20140356 Ver 1_Emails_20140814

Higgins, Karen
From:DJ Gerken <[e-mail]>
Sent:Thursday, August 14, 2014 11:26 AM
To:'Tim Sweeney'; Amelia Burnette; [e-mail]; Higgins, Karen;
[e-mail]
Cc:Lynnette Batt; Jeff Fisher
Subject:RE: The Quartz Corp, USA -- SAW-2013-01376
Mr. Sweeney:

Thank you for copying us on this email. We appreciated the opportunity to meet with your
consultants recently and we remain committed to an open dialogue on these issues.

First, let me start with my genuine appreciation for your substantial conservation investments in
our state. We appreciate your work to preserve important natural areas in the mountains of western
North Carolina. In general, we do not object to conservation buyers like yourself taking maximum
advantage of tax incentives, mitigation credits and any other viable funding mechanism to extend the
impact of their conservation expenditures.

While the purpose to which you will put these mitigation dollars is laudable (preservation), the
source of the mitigation funds in this context is problematic. At root, there is a real environmental harm
here – the activities that prompted this application for a Department of the Army permit . The
unpermitted and illegal fill of mountain streams with mining waste and the relocation and fill of other
streams in the service of an expanding mining operation is not innocuous. Although quartz mining in
Spruce Pine is economically important, there are tradeoffs. As a result, our environmental laws require
industries to legitimately offset every foot of stream we lose to the march of progress. It is for good
reason that the law requires avoidance and minimization of stream impacts as a first priority, and
mitigation only as a last resort. It is for that same good reason that real investment in work to enhance
and restore impaired streams is presumptively required to meet mitigation standards. The danger of
preservation alone as a mitigation strategy is, in part, the great risk that mitigation will become a paper
exercise without a net benefit to water quality. Maintaining the status quo through a preservation credit
deprives the public of a promised environmental benefit to offset an impact and, crucially, eliminates an
important incentive to avoid and minimize impacts to mountain streams.

That is what happened here. The Town of Spruce Pine had the foresight to acquire and protect its
watershed. The legislature had the foresight to provide it a protective water supply watershed
classification. We believe the record shows that the first step in the process for this mitigation plan was
an approach by your consultants to the town of Spruce Pine with an offered financial incentive to remove
those protections – not for the purpose of implementing a destructive land use, but rather to create the
perception of such a threat, in order to extract more mitigation credits. The Town, in agreeing to sell the
watershed, insisted that the buffers must be protected through a restrictive covenant that significantly
curtails any tree cutting and requires no negative impact on water quality. Now the mine seeks
mitigation credit for donating back to the town a conservation easement on the buffers it once owned
outright and has already protected through a restrictive covenant. This same washing of mitigation
dollars through purpose-built financial transactions could be used by any number of noxious and
environmentally damaging and uses to avoid mitigation responsibilities, with real environmental
consequences. That is why it is illegal.
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I am grateful to you for your important conservation work in the mountains. And I am happy to
work with you to find innovative strategies to further that mission. But we can’t achieve that good
outcome by blessing what appears to be an illegal attempt to work around or “game” the laws that
protect our mountains streams. I would welcome the opportunity to meet with you in person and
explore other approaches to this mitigation plan. I also remain willing to meet with the mine to look for
cost-effective strategies for completing their work in compliance with the law.

Sincerely,
DJ Gerken

DJ Gerken
Senior Attorney
Southern Environmental Law Center
[e-mail]
22 S. Pack Square, Suite 700
Asheville, North Carolina 28801-3494
Tel: [phone]
Fax: [phone]

From: Tim Sweeney \[mailto:[e-mail]\]
Sent: Wednesday, July 23, 2014 10:54 PM
To: Amelia Burnette; DJ Gerken; [e-mail]; [e-mail]; [e-mail]
Cc: Lynnette Batt; Jeff Fisher
Subject: The Quartz Corp, USA -- SAW-2013-01376

Dear all,
As the sole owner of Rocky River Hydro LLC, holder of the land around and including the Spruce Pine
Watershed, I'm writing to share my thinking on the topic that the SELC folks recently brought up: credible
threat.
I fully acknowledge that RRH's purchase of this tract, and the Town of Spruce Pine's sale of the tract, were
guided by a shared desire to protect and preserve the beautiful forest and streams there.
I state no intent to cut any trees. My basis for believing that this site falls under the defined scope of credible
threat is that (a) the 50-300ft range of the stream buffers may lawfully be timbered; (b) the net value of the
mature, harvestable timber on the site is sufficiently high to provide a clear economic motive for the parties
jointly in control of the buffers (being Rocky River Hydro as the fee-simple land owner, and the Town of
Spruce Pine as the holder of the current restrictive covenant) to agree to allow timbering there; and (c)
timbering so close to the buffers would impact water quality.
If the conservation-mindedness of a landowner or renegotiable covenant holder becomes a determining factor in
establishing credible threat, then it will be impossible for conservation-minded folks to participate in mitigation,
either individually or through collaborative relationships like that between RRH and the Town of Spruce
Pine. Surely that's not the intent!
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To preserve the equality of rights regardless of a person or entity's beliefs or goals, I think credible threat must
be judged on basis of joint legal rights (what the various land rights-holders together are allowed to do by law)
and economic feasibility (whether there is a clear economic motive for them doing it).
As conservation-minded entities, both RRH and the Town of Spruce Pine entered into the land transactions and
restrictive covenants with a desire to preserve the land, and explicitly named mitigation banking rights in that
bargain. Other possible structures were explored (such as permanent conservation easements held by SAHC)
but this structure was agreed upon, and mitigation rights were explicitly negotiated as part of the bargain.
If anybody has any comments or questions for me personally, feel free to email me.
Best Regards,
Tim Sweeney
(Note: I'm the sole owner 130 of Chatham LLC and Rocky River Hydro LLC, and CEO of Epic Games, all
separate and unrelated entities)
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