Macon County approved revisions to its soil erosion and sedimentation control ordinance despite an outpouring of opposition from the public — so much so that not everyone who had signed up to speak on the issue at the Aug. 13 meeting was able to do so. 

After an outpouring of opposition from members of the public over the course of several county commission meetings, Macon County Commissioners chose to table a vote on the flood damage prevention, soil erosion and sedimentation control and water supply watershed protection ordinances for meetings over the next several months. 

More than two years after flooding along the Pigeon River and its tributaries killed half a dozen people and destroyed businesses, cars and homes from its headwaters near the Blue Ridge Parkway on down through the towns of Canton and Clyde, contractors are set to begin some of the most intensive debris removal operations in Haywood County since the floods of 2004. 

Jackson County commissioners voted unanimously Sept. 15 to ask for the N.C. Association of County Commissioners’ support for state legislation to give counties more control over state and federal construction projects within their borders.

Despite multiple outstanding environmental violations, a new student housing complex located on Western Carolina University’s Millennial Campus off Killian Road welcomed its first group of tenants this month. 

The Millennial Apartments project overseen by Zimmer Development Corporation has racked up seven notices of violations of state standards since breaking ground on the project last summer in Cullowhee.

A highway construction project in Jackson County has come under public scrutiny for muddying the Tuckasegee River.

Erosion control measures have failed to stop mud and sediment from running off the construction site, into creeks and onward to the river during heavy rains. While the highway department has admitted to some runoff problems at the site, it claims it is doing a good job overall.

An earth-moving project that has left a large, visible hillside on Russ Avenue in Waynesville denuded, gouged and barren could continue into the indefinite future despite pressure from the state environmental agency monitoring the site to bring it to a close.

Jackson County’s planning board will continue weighing proposed changes to open-space regulations for a few more weeks before passing them on to commissioners for their thumbs up or thumbs down.

Jackson County is one of the few mountain counties with an open space rule, which requires developers to set aside a portion of new subdivisions as green space, natural areas and recreation. The open space rule has been in place for four years, but is being revisited for possible changes.

The planning board recently held a public hearing on the proposed changes. Members chose to hold off on a final decision about passing their recommendations along to county commissioners, who would have final say.

Planning Board Chairman Zachary Koenig and other board members, in delaying a vote, agreed they wanted time to consider what speakers had discussed and asked during the hearing.

The main concern expressed? Fear that the changes would hurt groundwater recharge. When the original open space rule was ushered in four years ago, along with a host of other steep slope and development regulations, groundwater recharge was central to the debate. Open space allowed rain water falling on the mountains to soak back into the soil and recharge the groundwater so many rely on for wells.

Some who spoke at the public hearing feared weaker open space requirements would negate what the previous board tried to accomplish.

Board members denied diluting the rules, however, saying they in fact consider the issue so critical they removed it from the open-space regulations to ensure separate consideration of the matter during the next few months. Multi-family and commercial development also will be addressed in these future groundwater recharge standards. The current open space standards address single-family residential development.

“That will be our next task as a board,” Koenig promised speakers. “We think highly enough of water recharge to put together an entirely new ordinance.”

A couple of speakers seemed unpersuaded by the planning board’s decision.

“I must say I’m a little taken aback at the idea of erosion, water recharge have essentially been pulled out of the open space” discussion, said former developer John Beckman, who works as a farmer these days in Jackson County. “How can you not discuss hydrology, and the impacts that would have on the environment? It is not like open space is totally distinct and different from water-related issues.”

Roger Clapp, executive director of the Watershed Association of the Tuckasegee River, noted “on balance” the proposed changes “appears as a net positive for developers and a notable benefit for the environment and the future homeowners in news developments.”

Clapp did urge the planning board to set the document aside for a bit, as it did, though he requested “the issue of recharge … be addressed.”

The conservationist argued that the document turned the universally accepted definition of open space “on its ear. It never means built-up recreational areas such as tennis and basketball courts and golf courses, in my experiences.”

The changes include continuing to allow certain “hardscaping,” such as tennis courts, sidewalks and swimming pools, to count as open space in efforts to gain recreational space for the county’s residents, as the current ordinance does.

County Planner Gerald Green disagreed with Clapp, saying that including recreational space as “open space” is standard in planning circles. Planning board members also defended the use of recreational space.

Commissioner Doug Cody and Chairman Jack Debnam both attended the hearing. Cody said he hopes that residents “don’t have preconceived notions about what these revisiting of the ordinances are … I’m bothered that people think we are trying to destroy something. We’re not. We are trying to reach a balance.”

Other changes include:

• Currently, for subdivisions of eight or more lots, 25 percent of land must be placed in open space. Conservation design subdivisions open-space requirement would go to 20 percent open space of the land area. Green said that remains higher than in other counties. Twenty-five percent, he said before the hearing, in his opinion “increases the costs of homes for people who work and want to live here and does not effectively address the goals that have been identified by the county, which include promoting sustainable development.”

• Developers can opt now to pay a fee in lieu of providing open space. This fee would go to the Jackson County Recreation and Parks Department to help fund activities and spaces for residents. Developers also could offer other land for open space.

Groundwater recharge

Recharge is the process by which groundwater is replenished, and a recharge area is where water from precipitation moves downward to an aquifer. Groundwater is recharged naturally by rain and snow and by creeks, rivers and lakes. Recharge can be hampered by construction or other human activities such as logging.

Developers looking for shortcuts around erosion laws won’t find amnesty in a recent court case between a landowner and Haywood County erosion officials, according to the state authority on erosion enforcement.

The landowner, Ron Cameron, won a lawsuit claiming he was a victim of overbearing erosion enforcement.

While the county settled out of court for $75,000, the county stood a good chance of winning at the state level had they gone forward, according to Mel Nevils, the Land Quality section chief with the N.C. Department of Environment and Natural Resources. Nevils said state precedent sides with the county, citing at least two similar cases that have been decided by the Court of Appeals and even N.C. Supreme Court.

In the Haywood suit, Cameron claimed he was logging his property and should fall under a laxer set of erosion rules that apply to forestry rather than a more stringent set of rules that apply to developers.

The county questioned the landowner’s true motives, however, citing Cameron’s creation of a development master plan, registering a subdivision name with the county and applying for a septic tank evaluation. The county insisted on holding him to the higher erosion standard, and Cameron sued to get out from under the county’s jurisdiction, ultimately prevailing in a three-week trial in May.

In the state cases, “The basic premise was the same,” Nevils said.

“You had a landowner claiming forestry and we felt that it was not forestry, that it was development,” Nevils said.

Both sides in the Cameron suit argued that a terrible precedent would be set if the other side won. If the county lost, it argued the case would provide a road map for developers who want to exploit the forestry loophole.

Nevils isn’t concerned, however. He said the precedent already on the books in higher court rulings, which sided against the landowners, will trump the Haywood County ruling, which was made by Judge Laura Bridges.

“It is the only time I am aware of this type of ruling has been made,” Nevils said of the Haywood suit.

Meanwhile, Cameron argued that landowners everywhere would shy away from logging, for fear they could never change their mind without their motives being questioned and triggering retroactive enforcement and fines.

Nevils doesn’t foresee that kind of entrapment by erosion officers happening, however.

“Practically, if you are logging now and 20 years down the road you do a development, we are not going to make you do that,” Nevils said. “We look for evidence whether there was intent to develop at the time the road building occurred.”

Nevils, who testified for the county during the trial, said Haywood County’s Erosion Control Officer Marc Pruett was doing his job properly when trying to enforce county erosion laws.

Haywood County initially planned to appeal the ruling, but Cameron was going after damages and hefty attorney’s fees from the county. The county commissioners had already spent $282,000 on attorney fees to defend the case and chose to cut the county’s losses and settle out of court.

Nevils said he doesn’t know if the state law could be clarified to avoid the situation in the future. It might not be possible to clarify it more than it is.

“Technically the way the law is written, it says if you are planning to disturb land, no matter when, if it is for the eventual purpose of residential development you cannot claim forestry,” Nevils said.