Monday, May 28, 2012

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

Frazier Creek Disappearing

Over the last 10 plus years, Tony Townley, one of the founders of Zaxby’s and now one of the largest land owners in Oconee County, has built a series of small lakes and ponds on his properties.

Included is a recently constructed small lake on Frazier Creek that backs up to Aycock Road just west of that road’s intersection with Matthews Road. Frazier Creek is a tributary of the Apalachee River. To build these lakes and ponds, Townley has dammed waters and altered streams normally protected by the federal Clean Water Act.

 Lake Filling From Aycock Road
He also has altered the flow of water once it leaves his property, leaving at least one property owner, whose house overlooks Frazier Creek, unhappy.

Townley has built his lakes and ponds under an exemption to the Clean Water Act that allows for construction of farm ponds such as his that are used for irrigation and other farm needs.

During this same time period, Oconee County itself as well as land owners in the county also have altered or made plans to alter streams and wetlands protected by the Clean Water Act.

Oconee and Walton counties have purchased much of the land for a reservoir on Hard Labor Creek in Walton County and plan to flood wetlands to provide a source of water for the citizens of the two counties.

Mitigation at Heritage Park
The counties were required to obtain a permit under the Clean Water Act and to mitigate the damages they will do to the stream and wetlands.

They will spend $9 million of utility ratepayer money on this mitigation.

Atlanta developer Frank Bishop has started work on his Epps Bridge Centre on the new Oconee Connector Extension.

 Grading at Epps Bridge Centre
He, too, was required to get a permit under the Clean Water Act because he is piping tributaries to McNutt Creek and filling wetlands in the process.

To mitigate the damages, Bishop purchased a farm in Greene County, where he is doing stream restoration. He also created a commercial mitigation bank at the Greene County site, selling mitigation credits to others.

Athens dentist and developer James McDonald has announced that he plans to pipe a small section of an unnamed tributary to Barber Creek so he can build a bank building at the corner of Daniells Bridge Road and the Oconee Connector.

Stream at Daniells Bridge Road
He, too, needed a permit under the Clean Water Act to impact the stream on his property and is required to mitigate the damages he will do. He plans to mitigate the damage by purchasing credits from a commercial mitigation bank.

Townley, because of an exemption to the Clean Water Act created by Congress in 1977 for farm ponds, has not been required to obtain permits for his ponds and has not been required to mitigate the damage he has done to the streams.

The Clean Water Act normally prohibits discharges of dredged or fill materials into the waters of the United States unless authorized by a permit, which is issued by the United States Army Corps of Engineers.

Farm ponds are an exception.

Townley has built an elaborate irrigation system for his properties, crossing under county roads in three places with pipes for the system.

Large spray heads are visible from Aycock Road and elsewhere.

Sprayhead for Irrigation System
The irrigation system serves pasture land and hayfields that are part of Townley’s cattle farming operation.

Townley is only one of many farmers around the state who have used the farm pond exemption, and environmental attorney Nate Hunt of Atlanta has written critically about the exemption.

“Some of the ‘farm ponds’ that I have come across lately have been used to grow houses rather than to irrigate crops,” Hunt wrote in a article in the March-April 2012 issue of the National Wetlands Newsletter.

It isn’t possible to know if Townley could have gotten permits for altering the waters protected by the Clean Water Act if he were not a farmer.

It also isn’t possible to know how much in mitigation costs he would have had to have paid had permits been granted.

Instead of seeking a permit, Townley filed paperwork with the Oconee County field office of the Natural Resources Conservation Services (NRCS) in the Government Annex on SR 15 in Watkinsville indicating that he was building farm ponds.

He also corresponded directly with the Corps on several occasions, informing them of his plans for his farm ponds.

Townley A Local Who Has Done Well

Townley, according to the Zaxby’s web site, founded the restaurant company with “childhood pal Zach McLeroy.” He is chief financial officer of the company, which is headquartered at 1040 Founders Blvd. off Daniells Bridge Road in Oconee County.

Townley is a something of a local hero, having grown up here, remained and invested in the community.

The Zaxby’s web site says that “for more than two decades, Tony has also served as the secretary and accounting manager for Townley’s Christmas Tree Farm, one of Georgia’s largest Christmas tree farms.”

According to the Georgia Secretary of State’s corporate database, that company is located at 4451 Hog Mountain Road in western Oconee County. Harold H. Townley, Tony Townley’s father, is the CEO.

The tax records for Oconee County list 53 properties as owned by Tony Townley and Elizabeth Townley or by them individually.

These properties total 880.9 acres.

In addition, parents Harold and Trena own three properties, totaling 38.8 acres.

According to documents the county filed in support of the bond sales for the Caterpillar project, Tony and Elizabeth Townley together are the 10th largest taxpayer in the county.

Townley High Bidder for UGA Farm

And the Townleys’ holdings are about to expand significantly.

James H. Dorsey Jr., director of real estate and space management for the University of Georgia, told me on April 16 that he expects the University to ask the Board of Regents in August to approve sale of the 522-acre Plant Science Farm to the Townleys.

Townley Family Partnership Limited Liability Limited Partnership bid $11.4 million for the property, greatly exceeding the bid of $552,000 by the sole other bidder.

Dorsey said he was still negotiating details of the transfer, but he expected the sale to go forward.

According to the specifications in the bid documents for the Plant Science Farm, Townley will pick up some additional farm ponds when he acquires the property. Those documents indicate that seven ponds exist on the property, with three drilled wells and “an extensive irrigation system.”

The Plant Science Farm is just south of North Oconee High School and abuts property now owned by the Townleys.

Townley Built Home in 2000

Tony Townley is listed as the sole partner of Townley Family Partnership, the bidder for the UGA farm, in the most recent documents filed with the Georgia Secretary of State.

The address given for the partnership is 4601 Hog Mountain Road.

Townley acquired that property from Dickens Farms Inc. in 1999 and built a home on it in 2000. He has added accessories to the property in subsequent years, and the property is now assessed at $1.4 million.

The accessories include a pool, pool deck and bath house, added in 2002.

They also include a boat house on piers, added in 2001, and assessed for tax purposes as worth $3,928.

The 7.4-acre tract on which the house sits abuts the three parcels owned by Harold and Trena Townley and is otherwise surrounded by two other parcels, one of 33.2 acres and the other of 17.8 acres.

According to historical maps on Google Earth labeled as for the year 2000, no pond existed on these three properties in 2005, but one was present in 2005.

A pond did exist in 2000 on another 18.9-acre piece of property the Townley’s purchased from James B. Weaver Jr. in 1999. That property abuts the 33.2-acre parcel surrounding the Townley home.

NCRS And Corps Reach Farm Pond Agreement

In 2006, the Corps of Engineers entered into an agreement with the Natural Resources Conservation Service to allow NRCS to cooperate on management of the farm pond exemption.

The NRCS maintains a log of applications for farm ponds, Jerald Grace, head of the Watkinsville NRCS field office, told me when I contacted him in late March.

Grace said there is no formal distinction between a pond and a lake, but informally a pond becomes a lake when it is more than three acres in size.

When I asked if I could review and copy the applications filed by Townley, Grace referred me to Sharon Gipson of the NRCS office in Athens, who advised me to submit an open records request.

In response to a request I filed on March 27, Gipson informed me on April 23 that “A total of one hundred eighteen pages (118) of records responsive to your request were identified.”

She told me I could have access to only 70 of those pages. The other pages were exempt, she wrote, because they “include information that NRCS has obtained from a landowner that concerns their farming or agricultural operation–including farming practices, conservation practices, or the land.”

The 70 pages she did release were redacted extensively.

I have filed an appeal of the decision to release only a subset of the documents and to redact those released.

I also filed an open records request on April 3 with the Corps of Engineers Savannah District office to determine what records existed there involving Townley’s farm ponds. I received a reply on April 6. Only Townley’s address and telephone number were redacted from the 66 pages I received.

Farm Pond Near Townley Home

In August of 2000, according to documents from the Corps of Engineers, Townley informed the Corps he wanted to build a 2-acre farm pond on Frazier Creek.

The Corps documents do not indicate the outcome of that request, but the house Townley built in 2000 overlooks that pond, the subsequent documents released by the Corps indicate.

In December of 2009 Carter Engineering, 1551 Jennings Mill Road, submitted plans for an expansion of that pond to NRCS. The plans were heavily redacted by NRCS before they were released to me.

In a letter dated Jan. 4, 2010, also redacted, NRCS advised Townley that it could not provide a farm pond exemption because the request was for a pond of more than 10 acres. NRCS told Townley he would have to go to the Corps of Engineers for the exemption.

Townley took that proposal to the Corps in January of 2010 indicating that he wanted to expand the existing pond at his house, now designated as 2.85 acres in size, to a total of 17 acres.

Townly proposed to eliminate the original dam and construct a new and larger one further downstream, just north of Aycock Road.

The Corps released without redaction, except for Townley’s address and telephone number, the plans that the NRCS had heavily redacted.

The new pond, 22 feet deep at the dam, is to irrigate 115.7 acres of “hay land,” according to the documents submitted.

New Dam for Lake
North of Aycock Road
Townley grazes and cuts hay from the fields, where Bermuda grows, according to the documents submitted to justify the expanded pond.

Those documents stated that Townley was constructing an irrigation system for the fields.

Townley’s engineering report estimated that he needed 145 acre-feet of water for his 116 acres, and the enlarged pond would store 149.6 acre-feet of water.

The report calculated losses due to seepage, evaporation, and the inability to pump low water and estimated that even the new pond would not fully meet the needs.

“The lack of adequate existing water sources on the site dictates that there will be an inadequate amount of water to meet the needs for the farming operation on the site,” the report states, “therefore, the property owners would like to construct this planned irrigation pond under an agriculture exemption status.”

According to a Feb. 12, 2010, letter from the Corps to Townley, the NRCS “verified that the water need is greater than the storage capacity of the proposed pond.”

The Corps further wrote to Townley indicating that it had “determined that the discharge of dredged or fill material for construction of the farm pond would be exempt from Department of the Army authorization.”

The letter did warn Townley that he could not put dredged or fill material “in wetlands or streams to build up areas around the pond.”

Damage Downstream From Dam Failure Possible

The documents provided to me by the Corps included a letter from the Georgia Environmental Protection Division Safe Dams Programs.

It stated that the proposed dam had been classified Category II. A dam failure analysis showed that in the event of a sudden failure of the dam, two homes, one at 1301 Aycock Road and the other at 1451 Overlook Ridge Road, could be flooded by 0.8 feet of water.

The property at 1301 Aycock Road is owned by Nathan and Michele Jones, according to tax records, and is just across Aycock Road from the dam.

The property at 1451 Overlook Ridge Road is owned by Willie Dunta Robinson, according to tax records.

The flooding was unlikely to cause a loss of life, the report stated.

NRCS Redacted Documents Hide Identity of Dams

NRCS released a second engineering report, this one by J. Brian Kimsey, for expansion of an existing “irrigation reservoir” on property off “GA HWY 53.” The exact location is redacted, and Townley’s name is redacted in some places but not in others.

Maps released with the application show this to be on the property upstream from Townley’s home, where a pond existed on property the Townley’s purchased from James B. Weaver Jr. in 1999.

The NRCS redacted all of the calculations of water needs and storage of the upgraded pond.

The NRCS released another engineering report by J. Brian Kimsey dated July 2011.

This document also is heavily redacted, but the map shows the pond to be on a tributary of Frazier Creek and to be north of Aycock Road and west of Matthews Road. The size of the pond has been redacted, as well as the justification.

The most recent document in the package released by the Corps was a letter to Townley dated March 30, 2011.

Aycock Road Lake Mentioned In Corps Documents

That letter said that the Corps had learned that Townley planned to construct another pond off Aycock Road.

The letter requested that Townley provide information about the project within 30 days and also advised him to contact the Natural Resources Conservation Service for assistance in obtaining a farm pond exemption.

The documents did not provide a response from Townley, and Kerry Dodd, Freedom of Information Act officer, told me none existed.

Three additional engineering documents, all dated October 2011 and prepared by J. Brian Kimsey, were in the materials released by NRCS.

All are severely redacted, eliminating justification for the ponds and documentation, and even clear statements about where the ponds are located.

One is identified as “Downstream of Aycock Road” and appears to be for the pond constructed this spring.

Another is labeled “Upstream of Big Pond.” The third is labeled “Driveway Pond.”

For a continuation of this story, go to the posting below.


Charlie said...

It is good that Mr. Townley has chosen to invest in Oconee County in this way rather than build commercial junk and more subdivisions. Mr. Townley's use of the exception to the Clean Water Act is a good example of why it was put in place to start with. After he is done with the work, the water runoff is minimal compared to what it would be with a bunch of commercial or residential. Your article is designed to be critical of what Mr. Townley is doing but it shows that he has meticulously followed the rules. He should be applauded for keeping the county green rather than be criticized for using an appropriate exception to the Act.

Anonymous said...

if you look at the sat images now, it appears that the 'irrigation' pond now features a dandy new subdivision going up beside it.

Anonymous said...

All this because of one person? Wow jellious I guess! Have you been out and looked what Great improvements he has done? You are just trying to stir up something so crall back in your hole and leave a law Biden citizen alone!

BC said...

What Joyce Baugh says is 100% correct. I guess Zaxby must not be a democrat, else the article would have been praising him for doing the exact same thing.