19970506 Ver 1_Complete File_19971027

Water Quality Section
Non-discharge Branch
October 27, 1997
MEMO
TO: Linda Rimer
FROM: John Dome'
THROUGH: Preston Howard
Steve Tedder
Dennis Ramsey
RE: Pending OAH hearing - 401 Certification
Yadkin County Soil and Water Conservation District Dam 5D
Yadkin County
DWQ # 970506
Recently you asked to be kept informed of controversial wetland Certification
actions. I believe that the following project fits that criteria. The Yadkin County Soil and
Water Conservation District plans to impact 12.7 acres of wetlands to construct a water
supply (municipal and industrial) and flood control reservoir on South Deep Creek in
Yadkin County (see attached 404 Public Notice). DWQ issued a 401 Certification on 22
July 1997 for the project (see attached). As a result of public comment (see attached
letter from Engineering Services dated 27 June 1997) which raised concerns about the
impact of this reservoir on a downstream reservoir that the City was planning, we
(carefully wrote and added ) a condition (number 6) to require the County to notify DWQ
if the City of Yadkinville receives permission to construct another water supply facility
downstream and that DWQ may then require the County reservoir to release 6 cfs so as
not to impact the other reservoir. The County then filed an appeal of that condition to
OAH since they allege that this condition would "...be a tremendous extra expense and
undue burden on the project" (see attached OAH petition). The condition on the
Certification was meant as a precautionary clause and does not require the County to do
anything other than notify DWQ of the other reservoir. In summary, the City is pleased
that their concerns have been addressed in the Certification while (obviously) the County
is not.
Apparently the City and County have been fighting for years regarding who will
build a reservoir and who will pay for it. Both parties contend that they will build their
facility regardless of the other's plans. For instance, we received the draft EA for the City
of Yadkinville's reservoir dated 30 June 1997 and that document does not discuss the
County's reservoir as an alternative at all. Our comment on that document (see
attached) states that the City should examine whether the County's proposed reservoir
is an alternative. The City was not pleased with that comment as well.
I met with Bart Njoku-Obi with the Attorney General's Office on 23 October 1997
and his preliminary opinion regarding the case is that the County's complaint may be
premature at this time since we are not requiring the County to do anything at this time
(i.e., if we eventually require the release of 6 cfs, they can litigate that requirement at
that time). However he believes that if we could come up with clarification language, it
may be helpful. I will plan a meeting with the County and City regarding this issue to
discuss various options to try to seek a mutually agreeable solution. However given the
history of this issue, I believe that a mutually agreeable solution may not be achievable.
With respect to your interest in controversial projects, I assume that this one
qualifies. It may be a useful case for environmental mediation with a professional
mediator to help the City and County resolve this dispute. In the meantime, I will
schedule the meeting for sometime in November with the City, County, Division of Water
Resources and Division Public Water Supply. Any advice on this issue, the meeting or
any other solution would be welcome.
970506.1tr
Cc: Steve Reid, Division of Water Resources
Lee Spencer, Public Works Winston-Salem Regional Office
Steve Mauney, DWQ Winston-Salem Regional Office
Bart Njoku-Obi; Attorney General's Office - Environmental
Michelle Suverkrubbe, WQ Planning
Central Files