May 22,  2008

State denies stormwater permit to Wind over Waves development


The North Carolina Environmental Management Commission voted earlier this month against upholding a stormwater permit issued to Wind Over Waves, LLC for phase 3 of its residential subdivision in Salvo.

“This was an extremely tough decision for the commission.  There was not unanimity,” said Pete Peterson, vice chairman of the commission.

The state Division of Water Quality (DWQ) issued the low-density stormwater permit to Wind Over Waves in 2005. 

The North Carolina Coastal Federation (NCCF), a non-profit conservation group, challenged the permit, arguing that DWQ violated state law by issuing the permit under conditions that would allow stormwater pollution and would harm the designated shellfishing uses of Pamlico Sound and Britt Creek. 

State law requires protection of designated shellfishing waters from stormwater run-off that can carry bacteriological pollutants, such as fecal coliform, and pose a threat to human health.

Administrative Law Judge Melissa Owens Lassiter heard the case and recommended that the Environmental Management Commission (EMC) uphold the permit.

But Peterson said that an EMC majority decided the state did not adequately address the issues raised in the case.

“The particulars here were very specific and the remedies were straight-forward,” he said.

He said the transcript of the hearing showed that DWQ didn’t adequately defend the effectiveness of rules in protecting water quality, and offered no defense to the argument that very high water tables diminish the ability of soils to treat run-off.

Peterson also said DWQ didn’t address cumulative impacts, even though the project in Salvo consists of four proposed phases.

“This (project) is an obvious example of where a formal evaluation of potential cumulative effects is needed, but there was no evidence in the record that cumulative effects would not occur,” he said.

Peterson said he would not be surprised to see Wind Over Waves, LLC appeal the decision.

Ward and Smith, a law firm in New Bern, represents the company.

Attorney Frank Sheffield said the company had no comment at this time.

Jan DeBlieu, NCCF coastkeeper, said the EMC decision validates the contention that current stormwater rules do not sufficiently protect water quality.

Revised stormwater rules are scheduled to go into effect August 1, but legislation to annul the new rules is likely to come before the General Assembly before then.

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