by Matt Saldaña
Update (4:23 p.m.): Head over to indyweek.com for an updated version of this story, and check back here for further updates on tonight's hearing. Also, see below for a PDF of Southern Environmental Law Center's motion.
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 that would force the county to re-draw the lake's protected area without a public hearing. The motion, filed on August 10 by the Southern Environmental Law Center, seeks to allow the Haw River Assembly, a non-profit environmental group, to "participate fully as a party in defense of Durham County's decision to commence a formal process for the proposed changes to the watershed boundary."
Last June, Southern Durham Development, the would-be developer of a massive, mixed-use project that falls within a half-mile 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 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 half-mile 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.
The motion claims HRA has standing in the lawsuit, because its members "live, work, and recreate in the Jordan Lake watershed," and, for at least 100 members, rely on it for drinking water. It also claims HRA's interests "are not adequately represented by existing parties." The suit states:
At the outset, Durham County may consider settlement with the developer out of Court because of liability concerns, rather than vigorously defend the rights of HRA and its members to participate in a public process for consideration of zoning changes that will promote development in a rural area of Durham County and the Jordan Lake watershed.
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. Patrick Byker, an attorney representing Southern Durham Development, declined comment for this article.
Last week, the Durham County Board of Commissioners voted 3-2 to replace former 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.
Tonight's planning commission meeting represents the first step in the required public-hearing process to change watershed maps. Previously, the meeting was delayed in part to consider HRA's survey.
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, 2009 response, DWQ--which had approved Hunter's survey on technical merit--advised Durham County that the surface-level surface-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. However, Julie Ventaloro, DWQ's watershed protection program coordinator, acknowledges in the letter that DWQ has no "standard method for delineating normal pool elevation."
In an August 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 represented 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 astandard 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--whatever the methodology was."
The Durham Planning Commission meets tonight at City Hall at 5:30 p.m.