One day before the Durham Planning Commission meets to discuss a contested boundary that protects Jordan Lake, two environmental advocacy groups have filed a motion to intervene (PDF, 160 KB) in a lawsuit filed by a local developer that would force the county to re-draw the lake's protected area, but without a public hearing.
The motion, filed on Aug. 10 by the Southern Environmental Law Center, seeks to allow the Haw River Assembly, a non-profit environmental group, to participate in the lawsuit and defend Durham County's decision to hold public hearings on the boundary change.
Despite the lawsuit objecting to the public hearing process, tonight's Planning Commission meeting, scheduled for 5:30 p.m. at Durham City Hall, is the first step in the legally required public process to change watershed maps.
Patrick Byker, an attorney representing Southern Durham Development, declined comment for this article. Durham County Manager Mike Ruffin declined to comment on the lawsuit, and referred the Indy to County Attorney Lowell Siler, who was not immediately available for comment.
Last June, Southern Durham Development, the would-be developer of a massive, mixed-use project that falls within a one-mile protected area of Jordan Lake, sued the county after commissioners voted to conduct a public hearing before implementing a survey commissioned by company shareholder Neal Hunter. That survey would move the entire 164-acre project outside the lake's protected area. Later that month, the Haw River Assembly released its own survey and hydrologist's report that found the project was closer to the lake than on current maps, and within the one-mile boundary.
In an interview, HRA Executive Director Elaine Chiosso said the motion to intervene "is more about the process than the actual merits of a survey, but this step has to be taken first."
"We would be supporting the Durham County Commissioners, and the action they took to say, 'You can't treat this like a simple map change. It's affecting the entire boundary,'" she said.
After the HRA published its survey, County Manager Mike Ruffin wrote the N.C. Division of Water Quality to inquire whether the division had a standard method for surveying reservoirs.
In a July 27 response, DWQ—which had approved Hunter's survey on technical merit—advised Durham County that the "surface water elevation" method used in Hunter's survey "would be appropriate" to determine the lake's boundary, because the county had used the same method to determine the boundary at Ellerbee Creek.
The surface-elevation method is one of several ways to survey boundaries of bodies of water; the HRA survey uses another approved method, which measures the depth of stream channels. Julie Ventaloro, DWQ's watershed protection program coordinator, acknowledges in the letter that DWQ has no "standard method for delineating normal pool elevation," or the surface level of the water.
In an Aug. 11, 2009 memo to the Durham Planning Commission, Assistant Planning Director Keith Luck recommends the Planning Commission also approve Hunter's survey, based in part on the DWQ letter.
"The Ellerbee Creek survey and the State's acceptance of it represent a precedent for using the water surface elevation as a definition of the Falls Lake normal pool," Luck writes, before referring to Ventaloro's letter to Ruffin.
Durham Planning Director Steve Medlin could not be reached for comment.
In an interview, DWQ public information officer Susan Massengale gave mixed messages on DWQ's position. Massengale told the Indy that neither previous DWQ decisions to accept surveys nor Ventaloro's letter represent a precedent, and that the division considers each survey on a "case-by-case basis."
Yet, Massengale seemed to endorse Hunter's method without any basis in state law, or the division's rules. North Carolina administrative code requires local governments to "correctly determine" the boundaries of reservoirs, without stating any preferred method.
"If several different methods were submitted to the division, we would go with the method that we believe most accurately reflects what is written in the rule," Massengale said of the administrative code. "Normal pool elevation, I believe, is interpreted generally as the surface of the water."
Massengale acknowledged the division had never been forced to consider two different survey methods for the same water source.
When pressed if the surface-elevation method reflected a standard practice or division rule, Massengale said, "We don't have that, at this point."
She added: "We don't have a written standard method. When this was written for local government, rather than to tell them that they have to have this technology, or that technology, it was written to give them the ability to figure it as best as they could, and then for us to be able to evaluate it—whatever the methodology was."
Last week, the Durham County Board of Commissioners voted 3-2 to replace then-County Attorney Chuck Kitchen, who had previously announced his retirement, with Siler, the former deputy county attorney. Board of Commissioners Chair Michael Page announced that the decision was based on Kitchen being named in the developer's lawsuit, the News & Observer reported.