06-25-06: Land rush, runoff threaten inner coast's water

Land rush, runoff threaten inner coast's water:
Coastal counties are just starting to act, and many developers exploit lax state rules

As thousands of new rooflines rise on North Carolina's inner coast, the rules designed to stop pollution and keep coastal waters clean for shellfish are failing, state officials say.
Regulations allow subdivisions to be built so densely that they frequently overwhelm the land's capacity to filter mud, oil, excrement and chemicals from roofs, roads and yards before the pollution reaches the water. And developers of small projects can easily avoid some state rules.

Many local governments, which make most land-use decisions, are only starting to think about ways to limit the state's latest land rush.

Five coastal counties still have no zoning. Four others have large areas without it.

The waterfronts attract investors as well as homeowners drawn by the boating, fishing and calm of coastal living. They are now being developed at an unprecedented pace; more than 34,000 houses and condominiums are planned or under way in the 20-county crescent from Currituck County in the northeast to Brunswick County at the South Carolina border, a News & Observer survey has found.

As development has spread from Brunswick and Wilmington up the coast, one tidal creek after another has been closed to shellfishing. Pollution settles in the clams and oysters as they filter water, making them unsafe to eat. North Carolina waters permanently off-limits to shellfishing have increased 19 percent since 1984.

Shellfishing is an important part of the state's commercial fishing industry, which provides 4,000 jobs. But in a broader sense, the health of shellfish is an indicator of water quality, which in turn affects swimming, wildlife and the attractiveness of the coast.

"That is where the canary is singing and all our shellfish waters are closing," said Courtney Hackney, a marine biologist and chairman of the Coastal Resources Commission, which sets some state policies for development along the shore.

"We've largely failed in our protection plans for handling stormwater runoff," Hackney said. "At the rate we are going, there will be no open shellfish waters anywhere near people. We're not far from that right now."

Despite his position, Hackney has limited impact on the state's rules. Several different state agencies oversee the coast.

And yet another group holds the trump card: the General Assembly, which has made it difficult for regulators to set limits on homes, driveways and roads. One key change adopted by regulators to limit stormwater pollution has been held up for three years by the powerful real estate industry.

Pollution caused by runoff is difficult to control because state rules routinely allow new development to cover up to 25 percent of the ground as close as 30 feet to shellfishing waters. When the ground is covered with hard surfaces, more stormwater finds its way into fragile estuaries, carrying with it materials that can contaminate shellfish.

Letter of the law

Beyond 575 feet from the water, the state has less control. And that's just where Kenny West's Emerald View subdivision is being built.

Emerald View is in Carteret County, just off N.C. 24, with a fine view of Bogue Sound. The 23-lot subdivision on 25 acres needed minimal approval from the state, and it met local subdivision regulations. It has only a grassy ditch to catch and filter stormwater, a method state regulators deride as a pipeline to the sound.

West said the subdivision met all government requirements, and it's not particularly dense. As for the runoff, "I'm not an engineer, so I can't speak to that," West said. "It will go in the ground, as far as I know. I don't think it will drain into Bogue Sound."

Developers have learned how to bypass the state's more lengthy and expensive coastal building review process. They try to disturb less than an acre of soil in areas under the Division of Coastal Management's jurisdiction, so the project won't trigger state review. They'll build a road and install utility lines but won't grade individual lots or cut driveways; that's left to property owners or builders.

That's what happened at Emerald View. The road for the development was within state jurisdiction, but it displaced less than an acre of land, records show. That way, developers avoid the broader review by more than a dozen federal and state agencies and aren't required to have an engineered stormwater control plan. Instead, the project requires only a permit from local government.

"Developers learn quickly how to get things the quickest and easiest," said Tere Barrett, district manager for the state Division of Coastal Management, which issues permits for coastal development. "It's become pretty much the method of operation. They are avoiding the review and what might be asked of them by the agencies."

Pristine no more

The waters in front of Emerald View are still open for shellfishing. Not so just four miles to the west, where Deer Creek once boasted some of the state's most pristine waters.

Now, the creek runs dirty brown, closed since 2000 to shellfishing because of high fecal coliform counts.

The problem: Houses and boat docks built in the past 15 years.

"Every time you put a house up, including ours, there is more runoff," said Bill Brogdon, a retired Coast Guard captain who lives in Cape Carteret. "People put fertilizer and bug killer on their yards. It's a fact of life that if we develop these areas, the pollution is going to get worse."

The degraded condition of Deer Creek -- a common fate for tidal waters as development occurs -- became a rallying cry for residents last year when Lowe's wanted to build a home improvement store in Cape Carteret.

The town board viewed the state's rules as too weak to protect the creek from further pollution from the millions of gallons of stormwater that would wash off the store's huge paved parking lot. Having already allowed the housing, the board required Lowe's to build a series of basins that would handle 8 inches of rain in 24 hours -- more than four times the state requirement.

"It's getting to be a problem with all the growth we have going on," said Mayor Harvey Ellis.

Cape Carteret and western Carteret County provide a glimpse of the development sweeping North Carolina's inner banks. Once just a last traffic light before the bridge crossing to Emerald Isle, Cape Carteret and the unincorporated area between N.C. 24 and Bogue Sound are now sprouting signs for developments of 300 to 400 houses such as Bogue Watch and Cannonsgate, where Gov. Mike Easley has bought a lot.

The runoff from those subdivisions will drain into Bogue Sound, which has provided generations of Norwood Frost's family a living -- catching, selling and buying fish and shellfish. He's not sure how long the work will continue.

Frost, 63, who operates a restaurant in Salter Path, rolls his vowels with a brogue still heard in isolated parts of the coast. He has watched the steady decline of water quality and fishing in Bogue Sound.

"Fishing is over," he said. "You can ask anyone you want to, and they'll tell you that."

Key rules thwarted

More than 30 years ago, North Carolina set out to protect shellfishing, the surrounding waters and the coast in general with the Coastal Area Management Act. It spawned new state regulations and the general hope that North Carolina's coast wouldn't develop as densely as Myrtle Beach to the south and Virginia Beach to the north.

But over time, legislators have stopped state officials from implementing key rules, giving developers more room to build and overturning a rule that would have stopped beachfront construction of swimming pools, which can become floating battering rams during major hurricanes.

Today, the argument continues over development density and controlling stormwater runoff.

The state Environmental Management Commission, which sets state policies on air and water protection, has tried to change the rule allowing a quarter of the land within a half-mile of shellfishing waters to be covered by development without engineered stormwater controls. It would reduce that to 12 percent unless a developer adds controls, and it would expand existing stormwater rules to cover more areas in urbanizing coastal counties.

But the rules have been tied up for three years in North Carolina's lengthy rulemaking process, delayed in large part by objections from groups representing home builders and real estate agents. The issue is back before the legislature.

Lisa Martin, director of regulatory affairs for the N.C. Home Builders Association, said the current development density limits near coastal waters are adequate.

Martin said the group drew a hypothetical 37-acre development. Under existing rules, 51 lots could be built. But only 15 lots could be built if the allowed buildable area were reduced to 12 percent.

"That limits significantly the development that can occur on the coast," Martin said.

Martin said it was a stretch to assume all the fecal matter entering the waters is coming from subdivisions.

"There are a lot of things that feed into these streams," Martin said.

Researchers, however, say housing is a major factor in coastal pollution.

Michael Mallin, a professor at the Center for Marine Science at the University of North Carolina at Wilmington, has been dipping water-sampling cups in the tidal creeks in New Hanover County for the past decade, gathering bacteria samples. In his research, Mallin has found a strong link between the number of roofs, drive-ways and roads in a watershed and the amount of fecal bacteria in the creeks. He said the state's rules allowing 25 percent of land to be covered are too lax.

"Once you get above 10 percent coverage, then you have problems," Mallin said. "Once you get above 20 percent, you can consider your shellfishing gone and probably not coming back."

"We're going to lose all the shellfishing areas that are in populated areas unless the state takes a stronger stand," Mallin said.

The acres of waters permanently closed to oystering and clamming have increased from 47,800 in 1984 to 56,700 in 2006. Rainfall of 1.5 inches in 24 hours can temporarily close another 40,000 to 45,000 acres because of fecal bacteria, which can come from animal manure, septic tanks and wastewater treatment plants.

State water quality officials say the closed acreage is increasing because existing rules regarding development density aren't protecting water quality. They say the pollution associated with stormwater runoff is their top problem, and, without stormwater controls, the rule allowing 25 percent of land to be covered by development is too much.

"Really, if you are going to try to protect the shellfishing resources, you probably need something around 8 percent to 10 percent," said Tom Reeder, chief of the wetlands and stormwater branch of the state Division of Water Quality, which issues permits after assessing a project's impact.

Seven out of every 10 coastal projects cover no more than 25 percent of their land. In such cases, builders can install grassy ditches called swales to control runoff and avoid the expense of building and maintaining more costly engineer-designed stormwater controls. Projects above 25 percent get a more rigorous review but, with stormwater controls, can still win permits.

"They thought these swales would be effective at removing bacteriological pollutants," Reeder said. "Some people have referred to them as pollutant superhighways because they take the pollutants and get them to the waters."

Derb Carter, a lawyer for the Southern Environmental Law Center, questioned why the state is still issuing stormwater permits for development near shellfishing waters.

Carter said environmental groups are concerned about waterfront subdivisions being built along Core Sound and western Bogue Sound, prime shellfishing areas. He says the developments and the state could be vulnerable to a lawsuit; the federal Clean Water Act requires protection of shellfish waters.

State officials "have an obligation to keep those shellfishing waters open," Carter said. "They're issuing permits that they know will pollute those waters by their own admission now."

(Staff writer Jerry Allegood contributed to this report.)

Staff writer Wade Rawlins can be reached at 829-4528 or wrawlins@newsobserver.com.
Staff writer Jerry Allegood contributed to this report.