Conservationists sue state officials to protect water quality

Raleigh - A state commission violated state law in January when it rejected new rules that aim to protect North Carolina rivers, lakes, estuaries and drinking water supplies from polluted stormwater runoff - the leading cause of degraded water quality in the state, conservation groups charged in a lawsuit filed today. The suit also contends that the Rules Review Commission's very existence violates North Carolina's Constitution.

The NC Coastal Federation, the NC Shellfish Growers Association, NC Trout Unlimited and NC Environmental Defense filed suit against the rules commission in Wake County Superior Court. The Environmental Management Commission, which wrote the rules, is also filing suit against the rules commission.

"Our water quality is at stake, as are our health and our economic future," said Trip Van Noppen, senior attorney with the Southern Environmental Law Center, which is representing the four groups in the legal action. "These rules are our best shot at preventing further decline in the health of our state's waters."

Runoff from streets, shopping malls, subdivisions and other paved surfaces carries dirt, oils, toxic residues, bacteria and other pollutants into surface waters all across North Carolina. The polluted runoff reduces water quality, degrades drinking water supplies and harms fish and wildlife. In addition, the volume and velocity of stormwater from paved surfaces erode stream banks, loosening sediment that smothers fish and shellfish and increases downstream flooding by filling in river channels.

The Environmental Management Commission, under a federal Clean Water Act mandate, has worked for three years to develop rules for localities to control stormwater pollution. The commission held public hearings across the state on the proposed rules and gathered extensive feedback from a wide range of interests, including local governments, environmental groups and developers.

Todd Miller, executive director of the NC Coastal Federation, the state's leading coastal advocacy group, participated in the detailed preparation of the stormwater rules since 1999. "The rules commission's action ignores years of hard work and dedication by local governments, state agencies, university scientists and interested citizens to create stormwater rules based on sound science and practical solutions," he said. "It looks like the rules commission doesn't listen to anyone but the developers."

The rules commission killed the anti-pollution rules at the recommendation of developer interests that are among the most powerful lobbying groups in Raleigh. The NC Realtors and NC Home Builders ranked #1 and #2 for campaign contributions to legislative candidates in the 2002 election cycle, according to Democracy North Carolina, a nonpartisan organization that tracks campaign contributions.

"Stormwater pollution is one of the main reasons our shellfishing industry is declining," said Jim Swartzenberg, president of the NC Shellfish Growers Association. "We need strong stormwater controls for North Carolina to have a thriving shellfish industry."

M. R. "Squeak" Smith, a board member of NC Trout Unlimited, stated: "The rules commission has repeatedly vetoed protections specifically designed for North Carolina's trout waters, putting more of our vulnerable trout streams in jeopardy. We have no choice but to take this issue to the courts."

Dan Whittle, senior attorney at NC Environmental Defense, added: "These rules were carefully crafted to achieve water quality protection without hampering economic growth. They are good for North Carolina and good for our children."

Highlights of the rules in question include:

• measures to prevent polluted runoff from new development in rapidly urbanizing areas;
• extra protections for sensitive waters including trout streams and coastal waters suitable for shellfishing; and
• flexibility for localities and developers to determine how best to implement the requirements.
• In their lawsuit, the groups charge that the rules commission "erred as a matter of law and abused its discretion" in rejecting the stormwater rules in January.

The groups also claim that the Rules Review Commission itself is unconstitutional. Van Noppen said that the General Assembly has unconstitutionally attempted to give a commission that it appointed veto power over agencies' rules. "That power is one that the state Constitution reserves for the legislature itself," he said. In addition, the suit contends that the rules commission is unconstitutionally performing the duty of the courts when it vetoes rules. An opinion of the Attorney General issued in 1991 questioned the constitutionality of the commission, but the issue has never been decided by the state's courts.