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NC Drastically Cuts Enforcement Of Top Water Pollutant

North Carolina Department of Environment and Natural Resources

North Carolina has taken measures since the 1970s to control the top water contaminant in the state, the dirt that pours into rivers and lakes from human activity. But a review of state records reveals a sharp drop-off in enforcement over the past five years and a series of warnings to lawmakers that have gone unheeded.

Workers are building more than 1,200 homes at the Riverwood development, just southeast of Raleigh. A trail of the dirt from the site extends into a nearby patch of woods, the remnants of what environmentalist Matt Starr, the Upper NeuseRiverkeeper, calls a “mud river.” When it rains, the water flushes the dirt downhill into a nearby creek.

“No measures are being taken to stop that sediment from leaving that construction site,” says Starr. “You create a mud river and you create one heck of an environmental problem.”

As harmless as it may sound, dirt—sediment—can do a lot of damage. Scientists, regulators, and environmental groups consistently rate it as the top threat to water in North Carolina. Much of it from construction, mud has filled in lakes and rivers across the state. The US Geological Survey reports it has reduced the capacity of Lake Rhodhiss, Morganton’s drinking water supply, by nearly a third.

“The fish can’t find their prey,” says Rich McLaughlin, a soil scientist at N.C. State. “Light doesn’t penetrate the water, so the beneficial algae can’t reproduce. It’s just all around a bad situation.”

Since the early 1970s, North Carolina has required construction companies to trap their sediment on-site. But at Riverwood, it has continued to escape. In at least seven inspections over the past year, state environmental regulators noted over 50 violations between two sub-developments.

For instance, an inspection report from February 18, 2014, notes “severe” damage to adjacent property and a nearby stream from escaping sediment, after the developer, Caviness & Cates, did not take sufficient measures to trap the dirt, self-inspect, or maintain what measures were on-site. The inspector did not issue a penalty. In fact, the reports indicate the myriad infractions resulted in two Notices of Violations—citations that promise a fine if problems are not addressed. Regulators also issued one fine, in March, for an amount that still has not been publicly assessed.

Credit Matt Starr / Upper Neuse Riverkeeper
Upper Neuse Riverkeeper
Mud from a construction site in Johnston County bleeds down through a patch of woods in November 2013.

Riverwood is not an exception. Regulators state they reserve citations or fines for only the most stubborn violators.

A statewide drop in enforcement

But state documents show even that enforcement has drastically decreased over the past few years. In the state’s 2010 fiscal year, regulators issued 560 citations. In the same period last year, the number dropped to 170.

Enforcements, which begin the process of fining or stopping work at a site, have fallen from 69 to 7 over the same time frame.

Credit Ben Bradford / WFAE
Data from DENR reports to the Sediment Control Commission.

State land quality chief Toby Vinson argues the decline is partially good news. He says developers are getting their act together.

“We see more control on the projects, and we see fewer violations,” Vinson says. “With the reduced project load, especially going through the economy we’ve gone through, they tend to have their more experienced people now overlooking, overseeing these projects.”

Slashed staff

But Vinson admits part of the drop-off comes from severe cuts to his division’s budget. In June 2009, the program had 65 employees; now it has 40, and expects to lose another four.

The reduced staff conducted about 15,000 inspections in the last fiscal year—10,000 fewer than in 2010—reaching each site an average of once every ten months, according to an annual report to lawmakers about the program. Meanwhile, the number of open projects requiring inspections increased from 8,000 to 12,000.(see update at bottom)

“It’s a big area and we do have reduced staff,” Vinson says. “Now, the staff that we do have are performing like gangbusters.”

Large cities and counties tend to do their own enforcement, while the state handles everything else.

The average city or county inspector has to monitor about 37 construction sites, while the average state inspector is responsible for 870. In 2012, program staff wrote to state lawmakers that the cuts had created “a tremendous strain on the program’s ability to carry out its responsibilities.”

McLaughlin, the N.C. State soil scientist, also served until June on the state Sediment Control Commission, which oversees enforcement.

“It was very disheartening to see what was happening,” McLaughlin says. “There was nothing really we could do to get more people into those seats and into those trucks. That was something that was decided at the legislature level.”

Construction fees fund the bulk of the program. Developers pay $65 an acre, an amount that has not increased since 2007.

During the recession, the funds dried up and caused the majority of the cuts.

This September, the commission passed a resolution, asking lawmakers to increase the fee.

“The department does not have adequate staff to effectively monitor compliance,” it reads.  

The commission made a similar request in 2012. In the next budget, lawmakers eliminated another position from the program.

A new mission

Matt Starr thinks the reduced inspections and penalties have another cause, beyond the staff reductions.

“I believe it’s a systemic problem within that department,” he says. “If you look at the new mission statement, the economy and being a customer-friendly entity come first, and the customers are the polluters.”

Starr blames John Skvarla, the state’s environment secretary, appointed by Governor Pat McCrory. Skvarla very publicly changed the department’s mission statement to prioritize customer service.

Vinson says it just means helping polluters better understand sometimes confusing laws.

“That does not mean we’re going to let you do anything you want to do,” says Vinson.

Credit Ben Bradford / WFAE
Based on numbers reported by DENR to the Sediment Control Commission.

Even accounting for the lost staff, the department has issued fines and citations at a lower rate than in previous years, a WFAE analysis of state numbers found. In 2010, 2.26 percent of inspections resulted in a citation. In 2014, that number fell to 1.13 percent.

No violation, no recourse

Environmental groups complain the lack of enforcement, and particularly the lack of official citations, has a side effect—it prevents them from taking developers to task for sediment pollution, as well.

That’s because of a North Carolina Supreme Court decision last year. In June the court heard the appeal of a sediment pollution case, Applewood Properties v. New South Properties. An earthen wall on a construction site owned by New South collapsed. It flooded a golf course next door, owned by Applewood.

Gaston County, which handles its own enforcement, had found violations at the construction site, including problems with the wall that eventually burst, but regulators never gave an official citation.

The court decided 4-2 that Applewood could not sue for sediment pollution without that notice.

“We hold that before an injured person can have standing … the defendant must have been cited for a violation of a law,” Justice Barbara Jackson wrote in the decision.

Jackson noted that landowners could still sue for property damage.

But Will Hendrick, an attorney for the Southern Environmental Law Center who pursues sediment pollution cases, says the decision has hamstrung environmental groups. They often sue polluters when they believe regulators have not been aggressive enough.

“It means the remedy that most environmental laws provide in the face of governmental inaction isn’t available,” says Hendrick. “If the state doesn’t want to protect you from a polluter, then you can’t protect yourselves from them either.”

Trouble collecting fees

North Carolina officials have often struggled in the instances when they have pursued action. A 2008 study of fee collection, the most recent conducted by the Department of Environment and Natural Resources notes that only 11 percent of those fined ultimately paid in full.

The state Attorney General’s office reports some unpaid fines extend back to 1999.

UPDATE 11/25/14: A spokeswoman for the state environment agency explains the increased number of open projects in the state report stems from a change in how the state calculates the number. While the state count jumped by a third, from about 8,000 to 12,000, the actual number of open projects held flat.