It’s upstream vs. downstream in Jordan Lake repeal

akenney@newsobserver.comJune 8, 2013 

  • Jordan Lake timeline

    1945 − A severe hurricane and several days of heavy rain sends the Cape Fear River to its highest levels on record while swamping Moncure, Fayetteville and Elizabethtown.

    1946 − Congress directs the Army Corps of Engineers to undertake a flood-control study.

    1963 − Congress authorizes construction of a “New Hope Reservoir.”

    1967 − Early construction begins on the lake, sparking protest from upstream cities, landowners and environmental groups.

    1971 − The Conservation Council of N.C. files a water-quality lawsuit to stop creation of the lake.

    1973 − Congress renames the proposed reservoir the B. Everett Jordan Dam and Lake, in honor of the former U.S. senator from North Carolina.

    1976 − The Army’s final notice of the creation of the lake prompts more legal challenges from the Conservation Council of North Carolina, resulting in a court trial and a victory for the lake’s supporters in 1977. An appeal is denied in 1979.

    1981 − Impoundment, or damming, of the lake begins. The waters run mostly on Chatham County’s eastern flank, its northern tip touching Durham’s southern border.

    1982 − The lake fills to its normal capacity. The N.C. Environmental Management Commission soon designates it a “nutrient-sensitive water” and imposes phosphorus discharge limits on upstream cities.

    2002 − Parts of Jordan Lake are placed on the federal government’s “impaired waters list.” The rest of the lake would follow in 2006.

    2003 − Dozens of municipal and county governments in the watershed meet over 18 months to discuss environmental strategies for the lake.

    2005-2007 − The state drafts and publishes a detailed set of rules governing discharge into the lake. These will be known as the Jordan Lake Rules.

    2009 − The Jordan Lake Rules are signed into effect by Gov. Bev Perdue over the summer.

    2011 − The legislature enacts a two-year delay of rules governing nitrogen discharge.

    2012 − The legislature approves delays for runoff-management rules for new development.

    2013 − The legislature considers a bill that would repeal the rules fully.

    Sources: U.S. Army Corps of Engineers; N.C. Department of Environment and Natural Resources

Editor's note: Sunday's Jordan Lake watershed map incorrectly labeled Pittsboro as Chapel Hill.

Gravity and geography have bred a never-ending bureaucratic struggle among dozens of governments in the Jordan Lake watershed.

Regional efforts to control pollution in the reservoir which has played a critical role in the Triangle’s growth have played out for decades in mind-numbing technical detail. This year, like many issues, the water-quality debate burst into public view on the back of a sweeping legislative proposal.

N.C. Senate Bill 515 would erase and begin the replacement of the Jordan Lake Rules, a billion-dollar-plus plan to control runoff from eight counties whose streams and rivers feed the lake. The bill already has spurred an interregional debate, splitting political party lines as it pits the Triad against the Triangle ahead of new pollution limits.

At the heart of the conflict is a clash of interests. While the reservoir supplies water directly to Wake and Chatham counties, it’s the upstream cities to the north and west that most affect Jordan Lake’s water quality – and are affected most by the lake’s environmental regulations.

Greensboro already has put $100 million toward an upgrade of its sewer plant to meet the interregional requirements, and construction costs across the watershed eventually could total in the billions.

As S.B. 515 has gained ground, Cary, Chatham County and Wake County officials have rallied most vocally, warning of a potential environmental disaster. The city and county of Durham, which are affected heavily by the rules but rely on the lake, also have come out against the repeal. Degraded water quality could increase water treatment costs and hamper economic development, Triangle officials warn.

Triad legislators make a mirrored economic argument, saying that the new costs and requirements will slow a fledgling housing recovery in their Piedmont communities.

“It’s upstream versus downstream,” said freshman Sen. Tamara Barringer, a Cary Republican who crossed party lines to oppose the repeal.

“Water is the foundation for life,” she said in an interview. “It’s also the foundation for economic development, and we know here that we need clean water to maintain our lifestyle, and they are not as concerned because they’re upstream.”

From day one

The scale of the proposed changes to the Jordan Lake Rules surprised even development associations and city officials in the upper watershed, who have long pushed for delays and modifications. But the focal point of the argument is more than familiar to North Carolina.

The 22-square-mile reservoir has been plagued since its damming by pollution, which is fed by millions of pounds of nitrogen and phosphorus that run off farms and lawns and out of wastewater treatment plants. In fact , the threat of nutrient pollution was a leading argument against the lake before its creation, when the New Hope Valley still was carpeted by some of Chatham County’s richest farmland.

Through the 1960s and ’70s, proponents of the lake argued that its construction would prevent the disastrous flooding that had swamped towns from Moncure to Fayetteville during a September 1945 hurricane; of course, the mile-wide reservoir would also make a great water supply for the rapid suburban growth near the new Research Triangle Park in Durham and Wake counties.

Environmental groups mounted legal challenges, claiming that a dam on the Haw and New Hope rivers would create a breeding ground for excessive algae and plant life. The Conservation Council of North Carolina lost its battles, but its arguments now are echoed by Republicans.

“From day one – day one – the U.S. Army Corps of Engineers said that this lake was going to be (affected by pollution). We knew that this was going to happen,” said state Sen. Rick Gunn of Burlington, a co-sponsor of the bill.

As the bill argues, because the lake faces “perpetual impairment,” the existing runoff control “will continue to have little or no effect on water quality improvement.”

Instead, the legislation suggests a “completely new approach” focused on technological solutions that would work in the lake itself, rather than the planned installation of tens of thousands of runoff-filtering devices across the Triad and Triangle. Gunn also points to existing federal standards as a safety net.

‘Water flows downhill’

While Gunn dismisses the current environmental plan, crafted from 2003 to 2009, Democratic opponents of repeal, along with Wake County Republican lawmakers, argue that the Jordan Lake Rules haven’t taken full effect.

The state hasn’t yet required the installation of wetlands, retention ponds and other stormwater controls in new and existing development, as called for by the rules. Those requirements were delayed by two years after the rules’ 2009 enactment.

Gunn said such tactics indeed could prevent the flow of harmful nitrogen and phosphorus into the lake – but he believes advances in cleanup technology, such as new techniques to harvest algae for industrial use, could be less burdensome to landowners than stormwater controls.

“These are hundreds of millions of costs,” Gunn said. “The question is, are the costs going to produce a result, and are they being shared on a basis that is fair to everyone? These rules are really, really tough on these municipalities upstream.”

A shift of emphasis to water treatment, rather than pollution prevention, also could put more of the bill on Cary and the Triangle. For example, while Cary maintains its own stormwater rules, little of the town is actually affected by the Jordan Lake regulations.

Cary and its neighbors could be expected to pay for new technologies, though upstream governments in the Triad may pick up some of the bill in exchange for lighter regulatory loads, said Marlene Sanford, president of the Triad Real Estate & Building Industry Coalition.

“Everybody recognizes that we would have to figure out how we would divvy up the costs for that,” she said.

Joe Hackney, former speaker of the House in North Carolina, contests the idea that the lake protection costs have been unfairly distributed. The Triangle gave up miles of developable land for the flood-control project, said Hackney, who represented Chatham and Orange counties as a Democrat. He can still remember hauling lumber, offered up for free by the government, from the future site of the lake.

Moreover, “it’s always been the case in environmental law and policy that it’s up to the upstream dumpers to protect the downstream water quality,” he said. “That comes from one basic fact of physics: Water flows downhill.”

On Wednesday afternoon, the Haw River ran high between the sweet gums and oaks. Test tubes in hand, Elaine Chiosso looked for a safe entrance, then gingerly put a sandaled foot in the tanned, rain-swollen river.

“This is water that’s come all the way down from the Forsyth County line. It’s picked up all the creeks that run through Greensboro, Reidsville, Burlington – all the suburbs, all the farms,” she said. Each day, hundreds of millions of gallons of water pass the remnants of Bynum’s mill, bearing nutrients, sediment and treated wastewater to Jordan Lake.

Chiosso is the Haw Riverkeeper, head of an environmentalist group that has made its home in Bynum, a colorfully decorated Chatham County mill town 5 miles upstream of the reservoir. The Haw River Assembly’s founders once argued against the creation of lake, fearing a beloved section of the Haw would become a collecting pool for upstream pollution.

Today the assembly sees itself as the lake’s protector, a network of “citizen scientists” who argue for public policy and monitor the lake’s waters. On Wednesday, Chiosso was testing the lake’s alkalinity – a measure of how algae growth is affecting water quality.

“We’re hoping for something lower than (pH) 8,” she said, watching her sample change colors. The results were good: 7.5, a fairly neutral water level. Excessive alkaline readings can predict massive fish die-offs and an unpleasant change in the feel of the water, Chiosso said.

Overall, the river is cleaner now than 40 years ago, she said, and it has recovered from the water-degrading droughts of the 2000s.

But “it’s not a static situation,” Chiosso added. “The rise in water quality was met by this rise in population.”

A reinvigorated housing market soon could put down many more acres of pavement and lawns, and thus more algae-feeding nutrients into the lake, especially if the Jordan Lake Rules’ development requirements aren’t enforced.

For his part, Gunn argues that the rules meant to protect the lake will slow growth in the economically vulnerable Triad, which has been buffeted by the decline of textiles and manufacturing generally. Wider stream buffers eat into developable land, as does construction of stormwater ponds and other filters.

“This area’s at an economic disadvantage because we’re not allowed to develop our properties like the rest of North Carolina,” Gunn said.

Next stage

The “Jordan Lake Water Quality Act,” better known as the repeal, enjoyed early success in the Senate, winning votes from all Republicans except for the Triangle’s three GOP senators. But the bill had garnered little public attention before the May 15 vote, which came during a busy stretch of the session.

Now, dozens of players are lobbying to affect its trajectory, and it’s not clear how much support the repeal legislation enjoys outside the Senate.

Greensboro, the largest city in the Triad, offered only a low-key endorsement in a release last month. The city had called for limited changes this year that had stirred little controversy. It was “Senate leadership” that decided full repeal was “the preferred course of action,” according to a memo by Greensboro’s city attorney, S. Mujeeb Shah-Khan.

Greensboro will refrain from lobbying legislators further about the rules, but it’s confident that the process will yield a balanced approach, according to spokesman Donnie Turlington.

A number of the Triangle’s elected officials, on the other hand, have pummeled the bill. Dick Sears, mayor of Holly Springs, has rallied opposition, and Cary council members have spoken strongly against the bill, among others.

Republican Rep. Tom Murry of Morrisville is pushing against the legislation in the House.

“It’s generated some disagreement amongst members of the House caucus,” Murry said. “We haven’t come up with a solution, so right now, the bill’s not moving forward.”

Should the bill fail, the debate is sure to continue. Huge costs are approaching, and upstream communities won significant delays and changes to the rules even before Republicans gained control of the legislature and the governor’s office. But it’s not clear how much more compromise the Triangle will tolerate after years of debate and delays.

“I think we’ve already bent over backwards, and so I don’t know what a compromise would look like,” Murry said. “I’m all for improving rules, but I haven’t seen any language that would improve the rules.”

Kenney: 919-460-2608 or twitter.com/KenneyOnCary

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