i D e �. 1 z c) C: 0 1 3 Le � P , This is in response to your email of January 7, 2013 regarding your proposal that the required conservation easement for Anderson Creek Club (ACC) on -site wetland mitigation be held by the Club's Property Owner's Association (POA), or, in the alternative, a new non - profit organization set up specifically to enforce the terms of the easement The requirement for an easement holder is a condition of our issued March 7, 2012 Department of the Army (DA) permit for impacts to waters and wetlands in the Anderson Creek South Development The January 7 proposal was the result of a broader discussion on this topic that our staff held with you and your consultant in our District Office on January 3, 2013 For the reasons outlined below, we are prepared to accept your second option, a conservation easement held by a newly- formed non - profit organization with no equity interest in the developer, subject to the conditions outlined below. We understand your difficulties associated with finding an appropriately qualified holder of the ACC conservation easement We recognize that monitoring of wetlands and streams within a subdivision can be difficult, and acknowledge that a POA or related non - profit would often be better situated to accomplish onsite monitoring of some wetlands on the property, particularly those adjacent to individual lots We recognize, however, some conflicts of interest that would arise in these situations that will need to be addressed The first conflict is that, for many years to come (up to 50), the developer of Anderson Creek Club will control and manage the POA As the developer, or a builder working under the authority of the developer's permit, is an entity that might encroach into these preserved wetland areas, there is an unacceptable risk that the POA could have the incentive not to report or address violations of the easement conditions caused by the developer or a builder. Additionally, even after the developer's period of control has ended, the POA will be in a conflict of interest position if its recreational lands and projects abut preserved wetlands, as the reasonable desire to expand recreational opportunities could conflict with the responsibility to ensure the continued c -2- preservation of wetlands. Finally, the Corps' Mitigation Rule (at 33 CFR 332 7(a)(1)) discusses the holder of such an easement as preferably being a "third party" precisely because it expects there to be a separation of financial and philosophical interests between the landowner /permittee and the easement holder. Both before and after control of the POA passes from the developer to residents, the POA's interests will not always be aligned with the position of a truly third -party easement holder We discussed these concerns with you at our January 3 meeting, and you suggested, as outlined in Option 2 of your letter to us, that the Club could establish a 501(c)(3) non - profit organization to act as a truly separate third party holder of the easement, albeit one with some ties to the development. Specifically, you would prefer that a majority of directors of the entity be Anderson Creek residents, but expressed willingness at our meeting to eliminate financial conflicts of interest between directors and the developer The covenants could be amended, or a contract set up, to insure regular and continuing funding for the non - profit entity, and empowering it to take action against violations of the easement. Subject to the following conditions, we would be amenable to such an arrangement given the unique situations that exist at ACC. • All lands under conservation, as defined in permit condition (n) will be transferred to the ACC POA to own and maintain within 120 days of this permit modification. The POA will be required to accept transfer of the permit, and will maintain the lands in accordance with the terms of the permit The POA shall not be allowed to transfer any of the lands to a third party unless and until that third party agrees to accept transfer of the permit, and the Corps is provided notification of the proposed transfer at least 30 days in advance of such transfer. • A separate 501(c)(3) non - profit conservation entity (hereinafter the "conservation organization ") will be formed with a mission to preserve and protect the wetlands and natural areas of the Anderson Creek Club property, and to enforce the terms of the Conservation Easement. The entity will comply with all conditions of the NC General Statues requisite to be a qualified holder of a conservation easement The terms of the conservation easement will be subject to approval by the Corps • The conservation entity will be formed and adequately staffed and financed within one year of the date of permit modification; until that time, preservation of the conservation areas shall be accomplished with the POA serving as the temporary holder of a conservation easement, the terms of which shall be subject to approval by the Corps • The directors and officers of the conservation organization will not have a financial interest in, or closely tied to, the developer of Anderson Creek, a builder within Anderson Creek, or any entity seeking to do work under the DA permits issued to Anderson Creek Consultants, engineers, and others who do or have done work for the developer would be considered to have financial interests closely tied to the developer. Property owners within the development would be allowed to serve on the conservation -3- organization as directors or officers, but at least 33% of the directors shall not be property owners, and at least one director or officer shall have experience in land or wetland conservation • The POA will insure adequate funding is in place for the conservation organization to carry out its duties competently, failure to adequately fund the conservation organization will be a violation of permit conditions • The conservation organization will monitor all tracts of the conservation property at least once per year, document its monitoring activities, and take action against appropriate parties for violations of the easement • Violation of the terms of the conservation easement, by any entity, will be within the non - discretionary duty of the POA to correct as a term of the Covenants This term may only be modified or revoked upon receiving the written agreement of the Corps If you have questions or concerns as they relate to this matter, please call Ms Crystal Amschler at (910) 251 -4170. If these terms are acceptable to you, please confirm with Ms. Amschler in writing, and your permit will be immediately modified to include these terms Thank you for your patience as we considered this unique proposal Sincerely, -POA n Scott C McLendon, Chief -O ` Wilmington Regulatory Division Copies Furnished Mr. Christopher Huysman Wetland and Natural Resource Consultants, Inc Post Office Box 1492 Sparta, North Carolina 28675 Mr Jeffrey Garnett Wetlands Protection Section U.S Environmental Protection Agency - Region IV 61 Forsyth Street Atlanta, Georgia 30303 U Mr. Tony Able Chief, Wetlands Protection Section Water Management Division U S. Environmental Protection Agency - Region IV 61 Forsyth Street Atlanta, Georgia 30303 Ms. Karen Higgins Division of Water Quality V North Carolina Department of Environment and Natural Resources 1650 Mail Service Center Raleigh, North Carolina 27699 -1650 Mr. John Ellis U S Fish and Wildlife Service Fish and Wildlife Enhancement Post Office Box 33726 Raleigh, North Carolina 27636 -3726 Ms. Maria Dunn Southeast Permit Coordinator NC Wildlife Resources Commission 943 Washington Square Mall Washington, North Carolina 27889 Mr. Chad Turlington North Carolina Department of Environment and Natural Resources Division of Water Quality 225 Green Street, Suite 714 Fayetteville, North Carolina 28301