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Erosion issues persist at Millennial Apartments

Muddy water flows down the access road to the Millennial Apartments project during a     rain event Feb. 24. Jackson County photo Muddy water flows down the access road to the Millennial Apartments project during a rain event Feb. 24. Jackson County photo

The Millennial Apartments project overseen by Zimmer Development Corporation has racked up seven notices of violations of state standards since breaking ground on the project last summer in Cullowhee.

The most recent NOV was issued Jan. 14 as the result of a Dec. 17 inspection that revealed turbidity levels in some locations on the property that were nearly triple the state standard of 50 nephelometric turbidity units. Nine samples were collected, of which four were upstream of the confluence with the tributary coming from the Zimmer project or otherwise outside the limits of disturbance.  These upstream samples averaged 24 NTUs. Meanwhile, the five samples taken from areas affected by site runoff averaged 82.6 NTUs, with one sample logging a turbidity level of 140 NTUs. 

These results were likely impacted by an uncapped pipe found on site, unleashing muddy water near the project’s entrance. 

A Feb. 10 letter to the Division of Water Quality from Civil Design Concepts, the company Zimmer hired to rectify the violations, states that site conditions have “continued to improve and stabilize” as grass has established on all exterior slopes. The site’s interior does not have ground cover but drains to “significantly oversized basins, which have performed well,” the letter reads. While the majority of the site had been stabilized when the letter was written, the eastern side along Dr. Killian Road still required attention. 

“Traffic tracks dirt onto the road which is then carried by runoff through various paths off-site,” the letter reads. “The contractor is addressing this by installing another construction entrance, utilizing a street sweeper for paved roads, and regularly back-blading Killian Road.”

 

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An ongoing problem

These erosion issues have been ongoing for most of the past year. The state issued its first notice of violation on June 17, 2019, with additional violations issued June 19, June 21, July 31, Nov. 4 and Nov. 13. The most recent notice, issued Jan. 14, brings the grand total to seven. 

“Never in one given day on a rainy day has that site been in compliance enough to keep soil from leaving the site,” said Ken Brown, executive director of the Watershed Association of the Tuckasegee River. 

Brown, who is a contractor by trade, called for the state to shut down construction at the site completely, calling its lack of willingness to do so “shameful.”

“When it rains today and tomorrow, I don’t really fully expect that they will have achieved compliance on the eastern part of the site,” Brown said during a phone call Monday, March 2. “I hope to find otherwise, but I won’t be surprised is what I’m saying. There are numerous construction sites, university, public-private contracts going on or ongoing or concurrent with what’s going on there, and all those sites and have been in compliance and have been working very diligently to keep it that way. So this is incredibly unusual.”

Adam Tucker, director of development for Zimmer, took issue with that characterization.

“There’s been an inordinate amount of rain this year and large events that have been, I would say, unusually large events that made it more challenging for us,” he said. “But again, we worked with the state. We increased our controls. We’ve added measures, we’ve shored up existing measures and feel good about where we are in the process.”

Tucker especially took issue with Brown’s assertion the site has been out of compliance every time it rains. While he couldn’t say how often those issues actually do occur, as he’s not on site day-to-day, he insisted that they’re not continual. 

“We don’t have a problem every time it rains,” he said. “I wouldn’t say ‘A lot of times.’ I would say just a few times.”

If a rainstorm were to hit this week, said Tucker, he’s confident that the measures in place would be sufficient to prevent additional erosion. 

The situation does seem to be improving, said Jackson County Planning and Code Enforcement Director Tony Elders. A photo of the site during a rain event March 2 still shows some mud in the runoff — though it’s difficult to tell how much is residual from earlier rains that week — but it’s significantly less than the markedly muddy water flowing down the site’s access road in a photo taken the previous week. The situation looked even better during the most recent rain March 3. 

“The site actually held up fairly well overnight compared to recent history,” said Elders March 3. “Still some muddy runoff but improving.”

However, it’s undeniable that the issue has been persistent and of unusual proportions. There are many other construction projects underway in the Cullowhee area, said Elders, and they have all remained in compliance. According to Brown, erosion issues at Zimmer have been present since an unreported incident that occurred in April 2019. 

Turbidity, another name for muddy water, is a big problem for mountain trout streams where aquatic organisms require clear water to survive and especially to thrive. Brown, who grew up on a 78-acre property that includes the very land where the Millennial Apartments are now being constructed, remembers when Long Branch was wider, shallower and good for fishing. Increased development in the area has forced the stream to become narrower and deeper, creating a whole different kind of aquatic ecosystem. 

 

Impacts to neighbors

It’s not just environmental concerns that have locals upset. A sheer slope drops off from the edge of the construction site, the toe of which ends just behind a student housing development owned by Sherri Deitz. Following heavy rain Halloween morning, a piece of earth detached from the slope, slid downhill, and knocked one of those houses off its foundation. 

“I was scared to death,” Deitz said in an interview at the time. “I was yelling. I thought my tenants were in that place, and I was scared to death that they were injured.”

Nobody was home, so nobody was injured, but the house was condemned and all students living in the development’s 12 small houses were evacuated for a time. Brown said that Zimmer has done “absolutely nothing” to restore the damaged house, which is still condemned, and that Deitz paid out of pocket to have someone remove the mud that accumulated under several of her houses as a result. 

When reached for comment, Deitz said she couldn’t make a statement at this time. Tucker, meanwhile, said Deitz had never asked Zimmer for any help in connection with the incident. 

Brown said that WATR plans to help restore the portion of Long Branch that runs behind Deitz’ property and will expand that project to cover as large an area as possible. 

“If we don’t do something there, her houses eventually are going to fall into the creek because the stormwater velocity and volume coming through there is such that it’s continually eroding the banks,” he said. 

 

Work continues

Because the project takes place on land owned by Western Carolina University, it’s subject to state inspections rather than to county inspections. Elder’s office, as well as the county’s planning office, tried to send a message by briefly suspending approval of the project this fall under the county’s subdivision ordinance and halting building inspections. However, those suspensions soon had to be reinstated. 

The Department of Environmental Quality does have the authority to issue a stop-work order the project, and state statute requires that several conditions be met to do so. The Secretary of Environment must find that a violation has occurred, that the violation is knowing and willful and that one of three additional criteria has been met. Those criteria are that off-site sedimentation has eliminated or severely degraded a use in a lake or natural waterway or that such degradation is imminent; that off-site sedimentation has caused “severe damage” to adjacent land or that such damage is imminent; or that land-disturbing activity is being conducted without an approved plan. 

“DEQ keeps all compliance options available for every project site under our jurisdiction,” said Sarah Young, public information officer for DEQ. 

No stop work order has been issued, and WCU expects that the 500-bed student housing complex will be up and running by August, said WCU Chief Communications Officer Bill Studenc. The university can’t say with certainty if it would work with Zimmer again until it sees how well the company rectifies this most recent violation, said Studenc. However, the incidents are certainly a departure from business as usual. 

“The issues we have faced with the project on the West Campus are highly unusual,” he said. 

On Nov. 6, the Division of Water Resources assessed fines and fees totaling $14,610, which Zimmer has yet to pay. 

“We don’t necessarily disagree with it. We’re just still in discussion with them,” said Tucker. 

However, Zimmer is legally contesting the fines through a case in the Office of Administrative Hearings filed Dec. 10. Zimmer is asking that the penalties be dismissed, claiming that the Division “acted arbitrarily and capriciously and erroneously” in assessing the fines. Heavy rains were responsible for the fact that approved erosion control measures were overwhelmed, but the sediment has been removed and the streams repaired, Zimmer argued in its petition.

Brown disagrees. 

“They’re diligently opposing the fines and their responsibility,” he said. “They have neglected wholesale to force the company that is working for them to bring this site into compliance.”

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