Legasus developers hope to convert 300 acres of Cullowhee Mountain in Jackson County to a private golf course, but the plans hinge on permits from state and federal agencies that are — at least for now — playing hard ball.

Correspondence between the agencies and the developers doesn’t bode well for Legasus so far. Staffers who control the permits want to see the golf course redesigned to cause less environmental damage and want to see more mitigation to make up for the impacts.

The agencies could deny the golf course permits altogether, although the chances of that are probably remote.

Legasus is developing 1,800 acres in rural Tuckasegee with more than 850 lots and condos, a full-size golf course and a “short” course. The development, Webster Creek, is one of five tracts Legasus is developing under the name River Rock. The developers are planning a total of 1,700 lots on 3,500 acres on five separate tracts between Tuckasegee and Glenville.

Several creeks are in the way of Legasus’ golf course design — nearly two-thirds of a mile worth. Legasus wants to bury 3,340 feet of creek in pipes for construction of the greens and fairways. To do so, Legasus needs a permit from the U.S. Army Corps of Engineers and the N.C. Department of Environment and Natural Resources.

The agencies have sent Legasus back to the drawing board to consider a different golf course design that wouldn’t require burying so many creeks in pipes, according to correspondence on the permits. If Legasus wants to keep its original design, it has to prove why another design wouldn’t work.

Legasus’ design hinges on the location of the clubhouse, chosen for its stellar views. The only problem is that the 1st and 18th holes have to flank the clubhouse, where players embark and return from the game. Legasus also wants the driving range to flank the clubhouse. But the terrain around the clubhouse won’t accommodate the two holes and the driving range without a lot of impacts to creeks.

“They chose where they wanted the clubhouse and designed the golf course around it instead of looking at the land and saying ‘Where should we put things so the impacts won’t be as great,’” said Bryan Thompkins with the U.S. Fish and Wildlife Service, who reviews and comments on the permit as part of the process.

The 1st and 18th holes, along with the driving range, account for 60 percent of the stream impacts associated with the course.

“So much of the overall impacts are associated with such a small part of the golf course,” said Dave McHenry with the N.C. Wildlife Resources Commission, another agency that offers input on the permits.

The agencies were universal in their call for Legasus to rearrange its clubhouse, and along with it the 1st and 18th holes and the driving range.

The agencies also questioned why the creeks have to be buried below the fairway at all. Instead, golfers could just deal with the creeks and hit their balls across it.

“They could be played as water hazards,” suggested Thompkins.

Golf course developments of this scale have led to the decline or even disappearance of trout from neighboring streams, according to Dave McHenry with the N.C. Wildlife Resources Commission. McHenry cited the obvious problems: sedimentation and increased runoff. But golf courses have other side effects, like the loss of vegetation along creek banks, McHenry said. Thompkins expressed a concern about the heavy chemical treatments it takes to maintain the turf.

The Army Corps got 93 comments on Legasus’ permit application, the vast majority from private citizens. While the Army Corps has turned down pleas from the public to hold a public hearing on Legasus’ permit application, there is a chance yet that DENR might hold one.

Just say ‘no’

Critics of the two golf courses want the Army Corps to deny the permits altogether. They say there is no reason Legasus needs a golf course, and that there’s no reason the Army Corps or DENR has to grant one.

Thompkins said Legasus could dedicate the 300 acres for the golf course to hiking and horse trails and fishing as an alternative amenity. He also points out that 29 golf courses already exist in a 20-mile radius.

“The use of other golf courses in the area is a practicable alternative,” Thompkins said.

Thompkins chose the word “practicable” for a reason. The Army Corps is supposed to choose the “least environmentally damaging practicable alternative.”

Not building a golf course is clearly less damaging than building one, but is it “practicable”? That’s the question Lori Beckwith must wrestle with. A biologist and permit officer with the Army Corps office in Asheville, Beckwith’s decision on Legasus’ permit carries a lot of weight.

Part of what’s practicable is the cost, she said. If Legasus had two choices — burying a creek versus going around it — and the cost of going around it was $500,000 more, Legasus could argue the cost of going around it made that option not practicable.

But developers have employed an alternative to the cost argument: without a golf course, Legasus couldn’t sell its lots for as much, thus amounting to a cost. But failing to realize a higher profit margin shouldn’t be considered a “cost,” Thompkins said.

“The regulations say nothing about your profit,” Thompkins said. “It is just the cost to you. If you don’t have to build it, think of the money you are saving.”

Beckwith, however, seemed willing to accept the profit margin argument.

“Can they provide us with justification of ‘Economically we need it,’” Beckwith said.

That said, it would be a subjective claim, she said.

“There’s no rule that says how much profit they are entitled to make,” Beckwith said. “There is no line where we say ‘This is enough and that’s not enough.’”

In a letter to Legasus, Beckwith said she understood that “it may not be practicable” to avoid impacts to streams completely. Instead, she focused on ways the course could be modified.

While the Corps seems likely to approve a modified version of the course design, that still leaves the permit from DENR, which can equally make or break the project.

There is little precedent to indicate what DENR might do. The staff person in charge of development permits, Kevin Barnett, has only seen two applications for golf courses in his five years at the post. Both were approved. But neither were able to build the course exactly as they proposed, Barnett said.

Given the small number of golf courses — only two — applying for a permit to impact creeks under Barnett’s tenure, there’s not a consistent precedent of either approving or denying the developer’s wishes.

Barnett said he planned to make the developers prove their case.

“It is not precedent setting to ask those questions,” Barnett said. “What we are asking them to do is consider why they need certain things and explain to us why the proposed project is the chosen alternative over the other possibilities.”

While Beckwith seemed content to wrangle over the golf course design, Barnett wants Legasus to justify the need for the course in the first place. He asked whether other amenities would suffice in lieu of a golf course.

“Such as instead of building a golf course, you build nature trails or bike trails or horse trails, or you build a clubhouse with exercise rooms,” Barnett said. “They have to provide a discussion as to why they have chosen the one they have and it has to be a compelling argument as to why that use is needed to meet that project need.”

More mitigation

Legasus has another problem with its permit application. The mitigation the developers proposed isn’t good enough, according to the Corps and to DENR. The caliber of the mitigation won’t fully offset the environmental impacts of the course.

Legasus proposed enhancing and restoring streams within the development as mitigation, but only 800 feet more than it plans to impact. The mitigation ratio is barely more than 1:1. Both the volume and quality of stream restoration that Legasus proposed are lacking, according to all the state and federal agencies that reviewed the applications.

Dave McHenry with the N.C. Wildlife Resources Commission said the mitigation work Legasus proposed would take “relatively little effort.” More is needed, and the agencies want to see stream restoration other than on Legasus’ own property.

Sewer, water not at issue

Legasus needs two other permits to make its development a go, but those are more straight-forward.

Rather than each lot having its own well and septic system, Legasus is installing water and sewer lines to homes. The water system will be fed by large community wells. Waste will be treated at mini-waste water treatment plant, and the clean water absorbed back into the ground.

Legasus has to get well and wastewater permits from DENR for each of the five tracts it’s developing. Legasus has not applied for the large 1,800-acre Webster Creek development. It has applied for and gotten well permits for two of the tracts, Tuckasegee and Trout Creek.

It has applied for and gotten the wastewater discharge permit for its one of the five tracts, a 677-acre development called Tuckasegee. The treated wastewater will seep out of large hoses and soak into the ground, a common method of releasing treated wastewater in developments with community systems. The system for Tuckasegee has a capacity to release up to 120,000 gallons a day, percolating over a 28-acre area. It can serve 260 homes and 58 condos.

Tapping the ground water

It’s the well permits that most concern neighbors to the development.

“There is not enough water on Cullowhee Mountain for 800 houses and 38 holes of golf,” said Jeanette Cabanis-Brewin, a resident of the area. “When you take water out of the public domain at the top of the watershed for the use of a few people playing golf, the farmers, the fish, and the people who come here to kayak and fish are shortchanged.”

Mary Jo Cobb, another neighbor to the development, is concerned about the groundwater table as well.

“Our watershed cannot stand such a demand. With the drought we are currently experiencing, our wells and streams are already very low,” Cobb said. “We are giving our mountains away and our water one parcel at a time.”

Carl Iobst, another Jackson resident, has coined the rampant development in Jackson County “Jacksongate.” He, too, shared concerns about the water supply.

“We don’t have enough of this precious natural resource to water it on cities sitting on mountaintops with their golf courses and playpens for the rich,” Iobst said.

To comment on this story, email Becky Johnson at becky@smokymountainnews.com.