20051117 Ver 2_More Info Received_20080129

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Lissara Partners, LLC
2631 Reynolda Road
Winston-Salem, NC 27106
January 23, 2008
Mr. Ian McMillan
North Carolina Department of Natural Resources
Division of Water Quality, 401 /Wetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
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Subject: Lissara Project, Forsyth County, North Carolina, 401 Water Quality
Certification
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Dear Mr. McMillan,
Thank you for the return call yesterday afternoon regarding the 401 water quality
certification permit application for the impoundment on our subject development. As we
had a lengthy and, at times, complex conversation regarding our project, I have attempted
to memorialize the highlights of that conversation below so that I might accurately share
same with my partners.
My reason for contacting you was based on information received from Ms. Sue
Homewood, of the Division of Water Quality, during our meeting with her in the Forsyth
County Regional Office on January 17. In that meeting, Sue referenced some new
requirements you are developing in your office that might be imposed upon our project
upon submittal of our mitigation plan (your final submittal requirement for our 404 and
401 Permit processing). We asked Sue for a copy of those proposed guidelines so that we
could attempt to address those in the documentation to be submitted to your office. She
thought that they were still being put together and were not presently available in her
office. She recommended that she contact the Raleigh office to obtain those and then
forward that information upon receipt to me. Upon contacting your office she was
advised that as they were not yet available we should contact you directly for that
information. Ms. Homewood forwarded us your contact phone number. I called your
office on Friday, January 18 and again on Tuesday January 22 and you returned my call
that day.
We began our conversation by my familiarizing you with an update of our progress with
permitting from the Corps of Engineers and our impending reply to them outlining our
mitigation plan which we are putting together after reaching agreement in our
negotiations in July of 2007. 1 explained that my reason for calling was my desire to
address, in that submittal, the items to which Sue Homewood had alluded. You confirmed
that you had reviewed our file and were familiar with the project.
My initial understanding was that we are going to be asked to follow some new proposed
guidelines being developed by you. They would require us to sample existing stream-
flows related to both the stream section we propose to flood and the downstream waters
to develop base-line information on the existing water quality of those streams. By doing
so we could address the quality of the existing waters of those streams in relation to
current North Carolina Division of Water Quality standards and thus our ability to ensure
the water quality of those existing streams. You responded that we could not begin
testing until August as that was the best time to test for the items that you wanted to
review. This confused me as it is my understanding that the waters in the existing streams
would have their best levels of DO, Ph, nitrogen, etc. now. If we are able to sample now
and show that we could confirm our ability to either improve or not negatively impact
those waters at this time of year by the downstream flows from our proposed pond, then
we would certainly not impact them in August, when comparable waters would be at
their worst. On several occasions during this part of the conversation you corrected me by
saying that you were not requesting that we test the waters of the drainage basin of our
proposed pond. You were going to request that we test four ponds in our general vicinity
to determine, in August, whether those ponds were in compliance with North Carolina
Division of Water Quality standards. At this time I asked what that information had to do
with our project. Your response was that studies had been performed indicating most, if
not all, impoundments tested in August, were not in compliance with North Carolina
Division of Water Quality standards. At this time I explained the characteristics of our
proposed pond location, surrounding conditions, geology, topography, orientation, and
vegetation, and felt that if you were familiarized with these features that I thought you
would be impressed with the projects' attributes and our apparent ability to not negatively
impact the streams in our area. Again, you corrected me by stating that you were not as
concerned with the waters downstream and for me to disregard focusing on that portion
of the project and to turn my attention to just the impoundment. You were only concerned
about the waters within the foot-print of our impoundment. Hearing this, I expressed my
obvious misunderstanding of how this process was supposed to proceed.
I then requested meeting with you to show you the merits of our project, where you could
see the opportunity we have of building a pond that would meet or improve the quality of
the water which was presently flowing in the receiving streams of our project and those
standards imposed by the North Carolina Division of Water Quality. You advised that
you felt it would not be appropriate at this time. I further expressed that by meeting we
could facilitate the review process and be able to proceed with construction at an earlier
time with follow-up testing to assure our ability to meet your requirements. You
responded that you could not do that as it would not be fair to other applicants. You went
on to advise that, based on your studies, no ponds were in compliance with North
Carolina Division of Water Quality standards. If you permitted a pond that fell below
those standards, it would become the responsibility of the North Carolina Division of
Water Quality to bring those waters into compliance. I responded that I sincerely felt that
if you became familiar with our project, you would see that we would be able to meet
water standards with design features to assure that. This would be a project committed to
your mission to protect the downstream environment and provide a good example of how
and where to responsibly build an impoundment and provide a place from which you
could continue to draw ongoing scientific information for future application. You
suggested that I review the new guidelines you would be sending me.
In returning to our discussion about the testing of existing ponds in our vicinity I inquired
about the reason for waiting until August for testing. You advised that was the time in
which the conditions were optimum for algal blooms and low-flow or circulation in
ponds when higher concentrations of pollutants would be present. I asked where I could
find the North Carolina Division of Water Quality regulations for the various levels we
were trying to meet. You directed me to what was referred to as "the red book" and
indicated that Chris Huysman would know where to find that information. I then asked
how you proposed that we accomplish the testing of pond waters on other private
property considering property rights, liability questions and the protected publishing of
information obtained by those samplings to a governmental agency that may result in
some remedial action required by the North Carolina Division of Water Quality. You
advised that you could not be certain how that information was obtained but that you
could forward me the name of a consultant that had performed that work for another
applicant.
I then informed you that in all of our searches for other impoundments in our vicinity we
could not find one with characteristics similar to those of our project. I explained that our
project would be placed in a steep valley with hills on each side and mature forest around
the shoreline, long and narrow lake features, deep water and fifty-foot buffers. I could not
find a comparable impoundment. You responded that if we could not find four
comparable ponds to test then you would deny our permit. I continued that I did not
understand why, if we could demonstrate that our project could meet North Carolina
Division of Water Quality standards, our project would be denied based upon another
pond of less quality. You responded by restating your earlier comment that, based upon
your recent information collected on existing ponds, all ponds violated North Carolina
Division of Water Quality standards. I then asked, in your opinion, was it possible to
build a pond that would meet North Carolina Division of Water Quality standards? You
answered, "No" and followed that with none of which you were aware. [Needless to say
this sounded like a "NO" on our pond without an application having been submitted. In
fact it struck me as reflecting a "NO WAY" attitude on any proposed ponds in Forsyth
County.]
In closing I asked when you would be able to forward the new guideline information to
us. You advised that it would be on the 23`d. I confirmed you had my email address and
asked that you email it to me. You confirmed that would be fine.
I hope you can concur that the above reflects an accurate recollection of our conversation.
Please respond if you have any additions or corrections you would like to make.
Ve 71 truly yours,
Lan n Wilcox, Jr.
Member
Lissara Partners, LLC
Cc: Chris Huysman, Wetland and Natural Resources Consultants
Brant Godfrey, Esquire, Lissara Partners, LLC, Managing
Member