• · Two tributaries of Abrams Creek flow through the Overlook property: Bell Branch (HUC 06010204) and Mill Creek (HUC 06010204). They flow into Abrams Creek in the Great Smoky Mountains National Park within approximately 1 mile of the property.
  
  
• Abrams Creek is a Tier III stream within the Park boundaries. It is home to 4 federally listed species of fish: smoky madtom (Noturus baileiyi), the duskytail darter (Etheostoma percnurum), yellowfin madtom (N. flavipinnis) and spotfin chub (Cyprinella monacha).
  
  
• Bell Branch and Mill Creek are Tier II streams in the area of the Overlook development. See The Known High Quality (Tier II) Streams in Tennessee (Feb. 2006). Mill Creek was listed because it is known to be home to the spotfin chub, and Bell Branch because it is a naturally reproducing trout stream.
  
  
• The proposed development would be 80 homes with some commercial components on approximately 283 acres. According to the SWPPP approximately 34 acres would be graded for roads, and an additional 46 acres would be graded for home sites. Overlook has proposed placing 3 portions of the headwaters of Bell Branch in culverts for road crossings. It has also proposed placing Mill Creek in a culvert for a road crossing to “allow for access to the western half of the property” and “increase the amount of prime development area on the property.” For Crossing #1, the culvert would be 87 feet long on an unnamed tributary to Bell Branch; Crossing #2 would be 97 feet long on an unnamed tributary to Bell Branch; Crossing #3 would be 94 feet long on an unnamed tributary to Bell Branch; and Crossing #4 would be 56 feet long on Mill Creek.
  

The Impacts Authorized by General ARAP Violate the Board’s 1997 Culvert Policy.
Placing the headwaters of Bell Branch and a portion of Mill Creek in culverts would violate the Water Quality Control Board’s Culvert Policy adopted in 1997, which prohibits the placement of streams in culverts unless the “impact is unavoidable,” and describes the types of “rare and exceptional circumstances” in which the Department may authorize installation of a culvert. The Policy makes it clear that “[c]onvenience of land development or increase of use of the land area does not constitute a ‘rare or exceptional circumstance,’ and. therefore, “placing waters into a culvert to allow convenience of land development will not be allowed.” Tennessee Water Quality Control Board, Policy Regarding Alterations of State Waters Involving Culverts (Aug. 26, 1997). The culverts proposed for Overlook should not be permitted under this policy, because they are clearly for the convenience of land development.

An Individual ARAP Should be Required for the Project
The Overlook Project should not be eligible for coverage under the General Permit for Construction and Removal of Minor Road Crossings (“General ARAP”). A minor road crossing is “a bridged or culverted roadway fill across a stream or river which results in the alteration of 200 linear feet or less of stream bed or shoreline.” Rule 1200-4-7-.03(26). The General ARAP cannot be used “where the total length of road crossing is more than 200 feet on a single stream, for the entire project, including transitions.” General ARAP, exclusion 1). The Overlook development would alter more than 200 feet of Bell Branch.

The General ARAP may not be used “when the proposed activity will adversely affect a species formally listed on either state or federal lists of threatened or endangered species or their critical habitat.” General ARAP, Exclusion 5). Mill Creek, which contains the listed spotfin chub, would be directly impacted by the proposed construction. Impacts to Bell Branch would impact Abrams Creek a short distance downstream, which contains 4 listed species. An individual ARAP should be required because of likely impacts on listed species.

The General ARAP should not be used where the “department determines that the proposed activities, either individually or cumulatively, may result in degradation to waters of the state.” General ARAP, Exclusion 7). Cumulative impact is defined by the ARAP regulations as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.” See Rule 1200-4-7-.03(13). Because of the Tier II designation of the waters in which the 4 culverts are planned, and because these streams are directly upstream of Tier III waters, the threshold of degradation is very low (see discussion of Antidegradation Policy Below). In addition to the 4 culverts, cumulative impacts would include the construction of subdivision roads as well as the future construction of 80 homes. We believe that the Department should have determined that the project is not eligible for the General ARAP based on cumulative impacts.

An Individual NPDES Stormwater Permit Should be Required for the Project
Under § 1.3(g) of the General NPDES Permit for Discharges of Storm Water Associated with Construction Activities (“General Storm Water Permit”), “the director shall not grant coverage under this permit for potential discharges of pollutants which would cause degradation to waters designated by TDEC as high quality waters.” Again, the threshold of “degradation” is very low in this case, and the additional measures in Subpart 4.4 of the General Storm Water Permit would not be sufficient to prevent degradation.

Coverage under the General Storm Water Permit should also be denied under § 1.3(h) for “storm water discharges and storm water discharge-related activities that are not protective of legally protected listed or proposed threatened or endangered aquatic fauna (or species proposed for such protection) in the receiving stream(s).” The Stormwater Pollution Prevention Plan does not acknowledge the need for or contain any additional measures for preventing discharges that would impact listed species. An individual permit should be required which would contain requirements for monitoring on the Overlook property to ensure that sediment does not impact the streams. More stringent requirements should be included for preventing erosion and protecting the streams as a result of the steep slopes where the development is proposed.

The Project and its Impacts Should Undergo Antidegradation Review.
For Abrams Creek, which is a Tier III or Outstanding Natural Resource Waters, “no new discharges, expansions of existing discharges, or mixing zones will be permitted unless such activity will not result in degradation of the water quality.” Rule 1200-4-3-.06 (4). The Department has recently explained that the impact to any Tier III stream must be “unmeasurable,” “less than de minimis impacts, but more than a molecule or two.”

TDEC, Draft 2006 Triennial Review of Water Quality Standards Summary of Public Comments and Tennessee Water Quality Control Board (WQCB) Responses, p. 8. It is not necessary that the activity be within the Tier III waters; it can by upstream and still cause degradation. Based upon this standard, the Overlook project should go through antidegradation review, because of its likely cumulative impacts on Abrams Creek.

For Bell Branch and Mill Creek as Tier II waters, no degradation is allowed “unless and until it is affirmatively demonstrated to the Department, after full satisfaction of the . . . intergovernmental and public participation provisions, that a change is justified as a result of necessary economic or social development and will not interfere with or become injurious to any classified uses in such waters.” Rule 1200-4-3-06(3)(a). Degradation has generally been defined to include removal of habitat, which would result from culverting of these Tier II streams. Rule 1200-4-3-.04(4).

The Department has taken the position that an antidegradation review is not required for activities authorized under a general permit which was public noticed and reviewed as representing only a de miminis level of impact. As discussed above, we believe that the activities were not properly authorized under general permits. But even if they were, antidegradation review should still be required for the Overlook development. There is no evidence that the General Storm Water Permit was public noticed and reviewed as representing only a de minimis level of impact for antidegradation review. Although subparagraph 4.4 contains additional requirements for high quality waters, the General Permit never claims a de minimis level of impact, and it is a fiction to claim that no discharges will occur when the construction is in high quality waters. The Notice of Determination for the General ARAPs states that “[i]t is the belief of the division that these qualifying activities would not normally result in degradation of waters of the state per the Rules of the Tennessee Water Quality Control Board, Chapter 1200-4-3-.06,” but there is no documentation supporting this belief. For the General Permit for Construction and Removal of Minor Road Crossings, the Response to Comments merely states that “we review the proposal to assure that the impact on the stream has been minimized to the extent practicable.” This is not the same as a de minimis impact, particularly when a Tier III stream is involved.

For these reasons, we request that the Department review its decision to authorize coverage under the general permits and require individual permits and antidegradation review with full public participation. We would appreciate a response to this request before August 18, 2006. If you would like additional information, please do not hesitate to contact me.

Gary A. Davis

Gary A. Davis & Associates