Monday, May 28, 2012

Farm Pond Exemption to Clean Water Act Allows Farmers To Do What Oconee County Government, Developers Cannot: Part II

Downstream from Aycock Road Small Lake

I first learned of the Tony Townley ponds on Feb. 29, when James Knecht sent me an email message telling me about the small lake being built on Aycock Road on property abutting his.

Knecht and his wife, Sandra, whose address is 1451 Aycock Road, have a home they built overlooking a lengthy shoals on Frazier Creek, downstream from the lake constructed by Townley this year. After getting the message from Knecht, I made several calls, including to Ben Emanuel, associate director, water supply, in the American Rivers office in Atlanta. American Rivers is a national organization working to protect and restore rivers and streams.

Looking Upstream on Knecht Property
That was when I first learned about the farm pond exemption to the Clean Water Act.

According to an article in the March-April 2012 issue of the National Wetlands Newsletter written by Nate Hunt, staff attorney, Southern Environmental Law Center office in Atlanta, the farm pond exemption has a complex history.

While Congress clearly intended to exempt farmers constructing ponds for their farming operations from some of the requirements imposed on others who dredge and fill wetlands, “the legislative history of the exemption reveals that the U.S. Congress intended for the exemptions to be applied narrowly,” Hunt wrote.

The exemption contained a “recapture provision,” according to Hunt, which would require a farmer to obtain a Corps permit if the construction of the pond would constitute a new use of the area of the affected water and would impair the flow or reduce the reach of the water.

Georgia farmers are not being notified of this recapture requirement, Hunt said in the article.

Although the agreement between the U.S. Army Corps of Engineers and Natural Resources Conservation Service put NRCS in the position of dealing with farmers, only the Corps has the authority to issue a permit, Hunt wrote.

“And although the Farm Pond Exemption Information Paper signed by the farmer notifies the farmer of potential permit obligations under state and federal law, it is entirely conceivable that in submitting the form to the NRCS, a famer may in good faith believe that he or she has obtained a CWA exemption,” according to the article. “Indeed, the form refers to itself as ‘this exemption.’”

Georgia Also Regulates Stream Disturbance

In addition to the Clean Water Act, streams in Georgia are protected by a 25-foot buffer by state law. Those wishing to disturb that buffer with mechanized equipment have to get a variance permit.

I asked Ted Jackson, program manager for the Farm Agricultural Water Withdrawal Permitting Unit at EPD in Athens, if Townley had requested any such permits.

Dam for Aycock Road Small Lake
Jackson told me in an email message on March 12 that his office had no record of any permits or of applications for permits on Frazier Creek.

He also told me in a separate message on that same date that individuals wishing to withdraw small amount of surface water are not subject to regulation by the EPD. A small amount is defined as less than 100,000 gallons per day on a monthly average, he wrote.

Jackson did tell me his office had received a complaint in February regarding the pond under construction on Aycock Road.

Dam for Aycock Road Small Lake
I visited the EPD office in Athens on March 5 and found a record of a complaint from Knecht taken by Phoebe Tchoua on Feb. 20.

Tchoua wrote that Knecht told her that Townley was “building a dam, which has reduced the amount of water on complainant’s property to a seep. The wetland has been cleared using heavy equipment.”

In an email message of Feb. 28, Tchoua passed the complaint to Justina Outlaw at the Corps of Engineers, according to documents she showed me.

Tchoua told me on May 14 she had not received any response from the Corps.

Water Backing Up To Aycock Road
Steve Hansford, director of the Oconee County Code Enforcement office, also told me back in March that he had received inquiries about the small lake being built on Aycock Road because of the amount of grading being done and visible to people driving on Aycock Road.

Hansford said he told people the construction was “exempt from our ordinances” because it was a farm pond.

Matthews Road Closing Request A Signal

Area residents got a chance to learn about Townley's expanding plans for irrigation of his land late last year, when Townley asked to close Matthews Road.

Irrigation Work on Matthews Road
Emil Beshara, Oconee County Public Works director, told me that he had been approached by Townley’s consultants last year about putting a water line for his irrigation system under Matthews Road.

Beshara said he indicated that a permit was required. Beshara said either he proposed or the consultant asked if it were possible to close Matthews Road instead.

As a result of that conversation, Townley did ask to close Matthews Road, which connects Rays Church Road and Aycock Road.

At a public hearing before the Board of Commissioners on Nov. 29, 2011, Knecht and two others spoke against the closing.

The BOC took no action on the request, essentially killing it.

Townley Got Permit to Tunnel

Townley subsequently requested a permit to be allowed to run his irrigation system at a depth of 4 feet under Matthews Road in two places and under Aycock Road.

The Code Enforcement Office of the county granted Townley a Utility Installation Permit, dated March 7, 2012.

Townley also has installed irrigation pipes to his new small lake south of Aycock Road.

Others also will benefit, at least indirectly, from that new lake.

Townley Sister Buys Land Near Lake

On Jan. 12, Darryl Walker and Terry Walker signed a deed to secure debt for two pieces of property of 4.5 acres and 3.6 acres on Aycock Road.

These properties abut property owned by Townley and by the Knechts and overlook the small lake built earlier this year. A small covered boat dock was built on that lake before it was filled.

Boathouse on Aycock Road Lake
The document filed in the office of Angela Watson, clerk of superior court, on March 26 indicates that the Walkers owe Tony Townley and Elizabeth Townley $35,000 for the properties, which the Walkers are obligated to pay by Dec. 31, 2012.

The Walkers obtained a deed for the 4.5 acres from Debra Brown and Gerald Lamar Brown, according to the records in the clerk’s office. No deed has been recorded for the 3.6 acres.

According to these records, the larger of these properties is listed in the Oconee County tax records as at 1481 Aycock Road, while the smaller is listed at 1421 Aycock Road, though it contains no frontage on Aycock Road itself.

Terry Townley Walker, a sister of Tony Townley, signed the business license on file in the Oconee County Code Enforcement Office for Oconee Foods Inc., doing business as Zaxby’s at 1013 Park Drive.

The restaurant faces Experiment Station Road in Butler’s Crossing.

Terry Townley Walker is CEO Oconee Foods Inc.

House Has Tennant

Terry Townley Walker lists her address as 1120 Matthews Road in the Secretary of State database. That property, at the corner of Matthews Road and Aycock Road, is near the newly purchased property on Aycock Road.

The property at 1120 Matthews Road is owned by Tony and Elizabeth Townley, according to Oconee County Tax records.

That piece of property on which the restaurant in Butler’s Crossing is located is owned by Prime Commercial Group, according to the tax records.

The address for Prime Commercial Group is 1040 Founders Blvd., the same as for Zaxby’s corporate office. Tony Townley is listed as the registered agent with the Secretary of State on the articles of organization for Prime Commercial Group.

Another Lake Near Knecht

The series of lakes and ponds Townley has constructed or expanded significantly alter the natural flow of Frazier Creek and its tributaries. But the creek has been altered downstream as well.

Below Knecht’s property Frazier Creek is dammed for a lake on property owned by Triple C Family Limited Family Partnership. Cindy Futrell is the registered agent of the partnership.

Inside the property owned by Triple C is property owned by Geneele Crenshaw and formerly in the name of Archie Crenshaw, a retired businessman who had been involved in the fast food industry, including with Zaxby’s.

The Crenshaw home, known as Gracewood Villa, was the site of a fundraising event for the Athens Symphony on April 27. The parcel containing the villa is valued at $2.4 million, according to the tax records.

The villa overlooks the lake.

The history of the lake is told in the promotional materials released for the Symphony event. According to those materials, a pond existed on the property as early as 1973 and was enlarged to a lake sometime before 1980.

Google Earth shows that the majority of the surrounding property today is heavily wooded.

Jerald Grace at NRCS said he has no records in his files regarding this lake. NRCS took over responsibility for farm ponds only in 1984, he said.

Townley’s Father Also In Farm Pond Business

NRCS does have records of a request in September of 2009 from Harold Townley, Tony Townley’s father, for property on Hodges Mill Road north of Hog Mountain Road.

NRCS told Harold Townley that he would have to go to the Corps of Engineers with his request, since his “irrigation system is proposed,” rather than “existing.”

Piping at Aycock Road Lake
On Feb. 12, 2010, the Corps wrote to Harold Townley indicating that his proposed 1.7 acre pond near Frazier Creek met the farm pond requirements and “the discharge of dredged or fill material for construction of the farm pond would be exempt” from the requirement of a Corps permit.

According to the Oconee County tax records, that pond is on property now owned by Elizabeth and Tony Townley.

The Townleys and others in western Oconee County are protecting from development land that could easily be developed in a more robust economy.

The irony is the farm pond exemption to the Clean Water Act means Frazier Creek and its tributaries may be less well protected because they are on working farms than they would be if the land around them were developed for housing or commercial purposes.


Anonymous said...

Moral of the story... stop all this farming stuff and build neighborhoods to save the water... Also, two government entities wasting tax payers money trying to regulate everybodies private business, except those with connections... How about we get out of private property owners business and concentrate on how we are going to pay for or stop the 96+ trillion dollars of unfunded mandates coming down the road that are going to bury all of us.

Mark Fennell said...

I don't know that neighborhoods are better than the Townley farm, but I do wish he wouldn't fertilize the fields with chicken manure. My sub acre home next to one of his fields is infused with that putrid aroma about twice a year. It's a cow pasture. How much more fertile can it be?

Xardox said...

Sounds like he is building his own Shangri La. There is not a shred of mention about new neighborhoods. Not until the two or three thousand empty lots in the county are sold and the farmland tax exemptions expire in twenty years or so.
This is what can be done with private money rather than constantly going hat in hand to the taxpayers to purchase rural land for "saving" then being under the control of various bureaucracies with who knows what fate.