The dam held back an artificial pond used for irrigation of the golf course. It was constructed of packed earth — 36-feet high at its tallest point — that was pushed downstream by the wall of water behind it.

Balsam Mountain Preserve has maintained since the dam break that it would do whatever it takes to restore the environment.

“I think we are putting forth a good effort,” said Chris Crouch, the golf course manager who is now overseeing cleanup efforts. “We are constantly looking for new and better ideas to do it better. We are just cooperating with the agencies and want to do what we can to make everybody happy.”

That does not appear to be the case, however, according to a review of files on the dam break, including email correspondence by state and federal agencies with Balsam Mountain Preserve, and based on interviews with the four state and federal agencies overseeing the cleanup.

When the dam broke, the initial sediment plume reached eight miles from Balsam Mountain Preserve to the Tuckasegee River, clogging Sugarloaf and Scotts creeks as it went, and continuing another dozen miles to Lake Fontana. Wildlife experts believe the mud slurry killed most fish and aquatic life in Sugarloaf and Scotts creeks.

But not all the sediment washed straight through. A good deal collected in heaps along the creek bottoms, and that’s what Balsam Mountain Preserve was supposed to be working quickly to capture.

“As rain events came and started pushing it down, we wanted them to capture it with check dams and silt fences,” said Dave McHenry, the mountain region habitat conservation coordinator with the N.C. Wildlife Resources Commission.

Immediately following the dam break, Balsam Mountain Preserve put up emergency sediment traps in four locations along the creek. They consisted of sieve-like fabric held up by wire mesh and metal stakes. As sediment accumulates behind the trap, it must be scooped out or the trap stops working.

Balsam Mountain Preserve has not kept the sediment traps clean, however, frequently allowing them to clog up and stay clogged, according to spot checks by the agencies.

Two weeks ago, during a inspection of sediment traps at the mouth of Scotts Creek, Bryan Thompkins, a biologist with the U.S. Fish and Wildlife Agency, once again didn’t like what he saw. The traps were overflowing with large drifts of sediment that hadn’t been cleaned out.

“They are supposed to clean these out on a daily basis,” Thompkins said, thrusting his hand into the black, gooey mud that came partway up his forearm. Less than 100 feet downstream, Thompkins’ colleagues were snorkeling in search of the endangered Appalachian elktoe mussel that lives in the Tuckasegee. One of the few remaining colonies in the world live on the gravel bottom of the Tuck at the confluence of Scotts Creek. Even a quarter inch of this sediment settling on the bottom of the Tuck would be enough to smother and kill an Appalachian elktoe mussel.

Thompkins was frustrated that Balsam Mountain Preserve wasn’t keeping the sediment scooped out from behind the traps as the agencies had repeatedly demanded.

“I think there has been some effort, but I don’t say to the fullest,” Thompkins said of Balsam Mountain Preserve’s cleanup. “There are still slugs of sediment all up through Scotts Creek that aren’t being addressed. They aren’t trying to get in there and get these out. They are basically waiting for them to wash down.”

Thompkins brought up a handful of the muck. It was gooey, sticky, clung to his hand and sucked his feet in like quick sand when he stood in it. Thompkins said there was no doubt this handful was once part of the earthen dam eight miles upstream and not your average sediment.

The drift of sediment that continues to uplift and move downstream proves it’s not too late if Balsam Mountain were to kick it into high gear. The chance to remove a lot of sediment has been lost already, but Balsam Mountain Preserve needs to keep trying, McHenry said.

“It is not pointless. There is still silt in there. I don’t think it is throw up your hands time,” McHenry said.

BMP says it is doing its best

Balsam Mountain Preserve contends it is diligently tackling cleanup with all the resources at its disposal.

“Balsam Mountain Preserve has expended significant time, resources and money in stabilizing the failed dam, removing sediment from streams and stabilizing exposed areas of sediment,” the developer wrote in a progress report on the cleanup efforts filed with the agencies earlier this month.

Balsam Mountain Preserve continues to stress its diligence and cooperation in stream cleanup and restoration. The high-end eco-development has built a reputation for its conservation practices. It is building only 350 homes on the 4,400 acres, with 3,000 acres placed into a conservation easement. It has an on-site nature center and employs staff naturalists to do everything from collect fern specimens to survey bird species on the property.

Because of its green reputation, the public was largely shocked when the disaster occurred, but reassured that if any developer would make environmental cleanup a priority, it would be Balsam Mountain Preserve.

“As developers priding themselves in conservation practices we have been committed to protecting our streams and rivers from sediment, trying to set high standards for others to follow,” Balsam Mountain Preserve CEO Craig Lehman recently wrote in a report to the environmental agencies. “Words cannot express how much we regret this very unfortunate event.”

Lehman’s comments were in a cover letter accompanying Balsam Mountain Preserve’s first progress report of cleanup efforts filed on Aug. 6. Lehman said Balsam Mountain Preserve is committed to working with the agencies and “will do everything within our means to resolve the situation” to the agencies’ satisfaction.

But the agencies claim Balsam Mountain Preserve hasn’t done everything within its means.

Failing to remove accumulated drifts of sediment quickly enough isn’t the only complaint agencies have. The agencies also claim Balsam Mountain Preserve has failed to answer their questions and provide timely information about cleanup efforts when asked.

For example, the agencies have asked multiple times for the daily log book documenting Balsam Mountain Preserve’s cleanup efforts but haven’t received it. The agencies have also asked Balsam Mountain Preserve for engineering calculations for the volume of mud that washed downstream when the earthen dam collapsed, but have only received a raw number and no calculation for how it was arrived at. They have only received a summary of turbidity readings Balsam Mountain Preserve was required to conduct, with some key samples left out.

Who knew?

Balsam Mountain Preserve said it was unaware that state and federal agencies were dissatisfied with its progress.

“I think it is going well,” Crouch said. “I think it is a slow process. It is not something that can be done overnight. I think it is still a ways to go.”

Crouch said he only learned recently — last week in fact — that the agencies might be frustrated.

“Immediately upon hearing that, we scheduled a meeting with the agencies to try to resolve any of these issues they have,” Crouch said.

But the record shows Balsam Mountain Preserve has been notified on several occasions that they weren’t doing enough. Barnett said the Division of Water Quality has made it “blatantly clear” what they wanted, and that so far it is not being done.

“I do not believe that the Division of Water Quality has been anything but clear in what our expectations were,” Barnett said. “We did have communications by phone and email to that effect with their consultant, the developer or both.”

The state Division of Water Quality has charged Balsam Mountain Preserve with violating three separate water quality laws following the dam break. Each violation carries a maximum fine of $25,000 each day the violation is not corrected. So far, no fines have been issued.

A meeting will be held Thursday (Aug. 23) with Balsam Mountain Preserve and three of the agencies — the state Water Quality Division, U.S. Fish and Wildlife and the state Wildlife Resources Commission. For the agencies, the meeting could serve as final ultimatum. But Crouch welcomes the communication.

“We are going to meet with the agencies to talk about that and find out if there are other things we can do to be more effective,” Crouch said.

Tom Walker, the manager of the U.S. Army Corps of Engineers regional office, said his agency also has expressed disappointment with the pace of clean up — both verbally and in writing — twice in the past six weeks.

“There is some indication they haven’t done everything exactly the way we would have liked it to be done. We are still trying to assess exactly what they are doing and whether or not it’s enough,” Walker said.

Walker said his agency, along with its legal counsel, plans to schedule a meeting with Balsam Mountain Preserve in the near future as well.

“We haven’t decided what tact we are going to take with this yet. Our first goal is to clean this up,” Walker said. “The first and foremost thing we look at is environmental restoration to get things as close as possible back to original order.”

Army Corps also has the authority to fine Balsam Mountain Preserve. Typically, fines are a last resort only when the perpetrator was not simply slack but outright delinquent when committing the initial violation, or if the perpetrator fails to cooperate in clean up measures, Walker said.

“We do look at cooperation, if they refuse to clean up or don’t pursue it as aggressively as we think they should,” Walker said. “If they were to cooperate fully in doing the restoration in timely manner we may close it with just that.”

Crouch said Balsam Mountain Preserve is willing to take whatever steps the agencies ask for.

“When they have made suggestions we have tried to proactively go after those and do what they suggested,” Crouch said. “I’ve given every one of them my cell phone number. I will certainly encourage them to call me directly so any concerns they have can get resolved.”

Cleaning out traps

The agencies have questioned why Balsam Mountain Preserve hasn’t devoted more manpower to removing drifts of sediment from Sugarloaf and Scotts creeks. In addition to the sediment traps, sediment has been settling in mounds in wide, slow stretches of the creeks and in side pools. These drifts are also supposed to be scooped or sucked out.

“It is a slow process,” Crouch said of sediment removal. “In order to do it properly, it is not something you can go in with heavy machinery and just remove sediment. It’s trying to remove the sediment without removing the other material that is desirable to be in the streams.”

Crouch would not elaborate on the manpower devoted to sediment removal, only that crews “were out there multiple times during the week.”

“We are cleaning them out on a regular basis,” Crouch said. “We have an ongoing program of doing those.”

Crouch said he didn’t think there was a problem with the pace of sediment removal.

“I believe we are getting them fairly quickly,” Crouch said. “That is something we are going to sit down with the agencies and talk with them about.”

According to Barnett’s review of sediment removal efforts, it appears each trap was getting cleaned out once a week on average — far below what the agencies expected. Barnett, Thompkins and McHenry did spot checks of the sediment traps about once a week, and frequently found them overflowing or clogged. Thompkins said it was difficult to know how long they’d been that way.

“They were supposed to monitor them daily,” Thompkins said. “The whole idea was that we are not supposed to be babysitting this project.”

Balsam Mountain Preserve was supposed to keep a daily log of sediment trap inspections. The log was supposed to show when the traps were cleaned out and how much sediment was removed each time. The agencies have asked more than once to see the log, but have not received it. Until they get it, they won’t know for sure how quickly the traps filled up and were allowed to stay that way.

“The issue for us was the regular monitoring on a daily basis and keeping a log of how much was being captured and submitting that log to us so we knew how effective those devices were. That was pretty important to me,” Barnett said.

Balsam Mountain Preserve has used three techniques for cleaning out sediment caught in the traps. One is an old-fashioned bucket and shovel. Another is a sediment vacuum truck contracted through an environmental remediation company. The third is a sand wand, a hand-held suction stick.

The sand wand has been used the most. Balsam Mountain Preserve happened to own one due to its interest in sediment and erosion control over the years. The maker of the sand wand actually visited the Preserve for a demonstration during a sediment workshop four years ago, where the innovative sediment and erosion control practices used by the Preserve during construction and grading were being showcased.

When asked why Balsam Mountain Preserve doesn’t buy another sand wand and put more people on the job, Crouch said they will if they need to.

“We’ll look at other methods. We want to work as a team with the agencies,” Crouch said. “If there are things Balsam Mountain can do to improve the process, we are open to suggestions from any of the agencies. I think that is why it is important to sit down and talk through it.”

The silt fences strung between stakes in the creek were intended as emergency sediment catching measures.

“They were quick, they were light, fairly cheap and you could get them in a stream fairly fast,” Thompkins said.

The agencies wanted Balsam Mountain Preserve to follow up with more stable and better built sediment traps down the road and granted them permits to do so. But that was more than six weeks ago and Balsam Mountain Preserve has yet to replace the emergency measures with improved ones.

Barnett said the agencies expected Balsam Mountain Preserve to transition from the emergency traps to more stable devices by now, and formally expressed their disapproval last week. Barnett said he expects to see some progress on that front by the meeting this Thursday.

“That is what they should be working on right now,” Barnett said.

But Crouch said he wasn’t aware that the emergency silt fences weren’t good enough.

“Those seem to have been effective. If they aren’t, we really haven’t heard a complaint about the form of measures we are taking,” Crouch said.