Charlotte Observer
07.05.06
Groups head to court over rare mussel
Appeal filed to deny stormwater permit allowing development
Melinda Johnston
Two environmental groups are challenging a stormwater permit issued by the state before all the details had been completed.
At the core of this appeal is the Carolina heelsplitter - a small, rare mussel - but the outcome of the appeal will affect development for part of southeast Mecklenburg County and the Union County towns of Stallings and Indian Trail.
The Sierra Club and the Southern Environmental Law Center are fighting the permit, issued last year by the N.C. Department of Environmental and Natural Resources. The appeal will go before a judge later this month.
"There's a lot of holes in (the permit), and, meanwhile, it allows the current discharge into the streams," said John Suttles, a lawyer with the Southern Environmental Law Center. "There is no middle ground because in the process you will lose the (heelsplitter) and the water quality," he said.
The permit being appealed allows development of homes or businesses as long as Mecklenburg County, Stallings and Indian Trail reduce pollutants flowing into creeks and streams. However, the state is setting guidelines now for what the towns must do.
"Our goal is for the court to send the permit back so they will get it right," said Suttles.
Susan Massangale, a spokeswoman for the N.C. Department of Environmental and Natural Resources, said it's not uncommon to issue a permit with unfinished details.
"Quite often, it takes time for the community to incorporate different phases of the permit," she said. "Certain parts of the permit are in place, but parts are still being refined, such as those dealing with endangered species."
Experts say handling stormwater is one of the most important environmental issues. As rain runs off roofs and across parking lots, streets and other impervious surfaces, it flows into streams, carrying pollutants such as animal waste, oil, gasoline, antifreeze, fertilizer, pesticides and sediment from construction.
Only nine populations of the small brown mussels are known to exist in the world. One group is in Goose Creek, which runs in eastern Mecklenburg and western Union counties. Wildlife biologists won't say exactly where in Goose Creek or how many are there. However, they do say that every time the creek is searched they find fewer mussels than before, an indication that more pollution may be flowing into the stream.
Jack Faulk, team leader for the Environmental Protection Agency's stormwater permit team, said states are allowed up to five years to develop and implement programs under the stormwater permit.
The headwaters of Goose Creek are in Mint Hill Park on N.C. 218, with the creek flowing south into Stallings and Indian Trail. Gary Peeples of the U.S. Fish and Wildlife Service said there are ways to build and not harm the streams.
He said a number of construction techniques can be used: wider buffers along creeks and streams; grassy swells instead of curbs and gutters along roads; rain gardens to catch storm water runoff; and using porous surfaces when building driveways.
The stormwater permitting process is required by the federal government, but run by the state. The first phase of the process, which focuses on larger cities, was set up several years ago. The second phase, approved in July 2005, focuses on smaller towns, such as Mint Hill, Stallings and Indian Trail.
Mint Hill has struggled with the mussel for the past four years. Mecklenburg County has been prohibited by the state from running new water lines in the part of Mint Hill that sits in the Goose Creek basin. Not having water lines has slowed plans for a large shopping complex that would straddle Goose Creek near the interchange of Lawyers Road and Interstate 485.
The small mussel also has caused headaches in Union County, delaying construction of the proposed northern Monroe bypass.
But the groups appealing the permit say they want to make sure the environment is protected, not stop development.
"We do not and never have contended that towns are not entitled to stormwater permits. But the state must make sure that those permits protect the creek," said Suttles of the Southern Environmental Law Center. "If we don't win, in a real way every town and person who lives along Goose Creek will lose as well. Having a nice stream in your backyard is an asset, a polluted one is a liability. No one wants that."
About the Appeal
WHO'S APPEALING: The Sierra Club and the Southern Environmental Law Center, a nonprofit group whose goal is to protect the environment and natural resources in six Southern states. The Sierra Club is a national nonprofit that works to protect the environment.
WHAT'S NEXT: The appeal was filed Jan. 27 and will be heard in Raleigh by a state administrative law judge July 19-21.
WANT TO KNOW MORE? For more information on North Carolina's Phase II stormwater permit and permitting process, visit http://h2o.enr.state.nc.us /Stormwater.html
