Hands off our buffers: Local governments to plead case before the state

Hands off our buffers: Local governments to plead case before the state

- in Environment, Featured Articles
Photo: NC Coastal Federation

Invisible to many people outside of city planners and wildlife biologists, stream buffers are the unsung heroes of the environment.

They control flooding and drainage. They protect stream banks from erosion. They remove pollutants from runoff and provide homes for wildlife. For example, in Carrboro in 2010, a new aquatic species, never before identified, was found in a small seep that had been protected by a buffer.

When planted with trees, buffers help keep streams cool, which is essential for many species of fish. And as a respite from cold concrete and hot asphalt, they’re pleasant for people, too.

For these reasons, about 20 years ago North Carolina created rules that established 50-foot buffers along waterways in several watersheds and basins: the Neuse River, Jordan Lake, Tar-Pamlico, Goose Creek, Catawba River and Randleman Lake.

This distance, which includes 30 feet of undisturbed area and 20 feet of plants, trees and the like, is considered a minimum. Many local governments, particularly in fast-growing and environmentally sensitive areas, have passed ordinances to exceed that minimum.

Depending on the region, the slope of the land and the waterway, the buffer could be as wide as 100 feet, the national average in urban areas, or larger. Even then, the buffers can’t always counter the effects of the rapid urbanization. Based on the science, it’s likely that narrower and smaller buffers would only worsen — and hasten — the problem.

Yet in an ongoing crackdown on local governments’ autonomy, in 2015, the state legislature created obstacles for cities and towns that want to keep their wider buffers. On Nov. 9 and 10, the state Environmental Management Commission is expected to decide whether four local governments have the authority to impose wider buffers, and in a larger respect, determine the environmental futures of their jurisdictions.

Cary, Carrboro, Wake County and Orange County all submitted applications to the EMC.

Assembling the studies and the supporting documents cost the local governments both time and money. Orange County, for example, spent $70,000 to hire consultants and prepare its application. “It’s money well spent if it preserves the buffer program,” said county planner Michael Harvey. “But there are wiser uses for the money.”

With its creeks, rivers and tributaries, a map of Orange County looks like a block of veined blue cheese. The headwaters of three major river systems start here — the Cape Fear, the Neuse and the Roanoke. More than half of the county lies within a protected or critical watershed that require wider buffers.

When Orange County officials and their consultants analyzed the effectiveness of buffer rules, they tried to see it an opportunity rather than a burden.

It’s not ill-advised for communities to re-evaluate policies every few years. It’s been an interesting exercise to go through ” Harvey said. “But it’s been a little hairy and off-putting” because state officials — the EMC, the legislature, even the DEQ staff — didn’t provide much guidance for the scientific review.

In addition to its vague scientific directive, the legislature’s blanket 50-foot rule fails to account for the state’s vast range of soils, watersheds, aquifers and topography — the very natural resources that attract the millions of visitors and thousands of new residents here every year.

Nor does the magic number of 50 allow for the varying levels and types of development: homes, apartments, farms, industry, all of which affect rivers, streams and wetlands in different ways.

I understand the General Assembly needs consistency, a basis to go from,” Harvey said. “But the issues are different from the mountains to the Piedmont to the coast.”


In the 2015-16 legislative session, House Bill 44 began like many malevolent laws-in-waiting so innocuous as to be initially overlooked. Filed in February 2015, the one-page measure addressed the issue of property owners who chronically let their grass and weeds grow too tall.

But by September, conservative lawmakers had hijacked HB44. Marked up, amended and committee-substituted like a cluttered Pinterest page, it become a sweeping local regulatory reform bill.

The bill had expanded to 19 pages, while the power of local governments had shrunk. The legislature had disarmed many of local governments’ powers, including the authority to maintain buffer rules that were more stringent than the state’s.

The conservative legislature has a five-year history of not only wresting control from local governments — in anti discrimination ordinances, in fracking prohibitions, in annexations — but also catering to the real estate lobby.

Within zones of the buffer, certain types of development are restricted, even prohibited. To the chagrin of some real estate interests, buffers remove land from development — about 5 percent of the total area, according to the Center for Watershed Protection. But the environmental benefits of wide buffers are well-documented. They can even increase adjacent property values.

Nonetheless, the homebuilders were delighted with HB 44, including the buffer rules language. The Real Estate and Building Industry Coalition called the 2015 session and HB 44 one of that sector’s “biggest wins in decades.”


There were four complex ways for local governments to circumvent the buffer law. One of them was to scientifically prove to the EMC that it needed stricter requirements.

Of the affected jurisdictions, 22 either already complied with the state’s buffer rules or fell under an exemption; 18 planned to modify their ordinances to meet the state requirements.

Two didn’t respond. And four decided to plead their scientific case.

The town of Cary has enforced buffer rules since 2000, ranging from 50 to 100 feet. Buffers and other zoning codes have prevented or minimized flooding in newer parts of the town. Most of the flooding occurs in “old Cary,” east of NC 55, which was developed before the buffer rules went into effect.

It’s been a very effective ordinance for us,” said Steve Brown, Cary’s director of water resources.

Most of Wake County’s streams are degraded because of urbanization. More hard surfaces and increased stormwater often leads to greater runoff, the force of which, widens and deepens stream- and riverbeds, destroying the habitats within.

In fact, the sampling areas in Wake County with the poorest habitats for insects, beetles, dragonflies, crayfish, worms (known in scientific parlance as benthic organisms), had the highest percentage of impervious surface — parking lots, sidewalks, streets.

Carrboro, which lies within the Jordan Lake Watershed, established buffers of 60 to 100 feet. Bolin Creek, which runs through Chapel Hill and Carrboro, is especially vulnerable to urbanization, with parts of it being rated fair or poor by the state Division of Water Resources.

In 1986, when state officials initially sampled Bolin Creek, it was not considered impaired. By 1993, the waterway had become compromised, with less biodiversity. The lower portion of the creek has been on the federal impaired waters list for the past 10 years.

More than half of Carrboro is in the Little Creek watershed. State environmental officials have determined that the watershed, “is a highly impacted and water quality degradation is widespread.” Buffers, the town says, are a way to manage the effects of urbanization that are polluting its streams.

Because of Orange County’s unique environmental position, buffers in the critical watersheds can be as wide as 250 feet. That has not deterred development outside of those zones, Harvey said.

It’s a sensitive topic,” Harvey said. “People say, ‘I paid x for my property, and I can develop it to what extent?’ We have to bridge environmental protection with that.”

Orange County, like many jurisdictions, offers incentives and tradeoffs with property owners in return for complying with the buffer rules. Governments can offer variances, conservation easements, which reduce property taxes, and density bonuses elsewhere on the property.

We want to protect our entire program. We need more than a 50-foot buffer,” Harvey said. “We find ourselves at the mercy of the EMC.”