Monday, December 04, 2006

Written 12/04/06

A Note on Breaching Dams and Draining Ponds

Just before Thanksgiving I posted a report about a request for a stream buffer variance pending before the state Environmental Protection Division. I indicated at the time that the action being proposed might actually help the creek, but I noted that the public notice made it impossible for citizens to even guess about the nature of the project.

When I wrote that note I had not yet reviewed the site plans in the Oconee County Planning Office. I now have, and the plans reveal the challenges facing us as we try to get stormwater runoff under control in the county. Earlier this year we were able to get the county to pass a tougher stormwater ordinance than developers wanted. Now comes the tricky part: enforcement. This buffer variance request illustrates why.

On June 15, 2006, Steve Hansford, senior code enforcement director for Oconee County, wrote to S&ME Inc., an engineering and environmental services company based in Spartanburg, S.C., in reference to Club Estates subdivision, being developed on Barber Creek road near the intersection with SR53 (Hog Mountain road).

According to Hansford’s letter, the property contained "two lakes which are spring fed and with no outlet structures" other than spillways. Hansford further wrote:

"Based on the fact that the lakes are spring fed and water leaves this property at certain times of the year, and the pond has a defined channel with wrested vegetation in some areas, it is the decision of the Local Issuing Authority that these lakes are considered state waters and therefor must be protected by a 25 ft. buffer." Oconee County is the Local Issuing Authority he was referencing.

The very next day, on June 16, 2006, Julie Mitchell Smoak of S&ME submitted an Application for a 25 Foot Vegetative Buffer Encroachment to the EPD on behalf of A. Fortner Construction Inc. of Loganville.

According to a letter submitted by Ms. Smoak with the application, the two dams on the streams "have large woody vegetation that can undermine the dam integrity." The letter further states: "The dams associated with these ponds have been destabilized and damaged due to age and are in need of repair."

The solution, according to Ms. Smoak, was installation of "outlet structures in both ponds." These structures, a "forebay system," would not allow the ponds to "function in water treatment" but would allow the ponds to hold stormwater. The plan, the letter said, is for the ponds to "function as stormwater detention, as well as amenities" for the subdivision.

"In order to install these outlet structures in the ponds, small portions of the State Water 25-foot buffers...may be disturbed," Ms. Smoak wrote.

The letter indicated that there was an alternative to this action. The developer could install detention ponds "adjacent to the existing ponds." But this would "decrease the developable land within the property, thereby decreasing the number of proposed lots."

In sum, the developer wanted to use the existing ponds for stormwater detention rather than build separate facilities for that purpose in order to generate more money.

The letter does not explain whether the existing ponds could handle the additional water from stormwater without the construction of the "forebay system." Nor does it explain what impact stormwater runoff might have on the quality of the water in the ponds.

On October 26, 2006, Peggy Chambers, environmental specialist with the EPD, wrote to Fortner Construction indicating that it was required to publish a "legal notice in the local newspaper" that contained a "description of the proposed buffer encroachment" as well as the location of the project, where citizens can view site plans, and to whom citizens can send written comments.

The letter was copied to Melvin Davis, chairman of the Oconee County Board of Commissioners, and Ms. Melissa Henderson, then head of Oconee County Code Enforcement. Ms. Henderson has since left that post, and Mr. Hansford is in charge of the office.

Here is the Public Notice exactly as it appeared in the November 9 issue of The Oconee Enterprise:

The proposed Barber Creek Road project involves the installation of outlet structures in two ponds. Proposed impacts to the 25-foot buffers associated with these dams include 2,807 square feet (64.32 linear feet) and 1,535 square feet (32.33 linear feet) of the 25-foot buffers adjacent to the open waters. The property is located northeast of the intersection of Barber Creek Road and State Road 53. The public can review site plans at the Oconee County Planning Department, located in Watkinsville, GA. Written comments should be submitted to the Program Manager, NonPoint Source Program, Erosion and Sedimentation Control Unit, 4220 International Parkway, Suite 101, Atlanta, GA 30354.

On November 8, 2006--one day before the public notice appeared in the Enterprise--Bill Noel, senior ecologist at S&ME, wrote to Justin Greer of Beall & Company in Bogart "summarizing the jurisdictional water services that have been performed" by S&ME regarding the Barber Creek road property.

According to that letter, Ms. Smoak and two colleagues of S&ME "carried out a jurisdictional waters determination" on the property on May 25, 2006, that is, about three weeks before Mr. Hansford wrote his letter.

According to the letter, however, at some latter date "subsequent observations were made on the property after both pond dams had been breeched (spelled incorrectly in letter) so that the jurisdictional waters determination could be refined..."

In a letter of November 17, 2006, also to Beall & Company, S&ME sought to "elucidate for you permitting and regulatory guidance for the proposed activities on the Club Estate development." The letter reported that the site had been "observed for the presence of ACE jurisdictional areas" at some unspecified time. ACE stands for Army Corps of Engineers.

According to the November 17 letter, "Two farm ponds were observed onsite. Both pond dams had been breeched (misspelled in original) and drained." The letter states that "jurisdictional wetland areas" were observed near both ponds.

For the record, a "breach" is a gap made in a wall or line of defense, and to "breach" is to make such a gap. "Breech" is either the buttocks or the rear part of a gun. There is no verb, "to breech."

OK. So the misuse of breech isn’t the issue.

I obtained the November 8 and November 17 letters from Krista Gridley, planner at the Oconee County Planning Office. She also showed me a series of maps, many of which show the ponds and a series of lines around them. She said other details would have to come from Code Enforcement.

I have decided to hold off visiting Code Enforcement. Instead I wrote to the EPD and asked it to require Fortner Construction to publish a second Public Notice–one that explains in simple English what it is proposing to do.

I’ve also asked the EPD to explain how it is possible that the two ponds in questions have been breached (I used that word) and drained in advance of issuance of a permit for encroachment on the buffer.

If one needs an encroachment variance permit to install a "forebay" system, it seems to make sense one would need an encroachment variance permit to breach a dam and drain the pond. But I’m no engineer. And I’m not an employee of the EPD.

If you are curious about these things as well, you might write and ask the EPD for clarification. I’ll let you know what I learn if you let me know what you learn.

I don’t think we have to ask where the water went from the ponds when they were drained. It isn’t called Barber Creek road by coincidence.

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