Save Black Meadow Ridge - Public Comment of Opposition

 

We are opposed to the Westpoint development and their Permit application for the following reasons.

 

• The application omits how the development has negative impacts on water quality, specifically Durham’s drinking water

• The application ignores public safety concerns about direct human contact with water/runoff from the development

• The application contains incomplete, conflicting, and/or incorrect information

• The application omits how the development negatively impacts threatened and endangered species and their habitat

• The application does not account for how the development negatively impacts historic sites

• Wrong Permit type - based on impacts, public Interest, and appreciable opposition 

 

Due to the above reasons we believe the permit type the Westpoint developer applied for needs review from the US Army Corps of Engineers, along with additional oversight and impact assessments. We are requesting a public hearing from the Division of Water Resources per code: 15A NCAC .02H .0503 

 

Below are notes on each of the issues:

  

Negative Impacts to Water Quality & Drinking Water 

This category focuses on the development and 401 Certificate being contrary to Public Interest

 

In 2019, the Durham Planning Department released their proposed Critical Area of Protection for the new water intake at Teer Quarry to provide drinking water to Durham City residents. In 2021, the City moved forward with Phase One of the development of Teer Quarry water intake.  

 

The Westpoint development and proposed impacts to streams and wetlands through the Individual 401 Certification are within that Critical Area of Protection outlined by City Planning in 2019, and voted on with support from the Durham County Commissioners Office and Orange County. This proposed development will harm the City’s ongoing long-term plans for our water supply. Since 2007-08, when Teer Quarry had to be used as an emergency water supply, the City has planned for Teer Quarry to be incorporated and used as a long term solution. Protecting the water integrity of Teer Quarry represents a major Public Interest.

 

The proposed Westpoint development is less than 1 mile from the proposed Teer Quarry water intake. The risk of contamination is especially harmful due to the fact that the proposed Westpoint development is the highest density housing on the Eno in Durham with remarkably high impervious surfaces percentages of over 70%. This level of development, close to a river and public water source, goes against numerous recommendations by the City and State. Durham’s City Council even voted in 2012 for this land to used for Low Density development, at 2-4 times less dense than what is currently planned. The reason for such low development density, is that impervious surface levels this close to the Eno River will generate significant amounts of runoff and cause downstream water pollution. The risk of runoff pollution is particularly concerning because of how the Teer Quarry Intake will be designed. The current plan is for the Teer Quarry intake to only fill during times of high baseflow from the Eno River and Lake Michie, which corresponds to the times of high runoff. This would mean higher levels of pollution entering the intake from this development, in particular from the Black Meadow Creek tributary within 1 mile of that intake.

 

Drinking water is always one of the highest priority items of Public Interest within a community. While the building development regulations may not be in place yet--as this project is in a timing loophole--it is imperative the US Army Corps of Engineers, NC Division of Water Resources, and City of Durham look at the impacts of this aspect more closely as they relate to the 404/401 permit application. Under Section 7 of the Nationwide Permit 13, we find:  “No activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization.”  While the new intake is not operational yet, phase one plans have started, and work will be taking place on both projects at the same time. It is very likely the new intake will be in place during work on the Westpoint development, such that Section 7 should apply.  

 

Water Quality Costs:

It should be noted that it took a long time, and expenditures for the Eno to go from a low water quality level to the A level quality rating it receives today. 

 

Dealing with higher levels of pollutants and sediment in a water system, such as what will happen because of this development--increases costs for filtration and purification, which, in turn, can increase public costs by up to 25%. This amounts to hundreds to thousands of dollars a week based on preliminary calculations of the Eno River historical base-flow per day. Further analysis of the water quality impact by the development needs to be done, and the potential costs that citizens could incur by the approval of Clean Water Act permits for this development.

*Costs of water treatment due to diminished water quality: A case study in Texas - Dearmont, McCarol, Tolman

 

Public Safety Concerns about Direct Human Contact with Urban Stormwater Runoff

This category focuses on the development and 401 Certificate being contrary to Public Interest

 

The mouth of Warren Creek (which the developer calls “unnamed tributary”) and Black Meadow Creek are the two watershed / wetland areas that the 401 permit is applying for disturbances on. These two creeks will be the main avenues for development site runoff. The concern with this comes from the fact that the mouths of two tributaries are some of the highest used places on the West Point on the Eno City Park for swimming, fishing, and recreation. In particular, the pools at the end of Black Meadow Creek are used for fishing and playing in - especially by younger children with their families. Warren Creek on the other hand flows near Sennett’s Hole which is used by hundreds of people every summer weekend for swimming, fishing, and recreation. Diminished water quality in these creeks would likely have human health impacts, given how active the area is visited. This further exemplifies the strong public interest in further assessing and protecting the water quality of this critical region.  

 

EPA’s documentation on runoff specially say the following:

Urbanization increases the variety and amount of pollutants carried into streams, rivers, and lakes. The pollutants include: • Sediment • Oil, grease, and toxic chemicals from motor vehicles • Pesticides and nutrients from lawns and gardens • Viruses, bacteria, and nutrients from pet waste and failing septic systems • Road salts • Heavy metals from roof shingles, motor vehicles, and other sources • Thermal pollution from dark impervious surfaces such as streets and rooftops These pollutants can harm fish and wildlife populations, kill native vegetation, foul drinking water supplies, and make recreational areas unsafe and unpleasant. EPA 841-F-03-003

 

Incomplete, Conflicting, and/or Incorrect Information on Their Permit

This category focuses on the development and notes to their application which show the need for greater oversight to ensure environmental compliance.

 

Neuse River Basin Riparian Buffer rules

The answer on the application that the development meets Neuse River Basin Riparian Buffer Rules is incorrect. Stormwater treatment from the development consists of a series of constructed wetlands which should (when properly designed, constructed, and maintained) comply with the Riparian Buffer Rules. However, the Roxboro entrance road (Access #1) itself, does not have any planned stormwater control measures shown on the August 2021 site plan version 5. This error is a violation of the stormwater requirement of the Riparian Buffer rules, and USACE in conjunction with DWR must require on-site stormwater treatment of this runoff to ensure compliance. (No variance should be granted.)

 

Contaminated Soil / SCM

From the documentation turned in thus far, the proposed type of SCM would not be able to be in compliance with code 15A NCAC 02H .1050 which is required by the Clean Water Act. The deeds to the Faith Church parcels DB: 005976 and DP:000241 state that the groundwater contains petroleum hydrocarbons. 15A NCAC 02H .1050 specifically states that Stormwater Control Measures (SCMs) that allow stormwater to infiltrate shall not be located “on or in areas with contaminated soils.” This parcel with the petroleum hydrocarbon listed on the deed, abuts to Black Meadow Creek, is within the 401 certification disturbance area and buffer, and requires a SCM for the road.

 

Further compliance issues would arise from the Clean Water Act in regards to codes in 15A NCAC 2T and 15A NCAC 2L, which relate to discharge compliance with contaminations of soil and groundwater. It needs to be determined if the contamination needs remediation measures before any disturbance of this parcel is granted.

 

Unaccounted For Negative Impacts to Historic Sites

This category focuses on the development and 401 Certificate being contrary to Public Interest and Section 106 of the National Historic Preservation Act not being fully reviewed.

 

The answer on the permit application saying the development site is not located in or “near” a State Historical site is false or misleading. NC Department of Natural and Cultural Resources State Historic Preservation Office references West Point on the Eno as a Historic site, which borders the development. The opinion that the NC Department of Natural and Cultural Resources State Historic Preservation Office gave- that said  “no historic resources …. would be affected by the project” is also lacking context and inaccurate. This answer does not address the following issues under Section 106 of the National Historic Preservation Act that will adversely impact the Westpoint on the Eno historic site by the following:

 

1. Change the character of the [historic] property’s use or setting,

2. Introduction of incompatible visual, atmospheric, or audible elements, or  

3. Cause  physical destruction or damage

 

Due to the extent to which this development will negatively impact Westpoint on the Eno, we are in the process of  addressing this oversight with the NC Department of Natural and Cultural Resources State Historic Preservation to ensure a full and appropriate review of Section 106. We also ask that USACE / DWR not approve the permit application until the NC Department of Natural and Cultural Resources State Historic Preservation Office or the Advisory Council on Historic Preservation complete their re-evaluation of Section 106 of the National Historic Preservation Act. Outlined below are a few of the specific notes needing to be addressed under Section 106.

 

 

 

The West Point Mill - probability of physical destruction or damage

Black Meadow Creek flows into a mapped floodway and directly to the Historical Inventory of the West Point on the Eno Grist Mill at the West Point on the Eno Historic Site. There is a point to point contact with the Black Meadow Creek disturbances from the 401 Permit, a creek which is used in the operation of the mill. The assessment made by the NC State Historical Society on “no historic resources .. would be affected” lacks the context of this joint/shared creek between the properties and the floodway determination. Not only is it a mapped floodway, this site by the old mill has well-documented past and recent flooding events. The mill originally stopped operation in 1942 due to damage from flooding and was completely destroyed by flooding in 1972. (After the mill was rebuilt, it now represents the last remaining grist mill on all of the Eno river of the 24 that once existed.) 

 

More specifically, changing the base flow of Black Meadow Creek and including the runoff going into the creek from the pending development would result in physical destruction or damage on this Historical structure under heavy rains, and especially under a 100-year flood scenario. The mill is used operationally every year for community educational demonstrations, and its operational integrity is impacted by any excess runoff into Black Meadow Creek. Black Meadow Creek is noted in the NC State Historical information as the main water source for the operation of this historic mill and changes to its hydrology will impact its operation. 

 

Viewshed -Change in the character of the property’s use or setting - incompatible visual element:

The proposed Westpoint development abuts and shares nearly a 1 mile property line with the West Point on the Eno Park, and is the only private development that directly shares a boundary with the Westpoint on the Eno Historic Site that is within the park boundaries. The development as a whole and the work proposed by the 401 CWA permit (including clearing of trees and brush for the road and culvert area) will be visible from the Historic Site.This means there are large and considerable impacts to the whole Historic Site and Multiple Historical Inventory locations in regards to their viewshed. 

 

Of Specific note, there is little to no buffer on the development site plans - with no tree conservation on the development's northern boundary with the West Point Park. This nearly 1 mile stretch along the Parks southern boundary, contains regularly used wooded hiking trails which run up to the property line of the development and connect to the  “Historic Resources”at Westpoint on the Eno. These natural trails will now have nearly 400 homes next to it with no buffer.  Not only is it nearly 400 homes in total, but more than 60 houses tightly border the property line along the entire southern boundary and trails system of West Point on the Eno Park. These houses will be clearly visible from the Park as whole but also the historic site. This viewshed will significantly and adversely impact recreational activities and value the West Point on the Eno Historic Site has to the City of Durham and its citizenry. This unaccounted for Public Impact to the view and use of the Historic Site/ Public Park needs to be addressed and resolved. 

 

Noise Pollution - introduction of incompatible audible elements

Many studies for the last decade have documented an increasing amount of noise pollution in Public Parks,  most notably in local city-run parks. West Point on the Eno - already has some noise pollution coming from the busy roads around it, though it is still remarkably isolated from other human generated noise pollution. This low level of noise pollution is based on the low density zoning of all the current residential developments around the Park, and buffers areas to the City Park and historic site This development would be the highest density housing on the Eno River. It would also be the highest density housing (by far) that directly shares a property line to the West Point on the Eno and the  historic site. With nearly 400 homes--and more than 60 single family homes with their backyards being within a few feet/meters of the Park with little to no buffer--there will be a dramatic increase in noise pollution heard within the City Park and the historic sites. As a Historic Site destination, and recreational forested hiking destination for City of Durham residents and tourists, having this noise pollution impact will dramatically alter the use of the City Park and Historic site, which will diminish the value it has to the City. An assessment of Noise Pollution that this development will have on the City Park and Historic sites needs to be done to fully understand and make a determination of “no historic resources …. would be affected:”

 

Blasting -aquatic environment impact and Historic Site Impact

The 401 CWA application, checked “blasting” as an activity that will be required for the development. Blasting is mostly noted in the permit application as a question in regards to the Endangered species, and should also be noted as another reason this project has more than a minimal adverse impact to the aquatic environment - but there is also an Historic Site impact as well. 

 

Environmentally - Changes to the granite bedrock can permanently damage the watershed and wetlands areas. The required blasting should be looked at, documented, and analyzed before any CWA permit is granted in regards to permanent damage to the aquatic environment due to the blasting required.

 

The plan for blasting also raises concerns of public interest due to its proximity to a West Point Public Park Historic Site. Questions on how the developer plans to inform guests and visitors to West Point that would be within blasting and acoustic range areas are of great concern. Questions arise on if the Historic City Park or parts of it will need to be shut down during such activities.

 

Negative Impacts on Threatened or Endangered Species

This category focuses on the development and the ESA compliance issues.

 

Neuse River Waterdog 

The Durham County Inventory of Important Lands, Plants, and Wildlife  (Hall -Sutter) states that the Neuse River Waterdog salamander is present from Eno River State Park continuously to West Point on the Eno. (pg 258- Description of Fauna). The survey and notes of West Point in this literature include the land being proposed for the Westpoint development, which also includes the area of the USACE Jurisdictional Determinations. (Survey Map on pg 262) 

 

The “no effect” assessment by US Fish and Wildlife, and small surveys by S&CE seem to overlook the history of Neuse River Waterdog which has been documented to occupy areas within and directly adjacent to the development. S&CE also does not mention the survey protocols used for assessing amphibians. US Fish and Wildlife should make certain that surveying is done through the Aquatic Amphibian Survey Protocols- that generally stipulate best outcomes are achieved by surveying during breeding (spring), and would be conducted as a nocturnal survey for a Salamander.

A Standardized Protocol for Surveying Aquatic Amphibians Gary M. Fellers and Kathleen L. Freel   

 

Atlantic Pigtoe 

The Durham County Inventory of Important Lands, Plants, and Wildlife (Hall -Sutter) also states that the mouth of the Black Meadow Creek at the West Point Mill is a prime habitat for Mollusks. The Atlantic Pigtoe is documented many times at Eno River State Park within 1 mile of this location, and according to the Sutter and Hall report, species surveyed and reported at Eno River State Park “should be considered” to be at West Point on the Eno. Freshwater mussels are a vital part of an aquatic ecosystem,  and a Freshwater Mussel Survey should be required to confirm compliance to the Endangered Species Act. 

 

Carolina Madtom

In June of 2021, US Fish and Wildlife Federally recognized the Carolina Madtom as Endangered and outlined the Eno River, including West Point on the Eno’s section of the river as a Critical Habitat. The Carolina Madtom historically had strong population numbers in the Neuse River and tributaries like the Eno River. However the populations of this now Endangered fish have declined by estimates upwards of 80%. US Fish and Wildlife describes why this species is declining in the Neuse tributaries, which is applicable to this land. 

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“Why is this fish disappearing from the Neuse River but stable in the Tar River? Biologists suspect that urban development in and around the Neuse River has played a key role in the decline of this Carolina treasure. The Triangle area is located mainly within the Neuse River basin. Tremendous growth and deforestation near streams have degraded water quality and aquatic habitat. The Tar River basin, on the other hand, is dominated largely by rural communities, farmlands and forests, which have fewer impacts on aquatic ecosystems.” 

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Currently the only population of Carolina Madtom that has been verified recently  in the Neuse Basin is in Little River. Little River is within 1 mile of the Black Meadow Creek and 401 Permit disturbance, and there are no dams or obstructions between these tributaries, allowing a continuous habitable environment. And while some studies on the Carolina Madtom believe that the only future is that the Carolina Madtom would be “extirpated” (no population) in the Neuse Basin, there is recent more hopeful research. A recent paper and research in 2019 by NC State shows that with little investment it is easy to create a more habitable and protected environment specifically for the Carolina Madtom that can lead to more stable population numbers. This research shows there is greater hope to maintain the population in the Neuse Basin. This would be achieved through protecting the Critical Habitat and not adding pollution from large developments like Westpoint in the watershed.. 

 

Critical Habitat:

US Fish and Wildlife stated that to the Westpoint developer, “There are no Critical Habitats Within Your Project Area Under Jurisdiction (a)(2) of the ESA 

 

However, the Mandate under section 7(a)(2) and further stipulation under ESA describes the activities that define “destroying or adversely modifying such (critical) habitat” as

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(1) Actions that would alter the minimum flow or the existing flow of the waterways;

(2) Actions that would significantly alter water chemistry or temperature

(3) Actions that would significantly increase sediment deposition within the stream channel (including specifically road construction or other grading/clearing, etc

(4) Actions that would significantly increase the filamentous algal community within the stream channel. Such activities could include, but are not limited to, release of nutrients into

the surface water or connected groundwater at a point source or by dispersed release (non-point source). (eg, any kind of lawn care, fertilizers, etc Typically applied in planting grass for new Housing developments)

(5) Actions that would significantly alter channel morphology or geometry. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, and destruction of riparian vegetation.

(eg, such as clear cutting 60+ acres of trees and removing all vegetation)

 

Considering the US Army Corps of Engineers permit / wetland disturbance and ”action area” work  would be directly followed by the Westpoint developer; 

 

1. Clearcutting 61 acres of trees and remove all vegetation. 

2. Blasting and grading the land in a watershed. 

3. Doing road construction over the waterway that flows directly into a Critical habitat for multiple species, 

4. Planting grass for a new Housing development 

5. Creating 70% impervious surface over the 61 acres

 

The Cumulative Effects of these actions- as they relate to the Endangered Species Act Critical Habitat must be noted as they pertain to downstream impacts.

 

ESA Summary:

Based on species notes, inadequate surveying done thus far,  and the impacts to critical habitat- we request that the Corps formally ask the US Fish and Wildlife Services to reconsider their initial opinion of “no effect” and require a more thorough survey. The survey should  incorporate not only the Jurisdictional Determination on the Westpoint development property, but per the Critical Habitat Mandate and related “action area” defined in the ESA, should include assessment of  the immediate downstream Critical Habitat being affected.

 

General- Appreciable Opposition

This category focuses on the development and 401 Certificate being contrary to Public Interest.

 

Before the 404/401 application was turned in - a public petition and funding campaign to halt the Westpoint development for environmental and public interest concerns had already registered over 5,000 signatures against the development. These already known opposition actions should showcase that a Nationwide Permit is not the correct permit type due to public opposition and citizens' awareness that this development is not in the public interest given its immediate proximity to the Eno River water basin and the West Point on the Eno historic sites.  

 

*Further assessment of appreciable opposition before the USACE application was turned in -- can be seen by requesting the Official Administrative Record emails to the City of Durham from Citizens in regards to case file D1900225. 

 

Petition:

https://www.change.org/p/durham-government-officials-save-black-meadow-ridge-durham

 

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Summary 

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Based on the general environmental impacts and human environment impacts, the impacts to the Endangered Species and their habitat, the impact to the Historic Site of West Point on Eno, and the already documented large public opposition -  it is believed the the Division of Water Resources and US Army Corps of Engineers should review and reject the application as it proposed. A further look into the permit type required should be considered by the USACE,  and  a Public Hearing should be required from the Division of Water Resources.

 

Regards,

Save Black Meadow Ridge 

https://www.blackmeadowridge.org/