New River Advocates, Inc. filed a claim with the USDA regarding the CLOMR and No-Rise Certifications that were submitted to Watauga County in securing a floodplain permit to construct the proposed intake in the South Fork of the New River. We recently obtained a copy of John Ward’s answer through a public record’s request with the USDA. Mr. Ward answers our claim, stating:
“The Town of Boone originally made a submittal to FEMA in pursuit of a Conditional Letter of Map Revision (CLOMR) for this project. While the project met the requirements of a No-Rise, the CLOMR was pursued to ensure that the HEC-2 modeling and mapping would be reviewed by FEMA upfront and any technical concerns resolved prior to construction. During the course of the submittal, FEMA completed their technical review of the models, maps, annotated Flood Insurance Rate Maps (FIRM’s) and engineering report. A letter dated March 7, 2013 from the North Carolina Department of Public Safety-Emergency Management documented that all questions with the review had been resolved. The CLOMR was not approved by FEMA simply because Ashe’ County’s opposition to execute FEMA’s Overview and Concurrence form. With no other options, the Town of Boone elected to submit a No-Rise to Watauga County. A No-Rise was not submitted to Ashe County because the construction in Ashe County will be outside of the 100-yeara floodway. Work outside of the 100-year floodway does not require a No-Rise. In essence, the Town of Boone was attempting to be as transparent as possible with it’s neighboring communities through the original CLOMR submittal, whereas both Watauga and Ashe County could participate in the approval process.”
While there are many things wrong with Mr. Ward’s answer, the most intriguing is his attempt to erase Boone’s past. Following is a quote from the 7-page letter from Boone’s prior attorney, Sam Furgiuele, to David Pond of W.K. Dickson about the CLOMR process:
“As for the possibility of pursuing a ‘no-rise’ certification and the difficulties we have encountered with the CLOMR application, the Town pursued a CLOMR on W.K. Dickson’s advice. Until it was too late, no one from W.K. Dickson ever told Greg (Young) that Ashe County would have to sign off on an MT-2 form for the CLOMR to be issued. In fact, he was actually told that Ashe County’s consent was unnecessary. If Greg had been informed that Ashe County could stop the application, he never would have agreed to seek a CLOMR in the first place, and it is hard for any of us to understand how anyone from W.K. Dickson could have thought that Ashe County would cooperate.”
So much for transparency and inviting neighbors to participate in the approval process!
Submittal of a CLOMR or No-Rise Certification is not an option, either one or the other is required for development in the floodway; or, neither is required in the case of development outside of the floodway. If there is a rise in the floodway, then the neighboring communities and affected property owners are notified through the CLOMR process so they may comment and with the affected neighboring counties agreeing or disagreeing to the changes in the floodway and map revisions after the construction is completed.
FEMA requires a review of CLOMRs and will review No-Rise Certifications if asked to. So, if, as Mr. Ward claims, the construction meets the requirements of a No-Rise Certification, then why not submit the No-Rise to FEMA for technical review?
We believe the answer lies in the subsequent letter dated 9/13/2013 from David Pond of W.K. Dickson to Greg Young, Boone’s manager at that time (the culmination of discussions over billing that were kicked off with Sam Furgiuele’s letter of 2/19/2013). W.K. Dickson writes:
“It is mutually agreed that the whole project cannot, likely move forward without receipt of the No-Rise permit from Watauga County or NCEM if Watauga County defers the review….Should the No-Rise not be received from the County or NCEM at the Town’s election the project will be cancelled. “
According to Joe Furman, Watauga County Planning and Inspections Director, he never has submitted a no-rise certification to FEMA for review; he says, “I am not an engineer. If it has an engineer’s seal, I accept it.”
As to Mr. Ward’s statement that the CLOMR was “not approved simply because Ashe’s County’s opposition to execute” FEMA’s MT-2 concurrence form, the actual decision was made by Ashe County Commissioners after several conversations with Greg Young and Ashe County’s attorney, manager and emergency management staff. Patty Gamble reviewed the CLOMR and stated (email dated 2/12/2012 from Patty Gamble, Ashe Emergency Management, to Pat Mitchell, Ashe manager at the time):
“Five Ashe County property owners will be adversely affected by increased widths in the floodway area of the 100-year floodplain. The floodway area is the area where no development is allowed. There are two different locations in Ashe where floodway area would be increased. The first area would affect two property owners, increases the floodway would anywhere from one to 10 feet in width along a 200-foot strip of land. The second area, that affect three property owners, increases the floodway anywhere from one to 45 feet in width along 300-foot strip of land. The loss of use of these areas could present a takings issue – John Kilby (attorney for Ashe County) is familiar with similar takings issues having recently represented a property owner along Conley Cheek Road who experienced a similar issue where the actual as-built project by NCDOT was not constructed to the degree presented in the Conditional Letter of Map Revision (CLOMR)”
The CLOMR submittal was started in January 2012; terminated in September 2012. The No-Rise Certification was submitted in October 2013, accepted and a floodplain permit issued by Watauga County in October 2013. Because the CLOMR was terminated, the affected property owners were never notified.
New River Advocates, Inc. recently asked Patty Gamble who the affected property owners were that she referred to in her 2012 email and this is the result regarding the 200 and 300-foot strip areas mentioned above.
“The information in that 2012 email was based on the original technical information provided and may/may not be valid currently as I have not reviewed the latest data submitted by the engineering firm.
The properties referenced in paragraph 1 are:
The 200 foot section of affected properties:
Parcel 04163-001 – owned by New River Development Company, LLC
Parcel 04163-036 – owned by Gary and Lynda Brown
The 300 foot section of affected properties:
Parcel 15163-002 – owned by Larry Cooper, Randy Cooper and Amy Greer
Parcel 15198-004 – owned by Issac and Shirley Cooper (LE)
Parcel 15198-002 – in 2012 it was owned by Judy Austin; it switched hands on October 23, 2013 and is currently owned by James and Jennifer Warren”
[Note above: Larry Cooper, Randy Cooper and Amy Greer are the property owners who sought the floodplain permit in Ashe County while Issac and Shirley Cooper (LE-Life Estate) are Ronald Cooper and Donald Cooper who are suing the town of Boone.]
The “latest data submitted by the engineering firm” referenced above are the plans recently submitted and the No-Rise report submitted to Watauga County in October 2013, of which a curtesy copy was given to Ashe County recently in acquiring the floodplain permit for Larry Cooper, Randy Cooper and Amy Cooper Greer, owners of the land upon which the private subdivision road is to be built in Ashe County. This road will be paid for by town of Boone and connect to the subdivision/access road to be constructed in Watauga County. Boone does not have an easement in Ashe County due to NC General Statute 153A-15 which requires Ashe County’s approval for Boone to own an easement in Ashe County. Boone, however, provided copies of the License Agreement with Larry Cooper, Randy Cooper and Amy Cooper Greer whereby Boone is granted a license to use the private subdivision road to access the intake and such agreement “is terminable at will by either party”. John Ward claims this is as good as an easement. Not much has changed regarding Boone’s image! And, the Boone-Doggle continues.