Hensley v. North Carolina Department of Environment & Natural Resources

Justice HUDSON

dissenting.

Because I believe that the majority opinion here reaches a result that is contrary to both the letter and the spirit of the Sedimentation Pollution Control Act (Act) and its trout water buffer provisions, I must respectfully dissent.

The central question before this Court is whether, and to what extent, the changes in land along a trout stream are permitted in furtherance of the expansion of defendant Mountain Air’s eighteen-hole graded golf course. Defendants argued, and the majority agrees, that land-disturbing activities including the removal of trees and *296canopy within the stream buffer and the permanent rerouting and enclosure of the stream within a pipe are not prohibited by N.C.G.S. § 113A-57(1). The majority relies on language in that section that allows the Sedimentation Control Commission to approve plans along trout waters “when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal.” Referring to the preamble of the Act, the majority interprets this language as referring not to the use of the land along the stream in general, but only to sedimentation. Based thereon the majority reverses the Court of Appeals and affirms the trial court, holding that the Court of Appeals interpretation was “overly literal.”

The majority asserts that the term “land-disturbing activity” applies only to sedimentation and not to the activity itself. However, the statutory language explicitly provides otherwise when it states:

(6) “Land-disturbing activity” means any use of the land by any person in residential, industrial, educational, institutional or commercial development, highway and road constructions and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.

N.C.G.S. § 113A-52(6) (2009) (emphasis added). The majority simply rewrites this legislative definition, which is not the role of this Court.

I do not agree that the provisions of N.C.G.S. § 113A-57(1) apply only to the period of construction and am of the opinion that the majority in the Court of Appeals interpreted this statute exactly as the General Assembly intended. While the preamble to the statute does indicate that the overall purpose of the Act was to allow development to proceed around the state, it also notes that the General Assembly specifically intended to create a program to minimize the harmful effects of sedimentation pollution. As pointed out by plaintiffs and their amici curiae, the trout water protection provisions were advanced by legislators from the western part of the state, where such waters are located, in order to provide enhanced protection for such waters. The Administrative Law Judge who first issued an opinion in this case agreed, and noted that “prohibition of development in trout stream buffers is exactly the intent of the statute,” with the narrow exception for activities that are temporary, with minimal disturbance.

The majority has turned those protections upside down by its decision today. While criticizing the Court of Appeals majority for *297“effectively reading] the variance provisions . . . out of the Act,” the majority here instead reads the trout water protection provisions out of the Act. My reading of the statutes and the arguments here leads me to conclude that the General Assembly did indeed intend to restrict development within the twenty-five-foot trout water buffer, while providing ample opportunity for construction of all manner of edifices nearby, even allowing for the buffer area to be disturbed during construction, as long as the disruption is temporary and minimal. Here the project will permanently destroy trees and canopy along the watercourse and will reroute and enclose in a pipe the watercourse itself. These alterations are neither temporary nor minimal. I would affirm the Court of Appeals on this issue.