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Exploring the Neuse River as a Public Trust Issue
Patrick Hunter
There can be little doubt that the Neuse River in Eastern North Carolina is an unhealthy river. Beginning in the early 1990s, the Neuse experienced annual late summer fish kills, with some officials estimating the total number of fish killed since 1991 at over one billion. 1 The fish kills have garnered national attention, placing the Neuse on the list of "America’s Ten Most Endangered Rivers" in 1995, 1996, 1997 and 2007.2 Larry Baldwin, Lower Neuse River Keeper, has suggested that the most recent fish kill, which occurred between September and October of 2009, killed over 100 million fish, while the North Carolina Division of Water Quality admits that they stopped counting at thirteen million dead fish.3 The fish kills are evidence of a larger problem in the Neuse river basin; namely, legislative and judicial failures to regulate the level of pollution in the river. This paper seeks to recount the main sources of pollution in the Neuse, as well as recent judicial decisions and legislative actions affecting the ongoing pollution, and suggest that the Neuse is a viable candidate for protection by the state’s public trust laws.
1 Rick Dove, Fish Kills: State Excuses, North Carolina Riverkeepers and Waterkeepers Alliance, http://www.riverlaw.us/fishkills/stateexcuses.html (last visited Oct. 18, 2009).
2 Id. (The list is compiled by "American Rivers," a non-profit organization founded in 1973 for the purpose of protecting rivers in North America.)
3 Id.
4 ENVIRONMENTAL MANAGEMENT COMMISSION, NEUSE RIVER BASINWIDE WATER QUALITY PLAN, Chapter 20, 406, (2009) http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter20.pdf. The Environmental Management Commission (EMC) is a 19-member panel that is appointed by the governor and legislative officials. It is responsible for adopting rules for the protection, preservation and enhancement of the state’s water and air. In July 2009 the EMC released their final draft of the "Neuse River Basinwide Water Quality Plan."
5 North Carolina Division of Water Quality, Fish Kill Update, http://h2o.enr.state.nc.us/esb/Fishkill/fishkillmain.htm (last visited Oct. 17, 2009).
The North Carolina Division of Water Quality (NCDWQ) documented 57 fish kills in the Neuse River basin between 2002 and 2006.4 Between March and October of 2009 NCDWQ documented 29 fish kills east of Durham County, seven of which were cited in the Neuse River.5 Taking the fish kills as evidence, pollution in the Neuse has traditionally been attributed to two
factors: 1) runoff and waste from residential and commercial properties; and 2) pollution from concentrated animal feeding operations (CAFOs).6
6 ENVIRONMENTAL MANAGEMENT COMMISSION, NEUSE RIVER BASINWIDE WATER QUALITY PLAN, Chapter 24, 453, (2009), available at http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter24.pdf.
7 See Id. at Chapter 16, 343, available at http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter16.pdf.
8 Id.
9 Id.
10 See Id. at Chapter 18, 380, available at http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter18.pdf. This number is defined as those with NPDES permits.
11 Id. at 381. The Division of Water Quality points out that in much of coastal North Carolina the distinction between ground water and surface water is minimal at points, thus some non-discharge operations likely lead to direct discharge into surface waters.
Sources of Pollution
As natural vegetation areas are replaced with buildings, roads, and parking lots, the capacity of the environment to absorb rainwater is significantly diminished, leading to increased levels of runoff into streams and creeks.7 Between 1990-2000, the eighteen counties in the Neuse River basin experienced a population growth of 27.9%.8 The area is expected to grow another 43% by 2020.9 As the population swells and developers’ and municipalities’ needs for wastewater discharge increase, the nutrient levels of the Neuse are likely to increase as well.
North Carolina primarily regulates discharge that enters surface waters through its implementation of the National Pollutant Discharge Elimination System (NPDES). As of July 2009 there were 136 permitted wastewater dischargers in the Neuse River basin.10 The Land Application Unit (LAU) of the NCDWQ oversees non-discharge wastewater treatment and recycling systems, primarily consisting of systems that apply wastewater to land, rather than surface waters. There are currently 268 non-discharge permits in the Neuse River basin.11
The second factor leading to high nutrient levels in the Neuse is the influx of CAFOs into the Neuse River basin (and eastern North Carolina as a whole) since the 1980s. Since 1991
North Carolina has been the fastest growing swine-producing state in the country, jumping from sixth to second in the nation in hog production, with some ten million hogs. 12 The extent of the growth caught North Carolina by surprise. The combination of the absence of a regulatory scheme for factory farms, and legislative initiative to amend state zoning laws to prohibit counties from exercising zoning authority over factory farms, led to CAFOs quickly becoming the predominant method of raising livestock in eastern North Carolina.13
12 National Resources Defense Council, America’s Animal Factories, Chapter 17 – North Carolina, http://www.nrdc.org/water/pollution/factor/stnoc.asp (last visited Oct. 16, 2009).
13 Id.
14 Rick Dove, Real Hog Facts, North Carolina Riverkeepers and Waterkeepers Alliance, http://www.riverlaw.us/realhogfacts.html (last visited Oct. 10, 2009).
15 ENVIRONMENTAL MANAGEMENT COMMISSION, NEUSE RIVER BASINWIDE WATER QUALITY PLAN, Chapter 17, 360, (2009) http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter17.pdf.
North Carolina requires that CAFOs with over 2,500 swine apply for NPDES permits, while those between 250-2,499 must obtain non-discharge permits, which allow spraying untreated hog waste on fields. Dr. Mark Sobsey of the University of North Carolina School of Public Health found that a hog creates approximately ten times as much fecal waste as a human. 14 The predominant method of disposing of the waste of North Carolina’s ten-million hogs in spraying it on fields, creating the possibility, if not the certainty, that hog waste and nutrients are running off into creeks and streams and seeping into the groundwater. In July 2009, the Environmental Management Commission (EMC) acknowledged that the "application of waste (wet and dry) is contributing to runoff of nutrients to the nutrient sensitive waters of the Neuse as well as from contaminated groundwater."15
Efforts to Control Pollution
North Carolina has taken measures to control the expansion of CAFOs. In 1997, the legislature established a ten-year moratorium on new hog farms and spray systems. 16 In August of 2007 former-Governor Easley signed into law Senate Bill 1465, which made the moratorium on new hog farms and spray systems permanent.17 The bill, known as the N.C. Swine Farm Environmental Performance Standards Act, also established a lagoon conversion cost-share program and a methane capture pilot program.18 While these programs are undoubtedly a step in the right direction, the fact that they are strictly voluntary diminishes the incentive of participating in them.
16 Wade Rawlins, Law let hog industry keep growing in N.C., RALEIGH NEWS & OBSERVER, Mar. 23, 2007, available at http://www2.nccommerce.com/eclipsfiles/16394.pdf. It should be pointed out that during this time seventy-three hog farms were given new permits, twenty-five were expanded and four were reactivated, resulting in 500,000 new swine in the state. Id.
17 S.B. 1465, 2007 Gen. Assem. (N.C. 2007) (enacted), available at http://www.ncga.state.nc.us/Sessions/2007/Bills/Senate/PDF/S1465v7.pdf.
18 ENVIRONMENTAL DEFENSE FUND, 2007 N.C. SWINE FARM ENVIRONMENTAL PERFORMANCE STANDARDS ACT (2007), http://www.edf.org/documents/6979_NC_Swine_Performance_Act.pdf.
19 North Carolina Pork Council Homepage, http://www.ncpork.org/pages/environment/regulations.jsp (last visited Oct. 15, 2009).
20 Posting of Sue Sturgis to Grist blog, http://www.grist.org/article/boss-hogs-attempted-regulatory-coup-in-north-carolina/ (Aug. 3, 2009).
21 Id.
22 Id. The bill was referred to the Committee on Rules, Calendar and Operations of the House of Representatives in August 2009.
However, strict regulation of hog farms is still not a reality in North Carolina. CAFOs are required to have two visual inspections a year but neither surface water nor groundwater is required to be tested. 19 In the fall of 2007, the Riverkeepers of North Carolina filed a petition for rule making asking the state to take three water samples at different locations on CAFOs three times a year.20 In response, the EMC began crafting new rules to require water monitoring on hog farms.21 However, in July 2009 the Senate unanimously passed bill H1335, which put the rule making and enforcement capabilities of the EMC on hold until 2011.22
With mixed efforts in regulating pollution from CAFOs and with a rapidly increasing
population in the Neuse River basin, the amount of pollution in the river remains relatively unchanged (if not increased), resulting in the continuing fish kills . The General Assembly Session Laws of 1995 called for a 30% reduction in the amount of nitrogen in the water, though no timetable was established. As of July 2009, however, the "data do not seem to indicate any significant decrease in actual nutrient loading to the [Neuse] estuary," and no significant decrease is expected in the next five years.23 Moreover, at least one study, published in 2006, found that between 1993 and 2005 ammonia levels and nitrates increased in the river by 500% and 88% respectively.24 Perhaps more alarming is the growing awareness that CAFO lagoons release dangerous gasses into the atmosphere. While the 2007 Swine Farm Environmental Performance Standards Act encourages farms to harvest methane from lagoons to turn into electricity, the state has done nothing else to regulate air emissions from swine farms.25 New research indicates that "atmospheric contribution accounts for fifteen to fifty-five percent of the total nitrogen in the Neuse River estuary and that these contributions have risen over the last two decades with the increase in [CAFOs]."26
23 ENVIRONMENTAL MANAGEMENT COMMISSION, NEUSE RIVER BASINWIDE WATER QUALITY PLAN, SUMMARY, 7, (2009), http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Summary.pdf.
24 Rick Dove, Real Hog Facts, North Carolina Riverkeepers and Waterkeepers Alliance, http://www.riverlaw.us/realhogfacts.html (last visited Oct. 10, 2009).
25 For an excellent overview of the threat CAFOs have to air quality issues, see PETER S. THORNE, AIR QUALITY ISSUES,
http://www.public-health.uiowa.edu/ehsrc/CAFOstudy/CAFO_finalChap_3.pdf.
26 ENVIRONMENTAL MANAGEMENT COMMISSION, NEUSE RIVER BASINWIDE WATER QUALITY PLAN, Chapter 17, 360, (2009), http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter17.pdf.
27 Neuse River Found., Inc. v Smithfield Foods, Inc, 155 N.C. App. 110, 574 S.E.2d 48 (2002).
28 Court Reports: North Carolina, 6 U. DENV. WATER L. REV. 629 (2003).
Lawsuits have largely failed to hold CAFOs and others responsible for their actions in North Carolina. In Neuse River Foun., Inc. v Smithfield Foods, Inc.,27 the river association’s suit against hog companies failed for lack of standing.28 The court held that "an environmental plaintiff must allege injury to a protected interest that cannot be considered merged in the general
public right." 29 It continued by saying that the fact that the landowners did not contend that the General Assembly exceeded its constitutional authority prevented them from prohibiting an activity (the lagoon waste management systems) that the legislature explicitly allowed.30
29 Neuse River v Smithfield, 155 N.C. App. at 115, 574 S.E.2d 48, 52 (2002).
30 Id. at 118, S.E.2d at 54.
31 N.C. GEN. STAT. §1-45.1 (2008).
32 Id.
33 Health Precautions around Fish Kills, EPIDEMIOLOGY IN NORTH CAROLINA, http://www.epi.state.nc.us/epi/oee/protect.html (last visited Oct. 16, 2009).
34 Id.
35 ENVIRONMENTAL MANAGEMENT COMMISSION, NEUSE RIVER BASINWIDE WATER QUALITY PLAN, Chapter 24, 454 (2009), http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter24.pdf.
The River as a Public Trust
Recent literature suggests that the time for evaluating the Neuse as a public trust issue could be ripening. North Carolina General Statutes maintain that public trust rights "include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State." 31 The uses of the Neuse River clearly fall within these categories. Not only that, but the state admits that the Neuse is not safe to "swim, hunt, fish and enjoy all recreational activities" in.32 The NCDWQ instructs people to "[not] go in the water," to not "eat, use or collect any fish, crab, other life or items" and not let pets "swim in or eat fish" from areas where there is a fish kill of "more than a few fish."33 NCDWQ’s "Health Precautions Around Fish Kills," instructions further tell people to bathe with soap and water immediately after coming into contact with waters where fish kills have taken place and to call their doctor if they "experience any symptoms that might be caused by exposure to these waters."34 Additionally, the EMC maintains that the "majority of freshwater and saltwater stream miles in the Neuse river basin are impaired."35
Scholarship has shown that "there is a growing awareness that the escalating crisis in marine ecosystems - from biodiversity losses and transformed food webs to marine pollution and warming waters - is in large part a failure of governance." 36 In 2009 scholars at Duke University used this idea to advocate for the emergence of a "blue water public trust doctrine" that would encompass ocean waters in the federal public trust common law.37 The article further justified viewing the ocean as a logical extension of public trust doctrine because, "the risks involved are not just environmental, but involve the health, safety, and welfare of our people."38 The risks involved with pollution of the Neuse meet these criteria and deserve similar examination.
36 Oran R. Young et al., Solving the Crisis in Ocean Governance, in Mary Turnipseed et al., Possibility of a Blue Water Trust Doctrine, 36 ECOLOGY L.Q. 1 (2009).
37 Mary Turnipseed et al., Possibility of a Blue Water Trust Doctrine, 36 ECOLOGY L.Q. 1 (2009).
38 Id.
39 ENVIRONMENTAL MANAGEMENT COMMISSION, NEUSE RIVER BASINWIDE WATER QUALITY PLAN, Chapter 21, 417, (2009), http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter21.pdf.
40 See Id. at Chapter 20, 397-398, http://h2o.enr.state.nc.us/basinwide/Neuse/2008/documents/Chapter20.pdf.
41 Hannah Jacobs Wiseman, Defining Evolving Property Rights Boundaries Through Public Trust and Takings, 21 TUL. ENVTL. L.J. 233 (2008).
As demonstrated above, the state is aware of the health and safety risks involved in the polluting of the Neuse River. These risks have economic implications for the people of North Carolina as well. The river empties into the nation’s second largest estuary (and largest on the Atlantic coast), the Pamlico Sound. This, in turn supports a billion-dollar commercial and recreational fishing industry ranking North Carolina amongst the nation’s highest seafood producing states. 39 Additionally, the aquatic habitats associated with the Neuse are home to sixty-nine "rare species" to whom "good water quality is critical" for their survival" and a booming tourist industry.40
Hannah Wiseman writes, "just as a trustee is bound by certain ethical and legal duties in managing a trust corpus, the government must not wrongfully damage public trust resources by allowing privatization that would result in more limited access rights for the public."41 She notes
that many public trust issues turn on the idea of "publicness" as defined by: 1) the type of property and 2) whether such property is used by the public. 42 Property that is inherently public, she argues, must meet four categories to clearly be a public trust issue. It must: 1) have been historically used by the public, 2) currently support public activities, 3) privatization of the property must create a substantial obstacle to public use, and 4) the property must not be easily created or recreated by humans.43
42 Id. at 264.
43 Id. at 265.
44 MMI Public Relations, Yadkin Riverkeeper Criticizes Alcoa, http://www.mmipublicrelations.com/news/entry/yadkin-riverkeeper-criticizes-alcoa/ (last visited Oct. 19, 2009).
The Neuse seems to easily meet requirements one, two and four set out in Wiseman’s article. The harder requirement to meet is element three. For bodies of water as large as the Neuse, we must think of privatization not in economic terms, but rather as to whether the state is allowing private citizens and industries to pollute the river to the extent of preventing the use of the resource by the public. In allowing developers, municipalities and CAFOs to pollute the river, the state is, in essence, allowing these organizations to use the river for their own benefit, to the exclusion of the river by the general public. Granted, these industries create jobs and income for North Carolinians; however, unreasonable abuse of natural resources for the sake of economic expansion coincides with what public trust laws are attempting to protect against.
An ongoing public trust issue in western North Carolina could provide important insight into how the state might deal with the Neuse. Alcoa Power Generating Inc. runs a series of hydroelectric dams on the Yadkin river, providing power to North Carolina residents. Alcoa has been licensed to run the dams for over fifty years, and their license was up for renewal in 2009.44 On May 13, 2009, Yadkin Riverkeeper, Dean Naujoks, filed suit against the North Carolina Department of Environment and Natural Resources, alleging, among other things, that the
Department had failed to protect the public trust by not enforcing environmental protection standards against Alcoa. 45 Naujoks additionally successfully requested that a North Carolina judge grant a temporary injunction, delaying the re-licensing process for Alcoa.46 Senate Bill 967, which would have created a Yadkin River Trust to regulate the hydroelectric dams, passed the Senate in this summer’s General Assembly legislative session, but eventually faltered in the House of Representatives.47
45 Id. (This is a federal license issued by the Federal Energy Regulatory Commission).
46 Id.
47 S. B. 967, 2009 Gen. Assem. (N.C. 2009), http://www.ncga.state.nc.us/gascripts/BillLookUp/BillLookUp.pl?Session=2009&BillID=S967 (last visited Oct. 16, 2009).
48 North Carolina’s Plan for use of the Yadkin River, N.C. Dept. of Commerce (submitted Sept. 18, 2009) (No. P-2197-073), http://elibrary.ferc.gov (last visited Nov. 11, 2009).
49 Comments of Yadkin Riverkeeper, Yadkin Riverkeeper (submitted Oct. 14, 2009) (No. P-2197-073), http://elibrary.ferc.gov (last visited Nov. 11, 2009).
50 Keeping Current: Governor Intervenes in Yadkin River Court Proceedings, YADKIN RIVERKEEPER (Winston-Salem, N.C.), Spring 2009, available at http://www.yadkinriverkeeper.org/Content/Documents/Document.ashx?DocId=55946.
Initially, it appeared that the failure of the legislature to create a trust to oversee the operations of the hydroelectric plants would lead to Alcoa being re-licensed. However, on September 18, 2009, Governor Beverly Perdue filed a motion with the Federal Energy Regulatory Commission (FERC) presenting the state’s case for a takeover of the privately run hydroelectric facilities. 48 In October, Naujoks filed comments agreeing with Governor Perdue.49 These actions seem to at least suggest that the state is taking the environmental impact of its industries and population growth seriously and recognizes that it has a responsibility to protect its natural resources for the benefit of it’s citizens. Governor Perdue has stated that her actions are based on her intention to "ensure the welfare of the state’s environment, the life of the Yadkin river, and, ultimately the health and safety of our people."50
The government’s involvement in the Alcoa re-licensing proposal does suggest that the state is willing to protect its environmental interest in the face of its business interest. More
stringent policies regulating pollution will be a hard sell to North Carolina’s CAFOs, and, will likely increase the cost of expansion as more people move to the state. However, these policies are necessary in order to ensure use of the Neuse now and for generations to come. The Alcoa situation shows that North Carolina is taking its public trust responsibilities serious enough to contemplate protecting its waterways, including the Neuse, under the public trust doctrine.
In choosing to allow the Neuse to become polluted to the point that use of that river is inhibited, North Carolina is violating its responsibilities to protect the waterways of the state for "swimming, hunting, fishing and all recreational activities" as charged to it by the North Carolina General Statutes. 51 Therefore, the time is ripening for the state to consider protecting the Neuse River as a public trust issue. The pollution of the river is well documented, both in terms of the effect the pollution is having on the river and the sources of the pollution. Regulatory schemes in place over the last twenty years have done little to make the river any cleaner, as evidenced by the levels of nutrients in the water and the continuing fish kills. The state’s involvement with Alcoa suggests that the state is willing to take its public trust responsibilities seriously enough to justify intervention to protect its natural resources. While more stringent environmental regulation of pollution sources will carry costs and undoubtedly be controversial, such action is necessary to protect the Neuse River for North Carolinians to come.
51 N.C. GEN. STAT. §1-45.1 (2008).
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