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New rules to clean up the waterway went into effect Jan. 15, but local municipalities—primarily Raleigh and Durham—argued over who is responsible for the pollution and who should pay for the $1.5 billion cleanup.

Who's responsible for the Falls Lake mess? 

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Spring pollen swirls in the waves lapping the shore at Rollingview Recreation Area at Falls Lake in Durham County. The water level is up from the recent rains, and the lake stands ready to provide nearly a half-million people in Wake County with their drinking water throughout the next year. Up the beach, a red plastic spoon and an empty soda bottle, along with tracks, human and deer, imprint the otherwise empty space. A sign by the bathhouse warns of the dangers of ticks, drinking alcohol while swimming and swimming alone. The risk of swimming with pathogens is not listed.

Falls Lake is required to meet the Environmental Protection Agency's most basic water classification determined by the Clean Water Act—that it be swimmable and fishable. But the lake doesn't meet that standard. Since 2010, Falls Lake, including the lower portion where Raleigh gets its drinking water, has failed state and federal water quality standards. Upstream of the Highway 50 bridge, near Durham, the lake has been flunking its water quality tests since its creation 30 years ago.

The Falls Lake rules are supposed to fix that. The rules, which went into effect Jan. 15, require a reduction of pollution-creating nutrients flowing into the lake, which theoretically would bring the entire lake into compliance with the Clean Water Act, although not until 2041. It seems like a good idea, but throughout the rule-making process, local municipalities, primarily Raleigh and Durham, argued over who is responsible for the pollution and who should pay for the cleanup, estimated at more than $1.5 billion.

That seems expensive, but the alternatives are costlier. "What's the cost of doing nothing?" Karen Rindge, executive director of WakeUP Wake County, said. "What's the extra water treatment cost, what is the cost of lost tourism dollars?"

As for Durham, its leaders question whether the cleanup is worth the cost, especially if the high price tag won't guarantee that upstream portion of the lake will meet water quality standards. But Raleigh officials contend the water quality data shows a steady increase in pollution—pollution they say is primarily entering from Durham's end of the lake. If the lake's health doesn't improve, Raleigh will incur significant costs, since it will be forced to upgrade its treatment plant—for at least $115 million—to clean the water to meet drinking water standards.

Everyone in the Triangle has a stake in Falls Lake. As we move closer to a Triangle-wide water system, Falls Lake is becoming a regional resource, not just one for Raleigh. Even now, Cary's drinking water supply from Jordan Lake is connected to Raleigh; Durham taps into Cary's and Orange County's supplies during drought or when treatment plants are down for maintenance. And Durham is planning a new treatment plant on the west end of Jordan Lake in collaboration with Chatham County.

After extensive debate, Raleigh, Durham and other communities in the Falls Lake watershed agreed on the need to protect Raleigh's drinking water supply. But in return, these same municipalities pushed the state to produce weaker rules and a longer wait for a cleaner lake.

Falls Lake stretches 14 miles from north of Durham at I-85 all the way to the dam north of Raleigh, a few miles west of U.S. Highway 1. The watershed, or land area from which the lake receives water, extends west of Hillsborough into Orange County and runs north to include Roxboro, Stem, Butner, Creedmoor and Wake Forest. And along the south, Hillsborough, Durham and a small portion of Raleigh bound the lake.

The lake has been classified as "sensitive to nutrients"—and susceptible to pollution— since 1983, just two years after the dam was constructed. As rainwater travels over land—particularly highly developed areas with a lot of pavement or concrete—it picks up nutrients and sediment from rainwater, lawn and agricultural runoff, animal waste, septic systems and sewage treatment plants and carries them to Falls Lake.

Nutrients can be beneficial—plants, algae and tiny organisms at the bottom of the food chain depend on them—but too many nutrients can form oxygen-depleting algae blooms that kill fish and other organisms.

A variety of algae live in the lake—from the green, slimy algae to the brown iron-based algae that leaves a film like that on "top of cold soup," according to Alissa Bierma, riverkeeper with the Neuse River Foundation. But the most worrisome family of algae is the tiny cyanobacteria, commonly referred to as blue-green algae, which sometimes form brilliant streaks on the surface of the water in the summer sun. Some types of blue-green algae have the potential to release powerful toxins—strong enough to kill small animals and sicken humans.

JoAnn Burkholder, professor and director of the Center for Applied Aquatic Ecology at N.C. State University, said blue-green algae tend to produce more toxins with more nutrients, but "no one is really sure. You get Russian roulette blooms."

Burkholder received a grant from the Centers for Disease Control and Prevention in 2002 to study Falls Lake and 27 other reservoirs in the state for blue-green algae. She found blue-green algae in the lake. "Some are the toxic type, though they aren't making toxin in significant concentrations, yet," she said.

Reducing nutrient pollution, particularly nitrogen and phosphorus, will help control the lake's toxic blue-green algae. Yet it's not just nutrient overload and algae that are harmful. Runoff carries fecal coliform bacteria to the lake. Nearly every stream flowing through Durham and into Jordan or Falls Lake fails water quality standards for this public health hazard. Every summer, beaches at Falls Lake in Wake County close temporarily because of high levels of fecal coliform, a type of bacteria linked to dysentery and hepatitis. "You've got people out there fishing, boating, swimming, in full contact with the water," said Grady McCallie, policy director with the N.C. Conservation Network.

Even more disturbing, Durham County, which is closer to the more polluted end of the lake, doesn't test water quality at its beaches; it isn't required to under state law. Last summer, when Wake County closed its Falls Lake beaches because of high fecal coliform levels, News 14 Carolina reported that swimmers simply moved to the beach at Rollingview Recreation Area in Durham County, closer to the more polluted end of the lake.

"Any time you're swimming in natural bodies of water," said Robert Jordan, environmental health supervisor with the Durham County Health Department, "pathogens could be present and that, you know, there's a certain health risk."

So where are the pollutants coming from? Depending on whom you ask, the source of fecal coliform in streams and lakes varies. Ted Voorhees, Durham deputy city manager, and Frank Thomas, director of government relations with the Home Builders Association of Durham, Orange and Chatham Counties, blame geese and seagulls for beach closures in Wake County. John Cox, water quality manager for Durham, said the city completed a study in Northeast Creek, which flows through Research Triangle Park into Jordan Lake and, after fixing some illegal sewage discharges, found domestic animals and wildlife to be the source. Burkholder points to "pet waste off of the streets" as a contributor to the pollution. John Huisman, senior environmental specialist at the North Carolina Division of Water Quality (DWQ), adds that a "high population of malfunctioning septic systems" is a likely source.

The debate over sources is important because the discussions can lead to potential solutions. For example, Raleigh recently passed an ordinance requiring pet owners to clean up after their animals. But Durham relies only on education programs. Durham has known of its pollution problems since at least 2001, when a city-county joint environmental indicators report showed that their streams failed water quality standards. The report found that only one of 13 streams in the city was rated "good." In 2009, every stream in Durham failed at least one state or federal water quality standard, according to the city's State of Our Streams report.

While Raleigh controls only a small portion of the watershed, development in Wake County also contributes to the lake's degradation. Burkholder's data from 2002 to 2009 show a steady decrease in water quality near the dam around Raleigh's end of the watershed. "This is a lake that's poised for problems," she said. "Our state started out with the best of intentions. But then the encroachment began, more and more and more over time." She said, "the more you develop a watershed, it's a no-brainer, you get more and more pollutants coming into the lake."

As often happens with environmental issues, the science behind the policy was the first thing to be attacked. When the state Division of Water Quality was calculating how to bring Falls Lake into compliance with the Clean Water Act, it developed a lake model. The model was based on the percentage of nutrients contributed from each source—runoff, animal feces, treated sewage—and the level of reductions necessary to clean up the lake.

Because lakes and watersheds are extremely complex ecosystems, models are never perfect. And the city of Durham was the most vocal and organized in its critique of DWQ's lake model. Durham paid for its own studies and offered alternative theories about pollution sources.

Durham Deputy City Manager Voorhees said that development in Wake County was a likely greater source of pollution to Raleigh's drinking water intake and that the cleanup should have been focused there. But Kenny Waldroup, assistant public utilities director with Raleigh, said that Wake County argued that Durham's urban streams are "pollution highways right to the lake." Indeed, Ellerbe Creek, which runs through Durham to Falls Lake, is the most polluted stream in the upper half of the Neuse River basin.

Waldroup said that pollution at Raleigh's intake "increased significantly at the end of a drought, or at the end of a major rain event." He said Raleigh had "a pretty defensible hypothesis" that pollution was washing out of the Durham end of the lake.

In an effort to settle the debate over responsibility and pollution levels, the local governments in the watershed are working on a plan to improve long-term monitoring of the lake. Data from that project is expected to inform a reassessment of the rules in 2025. Meanwhile, a lack of usable historical monitoring data on the watershed and a state-mandated deadline for a plan hindered a final answer about the sources of the pollution. The Division of Water Quality had to move ahead with the rules, even if they were imperfect.

"We could sit around for 10 more years and collect data, but you know, there are other drivers behind these things and we have to move forward with the information that we have," Huisman said.

"It's useful to remind people that at some point you do have to act," said Richard Whisnant, professor of public law and government at UNC. "Because you get so much rhetoric about how there are all these new rules coming down, and we didn't anticipate this, and they're surprising us. And a lot of that is just not true. It's just the short-term memory problem."

The rules may not bring the entire lake into compliance with the Clean Water Act, but they are a start. Durham argues that the cleanup will be too expensive; cost is one reason that the state extended the time line for implementation of the rules through 2036, with a clean Falls Lake expected five years later. That 25-year time line, Rindge of WakeUP Wake County said, "is too long, but in this political climate it was the best we could get."

The extended time line provided another benefit to Durham. In a Feb. 18, 2010, work session with the city council and staff members, Karen Sindelar, who was the Durham city attorney and has since retired, said that the time line allowed Durham to ask its legislators to bring up the rules in the General Assembly "every session if necessary" and ask that it "be modified, changed or whatever."

Asked in February if Durham would urge its legislators to weaken or overturn the rules in the General Assembly, Voorhees said, "I don't know that we'll need to do that. I think there are other people that are looking at that."

It's unclear who is looking into overturning all or part of the Falls Lake rules. The public seems to support a clean lake. The General Assembly recently held Joint Regulatory Reform Committee meetings across the state, asking residents for information about legislation that is "outdated, unnecessary and burdensome" and that impedes private sector job creation. Roughly half the people who spoke at the Raleigh meeting on April 21 asked the committee to protect our air and water.

However, the very agency charged with the task of protecting those resources—the N.C. Department of Environment and Natural Resources—is threatened by deep funding cuts. The state budget, now working its way through the Legislature, cuts funding for DENR by 15 percent and the Clean Water Trust Fund by 90 percent, further weakening the state agency's ability to monitor and enforce the rules and pushing more of the burden for the cleanup onto local governments.

Politics, not environmentalism, prevailed during the rulemaking process. Legal and technical advisers from the communities developed a set of principles intended to influence the final rules. While the rules focus on preserving Raleigh's water supply, the principles "didn't totally address the state's water quality standards," said Bill Holman, director of state policy with Duke's Nicholas Institute for Environmental Policy Solutions. "But in some ways it was basically more politically sustainable."

Asked why Raleigh signed on to the agreement with the other governments to weaken the rules, Raleigh Mayor Charles Meeker said that "you've got to be realistic. Durham is in the watershed, just like we are in Goldsboro's watershed, and Goldsboro doesn't expect us not to develop."

But the rules don't end development. Low Impact Development (LID) techniques and other technologies are available that allow development while controlling environmental impact. While developers are concerned that LID will lead to fewer homes and thus, reduced profits per project, it is difficult to see homebuilders in the region as victims. In March, Builder magazine named Raleigh-Cary as the healthiest housing market in the country for 2011. Durham-Chapel Hill ranked third.

LID can save developers and local governments money—and help alleviate the Falls Lake pollution—by reducing infrastructure construction costs 15 to 80 percent, according to a 2007 EPA study. LID also reduces future maintenance costs. Streets built without curb and gutter allow rain to sheet onto the shoulder of the road to be absorbed or to evaporate. Sidewalks installed on only one side of the street reduce costs and runoff.

Durham has cleared the way for implementation of some of these practices and, Voorhees said, is "absolutely open to proposals from developers in that regard and has available pathways for folks to get those kinds of plans approved."

But neither Raleigh nor Durham requires this kind of development.

Inadequate regulation has contributed to the problems with our reservoirs. Upper Neuse Riverkeeper Bierma said that without proper regulations, developers can "build a ton of homes on a small piece of property, do the minimum in terms of stormwater management, 20 years down the line it fails, and we get stuck paying for their benefit."

Fixing Falls Lake is going to take time, a variety of approaches and changed land-use practices. The knowledge to fix the lake is available, said Rindge. "But we need the leaders and vision to follow the steps and get there."

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