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COUNTY-BY-COUNTY REPORTS:
NO. 1: CHEROKEE COUNTY, N.C.
Health Board appointments end
abruptly and an official fears effluent from improperly
installed septic systems could travel “almost immediately”
into the Hiwassee River
By Tom Bennett
Special to Hiwassee River Watershed Coalition,
Inc.
Murphy, N.C., Feb. 27, 2007 –Mary L. Miller’s 19
months as chair of the Cherokee County Board of Health are
over, and her departure was not a voluntary one. I asked,
in view of all that has happened, has she any advice for
other citizens considering accepting appointments to county
boards?
“Yes, I do,” Miller replied. “I will tell them they
must have a strong character, believe in honesty, truth and
integrity, and be willing to stand up for them.”
Leading the 11-member board at a critical time when
septic system applications increased 221 percent, Miller
moved meetings from quarterly to monthly. Some “lasted six
hours,” she recalled. She volunteered many hours of her
time to attend meetings with the county attorney, county
manager, Board of Realtors and boards of homeowners’
associations, trying to stem the county’s health crisis,
according to Builder Marc Narkawicz.
Miller’s legacy seems a series of obvious steps that
already could have been in place. “I got in (made part of
official procedure) that we would follow policies and North
Carolina administrative codes and statutes, and we would
give no preferential treatment to anyone,” Miller recalled.
From November 2006 to February 2007, Miller set a dubious
record of being notified by two different county commissions
how she soon would be returned to full-time private life as
a grandmother. Each time she asked the reason why, citing
a statute calling for removal only when placing the local
government served “in disrepute.” At last county commission
two gave the local newspapers a list of criticisms,
including one saying that Miller intervened, the commission
said, on behalf of a septic permit applicant who wanted to
be moved up in priority. “The Cherokee Scout” was able to
cite an e-mail showing this was the work of a former county
commissioner, not Miller.
The board also “booted off,” in the Cherokee Sentinel’s
words, two other key members of the health board. All said
that, like Miller, they had years left to serve. They cited
an unwritten understanding that, once appointed to this
board in this county, you may stay for three three-year
terms. This appears to fly in the face of the U.S. term
limits movement; the president of the U.S. and the governor
of North Carolina are limited to two four-year terms. David
Sumpter, the third member of the Cherokee Commission and a
lawyer, argued for “due process” for Miller and for the
board to open records related to her dismissal. At the same
time, he chided the booted board members: “You have put
forth the premise that you’re entitled to nine years,”
Sumpter said. “You’re not. It’s not an entitlement.”
“They haven’t seen the last of me,” Mary Miller said.
Five days later I asked Jonathan “Fatback” Dickey,
chairman of the Cherokee County Commission, if in view of
that wrongful charge, would he and fellow commissioner Dana
Jones reverse their decisions about dismissal of health
board members?
“No,” he said.
At the Feb. 26 Health Board meeting, Health Director
Elaine Russell presided at first. She said the board’s
by-laws called for the appointment of a nominating committee
to meet and return with a recommendation in three months’
time. “The state reads our minutes very carefully to see if
we are complying with our by-laws, and so we need to follow
them to be re-accredited,” Russell said. That didn’t deter
a member, John Bruce. He immediately nominated Carlton Van
Horn, a veterinarian, as chairperson. Van Horn was
elected. There were three dissenting votes. Van Horn began
chairing the meeting.
Meanwhile, the board decided against early implementation
of Session law 2006-202 becoming effective in July 2008 and
requiring all counties to enforce state well construction
rules.
And the Health Board tabled a motion for a “Bypass
Committee” of local leaders including a minister, who would
get up to 10 cases and these would “immediately go to the
front of the line.” It sounds patently absurd, but the staff
members had asked for it to help relieve the pressure they
are under each day from developers and builders who want to
speed up the permit process.
THE SEVEN YEARS UNDER A STATE ENVIRONMENTAL WATCH
Since August 2000, Cherokee County has been prodded by
the state Division of Water Quality to hire enough
sanitarians to keep pace with rapid development of
single-family homes in the county. Septic-system
applications are the unpleasant but essential starting
points for this process. They rose from 562 in 1999 to
2,535 in 2005, an increase of 221 percent. They then trailed
off to 1,779 last year. Michael Thompson, a 28-year
employee of the Health Department, was fired in May 2006,
according to Health Director Elaine Russell. Thompson later
surrendered to a state licensing board his authorization to
grant septic-system permits, according to Assistant Health
Director Tim Nicholson.
At this writing, the Health Department has Stuart Black,
a soil scientist; two registered sanitarians; seven other
employees authorized to do on-site work; and an intern who
is in training.
The Health Board voted Feb. 19 to endorse the 32 points
of county government’s “accelerated” permitting program in
which homeowners could hire Registered Sanitarian
contractors at premium rates. It “does not circumvent the
application program,” says Point Two. “There must be an
application filed and paid for using the same process as for
a regular permit.”
Private soil scientists now can conduct site evaluations
in Cherokee County, thanks to North Carolina Session Law
2006-136 by Rep. Roger West and Sen. John Snow. They “submit
their work to the Health Department, and it issues permits
based solely on these reports,” according to DENR. It’s
going to mean higher fees for homeowners. In addition, in a
stipulation that shows just how much is at stake here, the
North Carolina attorney general has interpreted the law to
mean that the registered soil scientist must carry a $1
million bond in each case. This premium could be passed
along to the homeowners, who may also owe per diem and
housing costs.
The number of septic system permits issued by Cherokee
County in the last eight years has been: 562 in 1999; 586
in 2000; 683 in 2001; 814 in 2002; 953 in 2003; 1352 in
2004; 2535 in 2005; and 1779 in 2006.
You can read the 28 pages of Cherokee County’s 1994
Watershed Protection Ordinance at
www.cherokeecounty-nc/gov. It calls for a water supply
watershed administrator, review board and environmental
management commission. No subdivision in a water supply
watershed can be approved until in compliance.
The number of dwelling units and amount of built-upon
space for each watershed type, I through IV, are defined.
For example, in the least dense, there can only be one
dwelling unit every two acres and the total built-upon area
can’t exceed six percent. There must be 40-foot vegetation
buffers. Major or minor variances can be granted “relaxing
or waiving a water supply management requirement.”
The state Division of Water Quality approves sewer
systems, and the state Division of Land Quality approves
erosion and sedimentation plans.
‘IT SHOOTS LIKE A MISSILE INTO THE GROUNDWATER’
The Cherokee County commissioners have held up for 23
months formal notification to what turned out to be 422
property owners that they may have septic systems that don’t
work properly.
Andy Adams of NCDENR wrote the Cherokee County Health
Department on March 24, 2005 instructing it to field-review
all of Michael Thompson’s permits. Adams also said to
notify all property owners. He conceded this would be “a
vast undertaking.” He enclosed a letter that Caldwell
County sent to 40 property owners in 2004 about “improvement
permits that may have been issued improperly” as an example.
I asked Tim Nicholson, assistant health director, why it
has taken so long for the letters to go out here in
Cherokee.
“First of all, let me correct you,” Nicholson said.
“There have been no letters written. We have been asked by
the county to hold up on that.
“We have had individuals aware of the situation who have
come to us with Mike Thompson permits, and we have reviewed
those. We have re-worked and re-issued some; we haven’t
gotten that deep into it. Some are completely unfixable. We
have had four OAH (Office of Administrative Hearings)
hearings, and in each, the person filing for the hearings
has won their judgment. What happens then is the judge
recommends the Attorney General send a letter to the county
attorney to settle the case. We’ve got five more hearings
coming up. There’s going to be a steady flow of them.
“Talking about the watershed problem, Cherokee is at the
center of a geological anomaly called the ‘Murphy Belt.’
You can Google that. It is a meta-sedimentary belt, with
rock that doesn’t particularly perc well. Soil is formed
from rock, and this type of rock doesn’t particularly form
soil well, so we have very shallow soil in this county. In
the opinion of soil scientists, this is the second worse
county in the state from the standpoint of soil. The only
reason it’s not worse is we don’t have expansive clay.
“Septic system failures are not always evident,”
Nicholson continued. “Failure does not mean the sewage
always rises to the surface. It is creeping into the
vertical fractured rock. There’s a line that delineates
this bad soil, this kind of rock, and when effluent enters
it, if you don’t have enough soil to treat the sewage, the
effluent goes down to the capillary fringe rock. This
effluent goes directly into the watershed. It shoots like a
missile into the groundwater.”
I asked, “How fast could that occur?”
“Depending on how close to the stream, and depending on
the structure of the rock there, you could technically not
have any treatment,” Nicholson said. “It could go almost
immediately into the stream and the river.
“Any surface water is going to have some level of fecal
coliform because there are living creatures that produce
fecal matter. The LEVEL of fecal coliform is the concern.
In the worst case scenario, a septic system in poor soil,
the untreated effluent could be in the stream very quickly.
The average septic tank is 1000 gallons. It fills up about
three quarters before it starts to spill into a drain
field. Assuming some level of treatment there, who knows,
with a horrible system, the effluent could be in the water.”
‘INCREDIBLE PRESSURE JUST TO GET PEOPLE AN ANSWER’
As you can see from the county government’s web site,
the Health Department has 15 other tasks to perform in
addition to environmental health. I asked Health Director
Elaine Russell, does the heavy burden of work, with too few
employees and too little computer software, explain the
freedom Michael Thompson had?
“It can,” Russell said. “I think it is one part of the
equation, a complicated equation. He did his own thing.
When you have a bare-bones staffing in any program and a
community undergoes the growth that this one has had, across
10 years, and infrastructure and training and resources are
not made available to move in accordance with that growth,
then corners start being cut. There’s incredible pressure
just to get people an answer.”
I asked her about Michael Thompson’s work for the
department.
“When problems were realized with Mike’s work, the state
Department of Environment and Natural Resources stepped in
and suspended his credential with regard to his right to do
septic systems,” Russell said. “Mike was trained in all
areas, but generally had focused on on-site, and when the
state realized that problematic work was emerging here, it
suspended his credential for on-site. It was not until our
agency terminated him that the Registered Sanitarians
terminated his license.
“Mike is in his fifties. He had been with the agency for
28 years. When you look at someone who has served in
environmental health services for that length of time, the
changes in the rules have been phenomenal. His career
started when there were no rules. North Carolina now has
some of the toughest onsite wastewater rules in the nation.
There’s a reason: We want to protect our soils. The
business of on-site wastewater has moved and it’s a lot to
keep up with, and historically in a small county they don’t
receive a lot of support to go and get the training and stay
current. As life was evolving across the rest of the state,
many of these border counties have lagged behind.”
In addition to environmental health, the 15 other jobs
of the health department are prenatal clinic; family
planning clinic; health education; health check; maternity
care coordination; child service coordination; pediatric
clinic; nurse screening clinic; medication management;
breast and cervical screening program; immunization; women,
infants and children nutrition program; laboratory services;
communicable disease case management; and vital records.
GOOD THINGS ARE HAPPENING ON THE HIWASSEE RIVER
The Hiwassee River Watershed Coalition (HRWC), founded
in 1995, is bringing federal and state funds here to fight
water pollution. The Coalition led a $2.5 million
restoration effort in the Brasstown Creek watershed and is
also working to restore streams in the Valley River
watershed, bringing the total funding spent on water quality
improvements to $4 million in Cherokee and Clay counties.
Now it is cooperating with Equinox Environmental Consulting
and Design and NC Ecosystem Enhancement Program to write a
watershed plan for the Peachtree and Martins Creek areas.
The third edition of the Basinwide Water Quality Plan
for the Hiwassee River, drafted by the state Division of
Water Quality, is on the internet. It is non-regulatory.
Chapter five has “key elements of a comprehensive watershed
protection policy.” These include: Characterize watersheds
as developed or undeveloped; locate new developments on
already developed watersheds first; adopt policies such as
private conservation easements, purchase of development
rights, rural zoning and urban growth boundaries; and make a
land use plan.
The Land Trust for the Little Tennessee is taking some
initial steps to conserve the landscape of the Hiwassee
River valleys by protecting private lands from inappropriate
development. It has set aside 467 acres through
conservation easements.
A 331-foot-long U.S. 64 bridge soon will span the
Hiwassee River and rest on concrete abutments on the banks,
with no piers in the water.
North Carolina has had a Planned Community Act since
1993. There are 42 homeowners associations here, according
to the Secretary of State’s website. Developments get
handed off by the builders to the homeowners for long-term
maintenance. These boards have lively meetings and are
places where people can learn to work together. They might
build roads, set aside easements, or make a covenant to stop
propping up old cars on concrete blocks at the place in the
yard where the engine last played out.
The U.S. Clean Water Act became law on October 9,
1972. “We wouldn’t recognize the world we live in now if
not for that act,” said Steve Fraley, an aquatic biologist
with the N.C. Wildlife Resources Commission.
Murphy, the county seat, enacted zoning in the late
1970s, Councilman David Hilton said. It might have been in
the 1950s or 1960s, Mayor Bill Hughes told me today. “At
least I know this, we have zoning in the town of Murphy and
it works very well,” Hughes said.
There is a 700-square-foot black and white aerial
photograph of the confluence of the Valley and Hiwassee
rivers hanging on the wall outside the Cherokee county
manager’s office.
The tanning industry is dead. It was responsible for
“great pollution,” according to Steve Fraley. The last dam
was built here 54 years ago. Logging on a grand scale
tapped out in 1920 and moved to the Pacific Northwest. A
total of 531,341 acres are protected in the Nantahala
National Forest, the largest in North Carolina and created
in 1918. Will the water resources of Cherokee County be
protected for the future?
OTHER
COUNTY-BY-COUNTY REPORTS:
April 7, 2008 – Clay
County, NC Petition
filed to halt expansion of Shewbird Mountain mine
July 2, 2007 – Union County,
GA Union
County's Lamar Paris unifies 16 north Georgia counties to
gain relief from mandatory 150-foot stream buffers
Aug. 31, 2007 – Towns County,
GA The
man in the driver's seat of Towns County government goes to
work to try to prevent further harm to the Blue Ridge
Mountains and Lake Chatuge
* * *
Tom Bennett of the Martins Creek community west
of Murphy is a board member and a volunteer for Hiwassee River
Watershed Coalition.
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