<< Back 10/2/02 Who’s to pay for muddying the water? By Scott McLeod Have you ever immersed yourself in an ice cold, clear-running stream rushing down from one of the high, isolated peaks in these mountains? Doing so is an instant reminder of what this place was before we came, of its wildness and its purity. If one day in the future almost all those mountain streams and rivers are gone, the victim of our development, sediment will probably have been a primary culprit. Property owners, builders and developers must become more aware of this problem, and that’s why the debate in Jackson County right now about who will pay fines for violations of the local erosion control ordinance is so important. My friend and fellow Smoky Mountain News writer put the question succinctly in the lead to his story in last week’s paper: ‘Who’s to pay for muddying the water?” Is it the guy on the bulldozer clearing the lot? Or is it the future homeowner or developer, since they own the land or are responsible for having it cleared? It’s an issue more complicated than it seems at first glance, and it is one with far-reaching ramifications for the state and particularly for Western North Carolina. Ask any respected scientist or impassioned environmentalist what the number one water quality problem is, and they can tell you its erosion and the ensuing sedimentation. Nowhere is this problem more pronounced that in the mountains. Because of our steep terrain, erosion is just harder to control. And because the natural state of our streams and rivers is crystal clear and cold with little or no algae or sediment, it is very easy for erosion problems to cause lasting environmental damage. Once the free-flowing clear stream is clogged with dirt, the entire ecosystem begins to change. Native aquatic species either die or go away as the water warms and moves slower. Algae begins to form in the shallow water. What was once a mountain stream now resembles a murky Piedmont river. It is not hard to find stretches of river like this in WNC. Jackson County, like others in this region, has a sediment and erosion control ordinance. It was passed a couple of years ago, and its language declares that “the developer or other persons who has or holds himself out as having financial or operational control over the land-disturbing activity” or the “landowner or person in possession or control of the land when he has directly or indirectly allowed the land-disturbing activity or has benefited from it” will be liable. Several members of the Jackson County Planning Board, however, think the grader himself — the guy driving the bulldozer — ought to share in the liability. It’s easy to see why that seems obvious. If I decide to clear some land for whatever reason, I’m going to get someone who sells them self as a professional to do the job. I’m a newspaper editor, and I don’t claim to have any expertise whatsoever in clearing land. If the guy I hire screws up, it somehow seems illogical to fine me. He is one who pushed the dirt that eventually made its way into the stream. Every good newspaper reporter has their sources who they rely on for expertise. Phil Gibson, who is now RiverLink’s Riverkeeper for the French Broad in Asheville, is impassioned about these issues. He sits on the state Sedimentation Control Commission and was vice chairman of the Jackson County Planning Board when this ordinance was developed. He thinks that keeping the county ordinance in line with the state law — which holds property owners and developers liable — is the best way to approach the problem. “People need to know that if they are paying for the development then they are the one ultimately responsible for compliance with the law,” he told me in a phone conversation last week. F. Mell Nevils, who is head of the state’s Division of Land Quality, said the same thing in correspondence with the Jackson planning board: “the commission members made a conscious decision not to hold the general grading contractor financially liable for violations for the following reasons: a lawsuit is harder to defend when several entities are held financially responsible; the landowner/controller should be responsible for hiring qualified grading contractors.” In most counties that is the way erosion laws are written: the owner or the developer are responsible for violations. The thinking is that if I have a signed contract with a grader or contractor, then I can subsequently sue that person if the county fines me for the mistake. Or I can simply work out a deal to deduct the amount of the fine from the final bill. That makes sense because in almost all cases contractors of all types are not paid before they do the work. In reality, though, the state must look at this problem from a different viewpoint if we are to ensure that our waterways remain clear. Graders, like electricians, plumbers, and heating and air conditioning professionals, probably should have to undergo a licensing process. Right now they don’t have to, though the state has offered a “Clear Water Contractor” program for general contractors and graders that teaches them about sediment and erosions laws and offers information on how to protect waterways (if you want to hire someone who feels strongly enough about doing the job right that they took the course, check out the list of graduates at www.wnct.org/clearparticipants). As important as our clean water is, a state-mandated licensing requirement is probably the way to go. As for development and clean water, though, state law is very clear. Gibson says he likes to remind homeowners, developers and graders of it: the 1973 Sedimentation Control Act requires all property owners to keep their dirt on their property. If you own a quarter acre and runoff from it clogs a stream, you’ve broken state law. Perhaps Jackson County should keep its ordinance as is, just make sure that there are enough county personnel to see that it is being followed. As for the future, our regional council of governments should lobby for some state licensing for graders and some best management construction practices tailored to the steep terrain we have in the mountains. Otherwise, there will be fewer and fewer opportunities to experience that ice cold splash in a clear-running mountain stream. (Scott McLeod can be reached at info@smokymountainnews.com)