COUNTY OF ALBEMARLE
Lake Hollymead Sediment Removal
Discussion on County participation in removal of sediment from Lake Hollymead
Tucker, Foley, Davis, Graham
LEGAL REVIEW: Yes
June 6, 2007
ACTION: INFORMATION: X
At the May 2nd Board meeting, Mr. Boyd requested staff report back on the issue of the County assuming responsibility for the sediment removal in Lake Hollymead. This issue has arisen because Forest Lakes homeowners believe the construction of the Hollymead Town Center has resulted in excessive sediment reaching Lake Hollymead. As a result, they have requested the County assume responsibility for removal of this sediment. The following are points staff considers important background to this request.
· Hollymead Town Center has undergone construction for several years and has maintained an erosion and sediment control permit during this period. There have been several permit violations during the construction, but all of those violations have been addressed at this time. Violations and corrections are not unusual for a construction project of this size.
· The sediment appears to have been entered into the upstream end of the lake from Powell Creek. While this source includes drainage from a significant part of the Hollymead Town Center, it also includes other construction sites, including Airport Road, Deerwood, and the Charlottesville Albemarle Airport. Additionally, as with any stream, a significant amount of sediment comes from stream bank erosion. No one has been able to distinguish which sediment comes from which source. Staff notes that the sediment that spilled into Route 29 from the Hollymead Town Center would not have entered the lake below this point. Thus, it appears that is a separate event which has been mitigated by the developer.
· Lake Hollymead was deliberately used by past property owners for sediment control during construction of the Hollymead and Forest Lakes subdivisions. This is a fairly common practice which recognizes the existing lake can be equal or better to other sediment controls. The lake was not dredged with completion of that construction. As such, considerable amounts of sediment entered the lake prior to the start of the recent construction.
· Lake Hollymead is privately owned and maintained. While the County owns and maintains the dam, the lake has remained with the homeowner’s associations. Prior to the start of construction at the Hollymead Town Center, staff advised the downstream homeowners associations that the construction would likely result in sediment reaching their lake and advised them to conduct a preconstruction survey so that any incremental damage to their property would be documented. This was never done and no one has been able to definitively say how much sediment was deposited during the recent construction period.
· All reservoirs and lakes accumulate sediment and have a limited lifespan without dredging. To illustrate, the Board was engaged for several years in discussions about lost capacity in the South Fork Rivanna Reservoir due to sediment. As with Lake Hollymead, it proved difficult to definitively quantify the sources of that sediment.
Effectively manage growth and development
While the scale is larger with Lake Hollymead, staff has seen similar complaints in the past with other projects. With past projects, the County has kept its role to enforcing the Water Protection Ordinance while recognizing that sediment controls are not a perfect mechanism. Effectively, staff has separated the County’s legal responsibility for enforcing erosion and sediment control as required under Virginia law from the issue of one property owner harming another by the act of grading. Staff has been very careful never to claim or imply that the County was assuming responsibility for the actions of the upstream property owner. In past situations, staff has encouraged the property owner for the construction site and the downstream property owner to seek solutions on their own.
There is a mechanism by which the County may assume responsibility for this lake and the sediment. As advised by the County Attorney, there must be an established public interest before the County can spend tax dollars. In cases where the downstream property is privately owned and there are no public easements, staff has never found such a public interest. There is a mechanism by which a public interest could be created. In 17-309 of the County’s Water Protection Ordinance, there are provisions for dedication of regional storm water management facilities to the County. That provision has been exercised by the Board in the past, though staff’s position in those circumstances has been that the facility should be brought up to an acceptable level of service or a contribution made to allow the County to bring it up to that level of service prior to the dedication. In the case of Lake Hollymead, we have advised the homeowners association that the necessary first step would be for the property owners to grant the County an easement for the lake to establish it as a regional storm water facility. The property owners have indicated they are not willing to dedicate this easement, noting it would extend onto several private properties. As such, discussions never progressed to the point where staff would advise the Board to accept such a dedication. While discussions never reached that point, staff did do some preliminary analysis on how the lake could be maintained and sediment removed. None of the alternatives are considered ideal and all appear to require initial expenditures upwards of $500,000 for some base level of service. There would also be a need for ongoing County maintenance after the initial work.
Staff’s believes the County’s policy has been to limit County responsibility to administering the erosion and sediment regulations as required by State law. Notwithstanding the legal requirements, if the County were to participate in the clean up of private property in situations such as this, we believe the County will establish a precedent by which all future construction projects could generate an expectation of similar reparations. Thus, this could result in a far reaching change in policy requiring the County to either: 1) assure downstream properties would never be harmed by setting the erosion and sediment control standards so high that construction is effectively prohibited or 2) establish a large financial commitment in future budgets so the County can remedy any damage caused by future construction projects.
If current policy is maintained, there is no additional fiscal impact. As discussed, a change in policy would result in a significant annual budget impact. Before expending public funds, the County would have to establish an appropriate public interest in the impacted properties.
This report is presented for information only. If the Board wishes to consider a change in policy, staff will schedule a separate work session.
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