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TESTIMONY OF WILLIAM SOMMERS, BOARD MEMBER
OF THE FEARRINGTON HOMEOWNERS ASSOCIATION, AT THE PUBLIC HEARING CALLED
BY THE NC DIVISION OF WATER QUALITY REGARDING THE APPLICATION OF BRIAR
CHAPEL DEVELOPMENT FOR A WATER QUALITY CERTIFICATION HELD ON 13 DECEMBER
2005 IN THE DISTRICT COURT CHAMBERS, CHATHAM COUNTY ADMINISTRATIVE
BUILDING
1. Introduction &
Background: My name is William Sommers, a resident of
Fearrington Village and a board member of the Fearrington Homeowners
Association, Inc. (FHA). I represent the FHA which owns an 11 acre
drainage right of way and abuts land owned by Newland Communities which
is slated to be developed as part of the Briar Chapel Development which
has received initial approval by the Chatham County Board of
Commissioners.
a. The FHA, in reference to the US Corp of
Engineers PUBLIC NOTICE of June 14, 2005, submitted extended commentary
concerning Briar Chapel’s application to the Corp on July 11, 2005. In
addition, a parallel commentary was also submitted to the NC Division of
Water Quality on July 2, 2005. In both letters the FHA asked for public
hearings to more thoroughly review this very significant application.
The US Corp of Engineers declined to hold a public hearing but did hold
an informal meeting on August 25, 2005 at which concerns and issues were
discussed, though not resolved. The FHA responded to the discussion in a
letter of September 7, 2005 requesting that the UUS Corp of Engineers
attach a set of conditions to the proposed Briar Chapel permit which
reflected some, though not all, of FHA’s basic concerns. A set of these
documents are attached to this statement as reference for the NC
Division of Water Quality.
b. The FHA commends the NC Division of Water Quality for holding this
necessary and important public hearing and commends as well the Haw
River Assembly and the Chatham Citizens for Effective Communities (CCEC)
for their part in urging the Division to hold this hearing. We are also
mindful of the support for this hearing received from State
Representative Joseph Hackney.
c. We also note that yesterday the FHA received a copy of a 15 page
letter, dated December 9, 2005, from the law firm of Kilpatrick
Stockton, representing Newland Communities aka Briar Chapel which was
sent “via hand delivery”to the US Corps of Engineers and the NC Division
of Water Quality; it contains responses to issues raised in prior
commentary by the CCEC, Haw River Assembly and the FHA. This is an
important document with very substantive – and often contestable -
statements made to the US Corp of Engineers and the Division of Water
Quality; it needs careful review and thoughtful responses from the three
community organizations involved.. However, the letter is dated only
four days before this hearing and was received, in the case of the FHA
yesterday – one day before the scheduled hearings! Obviously we have not
had the time to discuss this with our membership nor to work out – even
in draft – a detailed response. As you must know the three organizations
represented in this hearing are operated by volunteers who, you will not
be surprised to know, have other nagging demands on their time. Though
the HAW River Assembly has an underpaid and overworked executive
director, she relies to a great extent on volunteers as well.
We therefore, respectfully request that our
three organizations be granted sufficient time to develop studied,
individually applicable replies to the Kilpatrick Stockton letter; we
also request in the interest of balance and fairness that neither the US
Corps of Engineers nor the NC Division of Water Quality respond to the
letter or make any tentative decisions on the Briar Chapel submission
until the Corp and DWQ have received responses from the three community
organizations: CCEC, Haw River Assembly, FHA. Your cooperation in this
very serious matter will be appreciated.
2. Statement of
Particulars: While all of us gathered here have some idea of the
importance of the Clean Water Act and, particularly the state of North
Carolina’s charge under the certification requirements of Section 401,
it might be well to restate as clearly as possible the values involved.
The Clean Water Act gives the State of North Carolina the authority to
veto or place conditions on federally permitted activities that may
result in water pollution. Citizens can use this "401 water quality
certification process" to protect and restore water quality around and
downstream from federally permitted discharges and activities, e.g. the
construction of the Briar Chapel residential & commercial development.
Specifically, Section 401 requires that any applicant for a federal
permit or license that may result in a discharge to waters of the United
States must first obtain certification from the State of North Carolina.
If the State of North Carolina finds that the discharge will violate
state water quality standards, it may reject the permit or license; it
may also issue a certification containing particular standards and
conditions that will eliminate or mitigate any potential threats to the
water quality in the area where the federal permit will be implemented.
Under this 401 umbrella, we turn now to summarize the problems and
concerns of the Fearrington Homeowners Association with the Briar Chapel
application.
a. Fearrington Village has already felt the
effect of haphazard, unregulated storm water run off, particularly in
the area of the Village which abuts Briar Chapel’s sixty acre tract
slated for future commercial space and office buildings. Here both
Beaver Creek and Beaver Pond and the immediate area have been nearly
destroyed by uncontrolled run-off from the 15/501 highway construction
and by under-designed storm water protection by the developer, a design
that was apparently approved originally by the Division of Water Quality
(DWQ). Water quality in this area is at a very low level. Moreover, the
topographic location of the both the 60 acre tract referred to above and
the additional 40 acres on the western edge of 15/501 which runs nearly
parallel with the 60 acres – 100 acres in total - is such that run-off
from the full 100 acres travels down hill into the Fearrington tract
where considerable damage is already evident as noted. Briar Chapel, of
course, owns all 100 acres.
b. While the Briar Chapel impact assessment contained in its application
to the US Corps of Engineers identifies only one culvert crossing,
Impact L, in relation to the proposed commercial and office
construction, it does nothing to mitigate two other draining courses
which upon leaving the site flow into the FHA owned drainage easements
in the Creekwood Area.
c. Briar Chapel did present rough schematics of its proposed development
of the 100 acres. However, Fearrington residents, particularly the
abuttors, including the FHA, do not have a clear idea on how this area
will be developed and how the developer will manage the increased
run-off during construction and in its complete state. With such paucity
of information provided by Briar Chapel, and without any discussion of
their right of drainage entry, will obviously increase water flow, the
FHA – and the residents of this area – can only conclude that their
properties and their already damaged drainage streams and ponds will be
in the path of greater risk. Herein water quality concerns are
heightened and threatened at the same time.
d. A parallel concern centers on Briar Chapel’s plan to spray treated
effluent in the proposed 200 feet buffer area that is to surround the 60
acre site when it is fully developed. This plan has never been presented
to the residents nor have they had a chance to comment on the proposal
until this hearing. Yet Chatham County’s Compact Development Ordinance
does not allow such spraying in riparian areas. Considering the
perennially stream(s) associated with this area as they flow into Beaver
Creek, Beaver Pond and eventually Bush Creek, we believe the Compact
Development Ordinance applies. We also call your attention to the
presentation of spray irrigation problems provided by our neighbor and
colleague, Dr. Francis DiGiano who has been with the UNC Department of
Environmental Sciences & Engineering for the last 25 years. We quote
from one excerpt taken from his statement:
“Spray irrigation with or without golf
courses may have been acceptable in the past for isolated developments
in rural settings. However, the number of these developments is
increasing very rapidly in Chatham county and elsewhere. The character
of the land is changing from rural to urban. Treatment by natural
systems cannot be relied upon when population densities increase and
there is too little land to serve as a buffer. We should be
concerned about continued permitting of spray irrigation systems for
every development not only given the poor draining soils, but also
uncertainties in establishing an accurate water balance to design
storage facilities, relatively low treatment technology and relatively
little oversight of the entire treatment and disposal process.”
(emphasis added)
Moreover, we understand that the Division of
Water Quality may have authorized such Briar Chapel to use spray
irrigation in such close proximity to a settled residential community –
and did so without notification to the affected residents and without
receiving their input prior to giving such authorization. If this is the
case the FHA and the affected residents are both disheartened and upset
over such action, particularly in the light of Dr. DiGiano’s statement
quoted above.
3.
Recommendations: Having summarized our concerns about the
potentially negative effect Briar Chapel’s proposed development of the
100 acres will have on Fearrington Residents which are clearly related
to requirements of Section 401 to the US Clean Water Act, including the
spray irrigation, we respectfully request that the Division of Water
Quality in considering the issuance of a Water Quality Certification to
Briar Chapel incorporate in such issuance, the following conditions:
a. That no development will take place on
any part of the 100 acres, referred to in a-c above until Briar Chapel’s
proposed plans have been discussed with the Fearrington Homeowners
Association and current erosion and run-off issues are satisfactorily
resolved prior to construction;
b. That during construction of these areas the FHA will receive
quarterly monitoring reports regarding the construction run off, based
on an initial base line assessment of area conditions to be drawn up by
the Fearrington Homeowners Association, with assistance from the Chatham
County Soil Erosion Officer; the resultant base line determination will
be presented to both the developer and DWQ prior to construction start
up;
c. That DWQ not allow Briar Chapel to spray treated wastewater onto any
proposed peripheral buffer zone, especially those abutting Fearrington
residents so that the physical environmental as well as resident’s
health will not be threatened by such action. This requirement will also
mitigate potential flooding caused by increased water flow from the
combination of storm water run-off, sprayed effluent and the effects of
increased soil saturation; it will also eliminate problems with odor and
with the negative results of heavy wind action during spraying
intervals.
d. That Briar Chapel’s field staff meet quarterly with representatives
of the Fearrington Homeowners Association, the Chatham Citizens for
Effective Communities, the Haw River Assembly, the Chatham County Soil
Erosion Officer, the Chatham County Planning Office representative and
the DWQ to provide interchange and problem-solving opportunities that
will benefit all the participants, including Briar Chapel developers.
4.
General Commentary: We also support the proposals by both the
Haw River Assembly and the Chatham Citizens for Effective Communities as
they address the larger issues that affect other areas outside of the
immediate Fearrington area. We do so because this whole watershed,
including the stream flow of Bush Creek and others in our immediate
vicinity, is in delicate balance regarding water quality which, in turn,
puts the impaired Jordan Lake, at increased risk to continue as a main
source of potable water for our area and to provide an environmentally
protected area for fish, wildlife and recreational facilities.
William Sommers December 13, 2005
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