Loading...
HomeMy WebLinkAboutAgenda - 04-12-2005-10aORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: April 12, 2005 Action Agenda Item No. ~Q'Q SUBJECT: Endorsement of OWASA Position Regarding Hunting at Cane Creek Reservoir and OWASA Mitigation Tract DEPARTMENT: Environment & Resource PUBLIC HEARING: (Y/N) No Conservation (ERCD) ATTACHMENT(S): 03/29/05 OWASA Letter to Mayors 03/24/05 OWASA Letter to Corps of Engineers Chair and INFORMATION CONTACT: Dave Stancil, 245-2598 WRC and TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To consider providing support for the Orange Water and Sewer Authority's position regarding requirements to allow hunting at the Gane Creek Reservoir and Mitigation Tract. BACKGROUND: Discussions have been ongoing for several years between representatives of the Orange Water and Sewer Authority (OWASA) and the North Carolina Wildlife Resources Committee (WRC) regarding the interpretation of language in the 1981 Cane Creek Reservoir dam construction permits related to hunting. Prior to the construction of Cane Creek Reservoir, OWASA acquired a 490-acre Mitigation Tract that would compensate for the displacement of wildlife as the result of construction of the Gane Creek Reservoir. The BOCC and OWASA have recently discussed the County's interest in making available the Mitigation Tract for low- impact recreation opportunities that could be offered safely consistent with any hunting program that may ultimately be put in place on that property. The accompanying letters lay out OWASA's understanding of their legal requirements regarding hunting and fishing as established in the 1981 permit documents, and concerns raised by the WRC regarding their views about OWASA's perceived non-compliance with obligations under the dam permit. OWASA has suggested a process for resolving disagreement on this matter, leading up to a planned decision at the OWASA Board's April 28, 2005 meeting. The Board of Commissioners may wish to comment on the information presented in the accompanying letters and determine what feedback, if any, it may wish formally to provide to the OWASA Board of Directors for their consideration at their April 28 meeting. FINANCIAL IMPACT: There is no financial impact associated with consideration of this agenda item. z RECOMMENDATION(S): The Manager recommends that the Board review and discuss the attached materials; endorse the OWASA position regarding hunting at Cane Creek Reservoir and the OWASA Mitigation Tract; and provide appropriate direction to the Manager and staff regarding any formal input they may wish to provide to the OWASA Board of Directors for their April 28, 20Q5 meeting. OWASA March 29, 2005 ORANGE WATER ~ SEWER ALITI~ORITY Qgality Service Since 1977 Chairman Moses Carey, Jr. Orange County Post Office Box 8181 Hillsborough, NC 27278 Mayor Kevin Foy Town of Chapel Hill 306 North Columbia Street Chapel Hill, NC 27516 Deaz Chairman Carey, Mayor Foy and Mayor Nelson; Mayor Micbael Nelson Town of Carrboro 301 West Main Street Canboro, NC 27510 Attached for your information is a letter which OWASA sent last week to the N.C. Wildlife Resources Commission (WRC) and the U.S. Army Corps of Engineers (COE) on March 24, 2005. We wrote this letter because WRC staff very recently advised us that it has now read OWASA's 23 yeaz-old permit documents, and has concluded that OWASA should open its Cane Creek Reservoir for waterfowl hunting and the entire Mitigation Tract for small game, turkey, and deer -without the previously negotiated restrictions to primitive firearms only (azchery and muzzle loaders). WRC contends that anything less will put OWASA in violation of the COE permit that authorized the Cane Creek Reservoir to be constructed, and the WRC has threatened to "take the matter to the next level," that is, directly to the COE that OWASA is in violation of its pernut, OWASA's Board, staff; and Counsel disagree with WRC's position, and have advised the COE of its position. The Mitigation Tract was acquired prior to construction of the Cane Creek Reservoir, to provide replacement habitat for animals displaced by construction of the Reservoir, to comply with a condition of the 1981 federal dam pemvt authorizing construction of the Cane Creek. Reservoir. Another condition of the federal dam permit requires OWASA to allow fishing and hunting on the Reservoir, without mentioning the Mitigation -Tract. WRC believes that OWASA should have been required to allow fishing and hunting on the Reservoir and hunting on the Mitigation Tract, but that, by mistake, the pernut only mentioned the Reservoir. Over the last two or three yeazs and until quite recently, OWASA staff had been working with WRC staff in negotiations to resolve the disagreement about what hunting activities should be allowed to satisfy that permit condition. OWASA staff and WRC officials had agreed to propose, and had presented to the community in several public meetings, a schedule of very restricted hunting activities (black powder 400 Jones Ferry Road Equal Opponunig' Emplo~'er Voice (919) 968-4421 PO Box 366 Printed on Recycled Paper FAX (919) 968-4464 Carrboro, NC 27510-0366 n'o'ne on'amorD Chairman Moses Carey, Jx, Mayor Kevin Foy Mayor Michael Nelson March 29, 2005 Page 2 muzzle loaders, and bow and arrow only, at limited times and by permit only) on the Mitigation Tract, which WRC had verbally agreed to manage as aState-controlled Gameland, Naturally, many local neighbors objected to any hunting on the Mitigation Tract, where hunting has not been allowed previously, while others expressed strong, sometimes bitter views that OWASA had long avoided its legal obligation under the original permit to open its Reservoir property to hunting. We aze aware too, that some County officials have long viewed the Mitigation Tract as suitable for use as a passive recreation site for County residents, provided such a use could be made safely around a carefully restricted hunting program. OWASA's Boazd of Directors believes that this disagreement should be resolved consistent with any clear, legal requirements, and by negotiating with WRC in the public interest, and by inviting and listening to public input, all in order to implement a program within the meaning of the permit requirements, not inconsistent with public safety and interest. OWASA invites the County, Chapel Hill and Cazrboro to give OWASA the benefit of their perspecfives on this matter, and otherwise to participate in this public debate to the extent they may believe it necessary and appropriate to do so, OWASA's Board of Directors plans to make a final decision on this matter at its Apri128, 2005 meeting which begins at 7:00 P.M. at the Chapel Hill Town Halh We invite you to give us the benefit of your views prior to or at our Apri128'~' meeting, VMery~tru~ly yo~unrs-, "',,.~,Q~~ Mazk Mazcoplos, Chair OWASA Boazd of Directors Enclosure c: Senator Eleanor Kinnaird (w/encs,) Representative Verla Insko (w/encs,) Representative Joe Hackney (w/encs.) Mr. W, Calvin Horton, Town of Chapel Hill (w/encs.) Mr. John Link, Orange County (w/encs,) Mr. Steven Stewart, Town of Carrboro (w/encs.) OWASA Board of Director (w/encs,) Robert Epting, OWASA General Counsel (w/encs,) Ed Kerwin, OWASA Executive Director (w/encs,) ®~/~~~, GRANGE WATER & SEWER ALITHOfti'TY Qpality Serrice .Since ] 977 March 24, 2005 Mr. Richard Hamilton Ms, Jean B. Manuele Executive Director Chief, Raleigh Regulatory Field Office N.C, Wildlife Resources Commission 6508 Falls of the Neuse Road, Suite 120 1702 Mail Service Center Raleigh, North Carolina 27699-1702 Raleigh, North Cazolina 27615 Dear Mr. Hamilton and Ms- Manuele: 5 The Orange Water and Sewer Authority ("OWASA") owns and operates the public water supply system serving southern Orange County, including Chapel Hill, Carrboro, the University of North Carolina at Chapel Hill and UNC Hospitals.. A major component of OWASA's water supply system is the Cane Creek Reservoir ("Reservoir', which was authorized and constructed pursuant to the U.S. Army Corps of Engineers Section 404 permit, received from the Corps on July 28, 1981. (Permit SAW00078-068-124.) OWASA acquired the 404 Permit with the understanding that it would mitigate the wildlife habitat lost under the Reservoir site by acquisition of a 490-acre Mitigation Tract, and by opening the Reservoir to public hunting and fishing. In particular, OWASA's then Executive Director, Mr. Everett Billingsley wrote Mr.. Frank Barick of the Wildlife Resources Commission on September 4, 1980, and stated that OWASA was "in the process of acquiring a 490-acre tract of forested land within the Cane Creek Watershed that will not be in the flood pool, which we trust you will fmd acceptable for satisfying an additional eight points of `selective mitigation' as specified in 6.4 of your 1 etter." Continuing in that letter, Mr. Billingsley stated, "We anticipate no problems with accepting and implementing the other elements of Section A- Mandatory Mitigation Requirements in your letter of Sul}' 7, 1980, i,e.: 2) Reservoir to be open to public fishing and hunting with no chazge for same;.,." E upl 0 przunio Em 1p eT Voice (979)966-4421 400 Jones Ferry Road 9 PP y P J FAX (97 9) 966-4464 PO Boz 366 Printed on Rerycled Paps N' W B'AIf'p5p pT8 Cazrboro, NC 27570-0366 Mr. Richard Hamilton Ms. Jean B. Manuele March 24, 2005 Page 2 By letter dated that same day, the Wildlife Resource Commission's Interagency Wildlife Coordination Chief, Mr. Frank Barick, wrote to OWASA: "We are pleased to advise that the terms specified in your letter of September 4, 1980 will in our opinion satisfy requirements of the Federal Fish and Wildlife Coordinating Act as they relate to mitigation of loss of fish and wildlife habitat resulting from construction of the proposed 480- acre Cane Creek Reservoir in Orange County. By copy of this letter we aze notifying the US Carps of Engineers so that they may be apprised of this development in their consideration of the issuance of the required 404 Pernut." The U.S. Army Corps of Engineers issued its 404 Permit to OWASA on July 28, 1981, including the condition that: "The fish and wildlife mitigation plan outline (sic) in OWASA's letter of 4 September 1980 be implemented to the satisfaction of the N.C. Wildlife Resources Commission." OWASA in fact did acquire and has reserved the 490-acre Tract for wildlife mitigation, and has allowed no other uses of that property. It is preserved as an entirely natural habitat for wildlife, in ful] compliance with OWASA's obligation to provide habitat to replace that flooded by the Reservoir. Further, since completion of the Cane Creek Reservoir in 1991, OWASA has allowed public fishing on the Reservoir during the months of April through October. (The Reservoir is closed for the cold weather season from mid-November through mid- March.) Because OWASA was unaware of any season for game that might be hunted on the Reservoir from April through October, and because hunting and fishing activities at the same time and at the same location would offer substantial public safety risks, OWASA has not allowed any public hunting on the Reservoir. Instead, the Reservoir has been managed as a wildlife preserve area for ducks and geese and as a public fishing resource. We believe that these activities fully comply with OWASA's duties to mitigate the lass of habitat for wildlife displaced by the Cane Creek Reservoir. OWASA notes that it acquired and has preserved and used the Reservoir and Mitigation Tract as described above for more than twenty yeazs without further inquiry, request, or notice, or any apparent interest, by the Wildlife Resources Commission (WRC). OWASA believed, and continues to assert that it has complied in good faith with the terms of the 404 Permit, Mr. Richard Hamilton Ms. Jean B.. Manuele Mazch 24, 2005 '7 Page 3 In July of 2003, OWASA became awaze that in Apri12003, without notice or inquiry to OWASA, the WRC had complained in writing to the Corps of Engineers that WRC had not "been invited to participate in umber management on the OWASA project," and that it felt that OWASA was not in compliance with the hunting and fishing requirements of the Permit. (No copy of this complaint was sent to OWASA by WRC; instead, OWASA obtained a copy by its own request after receiving the Corps of Engineers' inquiry.) OWASA immediately contacted WRC, and at OWASA's request, a series of meetings began, in which OWASA and WRC representatives (Mr. Wib Owen and Mr.. Harlan Hall for WRC, and Mr. Ed Holland and myself for OWASA) worked diligently to define and agree upon a revised hunting and fishing program for the OWASA property, In particulaz; the proposal would, subject to OWASA Board approval, eliminate the requirement to provide hunting on the Reservoir, and replace it with limited, supervised hunting on the Mitigation Tract, which would be designated a WRC Gameland. The limited hunting schedule proposed was devised taking into consideration the way in which the azea surrounding the Mitigation Tract has developed since 1980. In the intervening twenty-four yeazs, the area has become much less rural, and has developed with a number of'subdivided, inhabited parcels neazby, and in particulaz now surrounds a commercially operated horse stable and farm, whose owners aze greatly concerned about the impact of unrestricted hunting on their property and patrons. While some local residents support hunting, many more have appeazed and objected to unrestricted hunting on the Tract Moreover, the Orange County Commissioners have expressed interest in partnering with OWASA to provide for limited, passive recreational uses such as hiking paths, for County residents, on the Tract. In short, there are many conflicting interests to be considered in this matter, and OWASA has gone about this business as it conducts its other affairs, by seeking and listening to public input, while explaining its public responsibilities, before making a final decision. OWASA has convened and participated in this process in goad faith, and has invited the public and has listened at public meetings in the community and at its Board meetings, as both hunters and concerned neighbors have commented on the proposal devised and thought reasonable by WRC and OWASA staff: OWASA will be advising interested parties that the OWASA Boazd will consider adopting a program to assure compliance with its Permit obligations, while fully abiding by the ]aw and giving due consideration to interested neighbors, at its Apri128, 2005 Board meeting.. In light of these circumstances, OWASA thanks the WRC for its participation and assistance in devising the hunting program proposed and presently under consideration for the Mitigation Tract, and offers its assurance that OWASA is expected to take action at its Apri128, 2005 Boazd meeting to formally acknowledge that its Reservoir and/or its Mr. Richazd Hamilton Ms. Jean B. Manuele March 24, 2005 Page 4 Mitigation Tract will be open for hunting in compliance with the requirements of the 1981 Permit. We appreciate your patience and understanding of OWASA's efforts and commitment to implement a program fully in compliance with the terms of its Pernut Very truly yours, Ed Kerwin Executive Duector c: Mr. David Cox, N.C. Wildlife Resources Commission Mr. Hazlan Hall, N.C. Wildlife Resources Commission Mr. Wib Owen, N,C. Wildlife Resources Commission OWASA Board of Directors Robert Epting, OWASA General Counsel S