20051117 Ver 1_WRC Comments_20060224

RECEIVED
United States Department of the InteriorAPR l 1 2006
FISH AND WILDLIFE SERVICE RALEIGH REGULATORY FIELD OFFICE
Asheville Field Office
160 Zillicoa Street
Asheville, North Carolina 28801
April 6, 2006
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APR 2 4 2006
DENR - WATER QUALITY
WETLANDS AND ST(1RMMATER BRANCH
Mr. Todd J. Tugwell
Raleigh Regulatory Field Office
U.S. Army Corps of Engineers
6508 Falls of the Neuse Road, Suite 120
Raleigh, North Carolina 27615
Dear Mr. Tugwell:
Subject: Lissara Subdivision, Located North of Shallowford Road and West of Lewisville, in
Forsyth County, North Carolina
On July 28, 2005, the U.S. Army Corps of Engineers (Corps) issued a public notice for the
subject project to which we expressed our concerns in a letter dated August 26, 2005. On
March 10, 2006, we received a copy of your letter that included a response from the applicant
regarding those concerns. Information for this report is based on a review of the March 8, 2006,
letter and the public notice issued by the Corps. The report is submitted in accordance with the
provisions of the Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661-667e), and
section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543) (Act).
Project Description - In the original application, Lissara, LLC, was proposing to develop a
132-acre tract of land for 42 residential lots and to construct three dams to create a 32-acre lake
for recreation and water skiing, a 2.7-acre aesthetics pond, and a 1.5-acre storm-water-treatment
pond. Impacts (by flooding, excavating, filling, and the construction of the two dams) with that
proposal included 8,032 linear feet (If) of stream channel and the 0.08 acre of wetland impacts.
The current proposal has decreased the size of the lower water-ski lake from 32 acres to 21 acres,
and the 1.5-acre pond has been eliminated from the plans, but the 2.7-acre aesthetics pond
remains as initially proposed. As currently proposed, the subject project will impact 5,0261f of
stream and .054-acre of wetlands (from flooding) and 6891f of stream (from the construction of
the dams). The applicant is also proposing to construct an access road and will use culverts to
cross an unnamed tributary to the Yadkin River in two separate locations. No impacts from this
activity were listed in the letter.
Federally Listed Species - Based on the information provided, we agree that no listed species or
their habitats occur on the site and that the proposed project will not affect endangered or
threatened species or their habitats. Therefore, we believe the requirements under section 7 of
the Act are fulfilled. However, obligations under section 7 of the Act must be reconsidered if:
(1) new information reveals impacts of this identified action that may affect listed species or
critical habitat in a manner not previously considered, (2) this action is subsequently modified in
a manner that was not considered in this review, or (3) a new species is listed or critical habitat is
determined that may be affected by the identified action.
Avoidance and Minimization - As stated in our previous letter, we oppose the construction of
on-line structures such as reservoirs because they significantly alter both aquatic and terrestrial
habitat. The conversion of the unnamed tributary to a reservoir will result in the loss of natural
stream functions, alter the hydrology, and affect native ecosystem processes within and
downstream of the proposed reservoir site. Although the habitat will remain in an aquatic state,
the fauna and ecosystem functions associated with streams are different from, and cannot be
replaced with, associated fauna and functions from a reservoir.
We commend the applicant for reducing the size of the lower water-ski lake and for eliminating
the 1.5-acre pond from the project plans. However, the applicant has not minimized the impacts
of the project to the fullest extent possible, and we believe additional measures can be taken to
further minimize the adverse impacts this project will have on aquatic resources. We do not
believe an aesthetic lake is a water-dependent activity; thus, this portion of the project should not
be permitted. Page 2 of the applicant's response letter states that "We have maintained the small
upper lake as an important economical aspect of the project" and that "Due to the extreme costs
associated with the design, construction, and mitigation of lake projects; there is a need to have
the lake amenity serve as the appealing feature allowing higher lake front lot prices." Because
the developer can increase profits by constructing a lake does not make it a water-dependent
activity. If the lake is needed to offset the costs of design, construction, and mitigation of lake
projects, then one could also conclude that the costs could be avoided by not constructing the
lake. Section 404 (b)(1) guidelines prohibit the filling of wetlands for nonwater-dependent
activities when practicable alternatives exist. A lake is not essential to a development and in
accordance with the 404(b)(1) guidelines, which prohibit wetland filling for nonwater-dependent
activities when a practicable alternative exists, an alternative should be developed that avoids the
filling of streams for the construction of the 2.7-acre lake.
Mitigation - The mitigation plan that has been proposed by the applicant does not adequately
compensate for the impacts this project will have on aquatic resources, and it does not follow the
general mitigation requirements and guidance that has been established in the Corps' Stream
Mitigation Guidelines. Based on the October 20, 2005, letter from your office, you assessed the
streams on the project site to be of good quality and determined that the typical mitigation ratios
would be 2:1 for filling and 1:1 for flooding. The Stream Mitigation Guidelines do not
distinguish between filling and flooding impacts, and they state that mitigation for adverse
impacts to good-quality streams is to be calculated using a 2:1 ratio. Therefore, 11,430 if of
mitigation credits will be needed to fully compensate for the 5,715 if (5,0261f for flooding and
6891f for dam construction) of stream channel impacts.
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Mitigation is necessary for this project because of the adverse impacts it will have on streams.
The definition for compensatory stream mitigation on page 6 of the Stream Mitigation
Guidelines is as follows: Compensatory stream mitigation may be required for impacts to
perennial and intermittent streams and should be designed to restore, enhance, and maintain
stream uses that are adversely impacted by authorized activities. The applicant has stated that
2.9 acres of littoral shelf will be created with the intent of reducing mitigation requirements. We
do not believe the littoral area will provide any compensation for the flooding impacts and the
loss of the stream. Such "out-of-kind" mitigation does not in any way help restore the loss of
stream resources, and the littoral shelf will not enhance or maintain stream uses. Therefore, we
recommend that the littoral shelf not be included as mitigation credit.
Exhibit #4, included in the January 18, 2006, letter from Wetland and Natural Resource
Consultants, Inc., shows a proposal by the applicant to gain mitigation credit by preserving the
1,113 if of stream channel that will continue to flow between the two lakes. If this project is
permitted as proposed, the 1,113 if of stream section will be completely cut off from the upper
and lower reaches of the stream. This will prevent any upstream or downstream movement by
aquatic species and will reduce the functionality of the original stream channel. We do not
believe the preservation of this stream reach provides compensatory mitigation for the adverse
impacts that will occur to the entire upstream and downstream reaches of the stream channel on
the subject property.
We recommend that mitigation be established for all direct impacts to wetlands and streams.
Therefore, we recommend that mitigation be established for the entire 5,715 if of stream channel
and 0.05 acre of wetlands. We recommend that project impacts be mitigated by the restoration
of comparable on-site streams and wetlands at a ratio of at least 2:1. If there are no on-site areas
for restoration or preservation, an in-kind, off-site mitigation plan should be considered to offset
the 5,715 if of impacted streams and the 0.05 acre of wetlands. If all mitigation options have
been exhausted and a buy-in to the North Carolina Ecosystem Enhancement Program becomes
necessary for mitigation of the impacts to the 5,7151f of stream and 0.05 acre of wetlands, the
same restoration ratio of 2:1 should be used to calculate the payment amount.
The Mitigation Memorandum of Agreement signed by the Environmental Protection Agency and
the Corps on February 6, 1990, states that "mitigation consists of the set of modifications
necessary to avoid adverse impacts altogether, minimize the adverse impacts that are
unavoidable, and compensate for the unavoidable adverse impacts." As we have stated, we do
not believe the impacts from the project have been avoided/minimized to the greatest extent
possible nor has a mitigation plan been established that fully compensates for the impacts this
project will have on aquatic resources. Until these measures are addressed, we recommend that
this project be held in abeyance.
We appreciate the opportunity to provide these comments. Our mission is to conserve, protect,
and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the
American people. By working with you and giving you the appropriate information early in the
planning process, we hope to accomplish this goal. If we can be of assistance or if you have any
questions, please do not hesitate to contact Mr. Bryan Tompkins of our staff at 828/258-3939,
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Ext. 240. In any future correspondence concerning this project, please reference our Log
Number 4-2-05-366.
Sincerely,
d' f- r e
Brian P. Cole
Field Supervisor
Ms. Becky Fox, U.S. Environmental Protection Agency, 1349 Firefly Road, Whittier, NC 28789
Mr. Ron Linville, Western Piedmont Region Reviewer, North Carolina Wildlife Resources
Commission, 3855 Idlewild Road, Kernersville, NC 27284-9180
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