20080880 Ver 1_Public Comments_20080808 (7)

2008 -Aug -08 03:01 PM So. Environmental Law Center 8282582024
Souithern
FEnvironmental
.-I)v Law Center
FACSIMILE TRANSMITTAL SHEET
TO: FROM:
Cyndi Karoly DJ Gerken
COMPANY: DATE:
NCDENR, Division of Water 8/8/2008
Quality; 401 Unit
FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER:
919-733-6893 6
PHONF NIIMBEIZSrNllLR'S Alil;HKENCR N MBRR'
RE: Y()(K REFERENCE NUMBER:
C:omrnents — DWQ Project # 07-
0656
❑ U'PCrNT ❑ roR REVIEW ❑ PLE-ASE COMMENT ©PI,�,ASE Rr?i.Y ❑ PLEASE RECYCLE
NQTESJCOMMBNTS:
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August 8, 2008
Ms. Cyndi Karoly
NCDBNR, Division of Water Quality, 401 Unit
1623 Mail Service Center
Raleigh, NC 2 7699-1 628
Re: Cliffs at Nigh Caroliva— DWQ Project 4 07-0656
Dear Ms. Karoly:
Plcase accept these comments on behalf of the Western North Carolina Alliance.
The 1A'estern North Carolina Alliance is a non-profit organization with the primary goals of
protecting and preserving the natural environment and mountain streams of Western forth
Carolina. The members of the Western North Carolina Alliance are very familiar with the
Swannanoa Mountains. The Buncombe County Chapter of the Western North Carolina Alliance
includes members who reside in the Swannanoa and Fairview areas and many more who recreate
in these areas and appreciate them for their scenic beauty, hiking, wildlife viewing, spiritual
renewal, and other recreational and educational activities.
Background
On May 13, 2008, the Cliffs at High Carolina ("Cliffs") submitted an application to the Army
Cotes of Engineers seeking a permit for stream impacts, including the culverting of substantial
portions of trout str", ns, associated with the construction of roads and a golf course. Application
nat 1, 12. As the Cliffs has ackowledged, the act of culverting streams is a discharge of dredged
or fill material. Application at 5; see also 40 CFR 232.2 (fill material includes the placement of
material in waters to create structure or infrastructure); City of Olmsted.F.alls v. BPA 435 F.3d
6 32. 637-38 (6th Cir. 2006) (holding; that culverting is a discharge of dredged or fill material).
DWQ cannot certify that the proposed activities will comply with North Carolina law. First,
DWQ cannot issue a certification for culverting strearns in order to construct the golf course
because there are "practical alteraative[s]" that would be less environmentally damaging. See 15
NCAC 2H .0506(bj(I )_ Second, no certification may be issued because the Cliffs' proposed
mitigation plan, as a matter of law, fails to adequately compensate for the stream impacts
associated with road and golf course construction. Furthermore, no certification may be issued
because tare proposed activities will cause violations of Nortar Carolina water quality standards.
These are serious deficiencies, and DWQ cannot certify that the proposed activities will
comply with State law.
AUG -8-2008 FRI 14:55 TEL:[phone] NAME:DWQ-WETLANDS P. 2
Southern
29 N. Market Sl., Suite. 604
Environmental
Mhcvillc, NC: 29801
Ph: [phone]
Law Center.
Fax: [phone]
djgerkcn@scicnc_org
August 8, 2008
Ms. Cyndi Karoly
NCDBNR, Division of Water Quality, 401 Unit
1623 Mail Service Center
Raleigh, NC 2 7699-1 628
Re: Cliffs at Nigh Caroliva— DWQ Project 4 07-0656
Dear Ms. Karoly:
Plcase accept these comments on behalf of the Western North Carolina Alliance.
The 1A'estern North Carolina Alliance is a non-profit organization with the primary goals of
protecting and preserving the natural environment and mountain streams of Western forth
Carolina. The members of the Western North Carolina Alliance are very familiar with the
Swannanoa Mountains. The Buncombe County Chapter of the Western North Carolina Alliance
includes members who reside in the Swannanoa and Fairview areas and many more who recreate
in these areas and appreciate them for their scenic beauty, hiking, wildlife viewing, spiritual
renewal, and other recreational and educational activities.
Background
On May 13, 2008, the Cliffs at High Carolina ("Cliffs") submitted an application to the Army
Cotes of Engineers seeking a permit for stream impacts, including the culverting of substantial
portions of trout str", ns, associated with the construction of roads and a golf course. Application
nat 1, 12. As the Cliffs has ackowledged, the act of culverting streams is a discharge of dredged
or fill material. Application at 5; see also 40 CFR 232.2 (fill material includes the placement of
material in waters to create structure or infrastructure); City of Olmsted.F.alls v. BPA 435 F.3d
6 32. 637-38 (6th Cir. 2006) (holding; that culverting is a discharge of dredged or fill material).
DWQ cannot certify that the proposed activities will comply with North Carolina law. First,
DWQ cannot issue a certification for culverting strearns in order to construct the golf course
because there are "practical alteraative[s]" that would be less environmentally damaging. See 15
NCAC 2H .0506(bj(I )_ Second, no certification may be issued because the Cliffs' proposed
mitigation plan, as a matter of law, fails to adequately compensate for the stream impacts
associated with road and golf course construction. Furthermore, no certification may be issued
because tare proposed activities will cause violations of Nortar Carolina water quality standards.
These are serious deficiencies, and DWQ cannot certify that the proposed activities will
comply with State law.
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DWQ cannot issue a certification for activities to which there is a less datttagin&alternative.
DWQ cruinot issue a § 401 certification for culverting streams if there is a "practical
alternative[] ... which would avoid or result in less adverse impact to surface waters or Wetlands."
1.5A NCAC 2N .0506(f). Among the alternatives that must be considered are "a reduction in size,
configuration or density of the proposed activity and all alternative designs." 15A NCAC 2H
.0506(f.).
The Cliff's states that the need for the project is "to provide residential housing to the browing
population of Buncombe County." Application at 24. To meet that need, the Cliffs' stated
purpose is "to construct a residential/golf community_" id_ at 5. Even uncritically accepting the
Cliffs' articulation of the project's purpose, there are practicable alternatives to the chosen design.
Golf courses may be designed and constructed without significant stream innpacts, using 5treiam5
and riparian buffers as features of the course. Streams may be bridged to "a.ecotnmodate the
walking golfer." See Application at 5. Such an alternative design constitutes a practicable
alternative. As another alternative, a smaller golf course Or a golf course with a configuration that
does not require stream culverts will also meet the stated purpose.
At a slightly higher (and more appropriate) level of generality, the basic p�_u-l1ose of the
developmont is to profitably provide residential housing. To that end, the golf course is simply an
"amenity" to attract potential residents and investors. Corps Public Notice at 3. A golf course,
however, is not the only aanenity that can serve this purpose. The Cliffs reccpizcs that "the
Asheville area has become a destination place for second homes, retirees, and tourists." Id. It is a.
desirable destination because of the area's natural beauty. Consequently, preserving the forested
lands and streams on this unique highland plateau, with trails allowing, residents to enjoy the
area's natural beauty, would serve the purpose of attracting potential residents and increasing
property values.
Because there are practical alternatives, DWQ cannot certify that the proposed stream
impacts will comply with state law.
DW( cannot issue a certification because the pro}iosed mitigation is inadequate,
DWQ cannot issue a § 401 certification unless the proposed activity "provides for
replacement of [unavoidable losses of] existing uses through mitigation ...." 15 NCAC 2H
.0506(b)(6) and (h). As noted above, many of the impacts associated with construction of the golf
course are avoidable. Even if they were unavoidable, however, they would not be adequately
mitigated. The mitigation plan submitted by the Cliffs proposes to meet one-half of its stream
impact mitigation obligation (6,149 of 12,298 feet) by "preserving" a 30 foot buf%er along 30,746
feet of streams on-site. Corps Public Notice at 5_ Because these areas already are protected from
development by existing laws, they are not eligible for compensatory mitigation through
preservation.
When determining whether mitigation is adequate, DWQ generally considers its own
requirements to be met if the Corps' requirements are met. However, DWQ reserves the authority
to deny certification when preservation is part of the mitigation plan. See 15 NCAC 214
.0506(h )(1) and (6)_ By either the federal or state standard, the Cliffs' proposed mitigation plan is
inadequate.
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The proposed adtigadon plan is inadequale under Tederal law.
Preservation, as consistently defined in the Corps' guidance documents, is "tine removal of a
thrcat. to, or preventing the decline of" aquatic resources, This definition was developed pursuant
to a 1990 Memorandum of Agreement ("MOA") between EPA and the Corps, in which the Corps
and EPA agreed to elucidate the "exceptional circumstances" in which preservation aright be
acceptable as compensatory mitigation: the Coils agreed to "develop specific guidaunce fur
preservation in the context of compensatory .mitigation MOA at II.C.3.
In March of 1995, the Corps released a proposed guidance for public notice and comment.
60 Fed, Reg. 12286, In November of 1995, following the comment period, the Cores released a
final guidance document defining preservation as "the protection of ecologically important - . -
aquatic resources." 60 Fed. Reg. 58605, 58614. The Corps reiterated that preservation would be
acceptable only in "exceptional circumstances." Id. at 58606.
Subsequently, the Corps released Regulatory Guidance Letter 02-2, which elaborated on this
definition: pirservation is "[t]he removal of a threat to, or preventing the decline of, wetland
conditions by an action in or near a wetland. This term includes the purchase of land or
easements, deed restrictions, repairing water convol structures or fences, or structural protection
such as repairing a barrier island." This definition was affirined in the 2001 Draft federal
Guidance on the Usc of Preservation as Compensatory Mitigation Under Section 401 of the Clean
Water Act.
These documents also provide guidance on the circumsta.necs under which preservation may
be allowed as mitigation, either in conjunction with other mitigation activities or alone. This
guidance gives the Corps wide latitude in detennining whether to grant mitigation crcdits for
preservation, but the threshold question of whether an activity is actually "preservation" admits of
no such latitude. In order to "preserve" a wetland, stream, or upland, there must be a threat or
decline from which the wetland, stream, or upland needs protection. In other words, preservation
is not defined solely by reference to the mechanism by which aquatic resources are preserved,
although the mechanism (easement, deed restriction, etc) is a part of the definition. Instead,
preservation is the protection of threatened or declining aquatic resources_
Here, the land for which the Cliffs seeks mitigation credit is not in decline, nor is it
vulnerable to any threat. Indeed, this land is already protected by state law from any relevant
threat or decline_ A conservation easement or deed restriction protects land only from human.
development, but the 30' stream buffer that would be "protected" by the Cliffs' proposed
mitigation plan is already protected from human development by the Buncombe County
Stormwater Ordinance, Chapter 26, Article VIi, Division 4, Section 2(b)(1)(d) and (2)(c) ("[a]11
built -upon area shall be at a minimum of 30 feet landward of all perennial and intermittent
surface waters,"), and the North Carolina Sedimentation Pollution Control Act ("SPCA"), NC
Gm. Stat. 113A-57 ("[wjalers that have been classified as trout waters by the Environmental
Management Commission shall have an undisturbed buffer zone 25 feet wide or of sufficient
width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest
the land -disturbing; activity, whichever is greater,"),
The 30 foot stream buffers in the Cliffs' project area, therefore, aro not in need of protection
from any threat or decline, and Cliffs cannot receive compensatory mitigation credit for the
"preservation" of these stream buffers. The Cliffs mitigation plan, without these credits, docs not
adequately tnitigate the lost wetlands and streams. Thus, DWQ cannot certify that unavoidable;
losses of existing uses will be replaced. See 15 NCAC 2H .0506(b)(6).
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Tire prol)nsed rnitigalion plan is inadequate w7cler Slate lain.
Additionally, the mitigation plan submitted by the Cliffs fails to meet North Carolina's
requirements for § 401 certification. DWQ retains the authority to deny certification when
preservation is part ofthe mitigation plan. Set 15A. NCAC 21-1 .0506(h)(1) and (6). As DWQ
explains in its guidance policy, "DWQ may limit the use of preservation in the context of stream
mitigation since aquatic lif4 uses are not being replaced with preservation." May 2000 Interim
DWQ Policy on Stream Mitigation Options ("DWQ Policy").
DWQ defines "preservation" as "the protection of a relatively undisturbed stream and its
associated buffer ... beyond that presantiy required by a regulatory program." Id. (emphasis
added). '!'his definition explicitly precludes certification when the "preservation" would be
redundant with existing regulations. As noted above, thc: Buncombe County Stormwater
Ordinance prohibits development within 30 feet of all perennial and intermittent streams, and the
North Carolina SPCA prohibits land disturbing activity within at least 25 feet of classified trout
streams. The Cliffs proposal to "preserve" a 30 foot buffer, therefore, is rcibindant with existing
regulations. The proposal, therefore, does not adequately mitigate stream impacts and DWQ
cannot certify that the proposed mitigation plan meets state requirements.
Furthermore, DWQ requires that preservation comprise less than 10 percent of the project's
mitigation plan, but Cliffs proposes to meet one half (or five times the allowed percentage) of its
requirement through preservation. DWQ Policy; Corps public Notice at 5. Moreover, when
preservation is allowed, buffers must be at least 50 feet on either side of the stream, but the Cliffs
proposal protects only 30 feet on either side of the stream. Id. Finally, DWQ requires a 1 Dl I ratio
for preservation, but the Cliffs proposal uses a. 5:1 ratio for preservation. ld_ For all thesc
reasons, the, proposed mitigation plan is inadequate, and DWQ cannot issue a §401 certification.
llWQ cannot. issue a §_401 certification beeause.the proposed activities will result in the violation
of State water quality standards.
DWQ cannot issue a § 4.01 certification because the act of culverting tout streams will result
in the violation of State water quality standards. 15A NCAC 211 .0506(a) ("[c]crtification shall
be issued where the Director detennines water quality standards arc met, including protcetion of
existing uses.").
Among the streams that Cliffs proposes to culvert axe tributaries of Rocky Fork, classified
"C;Tr." Corps Public Notice at 2. According to the Cliffs' plan, long portions of these trout
streams (e.g,, 886 feet at site 29 and 1054 feet at site 37) will be culverted_ Td.. at 5. The water
quality standards applicable to streams classified is "C" or "QTr" prohibit all sources of
pollution that preclude "aquatic life propagation and maintenance of biological integrity, wildlife,
(or] secondary recreation ...." 15A NCAC 2B .0211(2). Furthermore, trout streams must have
dissolved oxygen levels of at least 6.0 mg/I.
C:ulverting is a source of pollution that will result in those strcams being rendered unsuitable
for trout habitat. and propagation and for seoondary recreation. Pollution is the "roan -made or
man -induced alteration of the chemical, physica.I, [or] biological ... integrity of the water." 33
USCA § 1362(19). Culverting alters the water's physical integrity by replacing the natural
substrate with man-made materials and alters the water's biological integrity by making the
culvertcd portion of the stream unsuitable as habitat for sonic species_ Long culverts are, not only
unsuitable for trout habitat and propagation, but also create an impassable barrier, affecting the
suitability of upstream and downstream habitat as well. And of course, a cUlverted stream
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precludes secondary recreation—i.e., fishing. Additionally, replacing the natural substrate of the
stream prevents normal agitation of the water, lowering the dissolved oxygen content of the water
in the culvert and downstream, further contributing to its unsuitability for trout. As a result, lonb
culverts cause violations of water quality standards in stream segments above and below the
culvert, as well as in the eulverted segment itself. Consequently, DWQ cannot certify that the
activities will comply with state water quality standards. See 33 USCA § 1341(a)(1).
Conclusion
For the foregoing reasons, DWQ must refuse to issue a § 401 certification. If DWQ
contnlues to i;onsidcr the application, a public hearing is necessary to hilly ventilate the serious
deficiencies in the proposed development plan.
Sincerely,
Austin DJ Gerken
Southern Environmental Law Center
29 N. Market St., Suite 604
Asheville, NC 28801
Counsef for
Western North Carolina Alliance,
Julie Mayfield, Executive Director
29 N. Market St., Suite 610
Asheville, NC 28$01
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