20050666 Ver 1_Southern Environmental Law Comments_20050719

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SOUTHERN ENVIRONMENTAL LAW CENTER
200 WEST FRANKLIN STREET, SUITE 330
CHAPEL HILL, NC 27516-2520
Telephone [phone] Charlottesville, VA
Facsimile 919-929-9421 Chapel Hill, NC
selcnc~selcnc.org Atlanta, GA
July 12, 2005
Ms. Amanda Jones
U.S. Army Corps of Engineers
Asheville Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, NC 28801
Cyndi Karoly, Supervisor
401 Oversight and Express Permits Unit
Wetlands and Stormwater Branch
Division of Water Quality
1617 Mail Service Center
Raleigh, NC 27699-1617
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JUL 1 9 2005
DENR -WATER QUALITY
WETLANDS AND STORM~NATER BRANCH
Re: Permit Application by General Growth Properties -Bridges at Mint Hill,
Mecklenburg County, North Carolina
Dear Ms. Jones and Ms. Karoly:
General Growth Properties and Childress-Klein Properties have submitted a "pre-
construction notification" requesting approval under Nationwide Permit 39 of proposed stream
impacts associated with the construction of the proposed Bridges at Mint Hill mall in
Mecklenburg County, North Carolina. The application is also under review by the N.C. Division
of Water Quality ("DWQ") for consistency with state water quality standards and issuance of a
section 401 certification. Because of the substantial adverse impacts of the proposed activities
on the water quality of Goose Creek, the federally endangered Carolina heelsplitter, and
designated critical habitat for the Carolina heelsplitter an individual section 404 and an
individual 401 certification must be required for this project.
The applicant proposes to fi113161inear feet of an unnamed intermittent tributary to
construct a building, to pipe and riprap 149 linear feet of an unnamed perennial tributary and 149
linear feet of an unnamed intermittent tributary to allow for road crossings, and to open-cut 40
linear feet of channel in Goose Creek for a proposed sewer line crossing. The purpose of the
proposed stream impacts is to construct a 1.3 million-square-foot mall that would be constructed
on both sides of and (if authorization is granted) within Goose Creek.
Goose Creek provides habitat, including designated critical habitat, for one of the few
remaining populations of the federally endangered Carolina heelsplitter. The U.S. Fish &
Wildlife Service ("USFWS"), North Carolina Wildlife Resource Commission ("NCWRC"), and
North Carolina Natural Heritage Program ("NHP") have provided the Corps and DWQ detailed
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comments on the adverse impact of the proposed activities on the endangered Carolina
heelsplitter and the inadequacy of the proposed measures to mitigate those impacts (comment
letters attached). USFWS is "extremely concerned about the potential effects of the proposed
projects on the federally endangered Carolina heelsplitter and its designated critical habitat in
Goose Creek" and concludes "that without adequate protective measures, the potential impacts
associated with this proposed project could have significant adverse effect on the Carolina
heelsplitter and its designated critical habitat." USFWS "disagrees" with the applicant that
adequate mitigation measures have been incorporated to prevent adverse impacts to the
heelsplitter. NCWRC experts "cannot concur with the issuance of a 404 permit or a 401 water
quality certification due to additional information needs and the potential for direct and indirect
impacts of the project to designated critical habitats of the Carolina heelsplitter as well as other
state and federal listed species." North Carolina Natural Heritage Program experts conclude
"impacts to the federally endangered Carolina heelsplitter do not appear to be adequately
mitigated."
The applicant claims that mitigation measures incorporated into the proposal
"demonstrate an overwhelming compliance" with the NCWRC guidance on mitigation of
secondary and cumulative impacts to aquatic habitats. The agencies involved in and responsible
for development of that guidance strongly disagree. In its application, the applicant references
compliance with the draft Mint Hill Water Quality Design Manual. This manual was developed
by Mint Hill to seek amendment from the current prohibition on transfer of water from the
Catawba River basin into the Goose Creek sub-basin. The certificate issued by the NC
Environmental Management Commission ("EMC") in March 2001 authorizing an interbasin
transfer prohibits transfer of water to the Goose Creek sub-basin. Neither the Division of Water
Resources nor the EMC accepted the Mint Hill Design Manual as providing adequate protection
to Goose Creek to allow amendment of the current prohibition against transfer of water to the
sub-basin.
The applicant proposes to construct sewer lines and is seeking authorization from the
Corps and DWQ for a sewer line crossing. Expansion of existing water and sewer lines within
the Goose Creek sub-basin is currently prohibited. The Corps and DWQ should not authorize
unlawful activities.
DWQ has recently issued a proposed Total Maximum Daily Load for fecal coliform
("TMDL") for Goose Creek. The proposed TMDL requires a 92% reduction in fecal coliform in
Goose Creek. Runoff from impervious surfaces and delivery by stormwater is identified as
principal source of fecal coliform within the Goose Creek sub-basin. The proposed mall would
result in 55% of the land within the development site in impervious surfaces. The mall will
result in delivery of additional fecal coliform to Goose Creek in violation of water quality
standards as established in the proposed TMDL.
In evaluating the application, the Corps must include the entire project in the action area
for the permitting decision in evaluating the application. Regulations governing the scope of
analysis for 404 permits require that the Corps include "those portions of the entire project over
which the district engineer has sufficient control and responsibility." Appendix B(7)(b)(1) to 33
C.F.R. § 325. "Sufficient control" exists where "the environmental consequences are essentially
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products of the Corps permit action." Id., at (2). In this instance, the applicant proposes to build
numerous inter-related retail, office, and entertainment facilities in and around Goose Creek.
One of the proposed impacts is to fill 316 linear feet of an unnamed intermittent tributary to
construct a building. Other impacts include road crossings to link the facilities across Goose
Creek and its tributaries. The mall development is known as the "Bridges of Mint Hill" and is
designed around Goose Creek. Without 404 permit authorization, the mall cannot be built on
this site. Therefore, if authorization under Nationwide Permit 39 is granted, the adverse impacts
to the Carolina heelsplitter and its critical habitat will be "products of the Corps permit action."
If the road crossing fills, building fills, and sewer line cut are not integral to the project, these
impacts can be avoided and authorization must be denied.
"Sufficient control" also exists where "other Federal agencies are required to take Federal
action under...the Endangered Species Act of 1973." Appendix B(7)(b)(2)(a) to 33 C.F.R. §
325. Under section 7 of the Endangered Species Act, federal agencies are required to consult
with USFWS to insure that any action authorized, funded, or carried out by such agency... is not
likely to jeopardize the continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of [critical] habitat. 16 USCS § 1536 (2005).
USFWS has already determined that the proposed project could have significant adverse effects
on the endangered Carolina heelsplitter and its critical habitat. See Letter from Brian Cole, Field
Supervisor, USFWS Asheville Regional Office, to Scott McLendon, Chief, Asheville Regulatory
Field Office, U.S. Army Corps of Engineers (June 1, 2005). Given the USFWS duty to take
federal action to insure the continued existence of the Carolina heelsplitter and to prevent the
adverse modification of its critical habitat, sufficient control exists for the Corps to consider the
entire project.
For all of the foregoing reasons, the Corps must require in individual section 404 permit,
and DWQ must require an individua1401 certification for the proposed activities. The applicant
is seeking authorization for these activities under Nationwide Permit 39. Nationwide permit
condition 11 states that no activity is authorized under any NWP which is likely to jeopardize the
continued existence of an endangered species or which will destroy or adversely modify the
critical habitat of such species. This general condition also prohibits "take" of an endangered
species. The proposed activities will result in adverse modification to critical habitat of the
endangered Carolina heelsplitter, jeopardize the continued existence of the heelsplitter, and take
the heelsplitter in violation of the ESA. An individual permit must be required.
Corps regulations also provide that district engineers have discretionary authority to
suspend or revoke authorizations under an NWP "for cases where they have concerns for the
aquatic environment under the Clean Water Act section 404(b)(1) guidelines or for any factor of
the public interest." 33 C.F.R. § 330.1(d). Based on the adverse impacts to Goose Creek and the
endangered heelsplitter from the proposed activities, the Corps should exercise its discretionary
authority to require an individual permit.
DWQ is reviewing the proposed project for compliance with water quality standards
under its 401 certification procedures. DWQ has issued a general certification (WQC #3402) for
activities authorized by NWP 39 with certain conditions. "[I]f it is determined that the project is
likely to have significant adverse effect upon water quality or degrade the waters so that existing

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uses of the wetland or downstream waters are precluded," the director may require submission of
an application for an individual certification. The proposed activities will adversely affect the
water quality of Goose Creek and violate the narrative water quality standard that the biological
integrity of Goose Creek must be maintained. The biological integrity standard requires
maintenance of an indigenous community of aquatic organisms, and the adverse impacts to the
Carolina heelsplitter resulting from this development would undermine the biological integrity
and violate the standard. In addition, the proposed activities will result in violation of the fecal
coliform standard in Goose Creek as established by the proposed TMDL. DWQ should exercise
its authority to require an individual certification.
We appreciate the opportunity to submit these comments. If you have any questions,
please feel free to contact us at [phone].
Sincerely yours,
Derb S. Carter, Jr.
Senior Attorney
Kay Bond
Associate Attorney
cc: Bill Ross, Secretary, NCDENR
Alan Klimeck, NCDENR
Brian Cole, USFWS
Mark Fowlkes, NCWRC
Richard Hamilton, NCWRC
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