On May 21st, students from Haut Gap Advanced Science Magnet School on Johns Island will be “Chillin’ on the Green” as they host an environmental summit at the brand new school building.  The event will bring together developers and environmental groups from around the Lowcountry to debate development close to the Angel Oak site.

From 9 AM-noon, students will participate in a poster contest, listen to the Haut Gap steel drum band, and at 10:30, listen to presentations by two opposing factions, people wishing to develop the area around Angel Oak, and those opposed to it.

Among those who plan to attend are the Coastal Conservation League, the BioBus, Charleston Recycling, Earthforce and the Angel Oak developers.

Directions to the event: http://hautgap.ccsdschools.com/directions

LEVEL-OF-SERVICE SUMMARY

SITE ACCESS INTERSECTIONS

Angel Oak Village

———————————————————————————————————————-

Time 2013 BUILD MITIGATED

Unsignalized Site Access Intersections Period Delay in Seconds Level of Service

Site Access #1 AM 13.4 B

Maybank at Sea Islands Health Care PM 14.3 B

Site Access #2 AM ** F

Bohicket Rd at Piggly Wiggly PM ** F

Site Access #3 AM >500.0 F

Bohicket Rd. at Haut Gap MS PM ** F

Site Access #4 AM 121.8 F

Bohicket Rd. at Kano Rd. PM 238.8 F

“Upon review, all feasible geometrics have been recommended at the site access intersections along Bohicket Road. No further intersection specific geometric enhancements exist which will provide for acceptable operating levels.”

“The only potential intersection specific improvements option to allow for acceptable operating levels would be to implement traffic signal control at one of the Bohicket Road access intersections. Logically, only the Bohicket Road at Haut Gap MS Access/Site Access #3 intersection could be considered.”

“Note that no additional traffic volume associated with the proposed school expansion has been accounted for at this time due to lack of information.”

Savetheangeloak.org has responded with an appeal of this approval. (which can be viewed here).

You can view the approved stormwater application that I received from DHEC/OCRM attached to the copy of the appeal they received in their office.

Under paragraph IV, water body information, item (A), the applicant has checked that the wetlands are not jurisdictional.

This wetland was declared jurisdictional by the U.S Army Corps of Engineers. (NOT ISOLATED)

Therefore, the application is false.  There have been other significant changes to the plans since the 2008 stormwater application, which was NEVER publically noticed for wetland impacts, (isolated or non-isolated).

Additionally, it has just been proven that storm water runoff will flow into Church Creek and see no need for ANY land disturbance at this time, as it is still uncertain whether this development will happen at all.  This permit should have been denied due to this project’s proximity to the Angel Oak and the valuable jurisdictional wetlands on site.

This application should have been denied due to the fact that more archaeological work needs to be completed on the site before any ground disturbing activities occur anywhere, as this could potentially risk the destruction of important artifacts that could provide valuable insight into the history and cultural significance of this area.  The State Dept. of History and Archives has received new information about a significant archeological find on the project site and this still needs to be evaluated.

We will need donations to fund the appeal!  Please send donations to:

Donations are currently accepted through the Coastal Conservation League.
Checks can be sent to:

Coastal Conservation League-Angel Oak Project
328 East Bay Street, Charleston, SC 29401
*make sure you include Angel Oak Project in your note/on the check

Please write send your comments to Richard Geer @ SCDHEC or directly through our website

Richard Geer
Ocean and Coastal Resource Management
1362 Mc Millan Ave. Suite 400
Charleston, SC 29405
Phone 843-953-0242
Fax 843-953-0201
geerrv@dhec.sc.gov

Monday, March 22, 2010

The Angel Oak on Johns Island has been the subject of several recent articles, each focusing on how the Sea Island Planned Unit Development (Sea Island) may affect the great live oak. I want to provide an update on the Corps of Engineers’ role thus far in this proposed development.

As the federal agency responsible for administering Section 404 of the Clean Water Act (Act), the Corps determines if wetlands, tributaries or other waters are appropriately within the jurisdiction of the Act.

Any proposal to place fill material into jurisdictional areas requires a federal permit from the Corps, typically requiring that a project be designed in such a way that it avoids or minimizes wetland impacts and includes compensatory mitigation to offset any unavoidable impacts.

In the case of Sea Island, the federal permitting process thus far has involved only the identification of wetlands on the site and a determination if they are jurisdictional. In response to the property owner’s request, our office issued a jurisdictional determination (JD) letter on Aug. 7, 2008, with our finding that the 6.5 acres of wetlands on the 51.7-acre Sea Island site are isolated from other waters of the U.S. and therefore not within the jurisdiction of the Clean Water Act.

A JD letter issued by the Corps is normally valid for a five-year period, regardless of changes in applicable law or regulatory practice, unless new information is brought to light which would warrant revision of the determination before the expiration date.

As part of our initial review of the site and its wetlands, my staff did not note a ditch between the wetland edge and the roadside storm water conveyance system, and thus did not recognize its potential to carry water offsite and to the nearby navigable waters of Church Creek.

However, acting upon information from a concerned citizens group, my staff revisited the Sea Island site on Aug. 18, 2009 to investigate further. This non-wetland feature became a critically important factor, resulting in our reconsideration of the jurisdiction of this wetland.

After my office notified the property owner’s consultants that the Corps was reconsidering the JD, they supplied two work product documents, wherein they had concluded that surface water levels in the wetland do not rise high enough to pass through the conveyance in question. These conclusions were included in our reconsideration of the previously issued JD.

The Corps’ reconsideration of this new information came just as the annual rainy season began. Rainfall events in December 2009 were typical of the season and caused groundwater levels to rise substantially, thereby reducing the amount of water absorbed into the ground and increasing the runoff of water on the surface of the ground into the wetland.

Water began flowing from the wetland through the ditch in question in mid-December, has continued uninterrupted for over two months, and is expected to continue through March 2010.

The monitoring and documentation of this sustained offsite water flow represents new information that was not evaluated as part of our initial determination.

On the strength of this new information, I have revoked the original JD letter and issued a new JD letter asserting Clean Water Act jurisdiction over wetlands on the Sea Island site. This letter is valid for five years.

The decision to revoke a letter from the federal government is a decision that is made only after careful consideration.

We understand that property owners make project development decisions, involving substantial investments, based on the jurisdictional determination issued by the Corps.

Sometimes important indicators of jurisdiction are not easily observed, which makes the jurisdictional status more difficult to correctly identify. This is one reason why the federal government values the public participation process, and this case is a good example of that process in action.

In the interest of making fair, accurate and balanced decisions, the Corps typically cannot comment publicly until investigations are complete, issues are resolved and decisions are finalized.

At this time, I can report that this is the case with the Sea Island project, and that I have issued a corrected jurisdictional determination.

Lt. Col. Jason A. Kirk, P.E., is commander of the Charleston District of the U.S. Army Corps of Engineers.

Unfortunately, Sea Island Comprehensive health care has come across hard times in the past few years, and was struggling to emerge from bankruptcy in 2005.

The $3.5 million land sale of the 42 acres of land surrounding the Angel Oak would help satisfy the $5.6 million debt Sea Island had acquired. They owed money to various government agencies, venders and employees, but the amount of money owed to the Internal Revenue Service was the biggest chunk of all.

No one wanted to see Sea Island Comprehensive Health care shut down, including the city of Charleston. Initially, the city had worked out an agreement with a different developer purposing to buy the land, in which the city would purchase 16 acres of the tract for one million dollars, to be used for an expansion of the existing Angel Oak Park.

Apparently, a higher offer came in for the 42 acre property during Sea Island’s bankruptcy settlement. This developer, Robert Demoura, did not include the city in his purchase. He wanted to squeeze as many homes and as much retail space onto the property as he could. Neither the city of Charleston nor Charleston County stepped in to protect the land or offer a higher bid.

The bankruptcy judge approved the sale in 2005, and plans were soon drawn up for the Angel Oak Development. The developers have somehow managed to get the 42 acre property annexed into the city of Charleston, re-zoned to accommodate a high density development, and even had he urban growth boundary moved to accommodate their development.

TMS #: 279-00-00-142 & 279-00-00-248

Various file numbers at DHEC/OCRM:
*10-05-11-07A permit no. SCR10J500
*10-05-11-07B permit no. SCR10L915—this is for the Wastewater Treatment Plant
*10-05-11-07NJW, permit id 5361

Regarding Federal Consistency for the HUD loan:
*SCDHEC 61963/48494

US Army Corps of Engineers file no.’s:
*SAC 87-2002-0583(S)
*SAC 81-2002-0583(S)
*SAC2008-1403-1JQ

–TIMELINE OF THE PERMITTING PROCESS–

-On May 1 2002, James Struble of the US Army Corps of Engineers (USACE) issued a wetland delineation letter indicating the wetlands on site were federally jurisdictional. Their file no. : SAC 81-2002-0583(S). This was for 36.09 acres of the property for Mr. Ronald Ravenel, of Sea Island Comprehensive Health Care, (SICHCC). At this time, Sea Island was still the property owner. (exhibit1)

-On June 26, 2002, James Struble (USACE) issued a new letter for a wetland delineation for Mr. Ronald Ravenel, indicating that the wetlands on site were non-jurisdictional. USACE’s file no. on the first page of the letter was SAC 87-2002-0583(S), slightly different from the file no. from the letter written only a month earlier regarding the exact same property. The second page of the letter stated, “In future correspondence concerning this matter please refer to file no. SAC81-2002-0583(S)”. (Exhibit 2)

*It should be noted that these files were separated by USACE. This did not come to the Corp’s attention until I did my first FOIA in 2008 and discovered it. According to Robin Crosby at USACE, “it appears the two files should have been merged together.” (Exhibit 3)

*USACE referenced the 2001 Supreme Court case as the reason for changing their mind about the delineation, saying that the wetlands on the project site were isolated. We have two expert reports that say otherwise, (connected via a culvert to a stream that connects to Church Creek). We are currently waiting for a response to a recent revaluation of the wetlands from the USACE.

In the early 2000’s, SICHCC entered into bankruptcy because of deep financial problems. The potential buyer, “Tex” Smalls from Greenville, began planning a development, but withdrew from the contract. It was reported in the Post & Courier that he would be including the City of Charleston in the sale, selling 16 acres to them for 1 million dollars as part of the 3.5 million dollar land sale. It is unknown whether this was due to zoning, permitting, and financial issues, or he was simply outbid in Bankruptcy court. Nonetheless, River Birch Management picked up the contract in 2005, buying the entire tract of land for 3.5 million, but not including the city in the sale. (River Birch turned into AOV-AOD, LLC). The bankruptcy court approved the sale in March 2005.

Newkirk and Associates had been working with OCRM on a land disturbance plan to fill 5.93 acres of the wetlands on site. According to Cotton Harness, (attorney for River Birch), “Richard Chinnis of OCRM had agreed to work with the previous purchaser to allow for more fill than normally allowed, due to the significant public interest involved.” (Exhibit 4)

*It should be noted that there is no record of this or any activity with DHEC/OCRM until 2005 when River Birch applied for a storm water permit. Chinnis left OCRM in December of 2005.

-On July 7, 2005, Brad Schrum, of River Birch submitted his application for a storm water permit for TMS no. 279-00-00-142 ONLY. He listed the property owner of record as being Sea Island Comprehensive Health Care. (Exhibit 5) (Exhibit 5.5)

-In 2006 the storm water application for AOV became inactive due to lack of a response from the applicant, and required a completely new submittal.

12/27/2006-

“….technical comments based on the review were issued more than six months ago and no response has been received, therefore the project is considered inactive. There will be no refunds of previously paid fees and no reactivation of the existing application and file. Any proposed land disturbing activity will require a completely new submittal (application, fees, public notice, etc.).” (Exhibit 6) (Richard V. Geer, Engineer Associate)

-But then on 1/3/2007, Richard Geer (DHEC) wrote in an email to Barry Whalen (HLA) and Cotton Harness (Atty. For the developer), “

“Please disregard the letter of inactivation dated December 27, 2006, for the above referenced project. I did not realize there was ongoing communication in regards to the wetland impact and mitigation.” (Exhibit 7)

-On 11/12/07 Jeff Thompson certified the wetlands on the project site. This was also cancelled due to inactivity and no updated certification has been issued. (Exhibit 6.5)

–Barbara Neale, (DHEC/OCRM), wrote a letter for federal consistency for a HUD (d) (4) loan, (construction of a multifamily apartment complex) February 4, 2008. She certified that the “project is consistent with the SC Coastal Zone Management program, provided that no wetlands are disturbed or altered.” (Exhibit

–Additionally, the public notice put out on January 25, 2008 for the federal consistency certification has no mention of wetlands. It references yet another name for the project, “Angel Oak Village Apartments”, SCDHEC# 61963/48494. These files were separated at DHEC, and the Greg Wahl (project manager), had no idea this file existed until I brought it to his attention in 2009. (Exhibit 9)

-In recent correspondence with Greg Wahl, (DHEC), he could not provide a clear answer as to why Ms. Neale failed to notify HUD of any wetland impacts. (Exhibit 10)

-On February 14, 2008, Barry Whalen, (HLA), wrote a memo to Josh Martin and Christopher Morgan and Eric Schultz at city planning:

“We would all prefer to be safeguarded because if zoning doesn’t get approved, we are dead in the water….There are many more details to work out on the design side of the project, but we want to make sure to get the zoning approval first while we quietly work through the design issues.” (Exhibit 11)

-On May 7, 2008, once again, the storm water application was cancelled, due to lack of a response from the developer.

–5/7/2008

“….Due to lack of response for more than one year, the application is being cancelled and is no longer considered active. Any proposed land disturbance activity at the site location will require a new submittal and another 10-calendar day public notice….Also note the checklist available on the website listing items required for public notice.” (Exhibit 12) (Richard V. Geer, Project Manager, Regulatory Programs Division)

The checklist that Mr. Geer was referring to states:

“If federally non-jurisdictional freshwater wetlands are being impacted, a wetland impact statement must be completed along with an 8.5 x 11 inch map indicating the wetland acreages, amount and type of impacts. A USGS topographic map should also be submitted indicating the location of the project. See impact statement below:”

“This project is proposed to impact (give number of acres) acres of federally non-jurisdictional wetlands. These proposed impacts require approval under the SCCZM program. This plan will (fill, excavate, otherwise impact) (give individual wetland size by acres) for a total impact of (total acreage).” (Exhibit 13)

An email from Christine Koczera (SCDHEC) to Jason Coffman (HLA, Inc.) dated 7/24/2008, states:

“….I spoke with Richard regarding public notice. It the total wetland impacts have not changed than the project will only be put on public notice for land disturbance. If total wetland impacts have been altered then the project will have to be put on public notice for both wetlands and land disturbance….”(exhibit 14)

–On July 28, 2008, Robert Demoura submitted a new storm water application for Angel Oak Village, owners AOV-AOD, LLC and AOD Development, LLC. In the public notice on 11/1/2008, there was NO mention of wetland impacts. (Exhibit 15)

–In a letter written to me on December 1, 2008, Greg Wahl stated that the public notice dated 11/1/2008 for the storm water permit for Angel Oak Village did not include wetland impacts because it had been previously noticed in 2005. The wetland impacts had changed since the 2005 submittal, and have changed again since the 2009 submittal. (Exhibit 16)

The 2005 application asked for over 5 acres of wetland fill, the 2008 application asked for 4.23, and the 2009 application is for phase 1 only and it is for 3.23 acres. THIS WOULD CONSTITUTE A CHANGE IN WETLAND IMPACTS. Also, wetlands that were not going to be impacted in 2005 are going to be impacted now.

Also included is an email dated 9/22/2008, from Greg Wahl to Greg Wahl summarizing a telephone conversation with Cotton Harness, (attorney for the applicant):

“Spoke with Cotton Harness; he said that it appears many adjacent property owner/city officials have concern over the project; told him we have a meeting tomorrow to discuss comments which were issued to the engineer; he asked if any other potential hang-ups on project and I mentioned feasible alternatives to wetland impacts and certification; read to Cotton the public notice requirement out of the Program document.” (Exhibit 17)

Also included is a handwritten memo from DHEC concerning the above referenced project written on 10/10/2008:

“Project was placed on notice. Would typically include wetland impacts, but did not….Don’t re-notice.” (Exhibit 18) (Barbara Neale, OCRM Regulatory Division)

*The project name and the project name and address of the applicant have changed since the 2005 submittal, and again in the 2009 submittal. In 2005, the public notice was for “Sea Island Comprehensive Health Care,” and the applicant was Brad Schrum of River Birch in North Carolina. In 2008 the public notice changed to “Angel Oak Village,” and the applicant changed to Robert Demoura of Angel Oak Village LLC. This is of concern because DHEC claimed that since the project was already noticed for wetland impacts in 2005, it was unnecessary to re-notice them in 2008. The public cannot be expected to understand that there was any connection between the Sea Island Comprehensive health care project and the Angel Oak Village project.

To further demonstrate this point, please see the following email from Susan F. Davis, (Coastal Environmental Coordinator, SC Department of Natural Resources) to Robert Perry, (SC Department of Natural Resources), dated 8/18/2008:

“Can either of you remember what applicant name and permit number was for this project….”

Robert Perry wrote:

“Hi Susan, Can you please forward our response to the Angel Oak Development on John’s Island….Citizens are complaining….” (Exhibit 19)

A letter from Robert Perry, of the South Carolina Department of Natural Resources, addressed to Mr. Greg Wahl, SCDHEC/OCRM, written in 2005 but stamped received September 2, 2008 at the DHEC-OCRM Charleston Office. It states:

“Our department has a number of concerns regarding the proposed development, particularly the excavation and filling of important wetlands. Project calls for a high density commercial/residential development, requiring the excavation and filling of all wetlands on-site. Isolated wetlands such as those found on the project site provide a number of important ecological functions, including habitat for a variety of wildlife species…..In the state of South Carolina, some forty species of amphibians depend on isolated wetlands for survival, including a number of STATE AND FEDERALLY PROTECTED SPECIES.”

And goes on to say,

“For the above reasons, we recommend that the permit as currently proposed NOT be issued and the developer consider a less damaging development design that avoids and minimizes the loss of important wetlands and the clearing of mature forested uplands.”(Exhibit 20)

Also, in the Angel Oak Village file, another letter from yet another government institution STRONGLY OPPOSING this development. A letter from the US DEPARTMENT OF THE INTERIOR, FISH AND WILDLIFE:

“The area around the project site is heavily developed and quality wildlife habitat is very fragmented and becoming increasingly rare. The area proposed for development is densely forested and contains a large, isolated wetland. This large area and its combination of habitats provide considerable biological functions by providing food, shelter, and breeding grounds for many types of wildlife including deer, small mammals, migratory birds, and amphibians. The development would increase traffic in an already congested area and also includes the Angel Oak monument, which is a State monument of significant historical value. Though plans allow for a 150ft buffer to be placed around it, the Service feels this is inadequate and that the city, the monument, and the wildlife in the area would be better served by conserving the entire tract of land proposed for development.” (Exhibit 21)

*Greg Wahl informed me that these letters were not taken into account during the permitting process for the current application. However, the SC DNR did not even know this was resubmitted, as evident from the emails from Susan Davis and Robert Perry. Since the public notice did not include the wetland impacts and US Fish and Wildlife and SCDNR were not notified in 2008, they were not allowed the opportunity to resubmit their comments.

Another huge concern is the issue of the potential archeology sites found on site. In an email dated 8/5/2008, from Greg Wahl (SCDHEC) to Jason Coffman (HLA, Inc.), he states:

“During the Coastal Zone Consistency review, we found two potentially eligible archeology sites at the above proposed. Per the State Historic Preservation office in Columbia, both sites require additional work to determine their eligibility status. So if either side is to be impacted by ground disturbing activities they will need further investigation before construction….” (Exhibit 22)

–No additional work was done.

An email written to me on 10/30/09 demonstrates that additional archeological work still needs to be done. This also further demonstrates the effects of putting out a defective public notice:

“In 2006, our office reviewed a cultural resources survey for the Sea Island Health Care Tract, which was near the Angel Oak on Johns Island in Charleston County. It was not clear to our office at the time if the Angel Oak was eligible for listing in the National Register of Historic Places as a site associated with a specific culture and its history on Johns Island. DHEC-OCRM consults with our office when reviewing permits for certification under the Coastal Zone Management Act if it appears that a proposed project will adversely impact a significant historical or archaeological site. We will need to review the project to get an understanding of what the project proposes, how it will impact the Angel Oak, and whether the Oak is significant and will be adversely impacted by the proposed project. I just checked the DHEC-OCRM website to determine if this project has been placed on public notice; however I was unable to find the project on their site. So, this is just a bit of background information; we are really unable to comment on the project until we are contacted by DHEC-OCRM and receive plans for the project. Please keep us posted on the status, and we will try and find out more information.” (Exhibit 23) (Rebekah Dobrasko, Supervisor, Compliance, Tax Incentives, and Survey, State Historic Preservation Office, South Carolina Department of Archives and History)

-On 7/24/09, Robert Demoura of AOV-AOD, LLC & AOD Development LLC submitted another application for a storm water permit at DHEC/OCRM, for Sea Island Ph. 1 (formally known as Angel Oak Village). This was NOT PUBLICLY NOTICED EVER. (Exhibit 24)

-On October 30, 2009, DHEC put out another public notice that referenced the project site. (Exhibit 25)

Wastewater Treatment Plant on Maybank (Site Preparation), ID# 10-05-11-07B, permit no. SCR10L915, TMS# 279-00-00-248, located on the South side of Bohicket Road and the East side of Maybank Highway, Charleston, (SCDHEC-OCRM, SW)

*TMS# 279-00-00-248 is the property next to the Angel Oak, part of the property proposed for development. The public notice does not reference Angel Oak Village and does not list any information about the applicant, or about the wetlands on the project site. The notice packet appears to have no specific paperwork plans submitted for the wastewater plant.

–The health of Church Creek is another issue that needs to be addressed.

From the storm water application for Angel Oak Village, received by DHEC-OCRM July 16, 2008:

C. IMPAIRED WATERBODIES

List the nearest DHEC water quality monitoring station(s) to which construction storm water discharges will drain and the corresponding waterbody(s). MD-195, Waterbody: CHURCH CREEK

1. IS THIS WQMS LISTED ON THE MOST CURRENT 303(d) LIST FOR IMPAIRED WATERS? YES

–The following is an email from Greg Wahl to Jean Townsend, (an adjacent property owner that was not EVER notified about the development and will have storm water running through her property) dated 11/17/2008, he writes:

“As the project is designed now, all storm water flows from drainage on site which are directed to roadside ditches that convey the water to Angel Oak Road and Bohicket Road right-of-way, ultimately out falling to Church Creek (Wadmalaw River).” (Exhibit 26)

The proposed project on the Sea Island Health Care Corporation property is considered by many residents and visitors to be incompatible with the adjacent Angel Oak Park.

Concerns include irreparable harm to the Angel Oak tree due to increased wind exposure and changes to the hydrologic regime, as well as negative impacts to the quality of place at the Park due to visible and audible intrusion on visitors. Specific issues include the close proximity of the residential homes, density of development, inadequate road capacity for increased traffic, and impacts to wetlands on the property.

The proposed project on the Sea Island Health Care Corporation property is considered by many residents and visitors to be incompatible with the adjacent Angel Oak Park. Concerns include irreparable harm to the Angel Oak tree due to increased wind exposure and changes to the hydrologic regime, as well as negative impacts to the quality of place at the Park due to visible and audible intrusion on visitors. Specific issues include the close proximity of the residential homes, density of development, inadequate road capacity for increased traffic, and impacts to wetlands on the property.

View the full report [pdf - 40 pages - 9Mb]

Prepared by:

Bridget Callahan Lussier
42 Anita Drive, Charleston SC 29407
Email: bridgetlussier@gmail.com
Phone: 843 270 7882

Final Report on the Effects of Developing Angel Oak Village

Prepared for Dana Beach, Coastal Conservation League
by Jean Everett, PhD
Department of Biology, College of Charleston

Summary:

The Angel Oak Village development plan, as I have thus far seen, is highly likely to cause irreparable harm to the Angel Oak, and result in the premature death of the tree.

Most trees, live oaks included, have no set life span. They essentially live forever, unless killed by environmental factors. All trees have characteristics that make them more or less susceptible to negative environmental factors. Red maples, for example, have little defense against rot, and thus tend to succumb at young ages. Many other trees, including live oaks, develop rot resistant heartwood that helps them maintain structural integrity for longer periods of time. Development of the Angel Oak Village would cause too many environmental changes, all of which would have a negative impact on the Angel Oak. If the project is completed, the cumulative result will be intolerable degradation of the environment around the tree. Death may take years, or decades, but in my opinion, is certain to be considerably accelerated by the development.