Balsam Mountain Preserve hopes to rebuild the earthen dam that collapsed at its golf course last summer, but protests by state and federal environmental agencies could sideline the plans.

The development needs a permit from the Army Corp of Engineers to once again dam up the creek for an irrigation pond. Getting the permit, however, could prove an uphill battle. The first and most obvious strike against Balsam Mountain Preserve is the fact that the first dam failed, causing massive environmental devastation downstream. When the earthen dam collapsed last summer, it unleashed a mud slurry that depleted aquatic ecosystems for miles downstream, scouring creek banks and leaving large deposits of sediment.

“Evidence of the severe impact of the dam failure can still be seen today in the sediment deposits that remain in sections throughout Scotts Creek,” according to the U.S. Fish and Wildlife biologist Brian Thompkins.

But another strike against the development is its failure to comply with the environmental terms and conditions laid out in an initial Army Corps permit for the dam granted in 2002. The development built the dam in a different place than it initially said it would.

Jesse Tilghman, Balsam Mountain Preserve construction manager, said the dam was moved because the master plan for the golf course was based on inaccurate aerial topographic surveys. Once construction started, they had to alter the golf course design.

Specifically, one of the two irrigation ponds on the golf course was in a bad place, requiring too much pumping to bring the water from the pond up to the fairways. The revised plan called for moving the pond to a different stream on higher ground, reducing the number of pumps and pressure needed to irrigate.

If Balsam Mountain Preserve wanted to deviate from its permit, it should have called Army Corps and checked first, said Lori Beckwith, an engineer with the Army Corps out of Asheville.

“They are supposed to contact us ahead of time if they want to move them around, and they did not,” Beckwith said.

Few developments stray from their permits to the extent Balsam Mountain Preserve did, Beckwith said.

“I have not seen a lot where there are this many modifications by the permitee,” Beckwith said.

Balsam Mountain Preserve’s initial permit was for more than just the dam. Streams in the way of the development’s road network and golf course had to be buried in culverts. The golf course alone filled in nearly half a mile of streams. But as with the dam, this was done in different places and a different manner than the permit called for — again due to a revised master plan.

“Several culverts were lengthened, shortened, or moved to new locations,” according to the Army Corps.

At this point, Balsam Mountain Preserve must get retro-active permission to do what it has already done. The technical term is an “after-the-fact” permit modification from the Army Corps.

Both U.S. Fish and Wildlife and the N.C. Wildlife Resources Commission are opposing the new permit.

“We believe that BMP has exacerbated the impacts to aquatic resources by their lack of compliance and has discharged excessive amounts of sediment into area streams, resulting in severely impacted water quality, the loss of aquatic species, and degraded aquatic habitats,” Fish and Wildlife wrote in a formal objection to the permit.

The N.C. Wildlife Commission made similar comments, citing Balsam Mountain Preserve for “considerable degradation of trout streams due to the dam failure, inadequate and ineffective erosions controls and storm water increases.”

Both agencies claim Balsam Mountain Preserve doesn’t deserve a second chance or a retro-active blessing for impacts they’ve already caused.

Beckwith could not say whether the Army Corps intends to grant the permit. It will be several months before a final decision is reached. In this case, it is not necessarily easier to ask for forgiveness than permission. “After-the-fact” permit requests do get denied, and the developer has to undo whatever they did.

“If we do deny a permit, we say fix it,” Beckwith said.

Impacts balance out

While variations were made to the golf course design, the total length of streams impacted by construction didn’t change, according to the “after-the-fact” permit application. In fact, slightly fewer feet of stream were impacted.

Putting the dam in a different place didn’t change the environmental impacts either, according to Balsam Mountain Preserve.

“The new pond location is no more environmentally damaging than the permitted location,” according to their permit request and data from stream surveys.

It was simply in a different place.

“Essentially it wasn’t increasing impacts. We were moving an impact from one unnamed tributary to another unnamed tributary,” Tilghman said.

In some cases the company performed more mitigation than required by its permits. Part of the mitigation for the initial permit was to pull out old culverts embedded in streams during the timber era. (The property was once owned by a timber company.) As Balsam Mountain Preserve came across culverts, it pulled them out regardless of if they were among those required under the mitigation plan filed with the Army Corps, and as a result, pulled out more than was required.

Second dam will do better

Tilghman said the second dam will have a new design to prevent it from collapsing. Last time, the dam failed because soil packed around the outflow pipe eroded. The outflow pipe allows water to flow from the pond through the dam and out the other side. But water gradually eroded the soil packed around the pipe, weakening the dam and causing it to collapse, Tilghman said.

This time, the dam will have two features to stop that erosion: a chimney drain and a diaphragm drain. Also, the pipe that allows water to flow from the pond through the dam and out the other side will be constructed of ductile iron rather than aluminum like the first one. Another safety measure will be a larger emergency spillway, Tilghman said.

Other concerns

Opposition from the NC Wildlife Resources Commission to the “after-the-fact” permit isn’t surprising. The agency objected to the original permit five years ago.

One concern is the lack of water left in the stream after the golf course was irrigated. The golf course was using so much water, little if any flowed through to the other side, according to the Wildlife Commission. The stream below the dam was robbed of its water, which in turn hurt fish and other aquatic critters.

The elimination of downstream flows was a violation of the initial permit, according to U.S. Fish and Wildlife. Like the Wildlife Commission, U.S. Fish and Wildlife doesn’t much like dams, period.

“The negative effects of impoundments are well documented and include blocking migration routes, habitat fragmentation, alteration of natural hydrological and geomorphic regimes, degradation of water quality, declines in biodiversity, alteration of natural food webs, and disruption of riparian plant communities,” U.S. Fish and Wildlife wrote in protest to the issuance of a new permit.

Dam break cleanup

Both U.S. Fish and Wildlife and the Wildlife Commission are still concerned about the cleanup efforts following the dam break. Balsam Mountain Preserve has failed to restore and stabilize all the stream banks destroyed by the dam break, according to the Wildlife Commission. The state and federal agencies asked Balsam Mountain Preserve last September to survey streams damaged by the dam break to determine what areas need repairing. Balsam Mountain Preserve has yet to provide the survey, however, according to the agencies.

“We recommend that a thorough survey be conducted of the stream channels impacted by the dam failure and that a complete mitigation plan be provided which compensates for all impacts to stream channels associated with the dam failure,” according to U.S. Fish and Wildlife comments.

Some restoration work is still pending — and is part of the Army Corps permit currently on the table. The Wildlife Commission felt the stream restoration work and the “after-the-fact” modifications should be treated as two separate permits rather than wrapped into one.

In terms of the restoration work Balsam Mountain Preserve has yet to complete, neither the Wildlife Commission nor U.S. Fish and Wildlife believe it is enough. They not only want to see more stream restored in terms of quantity, but also the quality of the restoration work.

Balsam Mountain Preserve said it has spent $200,000 so far on the cleanup to remove sediment and stabilize scoured stream-banks.

“First and foremost we would like to apologize to the citizens of Jackson County and would like them to know that we have invested a tremendous amount of our own resources to correct this problem,” Balsam Mountain Preserve President Craig Lehman said in a statement. “Our commitment to our neighbors, the citizens of Jackson County, about the environmental quality of this great state remains steadfast.”