The Durham Trail Phase 3 project – which would finalize a trail parallel to Rock Creek above Durham Road in the far northwestern corner of Walker County – was operating under an understood agreement dated Aug. 1, 2008, which allows construction-related activities in storm water runoff areas with a disturbed area of not more than one acre.
In late March, citizens living near Rock Creek began noticing an alarming amount of dirt, mud, rocks and debris flowing through the stream, and expressed concerns to the EPD. Representatives from the Environmental Protec-tion Division and the Department of Natural Resources visited the site and discovered issues with the permitting under which Walker County construction crews were operating.
While Walker County was working on its own to construct the Durham Trail, with grant money obtained for the purpose from the Department of Natural Resources, they were also helping out with two other, intersecting pro-jects.
“The Lula Lake Land Trust is building a connector trail,” said Walker County attorney Don Oliver. “The state is building its trail on out to Durham Road through Five Points...They’ve asked us, while we had our equipment up there, if we’d help. We said, yeah, sure we will. This is a public trail.”
According to a notice of violation sent by the Georgia Department of Natural Resources, Walker County is being held responsible for the construction activity of the multiple projects, which extends beyond the area of pre-approved permits.
“While Walker County’s Notice of Intent only indicated responsibility for the project on the north side of Dur-ham Road,” the notice reads, “based on further information EPD obtained during the April 19 site visit, EPD main-tains the whole project must be treated as one for permitting purposes, including the construction performed by Walker County on the portion of the project on the south side of Durham Road on lands owned by the State of Geor-gia as part of Cloudland Canyon State Park.”
Walker County resident Jill Wyse was enjoying her cabin, located two miles downstream from Rock Creek, on Thursday, March 22, when she noticed that the stream was running excessively muddy, despite the weather having been dry and without recent rain.
“When we saw the dirt in the creek…some residents were out there and everybody was (asking) what was going on,” said Wyse. Other residents called the county planning commission, which could provide no answers, so Wyse took it upon herself to call EPD and lodge a formal complaint.
“When I first complained I had no idea the county was involved in that,” she said.
Two days later, she still didn’t know of Walker County’s involvement, though she hiked upstream to see for her-self what was causing the creek to be so full of mud. Wyse said she saw a construction site on the creek near Dur-ham Road, along with a bulldozer and a track hoe, which she said had already evidently pushed tons of dirt and de-bris into Rock Creek, “blocking the natural flow.”
“There was no silt barrier. There was no erosion control, nothing,” she said. “The bulldozer was literally right up at the top of the creek.”
The bulldozer and track hoe were unmarked, and Wyse could not tell that they belonged to Walker County. She called the county planning commissioner Monday morning, March 26.
“She was unaware of anything going on,” said Wyse. “They were kept in the dark about it, too.”
The trail project had been proposed for some time, but Wyse and other nearby residents were strongly against it, and had petitioned against it as early as two years ago. They thought, up until noticing the construction, that their petition had been effective.
“This trail is not wanted by the people who would be affected by it the most,” she said.
Part of the issue is one of private property. Wyse claims that part of an old railroad bed that the county wants to use for the trail is in fact located on private property. Furthermore, Wyse and her neighbors don’t much care for the idea of strangers passing by on a public trail so very close to their houses.
More than 40 people signed a petition against the trail, said Wyse, and it was presented to commissioner Bebe Heiskell in July 2010 and again in July 2011. “I have a copy of a letter she wrote in May – to the EPD,” said Wyse. “She copied (senator Jeff) Mullis and (representative Jay) Neal and the head of Parks and Recreation.” According to Wyse, the letter stated that only one person was opposed to the trail.
“Don (Oliver) has said that people are for this trail, when he knows that they’re not,” said Wyse. “He’s made it sound like people are just troublemakers.”
Difference of opinion
Although Walker County has officially received a notice of violation from the EPD, according to Oliver, the county has done no wrong and does not deserve the accusations of environmental damage.
“All these wild allegations that we were dumping all kinds of stuff, dumping rocks and silt, into the creek, are totally untrue,” said Oliver. “We actually removed silt and trash from the creek. We didn’t put a grain of sand or one rock in that creek. We removed trash from the creek to free up the culvert.”
Oliver claims that the county simply removed debris that has been backing up the creek since Hurricane Opal came through in 1996, effectively restoring the creek to its original flow.
“What they did when they built that railroad was they built a wooden trestle over it,” said Oliver. “And they built a culvert over the creek where the creek always has been. They took rocks and built a culvert over the creek and then they started dumping mine tailings down through that wooden trestle until they filled it in.
“In ‘96 when Opal came through, it washed enough stuff down the creek that it stopped up, partially stopped up that culvert, which was the natural flow of the creek. It backed up the water and it got so big that it just blew out the rail line where they dumped all that stuff in there. And so it was running around it on rocks and stuff. About a third of the creek was still running through the culvert, and the other two thirds was still flowing around. And when our folks pulled the debris out from the culvert then it all started running through the culvert instead of a third of it.”
Wyse disagrees with this notion. “It is a tiny culvert. There is no way that it can handle the amount of water that comes through Rock Creek,” she said.
“In 1890 is when they built this rail. The railroad abandoned these tracks and quit running there in 1951. I’m sure during that period, when the railroad was in use all the time, the water ran through the culvert, but after they abandoned it, it went to where it wanted to go,” she said. “The EPD will tell you that once a stream established woods and vegetation along its bank, that is its route. By filling the natural flow of Rock Creek in, they forced the water through that culvert.”
When asked why the creek had not been cleaned up before now, if in fact it had been blocked by hurricane dam-age for the last 16 years, Oliver answered simply: “Because we weren’t using it.
“The county ended up giving that rail corridor to Lula Lake, and they were going to open the trail up, and they just never could get up the funds to do it, and so they gave it back to the county. When they gave it back to the county then we applied for a grant and started working to open it up.”
According to Oliver, the county’s actions in and around Rock Creek not only failed to cause it harm, but were ac-tually to the waterway’s benefit.
“Actually, it’s the best thing that’s happened to that creek, because when it was building up and just kind of flowing over a bunch of rocks and debris, the fish couldn’t travel up or down the creek,” he said. “Because they couldn’t get through the culvert, they couldn’t get through these rocks, and they’re going across these sun-heated rocks, which was heating up the water, which below there made it where the trout couldn’t survive. And then the other fish couldn’t migrate up and down the stream to spawn. So when we removed that debris, and the water started flowing freely through the culvert in its original course, all of it, now the fish can – the water is not going over these rocks and getting super-heated, it’s staying cool – plus, the fish can freely migrate up and down the stream for the first time since ’96. So it’s actually the best thing that’s ever happened to that stream.”
Wyse knows that Rock Creek is a noted trout stream, and is concerned about the health of the fish suffering as a result of the county’s work, rather than benefit from it.
“Sediment covers trout eggs, it suffocates them,” she said. “From where they put their dam in up through Dur-ham Road, the trout population has basically been decimated.”
“We have all of our permits from the Corps of Engineers, which is supposed to be all we need,” said Oliver. “But DNR is saying ‘Well, we want to take a look at it.’ Okay, take a look at it. We have our permit from the corps, we’ve done all best management practices, take a look at it. If you want us to do something else, let us know.”
Wyse’s reports and those of her neighbors, including Mike Chambers and Stan Lowe, did not go unnoticed by the EPD, which conducted two site visits – one on March 26 and another April 19 – to determine the nature of the pro-ject and whether it was damaging to Rock Creek.
Albert Langley, EPD mountain district office manager, sent Walker County coordinator David Ashburn the aforementioned notice of violation, which was received on May 1, according to a time-stamp on a copy of the docu-ment obtained by the Walker County Messenger.
According to the notice, Walker County’s violations include the following:
“1) Construction activity and storm water discharge has occurred without permit coverage, and failure to design and implement an Erosion, Sediment, and Pollution Control Plan and Best Management Practices.
“2) Construction activity has occurred within the 50-foot stream buffer without first being granted a stream buffer variance by the EPD Director as required.
“3) Construction activity has resulted in significant sediment being deposited into state waters.”
Walker County was given 15 days in which to respond to the letter and explain its actions.
A brief response from county attorney Don Oliver, dated May 4 and faxed to the Northwest Georgia Joint Devel-opment Authority, attempts to place blame on Langley and the Rock Creek residents:
“Work we did on the trail on top of the mountain for ourselves. We also did work for the State, and for Lula Lake Land Trust (LLLT) on their separate projects. Langley is trying to make all three projects ours, lump them together, and thus take us over the one-acre limit requiring a permit. LLLT and the State have been working up there for 17 years, have built 30 miles of trail, and we have helped them on just a short section each. On the State side, we helped them for half a day, on 100 yards of trail, at the end of their four year, 20 miles trial (sic) project. Now Lang-ley wants to make it ours!!??
“We cleaned out an existing culvert, which is exempt under the reg(ulation)s under the 50-foot issue, and actu-ally cleaned up sediment on balance. Jill Wyse and Mike Chambers, both of whom have fought us on the trail for five years, both of whom are campaigning hard for (Paul) Shaw (who is running against commissioner Bebe He-iskell), and Chambers is actually on Shaw’s payroll, are the ones who complained to EPD. They are going to plaster Bebe with these violations if we don’t make this go away...
“Not only is this Notice itself a huge political issue for Bebe and folks who are connected to her, three supposed major violations could amount to hundreds of thousands in fines, which would be political disaster.”
Wyse was unaware of this email until July 16. “When I saw, I couldn’t believe it,” she said. “They have slandered me to the point of saying I have all these motives.”
“I didn’t even know about this trail five years ago,” she said. “The first we heard about it was three years ago.”
Wyse states that, personally, she is a nature lover and is definitely in favor of trails. “But there’s appropriate places for public trails and in a tiny street that you can barely fit two cars on in a residential neighborhood where the houses sit right on the road is not an appropriate place.
“This has been going on long before there were any politics going on,” she said, referring to the current heated election season. “We could have broken this back then; we’re not trying to be political, we’re trying to protect the environment.”
“Don (Oliver) made this political with these outlandish things (he said) in the email.”
Albert Langley spoke to the Messenger by phone from the Environmental Protection Division’s Mountain Dis-trict office in Cartersville on Friday, July 20.
Langley said in most cases where minor violations have been made, the EPD would simply ask the responsible party to make the necessary corrections. However, when the alleged violations are deemed to be major, such as with Durham Trail Phase 3, EPD would ask to meet with the responsible party.
“We have talked with the county on several occasions,” he said.
Langley said a consent order tells the alleged violator to perform certain actions and pay a monetary settlement. Both EPD and the alleged violator would sign the consent order, he said.
“In general, on any site, we ask them (alleged violators) to come into compliance with state law and fix any envi-ronmental damage they have caused,” Langley said. “We settle 95 percent or more of our issues this way.”
However, if an alleged violator does not sign a consent order, EPD can issue a unilateral order. This order can be appealed by the alleged violator, a move that can “take a long time to settle,” Langley said.
The EPD sent a first draft of a consent order to Walker County for review on June 28. The draft did not contain a proposed settlement amount. The county responded on July 2 with comments, which are unknown at this time.
As Friday, EPD had reviewed information submitted by the county and was waiting for Georgia EPD director Judd Turner to complete his review of a recommendation brought to him by EPD staff.