Environmental group sues Durham developer, alleging ongoing stream pollution

Environmental watchdog Sound Rivers is suing a Durham home builder, alleging the builder is failing to follow sediment control plans resulting in significant pollution in nearby waterways.

Mungo Homes, a subsidiary of Clayton Properties Group, is building the 616-lot Sweetbrier development across 216 acres in Southeast Durham. The area’s Lick Creek watershed has received significant attention from developers in recent years and from nearby residents worried about whether the area and its environmental resources can handle the clearcutting and mass grading necessary to build thousands of new homes.

Sound Rivers alleges the developers’ failure to follow North Carolina’s sediment control rules and its own plan describing how it would keep dirt on the site have resulted in significant levels of pollution into nearby Martin Branch, which then flows into Lick Creek before entering Falls Lake.

North Carolina’s water turbidity standard is 50 nephelometric turbidity units, with anything higher than that representing a violation. Samantha Krop, Sound Rivers’ Neuse riverkeeper, has sampled Martin Branch on Sweetbrier’s southeastern border on 16 occasions, with each coming in above the turbidity standard.

“I’ve not documented a more significant and ongoing sediment pollution issue in the entire Neuse watershed, from tip to tip,” Krop told The News & Observer.

Sound Rivers is asking the court to find the developer in violation of the Clean Water Act, require it to remediate waterways that have been damaged by sediment flowing off of the site and fine it $64,618 for each day it has been in violation of its permit.

Clayton Properties Group did not respond to a pair of emailed requests or a voicemail left at Mungo Homes’ Apex office requesting comment for this story.

Issues during inspection

Sediment in North Carolina is controlled by a general permit which requires developers to create and abide by an erosion and sediment control plan, including devices that keep dirt stirred up by development out of waterways.

Sound Rivers alleges that Clayton failed to take steps like planting grass to keep dirt from washing into nearby waterways, retaining a buffer or maintaining the basins its own approved sediment plan calls for.

“To comply with the state and federal permits under the Clean Water Act, Clayton has to control sediment and also comply with state water quality standards. We have outlined ultimately that they have failed to do so in their development of this site and their development has resulted in sediment pollution,” Irena Como, a Southern Environmental Law Center attorney representing Sound Rivers, told The News & Observer.

Inspectors identified sediment control deficiencies on several occasions. In one a third-party conducted for the developer and at least six more in which Durham County inspectors found problems with sediment control.

During one Feb. 17 inspection, a Durham County erosion control supervisor found 68 problems with Sweetbrier’s erosion and sediment control measures, resulting in his warning the developer that he “should” issue a notice of violation. No notice was issued.

“Clayton’s failure to comply with its erosion and sediment control plan cause(d) sediment to be deposited into Martin Branch, with sedimentation and other impacts on human health or the environment extending downstream into Lick Creek and Falls Lake,” the suit states.

Aerial photographs included in the suit show sediment building up around the area where Lick Creek flows into Falls Lake.

Sediment pollution can harm fish and other wildlife living in streams other waterways, creates conditions that are more favorable for algal blooms and can result in higher levels of bacteria in the water column.

“It’s an issue for aquatic species in every single and it’s a major issue for human communities and health,” Krop said.

Samples from Lick Creek

Krop started sampling around Lick Creek last October after residents raised concerns about nearby development sending sediment into the waterway. It quickly became clear that Sweetbrier was routinely sending excessive amounts of sediment into Martin Branch and then into Lick Creek, Krop said.

That included several samples that topped 1,100 NTUs — the highest a sampling device Sound Rivers uses can record. Meanwhile, samples at Rocky Branch, a nearby Lick Creek tributary that doesn’t have significant development, repeatedly came in either near or below the state’s turbidity standard.

On Aug. 31, Sound Rivers used a different turbidity measurement that is similar but not comparable to NTU and found levels in Martin Branch that were about eighty times higher than those in Rocky Branch.

The lawsuit also alleges that Clayton failed to fulfill self-reporting obligations under the general permit, in which it must inspect regularly and after rainstorms and report sediment that is flowing into the waterway to DEQ.

Had those reports been made to DEQ, Krop said, they would have resulted in steps to either repair the existing sediment control measures or add new ones.

“They would have been self-reporting when they noticed the issues I’ve been documenting for this last year and taking meaningful actions to address those issues. So if they are following their permit then they wouldn’t be polluting the creek,” Krop said.

This story was produced with financial support from the Hartfield Foundation and the 1Earth Fund, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work.