The Environmental Journal of Southern Appalachia

The battle of Flenniken Branch

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2306channelThis photo was included in a TDEC report compiled March 11. It shows an excavated stream channel amid extensive grading work at 2306 Maryville Pike.  

Developer of Maryville Pike property in South Knox County faces multiple state, county citations over alleged sediment pollution

The rapid growth of South Knox County has expanded far from the perimeters of the center city and extended into more development-rich areas.

One case in point: Significant development is taking place along a once-sleepy section of Maryville Pike between Vestal and Rockford.

There is a new entrance to the expanded I.C. King Park and its dog park and playground. Just south, one of the country’s largest home builders is finishing its Sevier Meadows subdivision.

There is another development that illustrates the growing pains and legacy costs that have prompted the county and Tennessee Department of Environment and Conservation to issue a stop-work order and levy multiple fines and citations against the current developer of the old Mayo seed warehouse site.

There are lessons to be learned from a small waterway called Flenniken Branch about the potential impacts of development on aquatic habitats and other public resources — and the ability of the government to protect those resources.

A troubled legacy

Decades of heavy industrial activity left a troubled environmental legacy near the Mount Olive community. Now a new 30-acre construction site is alleged by the state and county to be a significant source of sediment and debris that ultimately end up in the Tennessee River and its tributaries. The state also alleges the contractor buried a stream, and destroyed wetlands at another nearby property.

The Knoxville-based contractor, Kenn Davin, said he is working to correct the violations, but contends the alleged erosion violations are largely the result of runoff from nearby properties, and that the removal of trees from utility rights of way worsened the problem.

To make matters worse, one of those nearby sources of runoff, Davin said, is the so-called Witherspoon property, which was so contaminated by industrial waste the Environmental Protection Agency capped and sealed the site a decade ago.

The property in question is a 28.5-acre parcel at 2306 Maryville Pike, which abuts the Mount Olive Cemetery near Berry Road and was once the site of the D.R. Mayo Seed Co. warehouse.

Mayo sold the property in August 2019 to Florida-based CW Trust. Davin, principal at Knoxville-based contractor Design One, was designated as the site developer.

Over the course of the last 13 months, TDEC’s Department of Water Resources has issued three notices of violation for land disturbances and other impermissible activity at the Maryville Pike property.

The last notice was issued Nov. 20, 2020. Subsequent inspections in January and March noted that Davin was still out of compliance with action steps that had been required by the state.

Davin has not secured the permits required for the significant grading operations on the property, according to the county.

“They have not secured their necessary permits through our department for land disturbance,” said Knox County Stormwater Program Manager Natalie Landry.

Knox County Stormwater Management served a notice of violation for the 2306 Maryville Pike property on Feb. 9, 2021. The developer did not appeal, and a $500 civil penalty was levied.

Landry said a second fine was levied, as well as a stop-work order. The county has asked Davin to submit an application for land disturbance, pay the fines, and stabilize the land immediately. She said it is unusual for a developer to grade and disturb land without a permit. Work has apparently ceased on the property.

In a telephone interview, Davin said he has indeed stopped work on the site and that an engineer is developing a plan to satisfy the regulatory concerns of the county and the state.

“It’s costing me thousands of dollars a day to sit here and do nothing.”

“Mucking about”

In December 2019, a Mount Olive community resident on a walk observed that there was some development activity, described as “mucking about,” near a tributary of Flenniken Branch near the Mount Olive cemetery. This activity was reported by the citizen as filling the tributary with sediment.

Flenniken Branch flows into the Tennessee River through Fort Loudoun Lake and so carries a “waters of the state” designation, meaning TDEC has primary control of the issuance of stormwater permits via counties.

Why the concern over soil and substrate escaping construction sites? Sediment is one of the leading pollutants in Tennessee waterways. It can dramatically reduce oxygen levels needed by plants and animals, smother the eggs of aquatic animals and alter water flow patterns.

A representative of TDEC’s Division of Water Resources toured the property at 2306 Maryville Pike on Jan. 9, 2020. A hydrologic determination confirmed that the disturbed area was a stream. The subsequent report noted trees and debris in the stream, stream banks stripped of vegetation, and few active erosion-control measures.

TDEC issued its first notice of violation (NOV) to Davin on Feb. 5, 2020.

The notice stated that Davin had not secured an Aquatic Resource Alteration Permit, thus violating the Tennessee Water Quality Control Act of 1977.

Any person violating that act could be subject to a civil penalty of up to $10,000 a day, though corrective action plans and remediation are typically the first plan of action in such situations, according to state law.

TDEC asked Davin to supply a corrective action plan that would include removal of debris within stream channels and streambank repair and stabilization.

On April 15, 2020, TDEC sent Davin a second NOV informing him that the state was still receiving complaints about sediment flowing into the unnamed tributary of Flenniken Branch. Davin was ordered to a compliance meeting at the Division of Water Resources offices in May 2020.

Five months after the scheduled meeting, on Oct. 22, 2020, a TDEC representative took photos showing the muddy water in the unnamed tributary to Flenniken Branch next to Maryville Pike.

The turbid water, the report stated, was “presumably due to upstream discharge associated with construction activity.”

“Banks stripped bare”

TDEC’s Division of Water Resources served Davin a third notice of violation on Nov. 20, 2020 for “causing pollution” and land disturbances and alterations to state waters without proper permits.

The NOV noted that approximately half of the 28.5 acres of property appeared to have been graded, and there was no erosion prevention or sediment control that would prevent sediment from going into the tributary, and then Flenniken Branch. Creek banks were stripped bare, and creeks had been diverted and dammed, according to TDEC.

After a compliance review meeting Dec. 10, 2020,  TDEC asked Davin to conduct a hydraulic determination on the channel and spring/wetlands areas of the property; submit an erosion control plan; install erosion prevention and sediment controls;  and determine a corrective action plan for restoring the stream.

A TDEC site visit in January revealed that debris was still in the stream, and that there had been channelization and blockage in streams. TDEC made another site visit on March 11. A hydraulic field determination data report indicated  additional grading and clearing of the property, including an excavated stream channel.

Developer: Problems point to larger issues

Davin said he has been trying, and is still trying, to correct the violations. He blamed much of the cited damage to the property on flooding from property to the northeast of the land he is developing. That land stretches about 48 acres along the railroad tracks, from the site of the old Witherspoon scrap landfill to the site of the former Rimmer Brothers scrap yard.

The Witherspoon property includes a five-acre landfill full of hazardous materials, capped off by the EPA after it finished cleaning up the property in 2009. Davin said that an LLC affiliated with CW Trust, Farm 684, recently purchased the parcel of land that was Rimmer Brothers, mostly so that it could be fenced off. Davin said that homeless camps and trespassing have been continuous issues on the two properties.

Davin said a large sinkhole crosses both 2306 Maryville Pike and the Witherspoon land. When KUB cut trees down (to clear power lines), debris plugged up the sinkhole and a large pond on the Witherspoon site began flooding onto the 2306 property.

“Our roads and our property are flooding from this water leaking from the Witherspoon site,” he said. As for erosion control, he said that he has sowed grass and put down topsoil but that they are immediately washed away.

He said he believes that any fix of the problems at 2306 Maryville Pike will require a fix to the Witherspoon property, but he said TDEC has told him that it can’t work on that property because of the hazardous materials and regulations in place.

Davin expressed frustration with TDEC.  “I don’t understand the TDEC people. They won’t talk to you,” he said. “They park their cars in the road up here like they own the place.”

Another violation

Davin has also been served a notice of violation for property at 1842 Maryville Pike, a half-mile from the 2306 property, also owned by CW Trust. In December 2020, Davin obtained a temporary address for the parcel and received a grading permit from Knox County to use it as a fill site for tree parts and mulch.

A February 2021 inspection from TDEC’s Division of Water Resources determined the property was  a wetland. As with the 2306 property, any alteration of streams and wetlands is required to have coverage under an Aquatic Resource Alteration Permit, which has not been filed.

Davin was asked to submit a wetlands delineation for the 1842 Maryville Pike property to TDEC’s Division of Water Resources and to the U.S. Army Corps of Engineers Eastern Regulatory Field Office. He was also required to submit a corrective action plan that described what actions will be taken to restore the wetlands to its pre-impact condition. He confirmed that his engineer is working on that plan, as well.

The February NOV was copied to Knox County Stormwater Management and the US Army Corps of Engineers. Landry said in March that her office has not issued an NOV for the 1842 Maryville Pike Property at this time.

Moving forward

Davin said the plan for the land at 2306 Maryville Pike is to maintain its industrial zoning, but the property could ultimately feature an event venue.

Davin and the Mount Olive Cemetery are working on a swap of two pieces of land — 2.85 acres for 2.85 acres. It would give the cemetery a more contiguous piece of land and give the 2306 property a greater access to Berry Road. For now, all is on hold while the stop-work order is in place.

The amount of fines, or required remediation efforts, still remains up in the air following a year-long flurry of notices and mandated adjustments to the property’s grading and site preparation methods.

Kim Schofinski, the deputy communications director for TDEC, said that TDEC is still in the process of determining appropriate enforcement actions for the violations at the two properties.

Meanwhile, the Tennessee River and its creeks run brown because of many reasons after every heavy rain.

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