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
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. 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
July 2, 2007 – Union County, GA
Aug. 31, 2007 – Towns County, GA
Tom Bennett of the Martins Creek community near Murphy, N.C., was a retired newsman, Hiwassee River Watershed Coalition member/volunteer/donor and recipient of the 2015 Holman Water Quality Stewardship Award. Tom died on December 28, 2020.