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Yancey County

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Challenge of Mountain Air Trout Buffer Variance Goes to NC Supreme Court

Spring 2010

Almost seven years ago CWFNC and Banks Creek Citizens for Clean Water filed a state “contested case” against the state Dept. of Environment and Natural Resources’ approval of a variance allowing the Yancey County golf developer to permanently modify the protective buffers on thousands of feet of a trout stream and put the stream in a pipe. After years of persistence, and a growing number of allies in this case, including legal representation by the Southern Environmental Law Center, we finally got a strong decision from the Court of Appeals last November against DENR. Unfortunately, the agency turned around and appealed to the Supreme Court in December.

At the presentation of oral arguments in March the assistant Attorney General presented DENR’s arguments that the 1973 Sedimentation and Erosion Prevention Act only said the construction phase impacts had to be “temporary and minimal”, not the overall project, that the results for maintenance and paving of WNC roads would be disastrous. SELC Attorney Blan Holman made short work of DENR’s arguments, saying that the original sense of the statute was clearly to prevent all sedimentation and erosion, not just that occurring during the construction phase, while the MA variance allowed for ongoing activities in the buffer, and that the roads issue was completely off the table, and the ruling on the Mountain Air case wouldn’t apply to road maintenance or paving anyway!

Powerfully, he pointed out that legislative sponsors intended ADDED protection in 1989 amendments for trout streams, and those intentions must be honoured by this court. We are eagerly awaiting a final decision, optimistic that the Supreme Court will finally present a protective ruling to prevent similar massive trout stream damage by future mountain development projects. Back to top

Banks Creeks Citizens Win for Trout Streams, Downstream Communities

Winter 2009

Burnsville—More than 15 years after they started protesting against damaging mountaintop golf course construction, Nancy Hensley and her neighbors have won a clear victory against the agency that permitted much of the damage done by Mountain Air Golf Development Corp. In 2001, local residents formed “Banks Creek Citizens for Clean Water.” They approached CWFNC for assistance in preparing for a public hearing on a “water quality certification” for Mountain Air to disturb trout streams in expanding their golf course. Later, CWFNC and the Banks Creek group filed a “contested case” against the weak permit, and brought lots of adverse media attention to Mountain Air.

We got a ground-breaking settlement in 2003, requiring ongoing monitoring, notification of residents when inspections were to be done, and stipulated penalties. Also in 2003, Mountain Air was granted a “trout buffer variance” by another branch of DENR, the Division of Land Resources, to disturb the 25-foot buffer on both sides of thousands of feet of a stream they wanted to put in a pipe, to make room for their golf greens. Again, CWFNC, Nancy, and other Banks Creek folks filed a contested case. State law says such variances can only be granted where the applicant shows that the disturbance will be “temporary and minimal.” Mountain Air had claimed that because the stream would be in a pipe, they would meet this standard! The judge agreed with us that this was absurd, that a trout stream didn’t lose protection because it was placed in a pipe, and that the variance must be denied.

For almost a year, no more trout buffer variances were granted, and golf developers all over western NC were furious. The Sediment and Erosion Commission, however, overturned that decision in 2007, so the variance was back. Since that time, CWFNC and our Banks Creek allies have appealed the case first to the Wake County Superior Court and then to the Court of Appeals. A strongly worded Nov. 17 decision makes it clear that the variance should never have been granted, and that the subsequent activities by Mountain Air were clear violations of state law. Due to bad agency decisions along the way, much of the Banks Creek headwaters is already damaged and piped. Restoration would be expensive and may cause more downstream damage, so the parties are reviewing their options. But the message to the state agency is loud and clear: stop granting permits that deliberately misinterpret state laws in order to serve the interests of rapacious developers. In other words, don’t grant this kind of variance again, unless it’s REALLY temporary and minimal.

Our heartfelt thanks to attorney John Runkle, and to the attorneys of the Southern Environmental Law Center for their great work on this prolonged case. But it was the sheer determination, great research and documentation, and dogged organizing by Banks Creek Citizens that started the ball rolling and kept up the fight— CONGRATULATIONS and three cheers for all the years of hard work…you’re an example to communities everywhere! Back to top