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DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT CORPS OF ENGINEERS
151 PATTON AVENUE

ROOM 208
NORTH CAROLINA 28801
5006
ASHEVILLE
REPLY TO
ATTENTION OF

April 24 2008

Regulatory Division

Action ID No 2008
00492

Legasus of North Carolina LLC


Mr Robert Corliss
o Gabe
c Quesinberry
22 South Pack Square Suite 700

Asheville North Carolina 28801

Dear Mr Corliss

application of January 25 2008 for Department of the Army authorization


I refer to your
to permanently impact 3 8901inear feet of stream channel and 048 acre of wetland in order to

develop a residential
community with an 18
hole championship golf course a 20hole short

course and associated infrastructure near Tuckasegee in Jackson County North Carolina The

purpose ofthis letter is to provide you with comments received in response to the Public Notice
dated February 9 2007 and request that additional information be submitted to continue the
review of your permit request

In response to our Public Notice of February 22 2008 we received 93 written comments


or objections including letters from the Eastern Band of Cherokee Indians EBCI Tribal
and
Historic Preservation Office THPO U Fish and Wildlife Service USFWS the North
the S
Carolina State Historic Preservation OfficeNC SHPO and the North Carolina Wildlife
Resources Commission NCWRC The U S Army Corps of Engineers USAGE shares many
of the concerns expressed in the comment letters particularly those related to the need for
additional information on direct indirect and cumulative effects ofthe proposed project and
compliance with the National Environmental Policy Act NEPA and the Clean Water Act
404 Guidelines Guidelines
1
b All comment letters and e
mails received are attached to this
letter

Many ofthe comments from area property owners and area groups were similar They
expressed concerns related to the
proposed project and
potential adverse
impacts to the following
resources water quality elimination of stream buffers sedimentation herbicides fertilizers
pesticides dissolved oxygen pH turbidity potential contamination from the abandoned mines
etc water supply and water quality to those downstream trout federally listed species other
aquatic organisms wildlife historic properties and archaeological resources erosion and the

potential for landslides flooding legal access to the property in accordance with existing access
to area landowners increase in property taxes ridge top development air quality noise

pollution light pollution potential adverse effects on tourism fishing kayaking and canoeing
and aesthetics among others
2

The USACE
s primary focus in the NEPA process is to evaluate the direct indirect and
cumulative effects ofthe proposed project and an adequate range of reasonable alternatives
Effects includes ecological such as the effects on natural resources and on the components

structures and functioning of affected ecosystems aesthetic historic cultural economic social
or
health whether direct indirect or cumulative Our consideration includes both beneficial and
detrimental effects

Indirect
effects are caused by the action and are later in time or farther removed in
impacts
distance butstill reasonably foreseeable Indirect effects may include growth inducing
are

effects and other effects related to induced changes in the pattern of land use population
density
or
growth rate and related effects on air and water and other natural systems including
ecosystems

Cumulative impacts are


effects most to when exists between
likely occur a
relationship a

proposed action alternative


or and other actions
expected location time
to occur in a similar

period and
or involving similar actions e i past present and reasonably foreseeable future
actions The Council on Environmental Quality CEQ defines cumulative impacts as the

impact on the environment which results from the incremental impact ofthe action
swhen
added to other past present and reasonably foreseeable future actions regardless of what
agency
federal or non
federal person
or undertakes such other actions 40 CFR 7
1508 Cumulative

impacts can result from individually minor but collectively significant actions taking place over a
period of time

Some of the potential effects that the USACE finds need to be further explored are

Potential effects to historic


properties sites Because the site is located close to
archeological
riverine and topographic environmental that contained prehistoric and historic Native American
habitation the ECBI THPO requested a Phase I archaeological survey According to the letter
from the NC SHPO there are 3 previously recorded archaeological sites within the project
boundaries and 2 historic mines none of these sites have been evaluated Because one of the
sites is late historic Cherokee site the NC SHPO believes that there
a
prehistoric or
early are

likely to be human burials present and that there is high probability for the presence of
a

additional unrecorded historic archaeological sites in the project area As such


prehistoric or
the NC SHPO recommended that a comprehensive survey be conducted by an experienced

archaeologist Additionally a number of area property owners commented that they believe
archaeological sites and historic properties are located in the project area Based on comments
from the EBCI THPO the NC SHPO area organizations and area property owners we have
determined that we require additional information related to cultural resources of all types that

may be located on the property Please respond with additional information regarding the
presence of these resources and information concerning any coordination already undertaken if

done independently of USACE involvement with the EBCI THPO and or the NC SHPO
3

letter dated March 26 2008 the USFWS


Potential effects to federally listed species By
commented as follows the agency believes that habitat for the federally endangered small
whorled pogonia Isotria medeoloides eastern small footed bat Myotis leibii and the federally
be located in the project area Also that if the
endangered Indiana bat Myotis sodalist may
will adversely affect the Appalachian elktoe and its
project were constructed as proposed it
If impacts cannot be further
designated critical habitat The agency also commented that
be
stated measures cannot be implemented formal consultation must
minimized and if the above
initiated By letter dated March 24 2008 the NCWRC commented as follows the Tuckasegee
River is designated an Aquatic Significant Natural Heritage Area of national significance
critical habitat for the
because of numerous rare aquatic species and that it is also designated
federally endangered Appalachian elktoe The NCWRC also commented that the project may
harm species downstream including the Appalachian elktoe if it were to cause among other

things downstream sedimentation increased runoff stream channel instability and ineffective
erosion control Based on comments from the USFWS the NCWRC area organizations and
information related to
area
property owners we have determined that we require additional
federally listed species Please respond with additional information re iardin the presence of
potential impacts to listed species that maybe affected
ecies in the project area and any
listed
measures listed m
roposedproject Also please indicate if you will incorporate the 8
this
the USFWS letter into the project

Potential effects to trout The NCWRC commented as follows the project may harm trout
habitat directly from work in Webster Creek and may harm species downstream including trout
if it were to cause among other things downstream sedimentation increased run
off stream
channel instability Additionally the NCWRC requested that the
and ineffective erosion control

moratorium on instream work from October 15 to April 15 of any year to prevent harm to
and area property
trout spawning Based on comments from the NCWRC area organizations

owners we have determined that


we
require additional information related to impacts both
direct and indirect to trout in the project area and downstream Please respond with additional
that may be affected by this proposed project
information regarding
potential impacts to trout

downstream water supply As noted in the comments


Potential effects to water quality and
from the USFWS the organizations and area property owners water quality and
NCWRC area

downstream water supply are concerns especially in regard to the use of pesticides fertilizers
and herbicides golf course maintenance water supply and quality to those downstream
below
the project area water supply and potential sedimentation adversely affecting a downstream
buffer Please review
hydroelectric project on Cherry Gap Branch and removal of stream
micro
the comments and respond with additional information regardin potential impacts to water
this proposed project
quality and downstream water supply and quality that maybe affected by

We are also required to proposed project in accordance with the Section


review the
the Guidelines
1 Guidelines of the Clean Water Act 40 CFR Part 230 According to
b
404
S can be issued only after all appropriate and
permits for work within waters of the U
The guidelines require that
practicable steps to avoid and minimize impacts have been taken
an analysis of available off
applicants 1 avoid unnecessary environmental impacts by preparing
4

and on
site alternatives that would potentially result in less adverse impacts than the proposed
project especially regarding design and construction techniques and 2 to the maximum
site
extent practicable minimize the unavoidable adverse impacts of the preferred alternative i e
information regarding measures you have taken to avoid and minimize impacts to aquatic

resources Once these steps have been taken a compensatory mitigation plan that would
adequately offset all unavoidable impacts to waters or wetlands is then required

Further according to the Guidelines permit may be issued for a proposed project if
no

there is a lesser environmentally damaging practicable alternative Practicable is defined as


available and capable of being done after taking into consideration cost existing technology
and logistics in light ofthe overall project purpose It is primarily the applicant
sresponsibility
to demonstrate to the USACE that no such alternative exists and that its chosen alternative is the
leastenvironmentally damaging practicable alternative The applicant to satisfactorily
demonstrate this is typically required to assess a range of reasonable alternatives and show that

spreferred alternative
these alternatives are more environmentally damaging than the applicant
or are not practicable
and

Based on our review of the


proposed project and all comments received we have
determined that you have not satisfactorily demonstrated compliance with the Guidelines To

adequately demonstrate compliance with the Guidelines you must fully address the following

minimization The USFWS commented as to avoiding and


Proposed impacts
avoidance or
at holes 1 and 18 and the driving range The NCWRC also commented
minimizing impacts on

or minimizing proposed impacts at holes 1 7 11 18 the driving


avoiding and practice range
and road crossing 21 Additionally a number of area organizations and area property owners
commented on the proposed impacts for the project The USACE has similar concerns as those
expressed by the comments received concerning the proposed project and compliance with the
404 b
1 guidelines i e avoidance and minimization

While theapplication did include information regarding the impacts at each golf hole and
practice range we have determined that you have not adequately demonstrated that
the driving
all appropriate and practicable minimization has been undertaken Specifically the USACE has
concerns similar to the USFWS and the NCWRC concerning impacts at golf holes 1 7 11 18

practice range While we understand that it may not be practicable to avoid


and the driving

impacts tojurisdictional waters ofthe U S entirelyplease explain why is it not practicable to

play over proposed impact areas on holes 1 7 and 18 As to the impacts for hole 11 what are
the gradin costs which would allow for shifting the hole Concerning the proposed impact at
hole 18 what is an unacceptable distance from the clubhouse and who determines what is an

unacceptable distance Also at this location why is it not practicable to play over this impact
practice range and the massive grading required what is
area As to the impacts at the driving
meant by massive rg ading and why is this not practicable Also why is it not practicable to
redesi ng this portion of the course so that impacts to jurisdictional waters ofthe U
S are avoided
or minimized e change the locations
and of the driving range
practice and the club house

change the footprint of the club house and shift the range over etc
do not believe that the stream
Proposed miti agtion The USFWS commented that they
the proposed
mitigation plan is adequate The NCWRC commented as follows Although
for this work is not
stream enhancement should improve stream habitat the credit requested
level of effort that is
commensurate with the functional improvements anticipated and the
As with the enhancement work excessive credit is also requested
warranted to achieve them
for preservation of avoided stream channels and riparian areas

The USACE has concerns similar to those outlined in the comment letters received Please

note that the amount of credit given for stream mitigation activities is dependent upon many
the
factors including proposed impacts in the stream channels type amount location etc
associated buffer widths if these areas are of lot lines and
quality of the stream channels part
the type ofprotection mechanism utilized Please provide information that addresses these issues
and be reminded that mitigation is used to offset impacts to aquatic resources once the applicant
has demonstrated avoidance and minimization Your response should include a map
adeguate
that shows allproposed mitigation areas all proposed impacts lot lines and building footprints
so that the proposed mitigation may be fully analyzed
effectiveness of an

While this letter emphasizes comments from the USACE the EBCI THPO the NC SHPO
the USFWS and the NCWRC you should carefully read all comment letters and respond to all
substantive comments Additionally please respond with additional information regarding
to similar comments in
compliance with NEPA and the Guidelines If you choose to respond
reference the agency letters by agency and page number of the
one response please cross
we cannot
comment letter Please be advised that until we receive the information requested

make determinations of effect or a determination of compliance with the 404 b1 guidelines


for the proposed project

of all comment letters received for your review and


We are
forwarding copies
consideration We request that you respond to this office within 30 days of receipt of this letter

Additionally pleasesend copies contact at the EBCI THPO


of your responses to the points
of
at in the copy furnished list Should
the addresses provided
USFWS NCWRC and NC SHPO
if you have any questions please
you need additional time in order to prepare your responses
or

7980 extension 226


contact me at 828 271

Sincerely

L i eckwith
Regulatory Specialist
Asheville Regulatory Field Office

Enclosures
6

Copies furnished w
o encl

Eastern Band of Cherokee Indians


Tribal Historic Preservation Office
Attn Mr Tyler Howe
Post Office Box 455

Cherokee North Carolina 28719

S Fish and Wildlife Service


U
Attn Mr Bryan Tompkins
160 Zillicoa Street

Asheville North Carolina 28801

NC Division of Water Quality


Attn Ms Cyndi Karoly
2321 Crabtree Blvd

Raleigh North Carolina 27604


2260

NC Division of Water Quality


Surface Water Protection
Asheville Regional Office
Attn Mr Kevin Barnett
2090 U
S Highway 70

Swannanoa North Carolina 28778

C Wildlife Resource Commission


N
Mountain Region Coordinator
Attn Mr David McHenry
20830 Great Smoky Mtn Expressway

Waynesville North Carolina 28786

State Historic Preservation Office


of Cultural Resources
Department
Attn Ms Linda Hall
4617 Mail Service Center

Raleigh North Carolina 27699


4617

Copy furnished w
encl

Wetland Natural Resource Consultants


Ms Jennifer Robertson
Post Office Box 882

Canton North Carolina 28716

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