The North Carolina Government's attack on Coast & water protections.
Over the past six years, the dismantling of North Carolina’s coastal and water quality protections has included:
- Repealing the ban of hardened structures on beaches, which subject our beaches to increased coastal erosion and collapse
- Attempting to outlaw even the study of sea level rise
- Delaying cleanup of two polluted drinking water sources for the Triangle, and committing millions of taxpayer dollars to the boondoggle “SolarBee” project in Jordan Lake
- Effectively removing state protections for all isolated wetlands in the state
- Bailing out Duke Energy, and allowing them to leave many polluting coal ash pits in place where they will pollute our groundwater for decades to come
The North Carolina General Assembly finished its 2016 short session on July 1, 2016. Though the session was short, legislators found time to continue dismantling North Carolina’s environmental safeguards. Here we will address the state’s waters - rivers and lakes on the surface and groundwater below the surface. We will also discuss the legislative assault on our coast.
North Carolina has 38,205 miles of rivers, which means our state’s total river mileage runs nearly as long as the nation’s entire Interstate Highway System. From the waterfalls in Transylvania County to the tea-colored creeks of the Great Dismal Swamp, these miles of rivers, as well as 311,236 acres of lakes, attract tourists, provide habitat for fish and wildlife, and slake the thirst of the majority of the state’s 10 million residents. These rivers, streams, and lakes are also a major recreational resource for the state’s citizens. In 1709 explorer John Lawson described his travels among “many pleasant and delightsome Rivulets,” commonly mentioning their clear waters and stony bottoms.
Unfortunately, this is no longer the case. According to the Environmental Protection Agency, North Carolina’s waters are polluted by mercury, resulting in fish consumption advisories, and thousands of miles are impaired by excessive nutrients, sediment, and various chemicals, some toxic to aquatic and human life. They are silted with runoff and overloaded with nutrients from farming, construction, and stormwater. They are polluted by effluent from industry and wastewater treatment. They have been treated harshly in the roughly three centuries since colonists first arrived in the state.
In the second half of the 20th century, many important steps were taken to protect surface waters. The Clean Water Act of 1972 required “point source” polluters, such as factories and wastewater treatment plants that discharge their wastewater through pipes, to clean up their acts, and it worked, substantially reducing pollution from cities, manufacturing, and other industries. Since then the main source of pollution in North Carolina waters has been “non-point source” pollution: runoff from farms, construction sites, parking lots, and developed areas. When fish kills in the late 1990s made it clear just how poisoned the rivers remained, stakeholders across the state got busy. Property owners, developers, municipalities, state government, and citizens’ groups spent many years hashing out rules to restore the state’s waters and protect them from both point source and non-point source pollution.
One of the biggest water quality problems affecting our coastal rivers and estuaries and drinking water reservoirs is excessive nutrients – nitrogen and phosphorus – entering our waters from sewage treatment plants, hog and chicken farms, farm fields, golf courses, and densely developed areas. In response to algae blooms and fish kills from excessive nutrients, the North Carolina Environmental Management Commission adopted nutrient management plans for many of the state’s problem waters. The approach of these nutrient management plans is to spread the responsibility among the many contributors to the problem so all the burden does not fall on the point source dischargers – typically cities and industries – that must obtain permits and reduce or even eliminate their discharges if necessary to address excessive nutrients. It will not be cost-effective for the permit holders alone to meet the Clean Water Act mandated nutrient reduction target.
According to the Environmental Protection Agency, North Carolina’s waters are polluted by mercury, resulting in fish consumption advisories, and thousands of miles are impaired.
Falls Lake and Jordan Lake are drinking water reservoirs supplying the Triangle, the fastest growing region in North Carolina. Stakeholders in the region spent years developing a plan to reduce nutrient loading to reservoirs to ensure quality drinking water for the cities and towns that depend on these sources. Beginning in 2011, the legislature has postponed implementation of the Jordan Lake Rules three times. The recently signed state budget (H1030) includes section 14.13, which for the fourth time delays cleanup of Jordan Lake and for the first time delays the cleanup rules for Falls Lake - a drinking water supply for nearly a half-million Raleigh citizens and then restarts the stakeholder negotiation that took years to hammer out the first time. If cleaning Falls Lake is the goal, postponing current action and scheduling a years-long discussion before future action is not the best way to get there. Every year of delay will make any plan more expensive, as nutrient loading continues to increase.
Jordan Lake, a larger reservoir a few miles away, fared worse this session than Falls Lake. The same section of the budget that delays cleanup of Falls Lake also delays again any cleanup of Jordan Lake, launches a new multiyear stakeholder process, and completely replaces the existing plan in 2019. In a handout to land developers, one section of the new law retroactively prohibits the application of any nutrient management rules to development in the Jordan Lake watershed that occurred or will occur between 2013 and 2020. It is as if the pollution caused by the developers who were not required to play by the rules magically does not exist.
But magically trying to make pollution disappear is not unusual in the legislature or the Department of Environmental Quality. The recently concluded two-year, multi-million dollar, waste of tax payer money, experiment with SolarBees - floating machines that were claimed to clean Jordan Lake water by simply stirring it up - mercifully ended in 2016 when studies proved the machines utterly ineffective. Political appointees at the Department of Environmental Quality were less convinced by the data about the ineffectiveness of so-called “in situ treatment options” than were the scientists, and withdrew the report to the North Carolina Environmental Management Commission that included the data, replacing it with a sanitized version instead. Fortunately, the North Carolina Environmental Management Commission stuck to its principles and submitted the original report to the legislature.
Undeterred, some in the legislature this year proposed introducing an exotic species of freshwater mussel to the lakes, continuing to ignore the sensible solution to stop the pollution at its source, which is also the approach required by the federal Clean Water Act. Thankfully, this proposal did not survive, but the legislature still allotted $1.3 million to study other in situ treatments in the 2016 budget. Any attempt to treat polluted lakes without addressing the source of pollution is headed for failure. Preventing pollution through proven programs that control the amount of nitrogen and phosphorus that reach the water body, such as those the state spent years devising, is the best strategy for our state’s waters. Yet, for the last six years the legislature has assaulted that proven solution.
In early July, massive fish kills returned to the Neuse River near New Bern, with hundreds of thousands of rotting fish washing ashore in a “dead zone” created by excessive nutrients. One of the most simple and cost effective approaches to reducing nutrients entering our waters is to maintain narrow vegetated buffers to absorb nutrients in runoff before it enters waterways. The undisturbed soil and natural ground absorb runoff, and foliage roots take up excess nutrients (like phosphorus and nitrogen) and naturally clean the water at very little cost. Over the years, our state environmental agencies developed, and the legislature authorized, maintenance of existing vegetated buffers and mitigation if they are removed in the watersheds of our rivers and lakes most threatened by excessive nutrients – such as the Neuse and Tar Pamlico Rivers, and Jordan and Falls Lake drinking water reservoirs.
Various bills have been introduced in the legislature to repeal or reduce buffer protections for our nutrient sensitive waters. In 2015, the legislaturedirected the North Carolina Environmental Management Commission to study the effectiveness of buffers and report back to the legislature. The state water quality experts in the Department of Environmental Quality prepared a draft report confirming what scientists have been saying for decades: vegetated buffers along waterways reduce nutrients entering the waters and protect and improve water quality. As they did with the in-situ treatment report, the political leadership at the Department of Environmental Quality withdrew the buffer report from their own technical staff and substituted a report with recommendations calling into question the effectiveness of buffers. In a stunning rebuke to the political leadership at the Department of Environmental Quality, the North Carolina Environmental Management Commission voted this spring to reject their proposed report and send to the legislature instead the original report endorsing the effectiveness of buffers.
The legislature has also slashed the amount of money available to agencies for enforcement of compliance with pollution permits and other environmental protections. The number of water quality permit enforcement actions by state regulators has dropped by more than 50 percent - from an average of 567 per year before 2012 to 268 per year since then. Not only are regulations being systematically repealed, our environmental agency is not adequately enforcing the regulations that remain - with predictable results.
Underground waters have fared no better in the legislature or the Department of Environmental Quality. The legislature has repeatedly tried to protect Duke Energy from having to clean up the many problems caused by its leaking, unlined coal ash pits, which pollute drinking water supplies. When the state tested wells on properties within 1500 feet of these pits, it found concerning levels of poisons like hexavalent chromium, leading state public health officials to issue letters urging homeowners not to drink the water. In 2016, under political pressure, officials abruptly changed their minds, issuing letters telling homeowners that their water was safe to use. After considerable media scrutiny, the Department of Public Health sent a third letter to some of the same residents telling them that their water might not be safe to drink after all. While some families in North Carolina were trying to understand conflicting letters from the state agency charged with making sure their drinking water is safe, legislators even proposed H1005 (S779), which would have prevented state authorities from issuing health advisories unless they complied with new standards, set not by scientists and physicians but by legislators.
The number of water quality permit enforcement actions by state regulators has dropped by more than 50 percent - from an average of 567 per year before 2012 to 268 per year since then.
Only after environmental organizations sent required notices to Duke Energy stating their intent to file lawsuits to clean up polluting coal ash sites did the state environmental agency in 2013 file its own enforcement actions against Duke. And it filed these “enforcement” actions only after it consulted with Duke on how it wanted to be sued. It promptly entered into a proposed settlement agreement with Duke, requiring a penalty of only $99,100 for violations at two sites. Shortly thereafter, a pipe at one of Duke Energy’s coal ash pits collapsed spilling coal ash and contaminated water into the Dan River. Thousands of North Carolina citizens spoke at public hearings or sent written comments objecting to the proposed settlement, and the agency withdrew it. The federal government criminally prosecuted Duke Energy for crimes under the Clean Water Act at coal ash sites in North Carolina and secured 18 guilty pleas for nine crimes and a $102 million penalty. Two years later the Department of Environment and Natural Resources fined Duke $6.6 million - only $1.8 million of which resulted from the Dan River spill.
In 2015, the Department of Environmental Quality entered into yet another sweetheart settlement agreement with Duke Energy, this time promising not to enforce groundwater pollution laws against Duke Energy companies for past, present, and future violations at all its coal ash sites across the state. After citizens challenged this proposal, a court questioned whether the agreement was prompted by “ulterior motives,” and the state disavowed portions of its agreement with Duke Energy.
The legislature enacted the Coal Ash Management Act in 2014, creating a Coal Ash Management Commission with a majority of legislative appointees to receive recommendations from the Department of Environmental Quality on the risks posed by disposal sites, and direct the type of clean up required. Two significant decisions followed in 2016. First, the North Carolina Supreme Court ruled the Coal Ash Management Commission unconstitutional, violating separation of powers because of the legislative appointment of Commission members. Second, the Department of Environmental Quality technical staff evaluated each of the coal ash disposal sites and recommended that all be excavated and removed to safe storage to protect water quality.
In the 2016 short session, the legislature first passed a bill reconstituting the Coal Ash Management Commission with a majority of the commissioners appointed by the Governor. The Governor vetoed this bill, and after negotiations between the Governor’s Office and the legislature enacted H630, a bill supported by Duke Energy and providing Duke relief from its duty to fully clean up its coal ash pollution. Duke Energy is under court order to excavate and remove coal ash from seven of its 14 ash pond sites. For the remaining sites, under the legislation, Duke can cover the site with a cap, as long as it provides safe drinking water to nearby residents and complies with existing dam safety laws, neither of which will stop the unlined pits from continuing to pollute our water supplies for decades to come.
State legislators and agency officials in charge of protecting our clean water have instead invited more pollution. They have removed protections to our rivers and lakes and allowed polluters to foul our groundwater. The waters of North Carolina need protection. At the moment, state government has turned its head.
North Carolina has 321 miles of coastline - more than any East Coast state except Florida. Our coast and beaches are among our state’s most important economic and environmental assets, attracting millions of visitors annually and billions of dollars in tourism revenue. Protecting this resource should be vital to the interest of legislators and state environmental regulators.
In 2009, when producer Ben Kalina began researching his documentary “Shored Up,” about the dangers to the East Coast that result from poor environmental policies and sea-level rise, he planned to use North Carolina as the positive example. In comparison to the seawalls and groins that rendered New York and New Jersey so vulnerable to Hurricane Sandy and other catastrophic storms, North Carolina had for decades enforced a prohibition on almost all hardened structures on our coast, including terminal groins, jetties, and seawalls. Such structures interfere with natural currents and processes, commonly building up sand in one location but causing catastrophic erosion in other locations.
Instead, seeing the rollback of decades of enlightened coastal policy, he used North Carolina as a warning.
In 2011, the legislature abandoned the longstanding prohibition under the Coastal Area Management Act against seawalls and other hardened structures on our public beaches to protect private property, and enacting S110 which sanctioned construction of four terminal groins. And again in 2015, the legislature authorized two terminal more groins, jeopardizing the natural beaches for which the state is famous, and continuing the state’s march to hardened shorelines instead of natural beaches.
In 2015, the legislatureallowed more construction of sandbag seawalls on the oceanfront with no limit on how far seaward the sandbags can be piled. Rows of houses with overlapping sandbag seawalls create huge problems. The walls do as much damage to the beach as hardened structures, prove difficult to remove without damaging neighboring properties, create hazards during storms, and cause difficulty for tourists walking on the armored stretches of beach.
In a move that was as short sighted as it was embarrassing, in 2012 the legislature attempted to outlaw planning for sea-level rise after a Coastal Resources Commission report predicted 39 inches of sea-level rise over the coming century. From the BBC to the Colbert Report to Scientific American, those that trust science shook their heads at the legislature. Ultimately it enacted H819, which mandated what the Coastal Resources Commission can and cannot consider when setting a standard for coastal development based on anticipated future sea-level rise. It limited the allowed prediction of sea level rise to 30 years, avoiding consideration of the rapid acceleration in sea level rise predicted by scientists. If billions of dollars in likely investment in public and private projects along our coast was limited to projects and structures with an expected life of 30 years, this might make sense. But since this is not the case, ignoring science will come at a high price to our coastal economy and natural resources.
Next we will discuss our air and our power to make responsible choices about energy production.