Are feds 'pimping' mussel?

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By Jenny Hartley

Lancaster County Council members likened proposed regulations on how to deal with an endangered mussel to living in a police state and extortion.

Council debated a resolution concerning the Carolina heelsplitter during its first meeting of the year Monday night.

The county is considering establishing a special zoning district called an overlay to protect the heelsplitter in the booming Indian Land area. About 7,800 acres of property is proposed for rezoning in the district.

A committee of county officials, property owners and developers helped draft a resolution that proposes stream buffers up to 200 feet and other requirements in the overlay district to deal with the heelsplitter, which was found by an engineering firm in Indian Land's Six Mile Creek in March 2006. The mussel is protected under the Endangered Species Act of 1973.

The resolution also includes a formula to calculate how much money developers would pay a conservation bank to breach those buffers in their projects. The formula is based on the square footage of a development, distance to the stream and how much hard surface is included. Hard surfaces, referred to in the resolution as "impervious surfaces," help create runoff into streams.

The money developers would pay to breach the buffers would be used to buy land for conservation of the heelsplitter in the Flat Creek area of the county.

U.S. Fish and Wildlife biologist Lora Zimmerman said council's approval of such a resolution would mean local guidelines would be in place on how to deal with the heelsplitter and developers wouldn't have to go to the Fish and Wildlife Service each time a development is proposed.

Council has discussed following the resolution with an ordinance later this year.

On Monday, council decided to delay the vote on the proposed resolution for three weeks.

But is council just delaying the inevitable?

"The county has to do something to meet the requirements of the Endangered Species Act," County Planning Director Chris Karres said Wednesday. "The overlay (district) may be the simplest way to address it with the least impact on development."

Several projects, including a Westport Homes housing development of 500 homes and townhomes and Lauth Property Group's Southgate office park, have been delayed, Karres said.

Public hearing debate

Councilman Fred Thomas took aim at the U.S. Fish and Wildlife at Monday's meeting.

He said the proposed regulations make it sound OK for development to continue around Six Mile Creek - which will further endanger the heelsplitter - as long as developers are willing to pay for it. Freshwater mussels are sensitive to construction runoff into streams.

"I haven't heard anybody say this is full of crap, which I do," Thomas said. "It appears U.S. Fish and Wildlife is pimping the heelsplitter."

Council members Wesley Grier and Larry Honeycutt criticized the plan, too.

"To me, this borders on extortion," Grier said.

Honeycutt said it's like the county is operating in a "police state" under the Fish and Wildlife Service.

County Administrator Steve Willis said the plan isn't ideal, but the county has to take some action.

"I don't think it's the best thing since canned beer and sliced bread, but (without regulations) development could come to a screeching halt," Willis said.

Council members questioned the number of heelsplitters - nine - found in Six Mile Creek between Jim Wilson Road and the North Carolina line.

Zimmerman, a mussel biologist, told council that while only nine were found during a survey, more were likely burrowed into the streambed.

Fish and Wildlife last checked the creek in summer 2006.

Affected by drought?

Council members asked how the severe drought of 2007 could have affected the mussel in Indian Land.

"The drought certainly is going to compound the endangerment of this species throughout its range," Zimmerman said. "It's my opinion that while the drought may have stressed them, it's not enough to cause mortality.

"I feel your pain, I honestly do," Zimmerman said, reminding council that the heelsplitter is a protected species.

"If the animal is so important, why does money give you the right to kill it?" Thomas asked.

That money would be used to support and conserve a much more viable, reproducing population in the Flat Creek area, Zimmerman said.

The property bought by the proposed conservation bank would eventually be in possession of the Katawba Valley Land Trust or S.C. Department of Natural Resources, not Fish and Wildlife.

Fish and Wildlife has nothing to do with setting the price for the land bought for conservation. That depends on fair-market value, Zimmerman said.

New study?

Thomas suggested that developers waiting to start projects in the Six Mile Creek basin should pool funds for a study to see whether the mussel is still in the creek.

Zimmerman said such a study would likely cost about $10,000, and while she said she'd welcome new information, she didn't think it would be a wise expenditure.

She said it was "99.5 percent" likely that the heelsplitter remains in the creek. And because the creek is a known habitat for the heelsplitter, it's likely there would still be regulations to protect the creek because the mussel is protected under a federal act.

"No vote of council or opinion of mine can change that," Zimmerman said.

Developers address council

Developer Bailey Patrick, who owns 163 acres in the basin, said he'd be willing to help fund a study. He said the proposed buffers present a "tremendous hardship" when it comes to setting a development's density.

Gary Reader of Lauth Property Group, which wants to develop the Southgate office complex along U.S. 521 in the creek basin, said he isn't sure if his company could wait while another study of the creek is done.

He said while he personally doesn't have an opinion on the resolution, "we have been patiently waiting for Lancaster County Water and Sewer District to bring sewer up 521."

Zimmerman said with the resolution, LCWSD could move forward in building a sewer line in the creek basin.

"Obviously, we're interested in protecting the environment as much as anyone," said LCWSD Manager Mark Knight.

He said the district supports the resolution because it allows the utility to move forward with providing service.

Zimmerman has told LCWSD officials that the utility will not get a permit to install sewer lines if nothing is done by the county to address the heelsplitter.

Councilman Wayne Kersey, said council had ridden "this old horse to death." He wanted to pass the resolution Monday night.

Instead, council voted 5-1, with Kersey opposing, to adjourn debate. The resolution will come up again for a vote at council's Jan. 28 meeting.

"Yes, it may just be a critter this big and you may have never heard of it," Zimmerman said at the end of the discussion. "But this critter is an indicator of water quality. Remember this critter is living in your drinking water, it's living in the water you recreate in, it's living in the water where your kids are catching tadpoles."

Contact Jenny Hartley at 283-1151 or jhartley@thelancasternews.com