20051117 Ver 1_USFWS Comments_20050829

COPY ZOOS2,0?6R
United States Department of the Interior AUG 2 9.200

FISH AND WILDLIFE SERVICE
Asheville Field Office
160 Zillicoa Street
Asheville, North Carolina 28801
August 26, 2005
Mr. Todd 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:
RALEIGHREGULATORyp1ELD OFFICE
This is the report of the U.S. Fish and Wildlife Service and the Department of the Interior on the
U.S. Army Corps of Engineers' (Corps) public notice of an application for an individual permit
submitted; by. Lissara;;LLC;.,represented by;Wefland,and Natural Rp pure e;,Cgnsultants; Incto
develop132-acr. s;Tor a;residertjal.subdivision_and;aw, . r,sl-J,lake 2 miles west o£Lewisville in
Forsyth,County;`i\Torth;Cirolina t.Itformahon for; tlus,r.?p.ort is;based on.a review of the public
notice:issued:bythe Corps !The:report is,submitted.i accordance with,the;provisions ofthe.Fish
and Wildlife, C.oordinationAct;.as amended (l6:IJ:S andsection;7.ofthe
Endangered Species Act of 1973, as amended (16 .U.S.C. 1.531-1543).(Act). „ , .
Project Description - According to the information provided, Lissara, LLC, is proposing to
develop a 132-acre tract of land for 25 residential lots and construct two dams that will 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. The site consists primarily of forested land that contains a
headwater tributary to the Yadkin River and 0.08 acre of wetlands. To construct the lake, the
applicant is proposing to impact (by flooding, excavating, filling, and the construction of two
dams) 8,032 linear feet of stream channel and the 0.08 acre of wetlands. 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. -
Federally Listed Species - The applicant does not present evidence of any surveys of the project
area for federally listed species known. from Forsyth- County: According to our records and a
review of the Forsythe County GIs web site; there appears. to be. suitable habitat for the federally
endangered small-antheted bittercress-( Gardamine.micranthera):- Small-anihered bittercress,.
occurs m- seepages; in:wet?rock-crevices,•along stream :banks; on. sandbars;,. and.:m wet woods -.?
along small streams::. Small-anthered bittercress can grow: between, 8 and 16 inches talland :.f: ;
produces tiny:white:flowers from•April to.May. ;Until,a survey for Jistedspeaies (specifically,;'
small-anthered bittercress) has been conducted, we cannot concur with your determination that
the.proposed project will have no effect on federally listed species. In accordance with the Act,
it is the responsibility of the appropriate federal agency or its designated representative to review
its activities or programs and to identify any such activities or programs that may affect
endangered or threatened species or their habitats. If it is determined that the proposed activity
may adversely affect any species federally listed as endangered or threatened, formal
consultation with this office must be initiated.
Fish and Wildlife Resources - In general, 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.
On February 6, 1990, the Department of the Army and the U.S. Environmental Protection
Agency (EPA) signed a memorandum of agreement (MOA) that established the procedures to
determine the type and level of mitigation necessary to comply with the Clean Water Act Section
404 (b)(1) Guidelines. This MOA provides for: (1) avoiding impacts to waters and wetlands
through the selection of the least damaging and most practical alternative, (2) taking appropriate
and practical steps to minimize impacts on waters and wetlands, and (3) compensating for any
remaining unavoidable impacts to the extent appropriate and practical. For that reason, we
recommend that the Corps evaluate all practicable alternatives to the proposed dam construction
and minimize/avoid impacts to the 8,032 linear feet of stream channel. We offer the following
alternatives and measures to minimize and/or avoid impacts from the proposed lake and dam
construction project:
1. As proposed, the lake will be about 2,600 feet in length with a proposed ski
distance of 2,400 linear feet., The importance of the length of the water ski lake is
the dissipation of waves after the skier makes a run through a slalom course.
Most competition ski lakes average about.2,200 feet in length, and lake designs of
1,600 feet in length are large enough to safely and effectively run an 850-foot.
six-buoy competition slalom course. Thus, we believe that shortening the length
of the water ski lake to 1,600 feet or smaller is a practicable and viable alternative
to, minimize impacts from this project.
2. We are opposed to the construction of the 2.7-acre aesthetic pond and the 1.5-acre
in-line storm-water-treatment pond. Section 404 (b)(1) guidelines prohibit the
filling of wetlands for nonwater-dependent activities when practicable alternatives
exist. We do not believe that an aesthetic pond is a water-dependent activity and
should not be permitted. We also suggest that an off-line storm-water-treatment
pond should be constructed and recommend that it be used in conjunction with
rain gardens and grassed swales instead of curb and gutter. All storm-water
outlets should drain through a vegetated upland area prior to reaching any stream
or wetland area. Sufficient retention designs should be implemented to allow for

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the slow discharge of storm water, attenuating the potential adverse effects of
storm-water surges; thermal spikes; and sediment, nutrient, and chemical
discharges.
3. Stream characteristics (i.e., temperature, dissolved oxygen, particulate matter, and
flow rates) should be monitored and recorded from now until the beginning of
construction of the dam. The results of these monitoring activities should then be
considered when calculating average and types of water releases from the
reservoir. Mimicking the natural flow rates of the stream would help maintain
continuity in stream function by accounting for periods of fluctuating seasonal
water levels downstream of the reservoir.
4. We strongly suggest that the release rate maintain a 7Q10 rate of flow during
initial filling and periodic refilling of the lake. At no time should flow drop below
the figured 7Q10 flow rate downstream of the reservoir, and minimum flow rates
should be established for stream sections below the dam.
Erosion Control and Wetland/Stream Protection. We are concerned with the residential
development that will be constructed on the property. Given the proximity of the project to
aquatic environments (unnamed tributary to the Yadkin River), we emphasize that stringent
measures should be taken to control sediment and erosion. These measures should be
implemented prior to any ground disturbance and should be maintained throughout project
construction. All wetland/stream crossings should be made perpendicular to the stream, and
spanning structures should be used rather than culverts. We recommend the use of bridges for
all permanent roadway crossings of streams and associated wetlands because they minimize
impacts to aquatic resources, allow for the movement of aquatic organisms, and eliminate the
need to fill and install culverts. Wetland/stream buffers (a minimum of 100 feet on perennial
streams and 50 feet on intermittent streams; buffer widths should be doubled on streams known
to contain, or influence waters that contain, federally listed species) should be maintained
throughout the project area. Any Clean Water Act 404/401 permit applications should clearly
show why impacts are unavoidable and how impacts that are unavoidable have been minimized.
Unavoidable impacts will require mitigation.
The treatment of storm water leaving the project area is also a concern. The expansion of
urban/suburban areas creates more impervious surfaces (such as roofs, roads, and parking lots),
which collect pathogens, metals, sediment, and chemical pollutants and quickly transmit them to
receiving waters. According to the EPA, this nonpoint-source pollution is one of the major
threats to water quality in the United States and is linked to chronic and acute illnesses from
exposure through drinking water and contact recreation.
Best management practices can reduce, but not eliminate, pollutant loadings of common
storm-water pollutants. Designs that collect runoff and allow it to infiltrate the soil have the
highest documented pollutant-removal efficiency, eliminating nearly all lead, zinc, and solids
and more than 50 percent of total phosphorous. Ponds and wetlands, which allow contaminants
to settle out of the water column or be broken down by sunlight and biological activity, can
remove more than 70 percent of bacteria. The North Carolina Wildlife Resources Commission
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has developed a "Guidance Memorandum to Address and Mitigate Secondary and Cumulative
Impacts to Aquatic and Terrestrial Wildlife Resources and Water Quality" that we support and
encourage you to use. It can be accessed via the Internet as follows:
http://Www.ncwildlife.orglpg07 wildlifespeciescon/pg76_impactspdf.
We offer the following recommendations to help address the secondary and cumulative impacts
associated with this project and to help minimize impacts to fish and wildlife resources:
1. The construction of new roadways can produce short-term direct impacts as
well as long-term cumulative effects. Studies have shown a serious decline in
the health of receiving waters when 10 to 15 percent of a watershed is
converted to impervious surfaces. Impervious surfaces should be limited to no
more than 7 percent, curb and gutter should be limited in new developments,
and the direct discharge of storm water into streams should be prevented.
2. The loss of riparian buffers and inadequately controlled storm-water runoff
from residential and commercial development areas are major factors resulting
in the degradation and loss of aquatic resources. Forested riparian buffers .
serve as filters for contaminants, lessen storm-water velocities, provide thermal
cover, and protect stream-bank stability. Riparian buffers also provide travel
corridors and habitat areas for wildlife displaced by development. We suggest
that forested buffers be a minimum of 100 feet wide along perennial streams
and 50.feet wide along intermittent streams and wetlands. We recommend that
all sewer lines, water lines, and utility infrastructures be kept out of riparian
buffer areas, Stream crossings of any utilities should be kept to a minimum,
and multiple utilities should use the same right-of--way whenever possible.
3. Equipment should not be operated in the stream unless absolutely necessary.
Equipment should be operated from the banks in a fashion that minimizes
disturbance to woody vegetation. Equipment should be inspected daily and
should be maintained to prevent contamination of surface waters from leaking
fuels, lubricants, hydraulic fluids, or other toxic materials. All fuels,
lubricants, and.other toxic materials should be stored outside.the riparian
management area of the stream, in a location where the material can be
contained. Equipment should be checked for leaks of hydraulic fluids, cooling
system liquids, and fuel and should be cleaned before fording any stream.
Also, all fueling operations should be done outside of the riparian management
area.
4. The complete clearing of land should be avoided. If clearing is necessary,
efforts should be made to avoid the removal of large trees at the edges of
construction corridors and rights-of-way and in any surrounding development.
Disturbed areas should be reseeded with seed mixtures that are beneficial to
wildlife. Fescue-based mixtures should be avoided. Native annual small
grains appropriate for the season are preferred and recommended. Where
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feasible, use woody "debris and logs from clearing activities to establish brush
.piles and downed logs at the edges (just in the woods) of all cleared areas to
improve habitat for wildlife. Allowing the area to develop into a brush/scrub
habitat would maximize benefits to wildlife. Additionally, herbicides should
not be used in wetland areas or near streams.
5. All utility crossings should be kept to a minimum, which includes careful
routing design and the combination of utility crossings into the same
right-of-way (provided there is not a safety issue). The directional bore
(installation of utilities beneath the riverbed, avoiding impacts to the stream
and buffer) stream-crossing method should be used for utility crossings.
Manholes or similar access structures should not be allowed within buffer
areas. Stream crossings should be near perpendicular to the stream flow and
should be monitored at least every 3 months for maintenance needs during the
first 24 months of the project and annually thereafter. Sewer lines associated
with crossing areas should be maintained and operated at all times to prevent
the discharge to land or surface waters. We recommend a minimum 50-foot
setback on all streams, lakes, and wetlands for these structures, which falls in
line with the recommended buffer widths. In circumstances where minimum
setbacks cannot be attained, sewer lines shall be constructed of ductile iron or
other substance of equal durability.
Mitigation = The applicant has proposed to make a payment to the North Carolina Ecosystem
Enhancement Program (NCEEP) for 1,038 linear feet of impacts resulting from the construction
of dams and payment for 2,395 linear feet for all impacts from flooding. If this project is
permitted as proposed, we do not believe the mitigation measures proposed by the applicant are
adequate nor do they compensate for the impacts that this project will have on aquatic and
upland resources and habitats. We propose the establishment of the following mitigation
measures in order to provide a sufficient mitigation plan for all unavoidable impacts:
The applicant has proposed mitigation for only a portion of the impacts of the
project. As a general rule, we recommend that mitigation be established for
all direct impacts to wetlands and streams. Therefore, we recommend that
mitigation be established for the entire 8,032 linear feet of stream channel and
0.08 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 8,032 linear
feet of impacted streams and the 0.08 acre of wetlands.
2. If all mitigation options have been exhausted and a buy-in to the NCEEP
becomes necessary for mitigation of the impacts to the 8,032 linear feet of
stream and 0.08 acre of wetlands, the same restoration ratio of 2:1 should be
used to calculate the payment amount.
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At this stage of project development.and without more specifics, about construction locations or
techniques, it is difficult for us to fully assess potential environmental impacts (direct, indirect,
secondary, and. cumulative). We therefore recommend that any environmental document
prepared for this project include the following (if applicable):
1. A comparison of alternatives and their associated impacts should be included
in the environmental document for this project. In particular, we will need a
detailed analysis, of stream and wetland impact areas and locations, exact areas
of proposed stream and wetland filling, and the locations of stream crossings
and the construction techniques proposed for stream crossings within the
development project. Plans for.all proposed impact areas should include a
complete analysis and comparison of the available construction techniques
and alternatives (including a no-build alternative). The report should contain
information from all surveys and assessments, including the acreage and A
description of the wetlands that will be filled or impacted and the extent
(linear feet as well as discharge) of any water courses that will be impacted as
a result of the proposed project. A description of any streams should include
the classification (Rosgen 1995, 1996) and a description of the biotic
resources. All wetland areas affected by the proposed project should be
mapped in accordance with the Federal Manual for Identijy-ing and
Delineating Jurisdictional Wetlands.
2. A description of the fisheryand wildlife resources within existing and
required additional rights-of--way and any areas, such as borrow areas, that
maybe affected directly or indirectly by the proposed project.
3. An assessment of all expected secondary and cumulative environmental
impacts associated with this proposed work. The assessment should specify
the extent of development proposed for the project area once the roadway
expansion is complete and how future growth will be maintained and
supported with regard to sewer lines, water lines, parking areas,, and other
proposed roadways.
4. A discussion about the extent to which the project will result in the loss,
degradation, or fragmentation of wildlife habitat from direct construction
impacts and from secondary development impacts. The acreage and location
of upland habitat, by cover type, that will be eliminated because of the
proposed project must be noted.
5. Mitigation measures that will be employed to avoid, eliminate, reduce, or
compensate for habitat value losses (wetland, riverine, and upland) associated
with any phase of the proposed project.
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
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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,
Ext. 240. In any future correspondence concerning this project, please reference our Log
Number 4-2-05-366.
Sincerely,
Brian P. Cole
Field Supervisor
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