Environmental Management Commission upholds decision in favor of local family

By Lynn Hotaling

The Environmental Management Commission last Thursday (Oct. 12) affirmed administrative law Judge Beecher Gray's recommended decision. That finding, released last spring, supports the contention of Earle and David Young that state standards did not provide adequate protection for a trout stream on their property. The Youngs own some 450 acres located between Cashiers and Highlands; the stream in question is Grassy Camp Branch, a tributary of Norton Creek, which flows into Lake Glenville.

Disagreement with state enforcement of turbidity (amount of particulate matter suspended in a given volume of water) standards with regard to Highlands Cove, a development upstream from the Youngs' property, led to the filing of the complaint with the N.C. Department of Environment and Natural Resources. The EMC, which makes final agency decisions, accepted the judge's ruling.

Bob Ray of Cullowhee, a member of the EMC, said the commission's decision to uphold Judge Gray's decision was "almost unanimous." Highlands Cove "evidently tried to do too much" and disturbed too much land at once, Ray said.

The decision "sends a message to developers that they can't just come in and tear up the side of a mountain without taking measures to prevent erosion," Ray said.

"(The EMC decision is) definitely going to change the way the Division of Water Quality (the division of DENR charged with enforcing sedimentation laws) will enforce turbidity violations and may impact what that standard is," said Phil Gibson of Western Carolina University's Mountain Resource Center. Gibson, a member of the state's Sedimentation Control Commission, said the EMC decision means that the DWQ should enforce actual turbidity standards.

"The way it has been enforcing them has been to ask the Division of Land Resources (the other DENR division) if (developers) have done all they could do (to meet turbidity standards). If they had done all they could do, (DWQ) didn't issue a violation," he said.

DENR has permitted developers to exceed turbidity standards so long as an approved sedimentation/erosion plan is in place, said attorney Billy Clarke, who represented the Youngs in both proceedings. Instead of requiring adherence to an absolute standard like 10 nephelometric units above background for trout streams, the agency allows developers to satisfy requirements through Best Management Practice. Land-disturbing activity is said to be in compliance as long as a sedimentation and erosion plan is in place and developers follow BMPs, Clarke said.

"The rule about how (the state) measures compliance with regard to turbidity standards is not adequate," Clarke said in March. "Our goal is to make sure (Highlands Cove) doesnąt exceed appropriate water quality standards for turbidity."

Both the Youngs and Clarke seemed pleased with last week's EMC ruling.

"What I would hope it means is that Highlands Cove would be required as a condition of its 401 certification to meet prevailing turbidity standards, and that any discharge would be 10 NTU or less," Clarke said.

A DWQ official said Wednesday that his agency is unclear on exactly what the commission's decision will mean.

"It's certainly going to make us re-evaluate the situation, but the decision by the commission was not given as a directive," said Boyd DeVane, supervisor of the planning branch of the water quality section of DENR. "We really don't know how it applies everywhere else. The commission did not give us an order to change the way we've been doing business."

The agency certainly does want to see that turbidity standards can be protected as much as possible, DeVane said, but is unclear about how the ruling on the Youngs' complaint affects interpretation of the standard, DeVane said.

"I can assure you that when BMPs aren't working, we do everything we can," DeVane said. "This ruling has elevated the interest in the situation where BMPs do not protect the standard, and we are interested in finding out what can be done to improve the situation. We don't like for turbidity standards to be violated, and we want to find out what needs to be changed."

In addition to the complaint filed with DENR, the Youngs brought a civil suit against Highlands Cove. In that litigation, plaintiff Whiteside Estates, a family corporation represented by Earle and David Young, proved to a Jackson County jury's satisfaction that construction at Highlands Cove, a planned golf course and residential community upstream, caused irreparable harm to an 18-acre lake on the Youngs' property. The March verdict awarded the Youngs $500,000 in damages. Highlands Cove has appealed that decision.

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