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Home My WebLink About20140356 Ver 1_Public Notice Comments_20140716Burdette, Jennifer a From: Higgins, Karen Sent: Thursday, July 17, 2014 9:05 AM To: Burnette, Jennifer a Subject: FW: The Quartz Corp - Corps Action ID Number: SAW - 2013 -01376 Attachments: 2014 -07 -16 Quartz Corp USA 404 permit_ Supplement.pdf FYI E -mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to third parties. From: Amelia Burnette rmailto:aburnetteCa)selcnc.orgl Sent: Wednesday, July 16, 2014 4:47 PM To: ' Tasha .L.Alexander @usace.army.mil'; Higgins, Karen Cc: 'Hartwell Carson'; DJ Gerken; Patrick Hunter; Sam Evans; Laura La Fleur; nancy.wallaceCa)usace.army.mil Subject: The Quartz Corp - Corps Action ID Number: SAW- 2013 -01376 Please find attached a supplement to comments we previously submitted on the above - referenced permit request. Please do not hesitate to contact us with questions. Sincerely, Amelia Burnette Senior Attorney Southern Environmental Law Center 22 S. Pack Square, Suite 700 Asheville, North Carolina 28801 -3494 828 - 258 -2023 tel 828 - 258 -2024 fax aburnetteCcDselcnc.org Southern Environment.org SOUTHERN ENVIRONMENTAL LAW CENTER Telephone 828-258 -2023 22 SOUTH I PACK SQUARE, SUITE 700 Facsimile 828- 258 -2024 ASHEVILLE, NC 28801 -3494 July 16, 2014 Via First Class Mail and E -mail Tasha Alexander Asheville Regulatory Field Army Corps of Engineers 151 Patton Avenue Room 208 Asheville, NC 28801 -5006 Tasha .L.Alexander(c�usace.army.mil Karen Higgins 401 and Buffer Permitting Unit North Carolina Department of Environment and Natural Resources 1650 Mail Service Center Raleigh, NC 27699 -1650 karen.higginsLriedenngov Re: The Quartz Corp, USA — SAW - 2013 -01376 Dear Ms. Alexander: On May 21, 2014, the Southern Environmental Law Center, on behalf of the Western North Carolina Alliance, submitted comments in response to the Corps of Engineers' (Corps) April 21, 2014, request for comments on the proposal by The Quartz Corps, USA (TQC), for stream impacts related to mining expanded quartz reserves and resolving a Notice of Violation (NOV) for prior illegal mine waste dumping and apparent stream fill. Please accept this letter as a supplement to those comments. We specifically are providing more information and documentation on the impropriety of the mitigation proposal to serve as compensatory mitigation for this project's impacts. As we previously commented, the federal rule governing mitigation only allows preservation to serve as mitigation when the site is "under threat of destruction or adverse modification," May 21, 2014 Comments at 10 (citations omitted). Our prior comments noted that the streams in the Beaver Creek watershed are already protected by a 300 -foot buffer under restrictive covenant, which the Town reserved in its recent sale of the watershed to private entity Rocky River Hydro, LLC. Application at 254, 288. The WS- I watershed serves the Town of Spruce Pine's water supply and does not appear to be under demonstrable threat of development. Rather, the Town appears to have sold the protected watershed to Rocky River Hydro for the purpose of being used as compensatory mitigation by Unique Places, LLC, with the intent being to market the Charlottesville + Chapel, Hills • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington. DC 100% recycled paper easement for mitigation credit and donate the conservation easement back to the Town of Spruce Pine. As shown in the attached town council meeting minutes, "Jeff Fisher, representing Unique Places," began making presentations to the Spruce Pine Town Council regarding sale of its property for "watershed protection and conservation management" at least as early as November 2012. See Spruce Pine Town Council Meeting Minutes (Nov. 13, 2012) (attached).' Following Unique Places' proposal, Spruce Pine indeed sold its watershed tracts to Rocky River Hydro on Feb. 19, 2013, subject to a 300 -foot restrictive covenant protecting stream buffers. See Deed from Town of Spruce Pine to Rocky River Hydro (App. E to Applicant's Draft Mitigation Plan). Rocky River Hydro is managed by Jeff Fisher, who also manages and is CEO of Unique Places. See attached Secretary of State filings. Unique Places appears to have prepared the map of reserved buffers, which is attached to the deed conveying the property to Rocky River Hydro. Unique Places now proposes to broker a second deal in which TQC will purchase a conservation easement for a 300 -foot stream buffer (overlapping the restrictive covenant protection), and transfer the easement back to Spruce Pine. See Draft Mitigation Plan at 7 -8. The end result is that Spruce Pine receives back the conservation easement on property it formerly owned, and on which it already reserved a nearly identical restrictive covenant, while the two corporations with overlapping management — Unique Places and Rocky River Hydro — benefit from the acquisition of the property for marketing mitigation credits. See e.g., Draft Mitigation Plan, App. C, Intent of the Town of Spruce Pine to hold conservation easements in the Beaver Creek watershed, Feb. 21, 2014 (describing Rocky River Hydro's and Unique Places' "exclusive right to market and be compensated for any compensatory mitigation" resulting from the easement). As we stated in our prior comments, the transaction history for the conservation easement calls into question the legitimacy of the mitigation proposal. It is not clear at all that the buffers in the Beaver Creek watershed are being protected from a genuine threat of "destructive or adverse modifications." Corps regulations and guidance require preservation to meet strict criteria, in recognition of the low value of preservation compared to other forms of mitigation like enhancement and restoration, which are designed to improve aquatic communities and stream health. Among those criteria, the preservation must remove an actual threat to aquatic sites or their functions. The creation of a paper conservation easement, no matter how strong, cannot be considered compensatory mitigation for stream and aquatic impacts if there was no credible threat to the waters in the first place. Accordingly, the Corps and DWR should deny the applicant's requests for a 404 permit and 401 water quality certification, as currently proposed. ' Negotiations initially involved 130 of Chatham, LLC, who ultimately assigned their purchase rights to Rocky River Hydro, LLC. 2 Sincerely, Amelia Y. Burnette Senior Attorney Austin D.J. Gerken Senior Attorney Southern Environmental Law Center 22 South Pack Square, Suite 700 Asheville, NC 28801 (828) 258 -2023 aburnetteLselcnc.org djgerken e,selcnc.org Counselfor Hartwell Carson French Broad Riverkeeper Western North Carolina Alliance 29 North Market Street Asheville, NC 28801 828 - 258 -8737 Minutes Spruce Pine Town Council November 13, 2012 A regular meeting of the Spruce Pine Town Council was held on November 13, 2012. Present were Mayor Phillip Hise and Council Members Rocky Buchanan, John Boone and Larry McKinney. Staff in attendance included Richard Canipe, Darlene Johnson, Coy Hollifield, Kelly Johnson and Dave Lindsey. Others attended, including Lloyd Hise, Jr., Pat Dale, Jeff Fisher, Svetlana Andrianova, Josh Boone, Eddie Bell, Mike Clougherty and Corey Hoilman (Mitchell News - Journal). CALL TO ORDER Mayor Phillip Hise called the regular meeting to order at 5:30 P.M. APPROVAL OF AGENDA Larry McKinney moved to approve the agenda. Rocky Buchanan seconded the motion, which carried with all present in favor. 1NVOCATON AND PLEDGE Rocky Buchanan gave the invocation. Phillip Hise led the Pledge of Allegiance. APPROVAL OF MINUTES Rocky Buchanan moved to approve the minutes of the October 08, 2012 regular meeting. Larry McKinney seconded the motion, which carried with all present in favor. APPOINTMENTS - none CONSENT AGENDA Larry McKinney moved to approve the consent agenda, setting a public meeting for Monday, December 101' at 5:30 PM, regarding the Town's application for a PARTF grant for Brad Ragan Park. Rocky Buchanan seconded the motion, which carried with all present in favor. ACTION AGENDA - none TOWN MANAGER'S REPORT • Richard Canipe noted that the 19E Bridge should open in January. The Christmas Parade at will be held on November 241' at 6:00. Council members that wish to will ride in the parade, either on the truck or Explorer. • Renovations at the water plant have begun. • Things are going well in individual departments. • Property taxes are coming in as expected. • Potassium permanganate seems to be helping the odor at the Shannon Drive Pumpstation. McGill & Associates are working on a permanent solution. • Public Works personnel are now working 8 -4:30. • Elbert hired James Jones to fill the Public Works vacancy. PUBLIC COMMENT PERIOD Spruce Pine Fire & Rescue personnel attended to thank the Town for the good working relationship between the Town and Fire Department. The officers have made the decision to try to lower the fire protection rating in town to lower commercial insurance rates. Josh Boone noted that their Christmas Party is coming up on the third Monday of December, all town employees are invited, especially law enforcement. Mike Clougherty is the Fire Dept.'s new paid maintenance person. They are working on reducing response time on calls. CLOSED SESSION Mayor Hise called for a motion to enter into closed session, citing NCGS 143.318.11(x)(5): To establish or to instruct the public body's staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease. John Boone moved to enter into closed session. Larry McKinney seconded the motion, which carried with all present in favor. Council called for Lloyd Hise, Jr., Pat Dale, Jeff Fisher, Svetlana Andrianova and staff to remain. RETURN TO OPEN SESSION Upon return to open session, Jeff Fisher, representing Unique Places, showed a slide presentation on a proposal to Spruce Pine for watershed protection and conservation management. Where: Both watersheds Who: Unique Places (a Conservation Real Estate Management company) and Tim Sweeney (the purchaser) What: Private /Public Partnership to protect the water, put land back in the tax base, lower management costs and improve access control. How: 2 proposals. 1) $4,422,150 acquisition price for Beaver Creek and Old Grassy Creek Dams. The WS -1 designation on Beaver Creek would remain. The Town would retain management of reservoir. 2) $7,742,300 acquisition price for Beaver Creek and Old Grassy Creek Dams. The town would go through the process of removing the WS -1 Classification on Beaver Creek prior to closing. This is a time - consuming and costly process. The Town would retain management of the reservoir. 130 of Chatham LLC, Tim Sweeney's Corporation, has approximately 15,000 acres in conservation easements over the state. Jeff Fisher noted that he is looking for a commitment to proceed from the town. Mayor Hise called a special meeting for Nov. 191' at 4:00 PM. MAYOR/COUNCIL/ATTORNEY REQUESTS / COMMENT ADJOURNMENT With no further business, the meeting was adjourned by motion of Larry McKinney at 8:13 PM. Darlene Johnson, Town Clerk Phillip Hise, Mayor Rocky Buchanan, Mayor Pro Tem Larry McKinney, Council Member absent Darla Harding, Council Member John Boone, Council Member oeennre E -Filed Annual Report 10127219 b LIMITED LIABILITY COMPANY Do not data enter manually. ANNUAL REPORT NAME OF LIMITED LIABILITY COMPANY: Rocky River Hydro, LLC REPORT FOR THE YEAR: 2013 STATE OF INCORPORATION: NC SECRETARY OF STATE L.L.C. ID NUMBER: 1290891 NATURE OF BUSINESS: Rocky River Land Management REGISTERED AGENT: Rogers, ,Tames Rufus III REGISTERED OFFICE MAILING ADDRESS: 875 -B2 Washington Street Raleigh, NC 27605 REGISTERED OFFICE STREET ADDRESS: 875 -B2 Washington Street Raleigh, NC 27605 Wake County PRINCIPAL OFFICE TELEPHONE NUMBER: 919 - 829 -1953 PRINCIPAL OFFICE MAILING ADDRESS: 875 -B2 Washington Street Raleigh, NC 27605 PRINCIPAL OFFICE STREET ADDRESS: 875 -B2 Washington Street Raleigh, NC 27605 MANAGERS /MEMBERS /ORGANIZERS : Name: ,Leff Fisher Title: Manager Address: 682 Erwin Road Durham, NC 27707 CERTIFICATION OF ANNUAL REPORT MUST BE COMPLETED BY ALL LIMITED LIABILITY COMPANIES Jeff Fisher 4/15/2013 FORM MUST BE SIGNED BY A MANAGER/MEMBER DATE Jeff Fisher Manager TYPE OR PRINT NAME TYPE OR PRINT TITLE ANNUAL REPORT FEE: E -Paid MAIL TO: Secretary of State • Corporations Division • Post Office Box 29525 • Raleigh, NC 27626 -0525 oeennre E -Filed Annual Report 6453372 b LIMITED LIABILITY COMPANY Do not data enter manually. ANNUAL REPORT NAME OF LIMITED LIABILITY COMPANY: Unique Places, LLC REPORT FOR THE YEAR: 2013 STATE OF INCORPORATION: NC SECRETARY OF STATE L.L.C. ID NUMBER: 0719482 NATURE OF BUSINESS: Conservation /Real Estate REGISTERED AGENT: Fisher, Jeff REGISTERED OFFICE MAILING ADDRESS: PO Box 52357 Durham, NC 27717 REGISTERED OFFICE STREET ADDRESS: 682 Erwin Road Durham, NC 27707 Durham County PRINCIPAL OFFICE TELEPHONE NUMBER: 919 - 632 -0161 PRINCIPAL OFFICE MAILING ADDRESS: P O Box 52357 Durham, NC 27717 PRINCIPAL OFFICE STREET ADDRESS: 682 Erwin Road Durham, NC 27707 MANAGERS /MEMBERS /ORGANIZERS : Name: Jeff Fisher Title: Manager Address: P O Box 52357 Durham, NC 27717 CERTIFICATION OF ANNUAL REPORT MUST BE COMPLETED BY ALL LIMITED LIABILITY COMPANIES Jeff Fisher 4/15/2013 FORM MUST BE SIGNED BY A MANAGER/MEMBER DATE Jeff Fisher Manager TYPE OR PRINT NAME TYPE OR PRINT TITLE ANNUAL REPORT FEE: E -Paid MAIL TO: Secretary of State • Corporations Division • Post Office Box 29525 • Raleigh, NC 27626 -0525