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News County Planning Board discusses changes to floodplain ordinance

The Macon County Planning Board met last week to discuss changes to the floodplain ordinance, including changes to the current no-fill requirement. More than a dozen speakers were present for the meeting and voiced a range of concerns over changing the strict guidelines.The Macon County Planning Board gathered last Thursday to discuss the current floodplain ordinance that was established in 2008. Of particular note was the no-fill portion of the ordinance that states that no dirt may be used to fill in land that is located in the floodplain.

By definition, a floodplain acts as a reservoir. Its function is to provide land and space for floodwaters to slow down. FEMA allows the use of fill in a floodplain. though the county has stricter reegulations.

Representatives from Wells Grove Baptist Church had approached the board of commissioners to ask them to reconsider this portion of the ordinance. The church hoped to use dirt collected from the Wal-Mart construction site to build a parking lot for its members across from its current location. Current regulations prevent that, but the board was asked by the commissioners to consider whether the ordinance was still relevant to the citizens of Macon County.

The public was invited to the meeting and given the chance to speak about possible changes. The room was filled with more attendees than usual, as the no-fill ordinance proved to be a hot-button issue. Farmers, scientists, and others spoke out against changes that could affect downstream properties and the ecological make-up of the local rivers.

Public Comment

Franklin native Sue Waldroop began the public session by describing her opposition to any changes that would allow landowners to use filldirt in the floodplain.

“It is a fact that narrowing a stream's way by filling in material along its edges causes flooding both above and below the fill site,” said Waldroop. “The stream with higher, steeper banks that cannot easily be climbed either flows at higher velocity and with increased force downstream or it backs up and affects more land upstream. The person doing the filling may not mean to, but they are affecting their neighbors.”

According to Waldroop, the dirt that is used to fill flood-plains is sterile and therefore cannot be used to farm.

Barry Clinton of the Burningtown Community and current chairman of the Macon County Watershed Council followed Waldroop. Clinton was one of the co-authors of the ordinance in question. In 2006, the board of commissioners directed the Watershed Council to develop an ordinance that was safe and effective.

“Our philosophy going in to this was to develop guidelines that would minimize the probability of property damage, personal injury, and loss of life and we all know that those things can happen when Mother Nature has her way with us,” Clinton said. “We spent two years taking input from the commissioners, the planning board, from everybody we could, including professionals outside of the council itself.”

Keeping the focus on agriculture, he stressed that once the land is changed with fill-dirt, it cannot be restored to its natural state.

“If we're talking about property rights, whose property rights are we protecting? Whose quality of life are we actually improving if we remove this requirement from the ordinance? Sure if you vote to take it out, you're going to give the right to the individual who has land in the floodplain that they wish to fill, but you're giving them the right to do so at the expense of the adjoining property owners. This is an opportunity for Macon County to be a leader and seize the moment.”

Many farmers from different areas in the county were on hand to express their concern for the destruction of prime farm land found on the riverbanks of the county and therefore in the floodplain.

“Some of the most fertile farmland in the world is in the floodplain,” said Kenneth McCaskill, farmer and former Macon County Extension Agent. “If it's short-sighted gain from some organization or individual wanting to make a profit, we have farmers who own property on the side of the river that could sell it for development and make more money. That's short-sighted though. Once you destroy it, you can't put it back.”

McCaskill also spoke to the safety of emergency services persnonnel who may be endangered when flooding is increased as a result of filling the plains.

“People will have to be evacuated. Flooding will happen and we are putting our citizens at risk and our emergency personnel at risk,” he said.

Ben Lassiter, a wildlife ecologist who resides in the Tessentee community brought comments to share with the board from Dr. Jerry Miller, a Western Carolina University professor, hydrologist and geomorphologist who specializes in the study of water quality and the impact that human activities may have on rivers.

“Any activities such as the addition of fill on a floodplain's surface that alters the water holding capacity of the floodplain will increase downstream flood-flows in terms of both its height and its ability to erode, transport and deposit sediment. Studies have shown that both fill and floodplain development can lead to enhanced downstream flooding, higher rates of bank erosion and property loss and significant deposition of sediment on floodplain surface. Changes in the processes can be dramatic. Such floodplain alterations have led to significant litigation when downstream property owners seek reparations from flooding or property loss that they have not previously experienced.”

Other representatives from the Watershed Council, Little Tennessee River Trust, N.C. Department of Agriculture, farmers and scientists in the community spoke about the issue as well, reinforcing to the planning board the need to keep the language of the floodplain ordinance unchanged.

Board discussion

After the public comment period was over, planning board members held a short discussion covering the no-fill requirement.

Board member Susan Ervin began by giving her observation of the issue.

“To me, when you have existing uses, traditional uses, those are sort of a different order of importance from somebody wanting to add a use to their property that's not even possible given the original condition of that property. If land has been farmed for hundreds of years, if you've built a house five years ago in compliance with the current ordinance and you have a current use that is going to be negatively impacted because somebody wants to add a use, they want to change the nature of their property and use it for something that it has not been able to be used for, that to me is an inferior right to the rights of those who have been using the land in its natural state and our current ordinance.”

County Planner Matt Mason was asked to gather information about Jackson County's experience with their floodplain policy which does not include a no-fill requirement.

“Jackson County has not had safety issues that would coincide with the fill in the floodplain,” said Mason. “One thing that the county planner stressed is that they are currently encouraging new and existing agriculture. They think that agriculture is obviously going to be a hot topic in the future. They've also offered tax incentives to promote agriculture as part of the floodplain issue.”

“I understand the golden rule,” said planning board member Derek Roland. “We should look out for our neighbor, but there comes a time when you have to ask yourself, ‘why can't I do with my land what I want?’”

Other members asked why Macon County is the only county in North Carolina that has such an ordinance.

Planning board members asked Mason to discuss the economic incentives of removing the nofill requirement with Economic Development at next month's meeting.

Changes to the ordinance

Since the meeting, changes to the ordinance have been developed and will be presented to the planning board at next month's meeting. Assuming the changes are approved by the board, it will go to the commissioners for their consideration.

The revised ordinance allows for the use of fill, but still lays out guidelines that must be followed. A permit must be obtained that states that no fill material or other development will encroach into the floodway or non-encroachment area of any watercourse, as applicable. “If fill materials are being placed in the floodplain during the development of a site, a CLOMR-F (Conditional Letter of Map Revision based on Fill) and LOMR-F (Letter of Map Revision based on Fill) must be submitted to NCEM for approval” was added.

Under the heading “Certifications” in the ordinance, guidelines have been added for using fill material;

(d) If fill material is to be used in the floodplain, the following requirements must be met.

  1. Materials must be good clean soil, free of large rocks, construction debris, and organic material.
  2. Material must be mechanically compacted to 95 percent of the maximum density.
  3. Material must extend at least 10'-15' beyond the footprint of the structure.
  4. Material must have graded side slopes that are not steeper than 2:1.
  5. Slopes must be protected against erosion. Design professional must certify the fill elevation, compaction, slope, and slope protection measures in order to determine that the proposed development will be reasonably safe from flooding.

Legislative action

The passing of Senate Bill 612 could make floodplain ordinance conversation moot. All of the work that has been done by the concerned parties may be canceled out if the N.C. General Assembly votes to make Senate Bill 612, or the Regulatory Reform Act a reality. The bill has been introduced to the General Assembly by Sen. Harry Brown, representative of Onslow and Jones counties on the coast of N.C. This bill mandates that city or county ordinances be consistent with the Constitution and laws of North Carolina and of the United States.

Also, according to the bill under part III, under section (a), it says that inert debris or demolition debris consisting of asphalt or used asphalt mixed with dirt, sand, gravel, rock, concrete, brick, wood, or similar nonhazardous material may be used as fill and need not be disposed of in a permitted landfill or solid waste disposal facility, provided that demolition debris may not be placed in the waters of the State or at or below the unseasonal high water table.

“It's just ridiculous,” said Waldroop who pleaded her case at the planning meeting. “We've always been able to have stricter regulations. People who do not live in the mountains shouldn't be penning bills about things that they don't know about.”

The bill was sent to the Committee On Agriculture/ Environment/Natural Resources and then passed the first reading in the Senate and could go to another committee before being read a second time and voted upon.





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published: 10/18/2013
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