From May 2002 Carolina Journal

By ERIK ROOT, assistant editor of Carolina Journal

HICKORY - Members of the North Carolina Citizens for a Sound Economy met recently to discuss an issue affecting many North Carolina property owners: the taking of property by government through an idea environmentalists call "river buffers." Several local citizens and elected officials spoke at the meeting.

River buffer rules mandate that there be setbacks from shorelines along rivers, creeks, rivers, lakes, and other bodies of water in order to prevent water contamination. Some rules mandate a 50-foot buffer, which forbids any development along a river within 50 feet of the shoreline.

Other buffers have varying restrictions on development depending on the proximity to the shore. This has implications for private property owners who could be prohibited from doing anything to their property. For those who own a small piece of land near a body of water, it means they cannot modify their land at all.

According to CSE, "new regulations on private property were authorized under Section 7 of the North Carolina Clean Water Act of 1999. This legislation gave the North Carolina Environmental Management Commission (EMC) authority to impose temporary buffer rules in the Catawba River Basin." Those failing to follow the guidelines could face up to $25,000 in fines per day.

According to literature from the North Carolina Department of Environment and Natural Resources, buffers are necessary to prevent water runoff filled with sediment and nutrients from reaching streams. The NCDENR says buffers prevent erosion and protect banks. However, as one property owner demonstrated at the meeting, his property is eroding precisely because he has to maintain the buffer. Because he cannot alter his property, when the creek behind his house rises, it proceeds to erode more and more of his property. The only thing he has been allowed to do is move his fence line back to make way for the consuming water.

NCDENR also believes that property owners should have buffers so that they can provide "shade," and "food...for wildlife."

Speakers voice concerns

Rep. Cass Ballenger, R-N.C., one of the first speakers at the event, summed up the problem: "I don't see how anybody could have dreamed up what the people in Raleigh [have] done. Raleigh and Washington both are things you must watch. Defend yourself. You need to watch out for the state and federal government." State Rep. Mark Hilton, R-Conover, who lives in Catawba County, echoed Ballenger's sentiments: "There are some liberals in Raleigh who want to regulate [some] businesses out of existence." With an appeal to the Constitution, Hilton pointed out that "if you are going to regulate and take land, you must compensate" the owner.

NCDENR defends itself by stating that some things, such as the cutting of trees, are allowed in buffer zones. However, depending on the buffer, some things will be "allowed," and others will not. Some regulations may be loosened only if there are "no practical alternatives." Either way, the state will need to approve or disapprove any action in the zone. NCDENR believes that buffers "protect property."

One unidentified speaker from McDowell County said that "today when I hear about buffers, I think of a board that is politically motivated and is set to carry out an agenda." He questioned whether environmentalists pushing the regulation really cared about clean water.

State Sen. Ken Moore, R-Lenoir, said he doubts environmentalists' claim that the rules are meant to protect water quality. Moore said water quality is better today than it was five to 10 years ago. "It's much better now and they won't tell you that," Moore said. He said cities are the biggest polluters. Buffers that are instituted in most places seek to combat a problem that does not emanate from rural North Carolina, he said. Steve Hensen, representing the Southern Appalachian Multiple Use Council (a 501c6), said the rules are too broad and leave open too much for individual bureaucratic interpretation. "Buffers depend on interpretations and standards," he said. Hensen said buffers affect the economics of timber values. "If you can't cut the timber, you lose the value of that timber," Hensen said. He also said such restrictions reduce the quantity and quality of the next generation of trees. Hardwood trees need direct sunlight. If the state prohibits property owners from cutting down trees and opening up the property, the trees will not receive enough sunlight. Loss of sunlight means less growth. Ultimately, this all means that the property owner will suffer lost property value and lost potential income.

Hensen said the laws and regulations in this case are not based on science. "Emotionalism is what is used now," Hensen said. A radical philosophy is employed in the environmental movement that amounts to "central control of the land and resources," he said. The movement attracts elements that are hostile to the property owners, he said. The environmentalists are well-networked, Hensen said.

When a bill comes before the Assembly, legislators get e-mails from all over the nation, making it appear as though pressure is coming from legislators' constituents.

Dr. Clarence Hood, a former professor for agriculture and engineering, agreed. This is "agenda-driven, not science-driven," he said. He said that truth does not reveal itself immediately and so buffers are poorly understood.

Also present was Robin Smith, assistant secretary of environmental protection at NCDENR. She said buffer rules do not violate the Constitution, but those attending found her 'bureaucratic speak' a bit difficult to decipher. Jonathan Hill of CSE said "we all want clean water," but we all want access to our property.

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