NC0088188_Staff Comments_20090513

I . AGENDA
NPDES COMMITTEE MEETING AGENDA "
Page 1 of 1
512 N. Salisbury Street
Archdale Building — Ground Floor Hearing Room
Raleigh, North Carolina
May 13, 2009
11fQhquire
The General Statute § 138A-15, which mandates that as to whether any member knows of any known
conflict of interest or appearance of conflict with respect to matters before the Commission. If any member knows of a
conflict of interest or appearance of conflict, please so state at this time.
Dr. David Moreau, Chairman, Presiding
Attendees: Dr. David H. Moreau
Dr. Charles Peterson
Marion Deerhake
John Curry
Dr. Ernest Larkin
Stephen Smith
I. O
II. Action Item
1. 09-01 Presentation of Administra
Watch et al. v. DENR,
DWQ and Scenic Wolf)
Madison County
/��UpBg �8a
41)1
. 1
Law Judge Decision in Laurel Valley
lopment, LLC, 04 EHR 23939
iALEacpment_A - uznciai tcecora (z3o pgs)
Attachment B - Transcript — Volume I (pgs 1-297) and Volume II (pgs 298-551)
Attachment C - Laurel Valley Petit Exhibits (288 pgs)
Attachment D - Respondent's Exhibits List (280 pgs)
Attachment. E - Intervenor Respondents Exhibits (73 pgs)
Attachment_ F - General Statute 143-215-1 (25 pgs)
Attachment_G - Redbook 8-04 15NCAC 02B.0100-0200-0300 (133
pgs)
Attachment H - Rule T 15A: 02B .0400 (23 pgs)
http://h2o.enr.state.nc.us/admin/emc/NPDESAGENDA.htm 5/8/2009

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FilSTATE OF NORTH CAROLINA ~� IN THE OFFICE OF ryMg ��
?T" n -r AM t 1: 13 ADIVIINISTRATI VE HEARINGS
COUNTY OF MADISON �.' 06 EHR 2393
Laurel Valley Watch a nd Clean,c��teF:�4...
North Carolina, Inc., ) .
Petitioner, ) 0C 0 2000-
Norih Carolina Division of Water Quality, ) DECISION
North Carolina Department of Environment )
*and Natural Resources, )
Respondent, )
and )
Scenic Wolf Development, LLC,. }
Respondent -Intervenor, ) z
This contested case was heard on .26 and 27 August 2008 in Marshall, Madison County,
North Carolina Administrative Law Judge Beecher R. Gray presided over the proceedings.
APPEARANCES
Petitioners were represented by Diane .C. Van Helden, Esq. Respondent was represented by
Sueanna P. Sumpter, Assistant Attorne_ y General. Respondent -Intervenor was represented byPhilip
S. Anderson, Esq.
• IS.-
1. Whether Respondent exceeded its authority or jurisdiction, acted erroneously, failed
to use proper procedure, or failed to act as required by law or rule in issuing NPDES Permit No.
NCO088188 to Respondent -Intervenor:
(A) By failing. to act on the permit so as to prevent violation of water quality standards
due to the cumulative effectsof permit decisions. N.C.G.S.§143-215.1(b)(2); '
(13) By failing to require Scenic Wolf to demonstrate, to the satisfaction of the DWQ, that
it has prepared and considered an engineering, environmental, and fiscal analysis of
alternatives to the proposed facility. N.C.G.S.• § 143-215.1(b)(5)

(C) By failing to require that Scenic Wolf utilizes the practicable waste treatment and
disposal alternative with the least adverse impact on the environment. N.C.G.S.
§143-215.1(b)(2)
(D) By failing to require Scenic Wolf to satisfy DWQ that it, its parents, subsidiaries, and*,
affiliates have been in substantial compliance with federal and state laws, regulations,
and rules for the protection ofthe environment. N.C.G.S. §143-215.1(b)(4)b.2
(E) By failing to consider the present and anticipated usage of waters with quality higher
than the 'standards and to not allow degradation of the water quality -below that
quality necessary to maintain existing and -anticipated uses ofthose waters. N.C.G.S.
§ 15A NCAC 02B.0201
2. If so, whether such error substantially prejudiced any rights of Petitioners:
BURDEN OF PROOF
Petitioners have the burden of proof in this matter.
WITNESSES
The following witnesses were called by Petitioners:.
Teresa Hammack
Kim Garrett
Greg Yost
Becky Starr Silvis _
Rick Bussey
LeToya Fields
Steve Tedder
Barry Sulkin
The following witnesses were called by Respondent:'
i
Steve Tedder
The following witnesses were called by Respondent -Intervenors:
Robert F. McGhee
LeToya Fields "
-2-

y
u
EXHIBITS -
The following exhibits were offered by the Petitioners and received'into evidence: P Ex.1-12,14-17,
19-35.
The following exhibits were offered by Respondent. and received into evidence: R Ex. 1-28
(inclusive); 32, 33, 35.
The following exhibits were offered by Respondent-Intervenor.
and received into evidence: RI Ex. 1-
12.
FINDINGS OF FACT
The undersigned finds the following to be the facts:
1. The U.S. Environmental Protection Agency (EPA) has authorized the State of North.
Carolina to administer the NPDES ("National Pollutant Discharge Elimination System') program, -
after the State put into effect all laws and regulations that the EPA felt were necessary in order to .
implement the program. (McGhee, 12 p. 485)
2: In order to gain that approval, North Carolina -submitted to the EPA the laws enacted
and regulations codified for the purpose of implementing the program and in addition the State had
to show* that the Division of Water Quality (DWQ) was organized to ensure NPDES permit issuance,
enforcement, and compliance in accordance with the law. EPA periodically requires states to update
their programs and conducts annual. reviews of the State NPDES programs. (McGhee, T2 pp. 485-
486)
3. On or about 15 November 2005, Respondent -Intervenor, Scenic Wolf Development,
LLC (hereinafter Scenic Wolf) applied to Respondent, North Carolina Department of Environment
and Natural Resources, Division of Water Quality (hereinafter DWQ) for a permit to construct and'
operate treatment facilities, and discharge treated wastewater from those facilities at an identified
outfall into Puncheon Fork Creek. (R Ex.1)
4. Rick Bussey and his wife are the owners of Scenic Wolf Development, LLC. He is
involved in the following limited liability companies developing Wolf Mountain: Scenic Wolf
Slopes, LLC; Wolf Mountain Resort Management LLC; Wolf Ridge . Hospitality LLC; B&E
Ventures; Mountain Enterprises of.Wolf Ridge LLC; Scenic Mountain Development LLC; and The
Views at Wolf Ridge, LLC. Mr. Bussey also is involved in Scenic Ski Company, Inc.; Bussey
Holdings, Inc.; Bussey Real Estate Holdings, Inc.; Haw Ridge Summit Homeowners Association;
and Haw Mountain, Inc. (Bussey, T1 pp.121-128) Orville English is a member or shareholder in the
following: B&E Ventures and Mountain Enterprises of Wolf Ridge.. (Bussey, T1 p.1*29)
• 5. Construction on the first homes in Scenic Wolfs development began in 2004. By
November or December of 2005, approximately 15 homes had -been completed. These residences -
mm

were served by septic tanks and drain fields. However, as construction began on'the property, Scenic
Wolf found a number of springs, log roads, and other conditions that precluded installation of septic
systems.. Installation of the septic systems was quite -costly, ranging from $6500 to $8500, three
times the cost of installation on flat land. (Bussey, TI pp. 130,134-135, 205)
6. In 2005, Scenic Wolf Development reviewed the development on Wolf Mountain as a
whole for purposes of drafting a master plan. It was decided at that time that the company would
apply for the subject discharge peimit. (Bussey, TI pp. 129,130)
7. Scenic Wolf would apply for the permit and construct the plant, and then make taps
available for its properties as well as the following communities: Breakaway Village; Oak Hollow
Subdivision; Haw Ridge Summit; Madison Mitchell; Wolf Ridge Roads and Lots. Written
agreements were executed addressing implementation of this plan. In its application, Scenic Wolf
indicated that the facility would serve 910 residential units. At the time of the hearing, Scenic Wolf
was of the opinion that it still needs the 300,000 GPD capacity allowed by the subject permit.
(Bussey, T1 pp. 131-134,140, 214; R Ex. 7)
8. During ski season, Scenic Wolf makes snow and withdraws water for that purpose
from a small pond adjacent to Puncheon Fork, as well as two other ponds further upstream on the
property of Wolf Laurel and Ski the Wolf (Ski the Ridges). The upper ponds are fed by springs,
surface drainage, and a small creek -out of Wolf Laurel. The ponds were in existence when Scenic'
Wolf purchased the ski slopes. Water is pumped from the pond by the creek to -the ski slopes.
Melting snow, runs back into the ponds and streams upstream of the discharge point. In January of
2008, Scenic Wolf made a filing with DENR's Division of Water Resources reporting the maximum
amount of water to be withdrawn from the ponds. Snowmaking activities occur only about 15 days
each year, are not constant, and not necessarily done on consecutive days. (Bussey T1 pp. 150-151,
178-182,191-194; IR Ex. 8)
9. The pond by Puncheon Fork Creek is located above the proposed discharge point. It
has an overflow allowing for water to be returned to the stream, again upstream of the proposed
discharge point. (Bussey TI pp. IS 1-182)
10, The components for the wastewater treatment plant were purchased from Mack
Industries and are warranted. The plant will be operated by RPB, a certified operator with general
liability insurance in the amount of a million dollars: Firms with pmfessional engineers designed the
master plan and will oversee construction of the facility. A property management consulting firm
will assist Scenic Wolf in structuring homeowners' associations within the development and
addressing ownership issues with regard to the plant. If the plant is deemed a public utility, Scenic
Wolf will be required* to post a bond in order to operate it. (Bussey T1 pp. 164-166)
11. Kim Garrett is a member and serves on the board of petitioner Laurel Valley Water,
Inc. (Garrett, TI pp. 41) Ms. Garrett is opposed to Scenic Wolf s development since, in her opinion,
it will diminish her enjoyment of her property and increase her property's market value and,
therefore, her property taxes. (Garrett T1 p. 62-63)
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12. Ms. Garrett reviewed the deeds for those parcels of real property included in the Wolf
Ridge development plan of record as of 1 November 2005. Using the amount of excise tax paid at
the time of the conveyance and the number of acres conveyed, Ms. Garrett calculated a per -acre cost
for each tract. She determined that the average amount paid per acre was $13,952.92. (Garrett, T1
pp. 23-30; P Ex. 3) Ms. Garrett also reviewed the deeds in the chain of title for these parcels, dated
between October 1992 and October 2005, and performed the same calculations. She determined that
the average cost paid per acre was $4,026.22. (Garrett, TI pp. 31-33;P Ex. 4)
13. Ms. Garrett did not review the records of the Madison County Tax Assessor to
determine the tax value of the property. (Garrett, TI pp. 41,42)
14. Ms. Garrett is not an expert in the field of real property valuation. (Garrett, T1 p. 41)
15. ' Further,. Ms. Garrett is not an expert on surface or sub -surface wastewater disposal
systems. The witness did not know whether any of the land within the development would be
suitable for such systems. (Garrett, TI p. 43) Petitioners presented no evidence regarding the
suitability of the land within the development for surface or subsurface treatment and disposal
systems.
16. In making her calculations, the witness did not consider the per acre cost of land
conveyed by a deed made on or about 24 October 2005, recorded 8 November 2005, from B&E
Ventures to Madison Mitchell. The excise stamps indicated that three million five hundred thousand
dollars were paid for 101 acres conveyed by that deed and located within the subject development.
The instrument further indicated that there were substantial restrictions on the property. (Garrett, TI
pp. 46, 49, 50; IR Ex. 2)
17. Similarly, the witness did not consider a deed made in February of 2008 from the
Brambergs to Scenic Wolf. The excise tax stamps indicated that a million dollars was paid for the
'25 acres conveyed by that deed. (Garrett, T1 p. 48)
18. In fact, depending on the size of the lot, as of 2005-2006, the fair market value of
subdivided lots served by infrastructure in the Wolf Mountain area was $600,000 for one -acre lots.
Lots one -fifth of an acre in size sold for $199,000 to $250,000. Lots one -tenth of an acre in size sold
for $175,000. (Garrett, TI pp: 53, 54; Bussey TI pp. 173-174; RI Ex. 12)
19. During this same time period, large tracts of unimproved land with minimal or no
access sold for $35,000 to $50,000 an acre. (Bussey, TI p.174)
20. Real property values in this area have -increased significantly, in part due to changes in
that area. Since 2005, the ski slopes in this area have been expanded, roads have been constructed, a
ski lodge and restaurant built at the top of the mountain, a secondary ski lift has been added, an
enclosed swimming pool installed at the top of the mountain, new homes have been constructed and
a rental program begun, construction has commenced on the airport, an equestrian community is
—5—

under development, and I-26 has been completed in proximity to the development and allows for
easy access to the site. Hundreds of acres. in the development*and in this area have been rezoned to
residential -resort. (Garrett, T1 p. 54; Bussey, T1 pp.176-177)
21. The witness's inap of the development area presented at trial did not include or
account for: the airport; a 90-acre tract the uses of which were limited by the terms and conditions of
a Section 404 permit and 401 certification; utility and right-of-way easements encumbering the
development • property; the ski slopes, which exceed 68 acres in size; or subdivisions with
preliminary county approval, not yet platted of record.. (Garrett T1 pp. 4345, 54-57)
22. Ms. Garrett had no experience in.real estate development and did not know the lost
opportunity costs of using the property at -issue for purposes other than residential development.
(Garrett T1 p. 64)
23. Greg Yost lives on Puncheon Fork Road, downstream from the peimitted facility and
discharge point. He is a member of both Laurel Valley Watch and Clean Water for North Carolina.
He is concerned about the health of Puncheon Fork Creek and worries that the plant might fail during
a flooding event and spread unsanitary water onto his property. He also has noted more traffic on
Puncheon Fork Road and fears that, if the discharge is allowed and the Scenic Wolf property
---- dmw4oped-as planneed;•there will -be -even -more traffc-(Yost T1-pp. 74 %. . _ ..._... _ ..__..
24. At the time Mr. Yost purchased his property, the ski slopes and the Wolf Laurel resort
community, including its country club and golf course, already had been established to the north on
Puncheon Fork Road. Since then, Interstate 26 has been completed and is located about two and
one-half miles from his property. There already are two permitted discharges into Puncheon Fork
Creek north of Mr. Yost's property. (Yost Tl pp. 83-86)
25. Mr. Yost does not have any training in the fields of ecology or wastewater treatment.
(Yost, T1 p. 87)
26. Becky Starr Silvis was at all times relevant employed by Respondent, Division of
Water Quality, as an environmental engineer in the Asheville Regional Office. (Silvis, Tl pp. 91,
94)
27: Upon filing of a permit application, the DWQ's Raleigh Central Office generally
sends a copy to the regional office and requests that staff visit the site, review the conditions, and
prepare a staff report documenting findings made. (Silvis, TI p. 94)
28. In this case, Ms. Silvis prepared the staff report for the regional office. This was the
first time she has been asked to do this and the first time she had reviewed an NPDES application
and alternatives analysis. (Silvis, Tl p. 94)
29. Ms. Silvis made a field visit to the site identified as the location of the plant and
discharge, and reviewed the application in detail to see what was proposed. She felt that more
—6—

information could have been provided in the engineering alternatives analysis, ancUthe staff report
generated by the regional office recommended that additional information be requested of the
applicant. (Silvis, T1 pp. 95-98, 102-106, 112, 114; R:Ex.10)
30. The DWQ's Raleigh central office did request additional information as suggested by
the regional office. (Silvis, T1 p.114; R Ex. 13,14)
31. Following the public hearing on the draft permit, Ms. Silvis sent an e-mail to the
hearing officer summarizing those alternatives to the proposed surface water discharge which had
been suggested in the public comments received. The message was intended as a suggestion for the
hearing officer's consideration. Ms. S ilvis is not an expert in land valuation, and had not performed
an engineering or cost analysis for any of the alternatives listed in her 6-mail. (Silvis, T1 pp. 102-
107,114; P Ex. 12)
32. At the time the permit was issued, the regional office was not opposed to its issuance.
(Silvis, TI p.115) .
33. . LeToya Fields was the person in DWQ primarily responsible for review of Scenic
Wolfs application for the discharge permit. (Fields, T1 pp. 215 220) Following her initial review of
the application, Ms. Fields sent a request for additional information to the applicant. (Fields, Tl pp.
220-221, R Ex. 2) Among other things, Ms. Fields asked the applicant to justify the projected
volume of the discharge and demonstrate how many homes were to be served by the wastewater
treatment plant. (Fields, Tl pp. 222, 232)
34. Scenic Wolf responded to the request for additional information and submitted a map
of the project and information as to what had been built, where septic systems were being used, and
what it planned to build in the future. The applicant also provided HUD statements and information
regarding land costs: (Fields, T1 p. 225; R Ex. 3, 4, 5, 6)
35. The applicant provided information on planned construction through 2011 or 2012,
and Ms. Fields found that schedule to be reasonable. (Fields, TI pp. 226, 227; R. Ex. 7)
36. - The additional information submitted by Scenic Wolf satisfied Ms. Fields' concerns
about the design flow for the facility. The applicant actually justified more than the requested
discharge volume. Ms. Fields proceeded to model the proposed discharge, determine appropriate
effluent limits and conditions, and develop a draft permit. (Fields, T2 pp. 309-311, 332-333; R Ex.
8, 99103,11,12)
37. A stream is considered to be "impaired" if it is officially designated as such and
placed on the State's 303(d) list. A watercourse may be placed on the list if review of data reveals
that there are exceedances of the State standards for certain pollutants. Puncheon Fork Creek is not
on the 303(d) list, but instead is noted in the 2005 French Broad River Basin Plan to have excellent
water quality. The watercourse is presently classified as C-trout, but is potentially a candidate for
reclassification. (Fields, Tl pp. 248-249; T2 pp. 318-321, 334, 336, 344; McGhee, T2 pp. 504-505)
—7—

38. Collection of water quality data and calibration are not routinely performed in review
of an application for a new discharge permit. Instead, use of the Level B model is a reasonable and
appropriate tool for analysis in this context. Modeling simulates how wastewater will impact the
receiving stream and is done to determine if the proposed discharge will have an adverse impact on
the dissolved oxygen levels in the watercourse. The Level B, or Streeter -Phelps model, is based on a
series of equations which will predict the effect of a discharge on receiving waters. In this case, the
respondent used the Level B model to determine if the proposed discharge could be allowed and the
quality of the receiving stream protected. (Fields, T1 pp. 244-248, 256, 277, 290;. T2 p. 340;
McGhee, T2. pp. 487-488, 518-520) '
39. When wastewater is introduced into a stream, there will be some breakdown of
organic matter and a resulting decrease in the dissolved oxygen level in the stream until it is
assimilated by the waterbody. In modeling, the respondent determines whether the waste can be
assimilated by the stream and the standard for dissolved oxygen protected. (Fields, T2 pp. 341)
40. The Level B model makes assumptions about stream conditions such as temperature
and water velocity, and is typically utilized where stream -specific information is not available. The
model assumes a free -flowing stream and that complete mixing will occur in the stream. Since the
receiving watercourse here was a fast-moving mountain stream, the agency felt that use of the Level ---------- _ — .
B model was appropriate, and inputs for oxygen demand from sediment .were not necessary.
Similarly, the model does not factor in effects of algae,` but the agency would not expect to see
significant oxygen demand from algae in this type of stream. (Fields, Tl pp. 275, 276, 290-291; T2
p326, 327, 341, 342, 349; McGhee, TZ pp. 499-501)
41. The model is very conservative and attempts to replicate a worst -case scenario. It
assumes conditions of critical low -flow in the receiving waters and maximum discharge from the
wastewater treatment plant. (Fields, T2 pp. 342-343)
42. A Level C model uses site -specific data, where the Level B model does not. The
former would be used only where the receiving streams were impaired or the agencydetermined that.
it could not be characterized by the Level B model. In the present case, the Level B model was
appropriate. (Fields, T1 p. 292)
43. In modeling the proposed discharge in this case, Ms. Fields contacted the US
Geological Survey and obtained a stream flow estimate referred to as the 7Q10. This is the lowest
seven-day average flow that statistically would likely be experienced in aten-yearperiod. The 7Q10
flow represents drought conditions over a continuous period. Actual, intermittent withdrawals of
water from the stream are not relevant to the analysis. The summer 7Q 10 is more limiting, and the
effluent limits for the subject permit were developed using that more conservative number. (Fields,
T1 pp. 245,266, 285, T2 pp. 312-313, 333 334; McGhee, T2 pp. 498-499, 536-537)
44. Ms. Fields checked the relevant basin plan to determine whether the discharge was
allowed by the rules of the Environmental Management Commission. She reviewed the State's
—8—

303(d) Iist and determined that the receiving watercourse was not impaired. S.hp then reviewed other
discharges in the area and determined their location in relation to this proposed discharge, and
included the effects of the existing discharges in the modeling. Ms. Fields reviewed the agency's
records to see what informationprevious modelers had used since, if there were any residual oxygen
demand, or other impacts from the existing upstream discharges, she wanted to account for these in
her model. The proposed discharge was modeled from the proposed outfall down the full length of
Puncheon Fork Creek to its confluence with Big Laurel Creek. (Fields, T1 pp. 255 257, 263, 281,
293, 294; T2 pp. 318, 322)
45. Ms. Fields reviewed the characteristics ofPuncheon Fork Creek, itself. She consulted
the USGS topography maps to determine elevations of various portions of the watercourse, and also
considered the drainage area. (Fields, T 1 pp. 258-2593, 265 266)
46. The proposed discharge was modeled for summer and winter conditions. (Fields, T1
P. 282)
47. Based upon results of the modeling, the allowable concentration for ammonia was
reduced. (Fields, TI pp. 283, 294)
_.._..----_.......-.-.-45.,-..-The-result.s•of-modeliEng-4ndic-ated•--that•-tho-proposed...discharge could -bo-allowed.
Effluent limits were developed to protect the dissolved oxygen standard and a draft permit was .
issued. (Fields, T2 pp. 308-309, 343-344; R Ex. 21)
49. • The subject permit was modified in August of 2007 to change the location of the
discharge point. (Bussey, T 1 pp. 168,169; Fields, Tl pp. 239, 240) Upon receipt of the application
for the modification, Ms. Fields repeated the modeling but factored in conditions relevant to the new
discharge location. (Fields, T1 p. •286; R Ex. 23, 24, 25)
50. A public hearing was held in this matter on 3 August 2006, with Steve Tedder,
Regional Water Quality Supervisor in DENR's Winston-Salem Regional Office, serving as hearing
officer. On 12 September 2006, Mr. Tedder made his report to Alan Klimek, Director of DWQ. In
his report, Mr. Tedder recommended that the permit be issued but with more stringent requirements
applicable to discharges into high quality waters, those with excellent water quality. He also
recommended that the classification of Puncheon Fork Creek be reevaluated to see if it. met
requirements for Outstanding Resource Waters (ORW), or High Quality Waters (HQW}- (Fields, T2
pp. 335-336; Tedder, T2 pp. 352, 473; R Ex. 20)
5l.. In accordance with'Mr. Tedder's recommendations, the subject permit included more
protective effluent limits and conditions designed to protect the excellent health of the receiving
stream. In addition to more restrictive limits for BOD and ammonia, the permit requires: additional
monitoring for temperature and dissolved oxygen; a minimum dissolved oxygen level of six'
milligrams per liter; use of LTV disinfection instead of chlorine; construction of dual treatment trains
and provision of standby power. (Fields, T2 pp. 337-339; Tedder, T2 pp. 473-475; R Ex. 21, 22)
-9-

The discharge permit, as issued, is extremely protective of the water quality in Puncheon Fork Creek.
(Tedder, 12 p. 477; McGhee, T2 pp. 508-511)
52. ' Further, the agency has acted on Mr. Tedder's recommendations regarding
reclassification of the watercourse by nominating it for either ORW or, more likely, HQW status.
(Fields, T2 pp. 339-340; Tedder T2 pp. 360-363)
53. Mr. Tedder was aware of, and considered comments made by Ms. Silvis in the
regional office staff report concerning compliance history of entities other than Scenic Wolf
Development LLC. He did not find that material sufficiently significant to alter his recommendation
that the requested permit be issued. (Tedder, T2 pp. 373-374)
54. Barry Sulkin, an environmental consultant engaged in this matter. by Petitioners,
visited Puncheon Fork Creek in August of 2007 as well as sometime in 2006. Mr. Sulkin observed
what he characterized as significant amounts of sediment -and algae at tbree locations in -the stream.
(Sulkin, T2 pp. 375, 386-388, 394-400, 402) W. Sulkin described the stream as "polluted" and
"water -quality limited" (Sulkin, T2 p. 405) The witness was critical of DWQ's use of the 7Q 10 and
several other procedures mandated by North Carolina's statutes and regulations, all. of which have
been approved by the EPA. In his opinion, use of the Level B model was not appropriate in this
situation. (Sulkin, T2 pp. 407-416, 424, 458-460; McGhee T2 485486)
55. Petitioners offered no testimony or evidence that any other appropriate modeling
would have resulted in different permit limits or restrictions, or precluded issuance of the subject
permit.
56. Based upon the biological information collected by Respondent which indicates that
its aquatic health is excellent, Puncheon Fork Creek is neither impaired nor a water quality limited
watercourse. While there might be some temporary issues which can and should be addressed, these
are correctable and do not indicate that the stream is impaired. (Tedder, T2 pp. 471-472) Mr. Sulkin
acknowledged that the Level B model was the model most commonly used by Respondent and by his
former employer, Respondent's counterpart in the State of Tennessee. Further, EPA and the other
southeastern states in Region IV all use models very similar to Level B. (Sulkin, T2 p. 408, 446;.
McGhee 12 p. 496) Further, field measurements are not typically taken nationwide in this context.
(Sulkin, T2 pp. 447-448) In this situation, it was not necessary to account for sediment or algae in the
receiving waters. Respondent would not expect inorganic sediments to exert a substantial BOD.
Most streams, including mountain streams, cau have some attached filamentous algae at times,
especially in the summer. Respondent's experience with the Level B model over more than twenty
years has shown it to be very protective of water quality. (Tedder, T2 pp. 476-477)
57. Petitioners offered no testimony or evidence that the permitted discharge would result
in degradation of the quality of the waters of Puncheon Fork Creek below that necessary to maintain
existing and anticipated uses of those waters.
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58. Scenic Wolf s witness, Robert F. McGhee, visited Puncheon Fork Creek in July of
2008 and observed its characteristics. Slopes on streams in; this area are greater than 100 feet per
mile. The resulting reaeration means that they have. a very high assimilative capacity for oxygen
consuming waste. Mr. McGhee observed various macro -invertebrates in the stream, indicating very
good water quality. Sediments in the stream appeared to' be mineral and not -organic in nature and
• would not cause oxygen demand. He did not observe algae in the stream. The agency properly .
determined that Puncheon Fork Creek was not on the 303(d) list of impaired'waters and that the law
did not require any TMDS (total maximum daily load) restrictions. Use of the Level B model was
appropriate in this case, the model was correctly run in this case, and the agency was riot required to
alter its analysis to account for sediment or algae in the stream, account for low flows other than by
use ofthe 7Q10 flow, or review thadlects, ifany, of snowmaking. Further, -the agency addressed all
the appropriate pollutants of concern in setting the permit limits. (McGhee, T2 pp. 494-505, 508-
510)
59.E • . lv1r. Sulkin was critical of the engineering alternatives analysis completed by Scenic -
Wolf,, since he felt it did not adequately address reuse of wastewater or subsurface systems. (Sulkin,
T2 pp. 430431) However, he could not cite a specific instance of treated wastewater being reused
for snow -making; and while acknowledging that use of wastewater for irrigation would require
storage and alternative -disposal methods during seasons where it was not needed for irrigation, he
had no information on how much storage would be needed. Mr. Sulkin had no opinion as to.whether
irrigation was a feasible alternative to a surface water discharge on this site. (SWkin, T2 pp. 450-
452) Mr. Sulkin only has seen wetlands used for treatment of wastewater in small applications, and
not for the three hundred thousand gallons per day flow projected for this development. (Sulkin T2
pp. 453-454) Mr. Sulkin acknowledged that slope could make land application of waste more
difficult and require more land. (Sulkin, T2 p..454)
60. Petitioners did not present evidence of -any available, environmentally sound and
financially feasible alternative to the discharge allowed by the subject permit.
-11-

61. Given the development planned for this property, there are no practicable alternatives
to the discharge which would be available and environmentally sound. The property at issue has
extreme slopes and use of a land -application system on such slopes would stretch to the limit the
capabilities ofthat technology. Scenic Wolfs calculation.ofthe amount of land required fora land -
application system is appropriate and the current fair market value of that.property is the appropriate
value for purposes of the alternatives analysis. A wetlands treatment system is not appropriate since
it requires a flatter area and almost always results in a discharge to surface waters anyway, with .
treatment inferior to, or no better than that provided *by the proposed wastewater treatment plant.
Rules on•reuse of treated wastewater may preclude its use for snowmaking since that results indirect
'human contact with no opportunity for dilution. In addition, because snowmaking only occurs about
fifteen days per year, reuse of treated wastewater for snowmaking would not eliminate the need for
an NPDES discharge or some other treatment and disposal alternative. Finally, the soils on this site
are questionable from the standpoint of suitability for on -site disposal. Such subsurface systems -
historically have a high rate of failure and can result in discharge of minimally -treated or untreated
wastewater to streams. Repair areas can be difficult to locate in' mountainous areas. Nationwide,
failure of subsurface systems is the primary..cause of waters not meeting water quality standards.
(Tedder, T2 pp. 478-479; McGhee, T2 pp. 505-515, 526-5271,532, 535-5360,539-540)
CONCLUSIONS OF LAW .
BASED UPON THE FINDINGS OF FACT, the undersigned concludes as follows:
1. Petitioners have failed to meet their burden ofproof in this matter. More specifically:
A. N.C.G.S.-Section 143-215. 1 (b)(2) does not require or authorize Respondent,
when considering an application.for the subject discharge permit, to consider
or act to prevent such secondary impacts as increased development in the
area which might be expected to. occur upon issuance of the permit. In.
modeling the proposed discharge,' respondent did properly consider the
cumulative effects of all other discharges into the receiving waters.
B. Respondent required Scenic Wolf to adequately demonstrate to its
satisfaction that Scenic Wolf had prepared and considered an engineering,.
environmental, and fiscal .analysis of alternatives to -the proposed discharge
facility as required by N.C.G.S Section 143-215.1(b)(5).
C. Respondent required Scenic Wolf to utilize the practicable waste treatment
and disposal alternative with the least adverse impact -to the environment as
required by N.C.G.S. Section 143 215.1(b)(2).
D: Respondent adequately considered the compliance history of Scenic Wolf; its
parents, subsidiaries, and affiliates: Nothing in the compliance matters
descnbed in the regional office staff report were of sufficient magnitude, or
were sufficiently demonstrated to be attributable to the applicant, its parents,
—12—

subsidiaries, • or affiliates so as to warrant denial of the application- on this
ground. .
& Respondent adequately and properly considered the present and anticipated
usage of the receiving waters and acted in such a manner as to protect them.
At all times relevant, the watercourse at issue was classified as C-Trout, and
not HQW or - ORW. Respondent issued a .permit with more stringent
conditions usually reserved for HQW or ORW waters so as to protect the
excellent water quality of Puncheon Fork Creek.
2. Respondent did not- err in its 25 October 2006 issuance of NPDES Permit No. NC
0088188 to Respondent -Intervenor, Scenic Wolf Development, LLC.
DECISION
• Respondent's 25 October 2006 decision to issue NPDES Permit Nd. 0088188 to Respondent -
Intervenor Scenic Wolf Development LLC is supported by the evidence and.is AFFIRMED.
NOTICE
�► GYA. Since this contested case arose from issuance of a permit under N.C.G.S. §143-215.1, the i
Water Quality Committee of the North Carolina Environmental Management Commission will make
the Final. Agency Decision in this matter.
The Committee, as the final agency decision maker in this contested case, is required to give
each party an opportunity to file exceptions to this Decision and to present written arguments prior to
making the Final Agency Decision. N.C. Gen. Stat. § 150B-36(a).
The Committee is required by N.C. Gen. Stat. §150B-36(b) to serve a copy of the Final
Agency Decision on all parties and to fiunish a -copy to the parties' attorneys of record and to the
Office of Administrative Hearings.
-13-

ORDER
It hereby is ordered that the Water Quality Committee of the North Carolina Environmental
Management Commission shall serve a copy of the Final Agency Decision on the Office. of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6417, in accordance with
N.C. Gen. Stat. Section 150B-36(b). .
This the Q e day of December., 2008. -
• Beecher R. Gray
Administrative Law Judge
—14—

A copy of the foregoing was mailed to:
Hope Taylor
Clean Water For North Carolina, Inc.
291/2 Page Ave
Asheville, ETC 28802
PETITIONER
Diane C. Van Heiden
PO Box 1441
• Mars Hill, NC 28754 -
ATTORNEY FOR PETITIONER • .
Philip S Anderson
Long Parker Warren_ & Jones PA
PO Box 7216
Asheville, NC 28802
ATTORNEY FOR RESPONDENT INTERVENOR
Sueanna P. Sumpter .
Assistant Attorney•General
NC Department of Justice
42 N. French Broad Ave.
Asheville, NC 28801
ATTORNEY FOR RESPONDENT
This the day of December, 2008.
Office of Administrative Hearings
6714- Mail Service Center
• Raleigh, NC 27699-6714
(919) 4313000
Fax: [phone]
. -15-
■

A-1
STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
REPORT OF PROCEEDINGS ON THE PROPOSED- RECLASSIFICATION OF
BIG LAUREL CREEK AND SPRING CREEK IN MADISON COUNTY
(FRENCH BROAD RIVER BASIN) '
FROM C TR AND C TO
C HQW TR AND C HQW
OR
C ORW TR AND C ORW
PUBLIC HEARING
MARCH 31, 2009
HOT SPRINGS, NORTH CAROLINA

A-2
TABLE OF CONTENTS
Paae
Summary and Recommendation
Summary
S-1
Background Classification Information
S-1
Classification Information Specific to Big Laurel and Spring Creeks
Current Classifications (C and C Tr)
S-1
Proposed Classifications (C ORW and C ORW Tr
S-2
or C HQW and C HQW Tr)
Map of Areas Proposed for Reclassifications
S-4
Proposed Amendments to French Broad River Basin
S-5
Schedule of Classifications
Implications of the Proposed Reclassifications
S-I1
Table 1. Summary and Comparison of Existing and Proposed
S-14
Classifications' Requirements
Public Hearing Processes and Comments Received
S-14
Recommendation
S-16
Public Announcement
1
Hearing Officer Designation
3
Attendees at Public Hearings
4
Written Comments Received for:
Big Laurel Creek and Spring Creek
6
Big Laurel Creek (only)
29
Spring Creek (only)
30
Appendix
DWQ 2006 Big Laurel Creek and Spring Creek HQW/ORW Survey
a 1
DWQ 2007 Trout Memorandum and 2008 Addendums to 2006 Survey
a-27
15A NCAC 02B .0224 High Quality Waters
a 38
15A NCAC 02B .0225 Outstanding Resource Waters
a 39
15A NCAC 04B .0124 Design Standards in Sensitive Watersheds
a-43
15A NCAC 02H .1006 Stormwater Requirements: High Quality Waters
a-44
15A NCAC 02H .1007 Stormwater Requirements: Outstanding Resource Waters
a-45
15A NCAC 02N .0301 Performance Standards for New UST Systems
a-46
Question and Answer Sheet: The ORW and HQW Proposed Supplemental
a-47
Water Quality Classification for Freshwaters
Proposed Amendments to 15A NCAC 02B .0304 French Broad River Basin
a-48
Cover Letter (Regarding Public Announcement) Sent to Newspapers
a-52

A-3
SUMMARY AND RECONRdENDATIUNS
SUIVIlMARY
Background Classification Information
All surface waters in North Carolina are assigned a primary classification, which is based
on their designated best uses, by the NC Division of Water Quality (DWQ) under the
authority of the Environmental Management Commission (EMC). Numeric and narrative
water quality standards are associated with each classification in order to protect its
designated best uses. The most common and basic classification for all freshwaters is
Class C. Other primary freshwater classifications provide additional levels of protection
for uses consisting of drinking water supply (WS-I through WS-Y) and primary recreation
(B)•
Supplemental classifications may be added to the primary classifications to provide.
additional protection to waters with special uses or values. Most of these supplemental
classifications have been developed in order to promote special protection to sensitive or
highly valued resource waters. The DWQ supplemental classifications are NSW (Nutrient
Sensitive Waters), Tr (Trout Waters), HQW (High Quality Waters), ORW (Outstanding
Resource Waters), Sw (Swamp Waters), and UWL (Unique Wetlands).
Classification Information Specific to Big Laurel and Spring Creeks
Current Classifications (C and C Tr)
The present classification of Big Laurel Creek and the headwaters of Spring Creek is
Class C Tr, and the remaining portion of Spring Creek is currently classified as Class C.
Class C is a primary classification, whereas Tr is a supplemental classification.
Class C water quality standards are the basic standards for water quality applicable to all
fresh surface waters. Uses include aquatic life propagation and maintenance of biological
diversity (including fishing and fish), wildlife, secondary recreation, agriculture and any
other usages except for primary recreation or as a source of water supply for drinking,
culinary, or food processing purposes. Secondary recreation includes wading, boating, and.
other uses involving human body contact with water where such activities take place in an
infrequent, unorganized, or incidental manner. The standards for Class. C waters are
outlined in Rule 15A NCAC 2B .0211, Fresh Surface Water Quality Standards for Class C
Waters.
Tr waters are those freshwaters that have conditions that shall sustain as well as allow and
protect for natural trout propagation and survival of stocked trout on a year-round basis.
The standards for Class Tr waters are outlined in Rules 15A NCAC 2B .0211 (Fresh
Surface Water Quality Standards for Class C Waters), 15A NCAC 2B .0224 (High Quality
Waters), and 15A NCAC 4B .0125 (Buffer Requirements), as well as in General Statute
113A-57 (Mandatory Standards for Land=Disturbing Activity).
S-1

A-4
Proposed Classifications (C ORW and C ORW Tr or C HQW and C HQW Tr)
Based on review of available data for Big Laurel Creek and Spring Creek (Madison
County, French Broad River Basin), including results of DWQ studies (DWQ 2006 Big
Laurel Creek and Spring Creek HQW/ORW Survey attached as pages a-1 through a-26 in
Appendix), DWQ staff determined the HQW classification to be suitable for recognizing
existing uses and excellent water quality in these waters. However, the ORW
classification may be more suitable for these waters than the HQW classification, due to
observations of federally and/or state listed aquatic species noted in studies for the subject
waters. The EMC has directed DWQ staff to present two options for each of these waters
during the reclassification process, with Option 1 being the HQW classification, and
Option 2 being the ORW classification, given that the species information included in the
N.C. Natural Heritage Program information presented to EMC was based on 10+ year old
observations or known distributions.
Studies occurred after EMC's direction was provided that updated the listed aquatic
species information. 2007 and 2008 studies in the Spring Creek watershed revealed the
endemic southern strain of Brook Trout as well as listed fish species consisting of the
Olive Darter (N.C. and federal species of concern), Mountain Blotched Chub (N.C.
significantly rare and federal special concern species), and the Ohio Lamprey (N.C.
significantly rare species). 2008 studies in the Big Laurel Creek watershed revealed the
Olive Darter and Ohio Lamprey (as described above) along with other listed fish species
comprised of the Logperch (N.C. threatened species) and Smallmouth Buffalo (N.C.
significantly rare) as well as the Hellbender, a N.C. and Federal special concern
salamander species (DWQ 2007 Trout Memorandum and 2008 Addendums to 2006
Survey attached as pages a-27 through a-37 in Appendix). Please note that there are other
natural resources of value in these watersheds, such as four Natural Heritage Areas
(NHAs) in the Spring Creek watershed of regional, state or local significance, and nine
NHAs in the Big Laurel Creek watershed with national, regional or state significance.
Finally, portions of the U.S. Forest Service Pisgah National Forest and gamelands exist in
both watersheds.
The rule change would provide supplementary protection for the excellent water quality of
the subject waters. The HQW supplemental classification is a designation intended to
protect waters with quality higher than state water quality standards. In general, there are
two means by which a water body may be classified as HQW. They may be HQW by
definition or they may qualify for HQW and then be supplementally classified as HQW
through the.rule-making process. The following are HQW by definition: WS-I, WS-II,
SA (shellfishing), ORW, Primary Nursery Areas or other functional nursery areas, and
Special Native and Native (Wild) Trout Waters. The following waters can qualify for the
supplemental HQW classification: waters rated as Excellent by DWQ and waters for
which DWQ has received a petition for reclassification to either WS-1 or WS-II. Big
Laurel Creek and Spring Creek qualify for the supplemental HQW classification because
they have been rated as Excellent by DWQ.
S-2

A-5
The purpose of an ORW amendment would be to provide supplementary protection for the
resources and quality of the subject waters. The ORW supplemental classification is a
designation intended to protect unique and special waters having excellent water quality
and being of exceptional state or national ecological or recreational significance. To
qualify, waters must be rated Excellent by DWQ, and have at least one of the following
outstanding resource values: 1) outstanding fish habitat and fisheries; 2) unusually high
level of waterbased recreation; 3) some special designation such as N.C. or National
Wild/Scenic/Natural/Recreational River, or National Wildlife Refuge; 4) important
component of state or national park or forest; or 5) special ecological or scientific
significance (rare or endangered species habitat, research or educational areas).
As mentioned above, the ORW classification may well be more suitable for these
watersheds than the HQW classification, given that studies did reveal aquatic species
carrying federal and/or state designations that are currently located in these watersheds.
The ORW classification would provide a higher level of supplementary protection for the
excellent water quality and resource values of the subject waters than the HQW
classification.
These proposed reclassifications would cover the entire watersheds of Big Laurel Creek
and Spring Creek, from their sources to the French Broad River (map of areas to be
affected by proposed reclassifications on page S-4, and recommended amendments to the
French Broad River Basin Schedule of Classifications, which list the existing and
recommended classifications of the waters proposed for reclassification, is on pages S-5
through 5-10). The watershed area proposed for reclassification associated with Big
Laurel Creek and Spring Creek measures approximately 84,819 acres and 46,142 acres,
respectively. Approximately 225 miles and 122 miles of named waterbodies are proposed
to be reclassified within the Big Laurel Creek watershed and Spring Creek watershed,
respectively.
These watersheds are rural in nature, with the exception of an approximately 1,000-acre
resorthourist area within the Big Laurel Creek watershed. There are no permitted animal
operations in these watersheds. The Spring Creek watershed has one residence that is
permitted to discharge treated wastewater to surface waters. The Big Laurel Creek
watershed features one trout farm, as well as five domestic wastewater treatment plants
and one water treatment plant, that have permits to discharge their treated wastewaters to
surface waters. The land along the waters to be reclassified exists solely within the
jurisdiction of Madison County, with the exception of a very small portion of the Spring
Creek watershed within the jurisdiction of the Town of Hot Springs.
In summary, the waters proposed for reclassification are as follows: Under Option 1 for
Big Laurel Creek, this waterbody would be reclassified from Class C Tr to Class C HQW
Tr, and under Option 1 for Spring Creek, the two portions of Spring Creek would be
reclassified from Class C and Class C Tr to Class C HQW and Class C HQW Tr,
respectively. Under Option 2 for Big Laurel Creek, this waterbody would be reclassified
from Class C Tr to Class C ORW Tr, and under Option 2 for Spring Creek, the Spring
Creek segments would be reclassified to from Class C and Class C Tr to Class C ORW
S-3

A-13
and Class C ORW Tr, respectively. (Please note that there are two small headwaters in
the Big Laurel Creek watershed that are currently classified as WS-I HQW.)
Implications of the Proposed Reclassifications
HQW and ORW protective management strategies are outlined in the following rules:
-15A NCAC 02B .0224 High Quality Waters
-15A NCAC 02B .0225 Outstanding Resource Waters
-15A NCAC 04B .0124 Design Standards in Sensitive Watersheds
-15A NCAC 02H .1006 Stormwater Requirements: High Quality Waters
-15A NCAC 02H .1007 Stormwater Requirements: Outstanding Resource Waters
-15A NCAC 02N .0301 Performance Standards for New UST Systems
(Rules attached as pages a-38 through a-46 in Appendix)
Rule 15A NCAC 02B .0224, High Quality Waters, states that this classification pertains to
waters "...with quality higher than the standards..." (rule attached as page a-38 in
Appendix). This rule also describes the quality standards for HQW pertaining to
discharges, and it references 15A NCAC 02H .1000 and 15A NCAC 02H .1006 for
compliance with stormwater management requirements in general and specifically for
HQW, respectively. Finally, this rule provides descriptions of waters currently classified
as HQW with specific actions. The main features of the quality standards portion of this
rule are described in an upcoming paragraph and table.
Rule 15A NCAC 02B .0225, Outstanding Resource Waters, describes the criteria that
must be met before waters can be classified to ORW,(rule attached as pages a-39 through
a-42 in Appendix). The criteria to be met are that these waters must have excellent water
quality and be of exceptional state or national ecological or recreational significance. A
surface water must exhibit one or more resource values or uses to demonstrate it is of one
of the aforementioned types of significance. This rule also describes the quality standards
for ORW, mainly that "water quality conditions shall clearly maintain and protect the
outstanding resource values of waters classified as ORW" and that management strategies
as well as additional actions to protect resource values are to be developed and considered,
respectively, on a site -specific basis during the proceedings to classify waters as ORW. It
addresses controls on discharge and non -discharge activities as well as dredge and fill
activities, and references 15A NCAC 02H .1000 and 15A NCAC 02H .1007 for
compliance with stormwater management requirements in general and specifically for
ORW, respectively. Finally, this rule provides descriptions of waters currently classified
as ORW with speck actions. The main features of the quality standards portion of this
rule for freshwater ORWs are described in an upcoming paragraph and table.
Rule 15A NCAC 04B.0124, Design Standards in Sensitive Watersheds, concerns
regulations regarding practices to be applied in HQW zones. (Please note that ORW
waters are by definition HQW.) More specifically, this rule addresses requirements for
uncovered areas and erosion and sedimentation control features to sediment basins, newly
constructed open channels, and ground cover in HQW zones; please view the rule for the
specific restrictions for each of these parameters (rule attached as page a-43 in Appendix).

A-14
Rule 15A NCAC 02H .1006, Stormwater Requirements: High Quality Waters, describes
the stormwater management requirements for HQWs (rule attached as page a-44 in
Appendix). This rule states that "more stringent storwwater management measures may
be required to protect water quality and maintain existing and anticipated uses of these
waters." This rule describes allowed exemptions as well as requirements associated with
development at low density and high density options. Finally, "all development activities
which require a stormwater management permit... and are within one mile of and draining
to waters classified as High Quality Waters (HQW) shall manage stormwater runoff in
accordance with the provisions outlined in this Rule." The main features of the
management requirements of this rule are described in an upcoming paragraph and table.
Rule 15A NCAC 02H .1007, Stormwater Requirements: Outstanding Resource Waters,
describes the stormwater management requirements for freshwater and saltwater ORWs
(rule attached as page a-45 in Appendix). As with 15A NCAC 02B .0225, this rule states
that "water quality conditions shall clearly maintain and protect the outstanding resource
values of waters classified as ORW" and similarly states that "stormwater management
strategies to protect resource values classified as ORW shall be developed on a site -
specific basis during the proceedings to classify waters as ORW." This rule also states that
"more stringent stormwater management measures may be required on a case -by -case
basis where it is determined that additional measures are required to protect water quality
and maintain existing and anticipated used of these waters." Stormwater runoff
management requirements for development activities for freshwater and saltwater ORWs.
are described in this rule. Finally, "all development activities which require a stormwater
management permit ... and which drain to waters classified as Outstanding Resource
Waters (OW W) shall manage stormwater runoff in accordance with the provisions
outlined in this Rule." The main features of the management requirements of this rule are
described in an upcoming paragraph and table.
Rule 15A NCAC 02N .0301, Performance Standards for New UST Systems, references
restrictions for new UST systems located near HQWs and ORWs (rule attached as page a-
46 in Appendix). More specifically, this rule states that any new UST system installed
within 500 feet of any surface water classified as ORW or HQW must meet the
requirements for secondary containment (except as prohibited elsewhere in that rule).
If reclassified, the above -mentioned regulations that affect new development projects, new
and expansions of wastewater facilities deemed permitted to discharge treated wastewater
to surface waters (see paragraph on page S-13 for explanation of NPDES, or National
Pollutant Discharge Elimination System, permitted facilities/dischargers), new landfills,
new USTs, and new DOT projects would apply (see table on page 5-14 as well as
"Question and Answer Sheet: The Outstanding Resource Waters (ORW) and High Quality
Waters (HQW) Proposed Supplemental Water Quality Classifications for Freshwaters"
attached as page a-47 in Appendix for a quick overview of the majority of regulations
associated with these proposed classifications). Development density and setback
requirements associated with stormwater control (as well as the above -mentioned more
stringent erosion control measures for HQW zones) will be applied for new development
S-12

A-15
activities in ORW and HQW areas if a development requires a Sedimentation and Erosion
Control Plan. More specifically, where land disturbing activities in the watershed require a
Sedimentation and Erosion Control Plan, development is limited to one dwelling unit (du)
per acre or 12% built upon area pow density option) and a 30 foot setback is required. A
high density option, which requires control of runoff of the first inch of rainfall though the
use of engineered stormwater controls, permits development with no du per acre or built
upon area cap and no setback requirement. (Please note that a more restrictive 25 foot
buffer requirement already is required per the existing Tr classification for some of the
subject waters, and the Tr classification is not being removed as a part of this proposal.
Furthermore, existing county regulations pertaining to zoning of generally 1 home/acre
will not be removed as part of this proposal, and the county had proposed but not passed
50 foot buffer requirements for waters in its jurisdiction.) DOT regulations for ORWs and
HQWs require use of Best Management Practices (3MPs) associated with meeting the
above -mentioned specific rule requirements. In addition, no new or expanded discharges
are allowed in ORWs, and new or expanded discharges for domestic and industrial
facilities in HQWs will need to meet stricter treatment standards. Please note that the
regulations associated with the proposed reclassifications in no way prevent development
of the areas affected, but would provide specific requirements to make sure the
development would not have an unacceptable impact on the excellent water quality and
resources noted.
In summary, the ORW classification provides a higher level of supplementary protection
than the HQW classification as (a) ORW regulations do not allow new dischargers or
expansions of existing dischargers, whereas HQW regulations require stricter treatment
standards for new or expanded existing dischargers, and (b) ORW regulations apply to a
watershed (drainage) area, whereas HQW requirements only apply to an area within one
mile from and draining to HQW classified waters. However, regulations for new
development activities are the same under the HQW and ORW regulations.
There is no known proposed development and no known plans for new or expanded
discharges that would be impacted by either proposal, according to local government and
Asheville Regional Office staff. NCDOT staff have determined that there is one planned
DOT project in each of the subject watersheds that would be impacted to the same extent
by both proposals, a NC209 bridge replacement project over Spring Creek and a SR1503
bridge replacement over Laurel Creek; these projects would require additional stormwater
and sediment erosion control devices in order to meet either of the proposed
reclassification's requirements.
It is important to note that NPDES (National Pollutant Discharge Elimination System)
permitted facilities are those facilities which have been issued a permit in order to
discharge, or remove from their facility, treated wastewater into surface waters; most such
facilities do this by piping the treated wastewater from their facilities into surface waters.
These facilities do not include, and the proposed reclassification does not impact, the
following: forestry activities (silvicultural/logging operations), non -livestock agricultural
and farming activities (farms, nurseries), and dams or water resource projects.
5-13

A-16
The table below summarizes and compares the requirements of the existing and proposed
classifications.
i aote i. ,�,umm ana t-om
anson or nxisan ana rro osea
classmcanons- xe uirements
Classification
Area
Low Density
High Density
Allowable
DOT BMPs
Affected
Development
Development
I
Wastewater
mandated
.Option
Option*
Discharges
C (Existfrig)
Receiving
No restrictions
Domestic and
No Specific
Stream
Industrial
BMPs Required
Tr (Existing)
Receiving
No Restrictions (except 25' buffer
Domestic and
Stricter N.C. Div.
Stream and
between stream and graded area)
Industrial
of Land
25' Buffer
(Stricter
Resources
Treatment
Erosion Controls
Standards)
Apply
HQW
Within 1
1 DU / 1.0
No Limit Specified
Domestic and
Stricter N.C. Div.
(Propo'"' "sed''))
Mile from
Acre or 12%
(Must Control
Industrial
of Land
and
BUA and 30'
Smrmwater Runoff
(Stricter
Resources
Draining to
Setbacks**
from First 1"
Treatment
Erosion Controls
Classified
Rainfall)**
Standards)
Apply
waters
ORW
Normally
1 DU / 1.0
No limit Specified
No New
Stricter N.C. Div.
(Proposed)
Entire
Acre or 12%
(Must Control
Discharges or
of Land
watershed
BUA and 30'
Stormwater Runoff
Expansions
Resources
(Drainage
Setbacks""
from First 1"
Erosion Controls
Area)
Rainfall)**
Apply
uu = uwening unit, nun=nuur upon Wren
*High Density Option requires control of runoff from first I" of rainfall by engineered stormwater controls.
** These roles apply only to projects requiring a Sedimentation and Pension Control Plan.
Public Hearing Processes and Comments Received
In accordance with North Carolina General Statutes, a public hearing was held for each
creek on March 31, 2009, in'Hot Springs, North Carolina (Madison County). Notice of the
proposals, as reflected in the proposed amendments to 15A NCAC 02B .0304 (French
Broad River Basin), and hearings was published in the March 2nd, 2009, North Carolina
Register (Volume 23, Issue 17) (proposed role amendments attached as pages a-48
through a-51). An announcement of the public hearings (announcement attached as pages
1 through 2) was sent to:
• those people who have requested to be placed on the Water Quality Rule -Making
Announcements mailing list and Water Quality Rules e-mail list,
• staff of local governments with jurisdiction over land adjacent to the waters
proposed to be reclassified,
• Madison County public libraries,
• several community centers within Madison County,
• permitted wastewater dischargers within the proposed reclassifications' areas, and
• other persons who may wish to learn more about the proposed reclassifications,
including staff of local interest groups, environmental organizations, legislators,
and state and Federal agencies.
The public announcement was submitted on March 9th, 2009 to two newspapers, the News
Record and Sentinel and the Citizen Times, and requested to be published (cover letter to
newspapers attached as page a-52 in Appendix). Freddie Harrell, a member of the North
S-14

A-17
Carolina Environmental Management Commission, served as hearing officer (hearing
officer designation letter attached as page 3).
Big Laurel Creek public hearing:
Twelve people registered at the public hearing (list of attendees attached as page 4). Of
those 12 people, seven provided the organization they were representing: Madison County
Soil and Water Conservation District, citizen, resident, self, and American Whitewater.
Opening comments and slides were presented by DWQ staff to provide a brief overview
of the DWQ classification program and detailed information about the proposed
reclassifications. Then a session in which the public was given the opportunity to provide
comments regarding the proposed reclassifications was held.
Five individuals registered to make comments at the hearing about the proposed
reclassification. Three of the five speakers had registered their affiliations consisting of
citizen, resident, and self. All of the speakers were in favor of the proposed ORW
reclassification, and some speakers had questions which DWQ staff answered.
Spring Creek public hearing:
Thirty people registered at the public hearing (list of attendees attached as page 5). Of
those 30 people, 12 provided the organization they were representing: Cooperative
Extension, Fowler Farms, citizen, landowner, Madison County Soil and Water
Conservation District, Mountain Magnolia Ian/Iron Horse Shops, resident, SC Volunteer
Fire Department, self and American Whitewater. Opening comments and slides were
presented by DWQ staff to provide a brief overview of the DWQ classification program
and detailed information about the proposed reclassifications. Then a session in which the
public was given the opportunity to provide comments regarding the proposed
reclassifications was held.
Seven individuals registered to make comments at the hearing about the proposed
reclassifications. Two of those seven individuals did not speak. After the five individuals
spoke, three people who did not register to speak decided to speak. Four of the eight
speakers had registered their affiliations consisting of Mountain Magnolia Inn/Iron Horse
Shops, SC Volunteer Fire Department, self, and American Whitewater. Four of the
speakers, two of whom provided their affiliations of American Whitewater and self, were
in favor of the ORW proposed reclassification. The remaining people did not state that
they were for or against the reclassification but rather asked questions, which DWQ staff
answered.
Written comments were accepted through May 1, 2009, and during the comment period,
20 letters were received for both creeks, one for only Big Laurel Creek, and seven for only
Spring Creek. Please note that some of the comment letters were received from people
who attended and/or spoke at the public hearings. All letters received were in support of
the ORW proposed reclassifications (letters for both creeks attached as pages 6 through
28, letter for Big Laurel Creek only attached as page 29, and letters for Spring Creek only
attached as pages 30 through 36). The authors of these letters represented two
environmental organizations (Western North Carolina Alliance and Southern Appalachian
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A-18
Highlands Conservancy), one federal agency (National Oceanic and Atmospheric
Administration - National Marine Fisheries Service), two state agencies (N.C. Wildlife
Resources Commission and N.C. National Heritage Program), and N.C. residents.
It is interesting to note that the one letter for only Big Laurel Creek as well as five of the
seven letters only for Spring Creek were from residents within those respective
watersheds; the remaining two of the seven letters for Spring Creek only were from a
Madison County resident living outside the Spring Creek watershed and from a former
Spring Creek watershed resident now living in central N.C. For the letters received for
both creeks, three were from residents within these watersheds, 10 were from Madison
County residents living outside of these watersheds, five were from the above -mentioned
organizations and agencies, one was from a Western N.C. resident not living in Madison
County, and one provided no address information.
RECOMMENDATION
It is the recommendation of the Hearing Officer that the reclassifications of Big Laurel
Creek and Spring Creek, as proposed herein for the ORW classification, be approved by
the Environmental Management Commission. In making this recommendation, the
Hearing Officer has considered the requirements of General Statutes 150B-21.2, 143-
214.1, 143-215, and 143-215.3(a)(1), and Rules 15A NCAC 2B .0100, Procedures for
Assignment of Water Quality Standards; 15A NCAC 02B .0224, High Quality Waters;
and 15A NCAC 02B .0225, Outstanding Resource Waters. The comments received were
considered along with the most recent data that reveal excellent water quality and
outstanding resource values in the Big Laurel Creek and Spring Creek watersheds.
In taking this action, Rule 15A NCAC 2B .0304, which references the Schedule of
Classifications for the French Broad River Basin, will show that the Environmental
Management Commission has revised the schedule for (a) the entire watershed of Spring
Creek [Index No. 6-118-(1) and 6-118-(27)] from source to French Broad River from
Class C Tr and Class C to Class C ORW Tr and Class C ORW, and (b) the entire
watershed of Big Laurel Creek (Index No. 6-112) from source to French Broad River from
Class C Tr to Class C ORW Tr. The proposed effective date of these reclassifications is
September 1, 2009 (proposed rule amendments attached as pages a-48 through a-51).
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9
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ENVIRONMENTAL MANAGEMENT COMMISSION Stephen T. Smith
• ' Chairman
Charles Peterson
' NORTH CAROLINA Vice Chairman
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
Beverly Eaves Perdue, Govemor
Donnie Brewer
Kevin Martin
Dee Freeman, Secretary �
Thomas F. Cecich
David H. Moreau
Stan L. Crows'
Daryl D. Moss
John S. Curry
David B. Peden
Marion Deerhake
Dickson Phillips III
Tom Ellis
Kenny Waldroup
_
E. Leo Green, Jr.
Steven D. Weber
Freddie Harrill
Forrest R. Westall, Sr.
Ernest W. Larkin
March 30, 2009
MEMORANDUM
TO: FREDDIE HARRILL
ENVIRONMENTAL MANAGEMENT COPAMISSION
FROM: STEPHEN T. SMITH
SUBJECT: HEARING OFFICER APPOINTMENT
hereby appoint you to serve as hearing officer for a public hearing to be held for the Big Laurel Creek
and Spring Creek Watersheds HQWIORW reclassification. The public hearings are scheduled in Hot Springs,
NC, for March 31, 2009. Elizabeth Kountis (807-6418) will provide staff support for you and will coordinate the
dates, .times and locations of the public hearings once they have been confirmed. Please present your
findings and recommendations to the ,Environmental Management Commission. Thank you for your
assistance and service.
cc: Coleen Sullins
Lois Thomas
Elizabeth Kountis
Hearing Record File
An Equal Opportunity Affirmative Action Employer
$r

R
Stream Reclassification for Madison Counb/s Big Laurel Creek and S...
Subject: Stream Reclassification for Madison County's Big Laurel Creek and Spring Creek
From: JOANNE JACKSON <[e-mail]>
Date: Fri, 27 Mar 2009 09:52:53 -0400
To: [e-mail]
CC: "Steve & Krys Crimi" <[e-mail]>
Dear Ms. Kountis,
A-25
I am a resident of Madison County and am asking for ORW (Outstanding Resource
Water) classification of Big Laurel Creek and Spring Creek because it offers the
most protection, and we cherish our waterways. I would not like to see any wastewater
treatment plants on those two streams, as has already been approved for the Puncheon Fork,
which runs next to where I live in Upper Laurel. Please do what you can to make the ORW
classification happen.
Thank. you.
Joanne Jackson
JJWLNews(a gmail.com
894 McKinney Gap Drive
Mars Hill, NC 28754
828-680-9053
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3/27/2009 11:29 /