Legislature OKs rule on streams

Liability shifts to companies

Staff WriterJune 19, 2011 

State lawmakers late Thursday passed legislation that could put an end to a long string of costly, state-supported fixes of stream restoration projects by shifting to construction methods that hold the companies that build the projects accountable.

The legislation, which cleared the Senate late Thursday and is on the governor's desk, follows a three-part series in The News & Observer, "Washed Away," that reported more than 30 stream restorations needing repairs that often reached into the hundreds of thousands of dollars. State records showed numerous examples in which construction or design errors played a role in the failures.

Those projects represented roughly one in three stream restoration projects managed by the state Ecosystem Enhancement Program and its predecessors.

State Sen. Neal Hunt, aRaleigh Republican who sponsored the legislation, added the provision after reading the series.

"That's one of the main advantages of the bill," Hunt said. "If they don't do the job right, they get sued."

Combating delays

The failures also carry a cost to the environment. The restorations are meant to offset the destruction caused by road building and development. Failures often delayed the projects' completion by years. One such failure in 2006, at Little Beaver Creek near Apex, isn't expected to be fixed until this year. The repair cost is estimated at more than $320,000.

Hunt's bill requires the state ecosystem program to hire companies that identify, design and build the restoration, or to purchase previously restored sites. Both types of restoration are offered by mitigation bankers - businesses that locate and develop stream and wetland restorations with an eye toward selling the environmental improvements.

Both methods can shield the state from repair costs because the state has the ability to walk away from shoddy restorations, or force the companies to fix problems before making full payment.

"The companies are putting up their own money, they are taking the risk, so they have an incentive to do a good job," said Harry Kaplan, a lobbyist who represents the N.C. Environmental Restoration Association, which is made up of mitigation bankers and other companies in the restoration business.

If those options aren't available, the ecosystem program can obtain restored sites, as they often have in the past, by hiring contractors to design and build them.

The legislation further diminishes the ecosystem program's role in producing restoration by requiring local governments to use a mitigation bank if one exists within their watersheds. Before, local governments always had the option of paying a fee to the ecosystem program, which then had the task of finding the restoration site.

Daniel Amburn, a lobbyist for the N.C. League of Municipalities, said local governments should be allowed to keep that option.

Municipalities such as Raleigh and Charlotte that had built their own restoration sites prior to the bill's passage can sell them to others, but those that build them after the law's start date would be prohibited.

Water quality

The legislation did not address the larger issue about stream restorations' ability to improve water quality. Several researchers have reported limited or no water quality benefits from the restorations, particularly in urban areas that struggle with stormwater runoff.

Peter Raabe, a lobbyist for American Rivers, a national nonprofit environmental group, said he is troubled by the lack of documented water quality benefits from many stream restorations. But he praised Hunt's legislation for steering more restoration work to mitigation bankers.

"Giving more work to the people who are the absolute experts in the field is probably the direction we should be going," he said.

David Knight, an assistant secretary for the Department of Environment and Natural Resources, said his department has signed off on the bill, though he had concerns about its effect on municipalities. He said the ecosystem program already had been moving more toward using mitigation bankers for restoration.

dan.kane@newsobserver.com or 919-829-4861

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