SUMMARY MINUTES OF A CHAPEL HILL TOWN COUNCIL

WORK SESSION ON SOIL EROSION AND SEDIMENTATION CONTROL

WEDNESDAY, JANUARY 6, 1999 AT 5:00 P.M.

Mayor Rosemary Waldorf called the meeting to order at 5:00 p.m.

Council Members in attendance were Flicka Bateman, Joyce Brown, Joe Capowski, Pat Evans, Kevin Foy, Julie McClintock, and Edith Wiggins. Council Member Pavão was absent, excused. Also in attendance were Town Manager Cal Horton, Assistant Town Managers Sonna Loewenthal and Florentine Miller, Planning Director Roger Waldon, Development Coordinator J.B. Culpepper, Transportation Planner David Bonk, Engineering Director George Small, and Interim Town Clerk Joyce Smith.

George Small, Director of Engineering, made a brief introduction presenting the background for the evening’s work session. He noted that a petition received by the Town Council from the Lake Ellen Homeowners Association in June 1998 had expressed concerns about the detrimental impacts of soil erosion and sedimentation on Lake Ellen. Mr. Small also said that further issues and questions resulting from this petition were identified, and resulted in a report from the Town Manager in September, followed by a report prepared by the Town Attorney. He said that a panel of experts was invited to address the Council to provide information and to answer questions about soil erosion and sedimentation issues.

Mr. Small introduced the panel: Mr. Francis M. Nevils, Jr., Mr. Pat Davis, Mr. Warren Faircloth, Mr. Rick Dove, Dr. Richard McLaughlin, and Dr. Philip Burke.

Mayor Waldorf distributed small gifts to each of the panelists, thanking them for their participation.

Mr. Francis M. Nevils, Jr. P.E., Land Quality Section Chief, N.C. Department of Environment, Health and Natural Resources discussed the role of the State as it relates to soil erosion and sedimentation management, and the State Sedimentation Commission and its role as regulator. He said that his subject was Local Erosion and Sediment Control Programs. Mr. Nevils said that the Sedimentation Pollution Control Act of 1973, which he described as a performance-oriented Act, has Mandatory Standards: (1) buffer zones, (2) land disturbing plans, (3) stabilization, (4) permanent ground cover requirements, and (5) requirements for sufficient measures on site to retain sediment. He noted that the law has two parts—erosion control and sediment control. Mr. Nevils also noted that the North Carolina Sedimentation Control Commission was established in 1973 to oversee the Sedimentation Pollution Control Act. He said that local governments may set their own standards, but they must be at least as restrictive as the State. Mr. Nevils also said that members of the Commission work together well and represent various factions involved in sediment control. He outlined the following responsibilities of the Commission: to delegate to local government; to maintain concurrent jurisdiction; to have exclusive jurisdiction over certain land disturbing activities; to require that those eligible have a local program which adopts an ordinance which must be as restrictive as the State program; to require that local governments have adequate resources; to require the State staff to do one formal and one informal review per year; and to provide two-day education workshops.

Mr. Pat Davis, Water Resource Project Director for the Triangle J Council of Governments, discussed the efforts of Triangle J communities in soil erosion and sedimentation control, and the role of the Council of Governments regarding this issue. He discussed some impacts of sediment: is a carrier of pollutants; increases cost of drinking water treatment; lowers the quality of water for recreational uses; clogs the gills of fish; smothers important aquatic habitats; impairs ability of sight-feeding fish to target prey; scours stream beds; accelerates bank erosion; fills in lakes; and increases costs of establishing permanent cover. Mr. Davis said, concerning the sediment and water quality in Region J, that sediment is the most widespread cause of water quality impairment in the Cape Fear and Neuse River Basins. He also said that the State reports that construction activity is one major cause of water quality impairment in the New Hope arm of the Jordan Lake watershed. Mr. Davis said that the Environmental Protection Agency is telling the states that when they identify impaired water they may need to develop and implement a management strategy within an 8-13-year window. Mr. Davis said that this is an important issue and noted that Triangle J has assisted local sediment and erosion control programs in Durham, Orange, and Wake Counties. Mr. Davis said that Wake County, Apex, Cary and Raleigh have their own programs, and that in some counties the programs have merged with stormwater planning and review.

Mr. Davis asked Mr. Nevils how many staff the State employs for erosion control. Mr. Nevils responded that for this area the State has 3 ½ to 4 full time engineers to cover. He said that there are 400 projects each over eleven counties.

Council Member McClintock asked what “this area” covers. Mr. Nevils said it was the Raleigh region which would include Chapel Hill. He said that they have 300-400 projects at any one time. Mr. Nevils said that the average visits are once every six months, although some projects might be visited more frequently if there is a problem. He also said that there might be a visit only once a year or once over the lifetime of the project, but all projects are visited at least once. Mr. Nevils said that the State does not inspect those projects that are regulated by local authorities except those which are public projects.

Council Member Bateman asked what the penalty was for violation. Mr. Nevils said that there would be a fine of up to $500 per day for every day of site violation. He also said that the State can go to court to get an injunction, can issue a stop-work order for five days, can sue individuals, and can require clean-up.

Mayor pro tem Capowski asked who has that authority in Chapel Hill and how often the inspectors get to the projects. Mr. Nevils said the State has the authority and that the sites are usually visited on an average of every six months, unless there is a specific problem.

Mr. Davis mentioned that the State is strapped for resources and the local governments could help by adopting programs. He said that the following are some of the current issues: many local governments do not have staff/financial resources; the need to enhance contractor training
and certification; the need for local authority over projects currently exempted, such as public schools, roads, etc.; and the lack of adequate number of staff at the State level. Mr. Davis said that Triangle J provided assistance through programs, grants, workshops, forums, and technical assistance.

Mayor Waldorf asked if the county and local jurisdictions could be consolidated. Mr. Nevils responded that as long as the restrictions were as strong as the State, he could see no objection.

Mr. Warren Faircloth, Orange County Soil Erosion and Sedimentation Control Officer, discussed current methods, equipment and local regulations for sediment and erosion control. He said that the best means for providing erosion control and sediment control is to get the project finished as quickly as possible. Mr. Faircloth noted that some methods for erosion control are line channels with cover, diversions or ditches, and slope drains. He said that if erosion controls fail then temporary sediment controls such as silt-fences, burying the bottom of the fence, sediment basins, and sediment traps will be needed to prevent pollution. Mr. Faircloth said that his agency has tried requiring that sediment basins be larger and longer, but that does not always work well. He said that the latest idea was to try a skimmer on the basin which drained the sediment from the top, which is doing a better job of control. Mr. Faircloth noted that they are working on improving the skimmer and including, in addition, a spillway beside the basin. He said that other experiments have been with gypsum which creates heavier particles to settle out. Mr. Faircloth noted that this method is very labor intensive. He said that another type of sediment control was to place a filter around the inlet, but they did not work well, either, because the water filters through. Mr. Faircloth said that his agency is requiring developers to use devices that work.

Council Member McClintock asked how many projects were supervised at one time and how many staff people were involved. Mr. Faircloth said that there were presently three on staff, with one more position approved. He noted that there are 80-100 active sites in Orange County, most of which are in Chapel Hill and Carrboro.

Council Member Bateman asked what happens after devices on a site do not work and what the fine would be. Mr. Faircloth said that usually no fine is levied, as they try to get the people responsible to comply. He said that they can issue a stop-work order, and can issue a penalty fine of $500 a day, but that is rarely done. Mr. Faircloth said that other measures include revocation of the grading permit, which is a good incentive for compliance because fees are very high to obtain another permit.

Council Member Foy asked if any of the sites were larger than one-half acre. Mr. Faircloth said that the requirements were the same for any size site.

Council Member Foy asked how a contractor knows about sediment control. Mr. Faircloth said that most houses do not require an erosion control permit as they do not usually cause problems.

Council Member Evans asked what action could be taken after a storm like Hurricane Fran, which left large root balls exposed causing impact on the downstreams. Mr. Faircloth said that after that storm most streams were devastated, but this was not addressed in the ordinance since it was the effect of natural causes. Mr. Nevils said that a commission was looking at what measures could be taken and that a symposium would probably be formed to address these matters.

Council Member McClintock asked what the relationship was between what the Town approves and what the County regulates. Mr. Faircloth responded that Chapel Hill has adopted its own erosion control ordinance and has agreed to have the County enforce it. He said that he is also involved in the site review processes with the Planning Department.

Council Member Foy asked about the problems with the Lake Ellen Basin and what Mr. Faircloth recommends to the Town to address the problems, despite the ongoing efforts to correct them. Mr. Faircloth said that the ordinance was very strict, but that there were complicated problems, with both public and private developers being involved. He said that the contractor needs to be made a part of the planning process.

Council Member Foy asked if the sediment control in the Lake Ellen Basin is better than it was a year ago. Mr. Faircloth said that it was better because some of the projects have been completed and some have just begun. He also noted that the Department of Transportation (DOT) has improved its sediment control.

Mayor Waldorf asked Mr. Faircloth what his plans were on the road construction at that site and how often he went to the site. Mr. Faircloth said that he stopped by frequently and that if he saw any problems he would report them to the regional engineer or the DOT.

Mayor Waldorf requested that Mr. Faircloth keep the Council informed on the road project.

Council Member McClintock asked how effective stronger standards would be. Mr. Faircloth said that the standards need to be improved and the controls need to be defined.

Mr. Rich Dove, of the Neuse River Foundation, discussed efforts in the Neuse River Basin to reduce pollutants including mitigation of soil erosion and sedimentation, and discussed the legal ramifications of pollution of downstream waters. He said that the Neuse River Foundation was established in 1980, with 2,500 members, 300 active volunteers, and provides a river keeper program. Mr. Dove said that the objectives are to halt present abuses, help remedy past ones and ensure future protection of the Neuse. He showed a video which showed the river pollution. Mr. Dove said that one of the most serious problems in the Neuse River is sedimentation. He noted that the video showed one creek, Crabtree Creek in Raleigh, from which building sedimentation washed down into the Neuse River all the way to Pamlico and Albemarle Sounds. Mr. Dove discussed the Federal Clean Water Act which was enacted to protect waters and which includes civil and federal penalties. He discussed Total Maximum Daily Loads (TMDL) which are allowed under the Act. Mr. Dove said that the State has the duty to clean up the polluted waters under the law, which empowers citizens to sue the State if this is not done. He noted that citizen advocates can bring suits against contractors and developers to clean up the pollution.

Council Member Bateman suggested that a Sediment Bond be issued against developers who are developing a site, to be repaid if no pollution is found. Mr. Dove suggested that the bond be a heavy one and felt it was a good idea.

Mr. Foy asked, in the case of the pollution of Reedy Creek Branch from the building of a school on its banks, if the basis for a suit against Wake County was because Wake County built the school or because Wake County permitted the school to be built. Mr. Dove said that the school board was actually responsible, but that they worked closely with Wake County and it was felt that Wake County should be liable.

Dr. Richard McLaughlin, Associate Professor of Soil Science at North Carolina State University, discussed the work and testing being done by the North Carolina Cooperative Extension Service on innovative erosion and sedimentation control practices. He works with the county staffs to solve problems and provides education services through a grant from the State. Dr. McLaughlin said that he is working with the Orange County Soil Erosion and Sedimentation Control Agency to demonstrate and document the work they are doing. He showed slides to demonstrate the areas he works in with a runoff spreader and showed a machine that had been designed to spread gypsum. Dr. McLaughlin showed a site in Carrboro where a level spreader had been used. He said that the level spreader can be put in a ditch, covered by material, and leveled-off with a buffer to spread the runoff. Landscape and grass can also be used as a buffer. Dr. McLaughlin indicated that he would be willing to work with educating developers in the use of pollution protecting devices.

Dr. Philip Burke, Professor of Urban and Regional Planning at University of North Carolina at Chapel Hill, discussed case studies of the effects of land use on soil erosion and sedimentation and their applicability to Chapel Hill. He noted that the study he used to illustrate was done by students in his class. Dr. Burke said that the study objectives were (1) to determine percentage of impervious surface coverage in the Lake Ellen Watershed based on build-out under current zoning, (2) to classify the projected stream health at build-out in the watershed, (3) to recommend general strategies for protecting and restoring streams based on watershed stream health classification, and (4) to identify future research direction for conducting a Town level watershed assessment using GIS technology. He said that the recommendations from the study were (1) to restore degraded stream channels and riparian zones, if build-out is allowed under current zoning in the Lake Ellen Watershed, (2) to prevent degradation through preservation of remaining open space, and (3) to improve site design practices of future development to minimize degradation. Dr. Burke said that he and his colleagues would like to work with the city, using the GIS data base, on a Town-wide level watershed. He said that he would work with the study from Olympia, Washington, on land-use strategies.

Dr. Burke said that he would like to test the study in Chapel Hill. The Council agreed that this was an excellent idea.

Council Member McClintock urged Dr. Burke to use the studies made on the University Lake Watershed and Cane Creek.

Council Member Foy said, regarding the Lake Ellen Watershed, that it is critical which open space area is preserved, and the focus should be on the long-run as well as the short-run degradation. Dr. Burke said that the areas would be strategically sited using the appropriate environmental criteria.

Council Member Evans asked if the watershed was within city limits. Dr. Burke answered that he believed it was within the city limits.

Council Member Wiggins asked whether impervious surface included driveways and sidewalks in the Olympia study. Dr. Burke said that it did and that the general standards plan needs to be calculated to Chapel Hill.

Council Member Brown asked if the Olympia study took into account the topography. Dr. Burke answered yes.

Council Member Brown asked about the differences between temporary sedimentation and erosion-control measures and permanent detention ponds. Mr. Faircloth said that most sediment basins are temporary structures designed to function until the site is complete. He noted that in some cases the site may have a planned permanent stormwater detention basis to control run-off.

Council Member Brown asked how effective the detention controls are in the long run. She said that she is interested in new controls, new ways of control and new standards. Mr. Nevils said that the State does not have quantity controls as some of the local jurisdictions do. He said that the State does have a quality control designed to handle first-inch run-offs. Mr. Nevils said that quantity control works well with individual sites, but if a lot of them are built it creates a base flow in the stream which has an impact. He also said that regional detention basins also have problems. Mr. Nevils said that a good planner is needed to evaluate how to effect the hydrology in the steam as detention basins are added, otherwise this could create more problems.

Council Member Brown said the question is what can be done.

Mr. Davis said that the Triangle J Council of Governments has a grant to look at these very issues on a watershed scale approach. He said that they will look throughout all of Region J up to the upper reaches of the Cape Fear River. Mr. Davis said that they can look proactively at a whole range of water resource issues and conditions, looking at the issues on a regional approach about long-term planning of land use of watersheds.

Mr. Small reported on a two-year study being done by the Corps of Engineers looking at the three major drainage basins, Booker, Bolin, and Morgan Creeks, including usage by Chapel Hill, Carrboro, Orange County and the University of North Carolina. He noted that this report should be completed by the fall of 1999.

Council Member Bateman asked if there were any municipalities that used phased construction within sub-watersheds. Mr. Nevils said that the Commission was in the process of requiring more of that kind of construction regulation. He said that on a regional basis, Greensboro and Charlotte have probably looked into this. Mr. Small said that Chapel Hill does this on an individual basis.

Council Member Foy asked why, on the particular day that the video was made by Mr. Dove, so much turbidity was in Crabtree Creek and not in the other creeks in the watershed. Mr. Dove said that there had been heavy rainfall in that area and not in the rest of the watershed. He also said that there was a lot of development going on at the time, and there were many breaks in the sedimentation devices, or the devices were not even being used.

Council Member Evans asked who oversaw the University construction. Mr. Nevils said the State did. He said that there would be one more staff position added to cover the Raleigh area, but that the Town could help in educating the University on water-control devices. Mr. Dove said that what was needed was more reporting of problems on the local level to the State. Mr. Nevils said that Mr. Faircloth’s program in Chapel Hill was considered one of the best programs in the country.

Mayor Waldorf summed up the session by noting the following:

1. Making people responsible for the damage they do.

2. Possibility of requiring sedimentation bonds.

3. Are there more rigorous structural requirements that the Town ought to consider better defined controls.

4. Dr. Burke will follow up on the Lake Ellen study.

5. Mr. Faircloth will keep the Town posted on work being done on NC 86.

6. The possibility of grants—the Clean Water Trust Fund will pay for structural damage done in a watershed. Also there are grants for land purchase and for education.

7. Look into stormwater management by phase-in in Greensboro and Charlotte.

8. Be aggressive in over-loading the system, check on projects and report problems to the State.

9. Communicate to developers what needs to be done.

10. Have the staff look at the use of sedimentation bonds.

Council Member McClintock said that the Council should make the Clean Water Act available to the citizens. Mr. Dove said that citizens could be very effective.

Council Member Foy asked how the results of this work session would come back to the Council. Mr. Small said that the staff would bring a summary back to the Council with suggestions on what the staff recommends.

Council Member Foy also said that he would like to know what the rights of the Town are under the Clean Water Act with regard to Lake Ellen.

Council Member Bateman recommended sending the memo regarding the Lake Ellen Association back to the staff for action.

Council Member Wiggins thanked the staff for keeping current on the background material and for inviting the experts to serve on tonight’s panel. She thanked the panel for making the material clear and understandable. The Council joined in thanking the panel.

Mayor Waldorf asked Mr. Small to have a fast-sort on the recommendations so that Council could identify the ones that could be fixed quickly and those that will need some time. She again thanked the panel.

The work session adjourned at 8:15 p.m.

The minutes of January 6, 1999 were adopted on the 22^nd day of February, 1999.

__________________________________________

Joyce A. Smith, CMC

Town Clerk