KLPW – Water Safety

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The water is coming down at Kerr Lake! As of the last hour, the lake is at 304.76 feet above mean sea level. The normal full pool level is 300 feet.

There are still some boat ramps, campsites, public areas and local roads affected, so if you are in doubt, call your local public agency in charge of the public area you plan to visit, being either the US Army Corps of Engineers, North Carolina State Parks or Virginia State Parks.

Recent rain from Hurricane Matthew brought Kerr up to 307.5 ft. (7.5 ft. into the flood pool). Inflows into Kerr are averaging 35,000 cfs from the storm over the last 7 days (peak hourly inflow close to 90,000 cfs). So there were inflows into Kerr that would support the maximum flood release of 35,000 cfs allowed under our revised flood operations (QRR) or Quasi-Run-of-River.  However, in consideration of the recent rain and flooding along the lower Roanoke (2 significant events in 2 1/2 weeks), The Corps did not raise declared releases from Kerr during the past two weeks, but has now made significant release increases to bring the lake level back close to the normal or guide curve.

“We supported the Corps using Kerr Lake for one of its main intents, that of flood control,” said Public Affairs Lead for Kerr Lake Park Watch, Frank Timberlake, adding, “Those people downstream in North Carolina did not need more water until their flood waters subsided to a good degree.  We think the Corps used best management practices to their best on this pretty horrific weather event.”

Timberlake added, “We at Kerr Lake Park Watch want to remind people, especially boaters that with high water often there comes what we call floaters in the water, trees and debris.  All lake visitors returning to Kerr should have a watchful eye on the water for such.”

Kerr Lake is expected to be fully recovered by this coming weekend.


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Kerr Lake Park Watch received this Nutbush area photo taken earlier today by Kerr Lake Park Watch member Kathy B.  The morning clouds eventually moved over for some last of the summer sunshine.

0829160714_HDR (2) nutbush 8-31-16 kathy biset

Be safe, especially this coming Labor Day weekend when a lot more boaters will be out; and so will law enforcement.

The N.C. Wildlife Resources Commission and its partners conclude their “On the Road, On the Water, Don’t Drink and Drive” campaign this Labor Day weekend. Starting Friday, drivers and boat operators across North Carolina may encounter sobriety checkpoints or increased enforcement patrols to help deter impaired operation of vehicles and vessels.

The annual multi-agency initiative works to ensure everyone can travel safely on the road and on the water during summer holidays. In North Carolina, a driver or boat operator with a blood-alcohol concentration that meets or exceeds .08 is subject to arrest.

“We want to remind everyone to be careful while they enjoy the holiday weekend,” said Lt. Sam Craft with the Wildlife Commission. “Impaired driving has dangerous consequences for motorists and boaters alike. No one wants to end their summer with an arrest or an accident.”

The “On the Road, On the Water, Don’t Drink and Drive” campaign is coordinated by the Wildlife Commission, State Highway Patrol and Forensic Tests for Alcohol, and supported by the U.S. Army Corps of Engineers, U.S. Coast Guard and local police and sheriff’s offices, along with participating non-governmental organizations, such as Mothers Against Drunk Driving.

Especially if you’re visiting the North Carolina recreational area, or the Virginia side too, take time to stop and thank a ranger or park worker.  It’s the 100th anniversary of NC State Parks and never a better time to be thankful then when using the resources.


Happy Labor Day from Kerr Lake Park Watch!


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The water is receding along the shores of Kerr Lake, hitting a high at a little over 305 feet above mean sea level, with full pool normal being at 300 ft.  This morning the water, which is rapidly receding was less than 304.5 ft.

That said, US Army Corps of Engineers reports no significance loss of campsite use due to water as does Virginia State Parks.  The seven NC State Recreation Areas are closer to the water with less sloping, so a few campsites are impacted by the two weather systems that dumped huge amounts of rain into Kerr Lake and its sister systems.  So only a few exception campsites are covered by water which makes it a great weekend to camp at Kerr.

10-9-15 hibernia water
Photo of a few water covered sites by Kerr Lake Park Watch – October 9, 2015

In their Tuesday meeting, US Army Corps of Engineers staffers told their stakeholders and affiliates that managing the flow through during this weather event has been taxing, ” I haven’t resorted to antacids, but those of us involved have lost some sleep.” said Ashley Hatchell, a water resource manager with the Corps.  The system got pounded by two wet weather systems with Hurrican Joaquin off the shore of North Carolina.

Kerr Lake USACE Project Manager Michael Womack sent Kerr Lake Park Watch some charts for campgrounds, boat ramps and more and how they are impacted at various water levels over 300 feet.  “Most of the numbers were compiled based on visual observation and discussion with the managing entities,” said Womack.

It would be a good idea for you, as a Kerr Lake user, to review these charts.  Many campers observe the lake level and make records and know whether to visit their favorite site or not based on water levels.







MARINAS (Prepared before Rudd’s Creek Marina was built)


Posted in: KLPW - Boating and Related Improvements, KLPW - Campground Facilities and Improvements, KLPW - US ARMY CORPS OF ENGINEERS, KLPW - WATER RELATED, KLPW - Water Safety

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Most campers and folks out for a picnic at Kerr Lake also enjoy some form of boating or jet-skiing.  Thankfully, there are not to many accidents to report, but near misses due to things like texting, not paying attention, and not following boating rules, are increasing.  Daily Dispatch reporter Sarah Mansur caught up with Frank Timberlake, Lead Public Affairs for Kerr Lake Park Watch to get his views on Kerr Lake boater safety.  Here’s a scan of the story.  BE SURE TO CLICK ON PIC TO ENLARGE TO READ.


Aug 2015 - Hen Daily Disp - Water Safety at Kerr


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PUBLIC COMMENT ON THE IBT  or water transfer from Kerr Lake can still be made through April 30th.  You may simply send an email with your views to: kim.nimmer@ncdenr.gov.

Below are the three goals of the Kerr Lake area group, Preserve Our North Carolina Lakes Community and the message points that the group, the RRBA, KLPW, the Sierra Club and other groups all hope that citizens will use in their comments.


Your email should speak to the proposed Interbasin Transfer (IBT) Certificate for the Kerr Lake Regional Water System.  NCDENR will be accepting comments regarding the proposed certificate through April 30, 2015.  All comments received will be part of the public record, and will be included along with responses prepared by NCDENR as part of the Hearing Officer’s Report to the NC Environmental Management Commission.

The Environmental Management Commission is the decision-making body for the proposed IBT certificate.  NCDENR anticipates the final determination will be made at the Environmental Management Commission’s July 9th meeting.

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It’s the 11th hour for Kerr Lake and the fast track, bulldoze effort against the citizens of Granville, Vance & Warren as the NC House meets tonight to push through HB 795 which nulls and voids petitions, public outcry and all the other rules that were previously changed to eliminate public scrutiny of the 10-million gallon interbasin transfer of water from Kerr Lake to Franklin County and beyond. “We say, the action of the water transfer is legal, but it is certainly not ethical as I mentioned in a citizen grassroots meeting in Henderson Thursday night, and as far as the actions of the General Assembly, I am not sure passing laws to keep the public’s legal right of review in itself is legal, and if those actions like tonight’s quick almost secret vote on HB 795 are legal, they shouldn’t be,” said KLPW’s Frank Timberlake. “I’ve never seen government work its tail off to push the public’s constitutional rights away. Where the hell is the ALCU and the NAACP? Why are they standing still for these poor counties to get thrashed by big money and politics like this?” Industries in Franklin County told Governor McCrory they must have water or they will move, and the Governor then told the secretaries of the Departments of Commerce and DENR that getting the Interbasin Transfer must occur in a hurry and to get legislators “to do what they have to do” to make it happen. Timberlake added, “We told the City of Henderson people the other night that they ought to slow the process and give consideration to having a full Environmental Impact Statement. They had no response.” “With a void of 31 percent of the capacity of Falls Lake when it was built, what should be done is a new higher dam with a highway across it that should be put at Falls Lake and there’s the Triangle’s water for the next 50 or 60 years. But you won’t hear a Triangle official recommend that,” added Timberlake. Unless Representative Nathan Baskerville and Senator Angela Bryant, neither who can be found, NC Attorney General Roy Cooper, or some judge intervene on behalf of the citizens of those counties and the group, “Preserve Our North Carolina Lakes Community” the NC General Assembly will quietly pass HB 795 tonight and allow no public comment or input. The lake preservation group is now attempting to ask the US Justice Department to intercede. One of the “ordinary citizens” working to keep Kerr Lake’s water from being taken by the KLWRS (City of Henderson) and selling it for profit outside the three county area is farmer John Hyson who sent out this urgent message this morning, “Thank you for attending the public meeting or signing a petition about what is being done to our lake. Congratulations.  They have heard our voices, because they are now trying to pass more legislation in a night session today to revise the rules yet again – even before our April 30 deadline.   They have decided to re-write some of what they sneaked through last November to now say any Inter Basin Transfer under 20 Million Gallons per Day can now be done with the stroke of a pen.   (HB795 to pass GS113A-4{2A}). The trick is that one sentence, “The failure of that agency to provide comments….”   Passed by default!  No Environmental Impact Statement.   No announcement to the public, much less public hearings.  No economic review. They have also devised this bill so that there is no public input allowed on this bill itself.   The Sierra Club which has been active for 44 years in partnership with our Legislature was told they could have only one minute to speak about the potential damage of these changes. We have got to stop this House Bill #795!  Please take the time today to call/email our representative/senator to ask them to please support our poor counties versus the rich.  Ask them to get more information before they vote.  Do not neglect Tier One Counties.  Do not cancel Environmental Impact Statements from DENR review.” Hyson added the contact info for legislators: Angela Bryant            919-733-5878    Angela.Bryant@ncleg.net Nathan Baskerville    919-733-5824     Nathan.Baskerville@ncleg.net   Please also call the sponsors of this bill, all from Tier 2 Counties! John Torbett {Gaston}        919-733-5868   John.Torbett@ncleg.net Mike Hager  {Burke}           919-733-5749   Mike.Hager@ncleg.net Chris Millis  {Onslow}          919-733-9664   Chris.Millis@ncleg.net   The gist of all of this is that the government of the State of North Carolina being the Governor and the General Assembly, for selfish reasons, maybe possible gain, have denounced the legal rights of the citizens of Granville, Vance and Warren Counties and have damned the voice of the citizenry. Is there not one person who knows a judge who will emerge from the third branch of the government to help those people and all of us who try to help Kerr Lake? Tick, tick, tick….

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They are not public speakers.  They are not tree huggers.  They are ordinary citizens, who farm, nurse, teach, promote Vance County, build houses and on and on, just citizens whose voices have been muffled as they try to slow precious water being taken from their homeland and sold for profit to more populous and thriving areas.  They want to be heard, they want their area around Kerr Lake to grow and prosper.  That’s it.

One must wonder who stifled the media coverage of a citizen’s group effort in Henderson last night. Ordinary folks are trying to slow a government-pushed fast track push to send Kerr Lake water outside of its service area.Those of us with Kerr Lake Park Watch saw WRAL extensively interviewing a City of Henderson official, and then, leave. KLPW’s Frank Timberlake was a speaker last night and sent his opinion to WRAL’s Adam Owens.

“Adam Owens – YOU DIDN’T EVEN STAY FOR THE MEETING! Yours is pitiful coverage of the Kerr Lake Water Withdrawal dilemma. You interviewed the bureaucrat and left. It’s not a debate. It is a battle of citizens against bureaucracy. It is the City of Henderson for profit, and the State of North Carolina for Tier 3 growth, trying to circumvent the intent of the law and to railroad through the Interbasin Transfer of 10 million plus gallons of Kerr Lake water to Franklin County and Raleigh, leaving the potential growth water for Granville, Vance and Warren Counties depleted. Understand that the City of Henderson gets over $2 million dollars a year for the water it now sells Franklin County, but Henderson spent nearly half a million building a pipeline to Franklin County, yet the west side of Kerr Lake doesn’t have any of the KLWRS’s water.

More facts…

The truth is those 60 or so people last night at the Vance County Commissioners’ Room are trying to get signatures to stop the State of North Carolina’s DENR Division of Water Quality to approve the withdrawal, a process that was kept quiet and reduced from holding 3 public hearings to 1 and from advertising in 47 papers to 3 and the one used to promote the process to inform Vance, Granville and Warren citizens was the Mecklenburg Sun in Clarksville, VA, go figure.


So the band of citizens you left early last night are left with a half-ass story and must get petitions signatures without any strong media help, they must call their legislators and push not to stop the water transfer, but to halt it long enough for any Environmental Impact Study to be properly completed. Then they must decide if their citizen group, “Preserve Our North Carolina Lakes Community” along with the RRBA will take legal action.


All this is about supplying water to Franklin County whose big industries have pulled Governor McCrory’s strings and said, “More water or we go.” For the people in the Kerr Lake area, once the water is sent elsewhere, the pipe will never again be cut off. The people of Vance, Warren and Granville look sadly down at the greedy City of Henderson which operates the Kerr Lake Water Resource System and say to all, “Let them build and expand their businesses here.”

If you want more info from the people and ordinary citizen side, go to the website www.Ej-pp.org. WRAL’S story says there’s a July deadline. The real deadline to stop the water sale and transfer is April 30th, only six days.

Adam, your excuse for leaving early as the group’s leaders begged you to stay, was that you needed some video of the lake. How many hours of B-roll video of Kerr Lake does WRAL have?

I fully expect to see you named as one of the Governor’s spokespeople. That’s what happens to reporters when they lose their objectivity.”

Understand that we at Kerr Lake Park Watch are as much opposed to the fast track approach and rule bending as we are the lack of an Environmental Impact Study being performed. Governor McCrory told us that he would cut red tape but he did not mention that he would lead the effort to circumvent the law or have the laws changed to make that happen, lessening citizen involvement.

It’s your lake up there, take it back or lose it.

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The US Army Corps of Engineers has clarified its position to Kerr Lake Park Watch on water withdrawal from Kerr Lake by KLRWS, saying that the allocation including the 10 million gallons of water per day, was approved years ago.

After KLPW asked about the allocation in yesterday’s Corp of Engineers’ water resource meeting, Tony Young, Water Management for the Corps’ Wilmington District gave KLPW an answer to ‘why this is not a Corps’ issue, “The City of Henderson has had a water use/storage agreement with the federal government dating back to the mid-1970s, allowing withdrawals up to 20 million gallons per day (MGD) from Kerr Lake. In 2006, that water-use agreement was converted to a water-storage agreement following a detailed study. That study took into account that most of the water use would be consumptive (i.e., not returned to Kerr Lake) and evaluated the impacts of a 20 MGD withdrawal (with no return) on lake levels, power generation, and other project purposes. The proposed interbasin transfer by the Henderson/KLRWS does not involve any additional storage or increased withdrawals above and beyond those already taken into account in their current water storage agreement with the Corps. Therefore, there is no federal action required on the part of the Corps, as Henderson is not requesting a change to their existing storage agreement. Requests for interbasin transfers are processed and approved or denied at the state level.”

Gene Addesso, President of the Roanoke River Basin Association, resounded the fact, “Unfortunately Frank, the Corps has already, (years ago) allocated water supply to the City of Henderson, which is in the basin, (20 mgd per day), which is enough to cover the IBT. The Corps is not involved in the IBT.”

“It is a State of NC issue. Allocation does not approve or disapprove an IBT. The problem resides with the KLRWS selling water out of the Basin and NC allowing it, if they do.”

Addesso went on to provide Kerr Lake Park Watch with a more refined statement of why the RRBA and others want the process slowed down, if not halted. The following is an upcoming RRBA newsletter explanation of the organization’s stance:

Kerr Lake Regional Water System Inter-Basin Transfer Request

RRBA Comments

The Duke Environmental Law & Policy Clinic has been working with the Roanoke River Basin Association on comments regarding the Kerr Lake Regional Water System’s (KLRWS) proposed inter-basin transfer (IBT) project. The KLRWS seeks to increase the transfer of water from the Roanoke River basin to the Tar River, Fishing Creek and Neuse River basins from the grandfathered amount of 10 millions of gallons per day (mgd) to a total of 14.2 mgd by 2045 in order to meet projected future water demands in the receiving areas. In January 2015, KLRWS submitted an environmental assessment to the Division of Water Resources, which issued a Finding of No Significant Impact, thus forwarding the project to the public comment stage.

The Duke Law Clinic has found that the Division of Water Resources incorrectly allowed for an environmental assessment (EA) to be conducted instead of a more complete environmental impact statement (EIS). In North Carolina, any IBT above 2 mgd requires certification by the Environmental Management Commission and any major river basin transfer requiring such certification mandates an EIS. An EIS would include a comprehensive analysis of direct, secondary and cumulative impacts resulting from the transfer, such as to the 9 threatened and endangered species (Atlantic Sturgeon, Roanoke Logperch, Southern Bog Turtle, Dwarf Wedgemussel, James Spinymussel, Tar River Spinymussel, Small-anthered Bittercress, Small Whorled Pogonia and Smooth Coneflower) that are found in the source or receiving basins. On the contrary, the approved EA lacked any such concrete analysis supporting its claim of no significant impacts. The Clinic and RRBA board are thus preparing their final comments on the project (due April 30th), officially opposing the IBT until a proper EIS is performed.

On behalf of the RRBA

By: Emily Blanchard

Duke Environmental Law and Policy Clinic


The CORPS says it’s already approved. The ROANOKE RIVER BASIN ASSN says allocation is not the issue: Selling water to outside of Roanoke River Basin and bypassing/misusing the rules are the issues.

Our questions: Should the Corps of Engineers rethink their Kerr Lake allocations if LOCAL authorities are going to sell off water to other areas?

Is the Kerr Lake Regional Water Resource System setting up the Vance-Warren counties for a local water depletion later on for the quick buck now?

There is a meeting tomorrow night organized by the “Preserve Our North Carolina Lakes Community” at the Vance Commissioners’ Room at 122 Young Street in Henderson. It starts at 6:00PM.

You can go or not. You can get involved or not. But once you give it away, you cannot get it back.

Just ask any Indian.


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Roanoke River Group Says “It’s Against Riparian Rights” To Take Water From Kerr and Send to Raleigh and Elsewhere

Although the group, Roanoke River Basin Association (RRBA), is working on a layman’s version of its opposition to the withdrawal of large amounts of water from Kerr Lake by the Kerr Lake Regional Water System to sell and send to Raleigh and other locations, Kerr Lake Park Watch is compelled to release the RRBA’s legal response to the proposal.

In supporting Deborah Ferruccio’s emergency meeting to get local citizens to help thwart approval of the plan, RRBA president Gene Addesso said, “Read our legal response to DENR on the KLWRS IBT Request at your emergency meeting.  The RRBA will be taking a position of opposing the transfer by April 30th.   Added points are:

1) The basis for just an EA and the FONSI is a flawed amendment to the IBT Statute and is illegal.

2) The Public Hearing conducted was not done according to the rule of the statute.

3) The request as presented is out of date and in error. E.G.  water being sold to Creedmoor by Oxford. “

That reference to Oxford’s plan is when an Oxford city employee suggested that Oxford might pay for all its water system and equipment by buying extra Kerr Lake water and selling around the Triangle. That plan was earlier thwarted.

The emergency meeting of the Preserve Our North Carolina Lakes Community is Thursday night, April 23 at 6:00 PM at the Vance Commissioners’ Room, 122 Young Street in Henderson.

AS A PUBLIC SERVICE, Kerr Lake Park Watch presents in its entirety the legal response by the Roanoke River Basin Association to increased water withdrawal from Kerr Lake.


Environmental Law & Policy Clinic                                         Ryke Longest, Director

Box 90360                                                                                     Telephone: (919) 613-7169

Durham, NC 27708-0360                                                              Toll Free: (888) 600-7274

Fax: (919) 613-7262

February 20, 2015

Harold Brady

DENR-Division of Water Resources

Planning Branch

1611 Mail Service Center

Raleigh, NC 27699-1611

By fax (919) 733-3558 and

e-mail to: harold.m.brady@ncdenr.gov

RE: Environmental Assessment of Proposed KLRWS Interbasin Transfers Dear Harold,

On behalf of the Roanoke River Basin Association, we submit the following comments regarding the environmental document submitted by Kerr Lake Regional Water System and the responsive document issued by Tom Fransen, “Finding of No Significant Impact,” and submitted to the North Carolina’s Department of Administration for review in the Clearinghouse. In that notice, your office directed that comments regarding the environmental document be directed to you by February 20, 2015. Based upon review of the materials presented as well as readily available peer-reviewed literature, this document does not adequately meet the requirements of the North Carolina Environmental Policy Act.

Please note that these comments, while critical of the documents prepared and the FONSI which resulted from them, are not directed at the substance of the request presented. RRBA has a long history of holding state and federal agencies accountable for thoroughly analyzing the impacts of transfers of water from the Roanoke River Basin. Pointing out the deficiencies in the supporting documents does not necessarily indicate RRBA’s ultimate opposition to the underlying request, as these are separate and distinct issues.

  1. This IBT Proposal Should have Triggered the Preparation of an Environmental Impact Statement not an Environmental Assessment

In North Carolina, Inter-Basin Water Transfers (“IBTs”), or large surface water transfers between river basins, are regulated by the Environmental Management Commission (“EMC”) under General Statute § 143-215.22L. This regulation requires that all proposed IBTs exceeding 2 million gallons per day (“mgd”), calculated as a daily average of a calendar month and not to exceed 3,000,000 gallons per day in any one day, first require EMC certification and approval. Certification is additionally required for

February 20, 2015 Page 2

water transfer increases by 25% or more above the average daily amount during the period between July 1, 1992 and July 1, 1993, and for increases to transfers permitted pursuant to N.C. Gen. Stat. §162A-7. This law requires an environmental impact statement be prepared for every proposed transfer of water from one major river basin to another for which a certificate is required.

The first step in the certification process is the Notice of Intent (“NOI”) to file an IBT Petition. In February 2009, the Kerr Lake Regional Water System (“applicant”) submitted a NOI to Request an IBT Certificate to the EMC. The proposed project, as revised in 2014, will transfer 14.2 mgd, calculated as the average day of a (maximum) calendar month, from the Roanoke River IBT basin to the Tar River (10.7 mgd), Fishing Creek (1.7 mgd), and Neuse River (1.8 mgd) IBT basins. According to the applicant, this transfer volume represents the projected 2045 demands of the existing customer base and anticipated growth of the service area. The applicant has a current “grandfathered” IBT of 10 mgd, calculated as a maximum day, which is equivalent to 9.7 mgd, calculated as the average of a calendar month.

Then, the EMC shall conduct a study of the environmental impacts for the proposed IBT. The law provides that

“The study shall meet all of the requirements set forth in N.C. GEN. STAT. 113A-4 and rules adopted pursuant to N.C. GEN. STAT. 113A-4. An environmental assessment shall be prepared for any petition for a certificate under this section. The determination of whether an environmental impact statement shall also be required shall be made in accordance with the provisions of Article 1 of Chapter 113A of the General Statutes; except that an environmental impact statement shall be prepared for every proposed transfer of water from one major river basin to another for which a certificate is required under this section.”

See N.C. Gen. Stat. §143-215.22L(d) (emphasis added).

According to law, every IBT from one major river basin to another requires an Environmental Impact Statement (“EIS”). The source and the receiving river basins of the proposed project are within the seventeen “major river basin” of North Carolina. N.C. GEN. STAT. §143-215.22G(1). For this reason, we maintain that an EIS should have been prepared for this proposal, rather than an Environmental Assessment as the document was captioned.

Any EIS produced in compliance with this section must include:

“(1) A comprehensive analysis of the impacts that would occur in the source river basin and the receiving river basin if the petition for a certificate is granted.

February 20, 2015 Page 3

  • An evaluation of alternatives to the proposed interbasin transfer, including water supply sources that do not require an interbasin transfer and use of water conservation measures.
  • A description of measures to mitigate any adverse impacts that may arise from the proposed interbasin transfer.” See N.C. Gen. Stat. §143-215.22L(d)

Also, IBT certificate applicants are subject to the general EIS requirements of SEPA (N.C. Gen. Stat.§ 113A 4), which is supplementary to the requirements of other statutes. One of the enumerated purposes of SEPA is “to require agencies of the State to consider and report upon environmental aspects and consequences of their actions involving the expenditure of public moneys or use of public land.” See N.C. Gen. Stat. § 113A-2. SEPA’s provisions “provide a mechanism by which all affected State agencies raise and consider environmental factors of proposed projects.” In re Environmental Management Com. etc., 53 N.C. App. 135, 141 (N.C. Ct. App. 1981) “The primary purpose of both the state and federal environmental statutes is to ensure that government agencies seriously consider the environmental effects of each of the reasonable and realistic alternatives available to them.” Orange County v. North Carolina Dep’t of Transp., 46 N.C. App. 350, 383 (N.C. Ct. App. 1980).

To effectuate SEPA’s stated policy, the General Assembly restricted state agency actions by imposing procedural requirements. SEPA’s procedural requirements were supplemental to any other requirements set by law. The General Assembly recognized that absent procedural requirements, agencies could not be held accountable by the people, who hold the rights. The very caption of this section of SEPA explains its purpose: “Provisions Supplemental.” As the law provides:

“The policies, obligations and provisions of this Article are supplementary to those set forth in existing authorizations of and statutory provisions applicable to State agencies and local governments. In those instances where a State agency is required to prepare an environmental document or to comment on an environmental document under provisions of federal law, the environmental document or comment shall meet the provisions of this Article.”

See N.C. Gen. Stat. § 113A -10.

SEPA has provisions specifying when an environmental document is not required. There is a list of actions which are exempted from coverage. Had the General Assembly intended to allow the state agency to not prepare a document when a federal document was being prepared, it would have added that to the list found in SEPA. See N.C. Gen. Sta. § 113A-12 (List of exempted actions, like water lines, shellfish leases and driveway connections to public roads).

Thus any IBT related environmental document prepared for EMC review of an IBT request must also address these standard issues:

“(a) The environmental impact of the proposed action;

February 20, 2015 Page 4

  • Any significant adverse environmental effects which cannot be avoided should the proposal be implemented;
  • Mitigation measures proposed to minimize the impact;
  • Alternatives to the proposed action;
  • The relationship between the short term uses of the environment involved in the proposed action and the maintenance and enhancement of long term productivity;
  • Any irreversible and irretrievable environmental changes which would be involved in the proposed action should it be implemented.” See N.C. Gen. Stat. § 113A-4

For this reason, we contend that the submitted “Environmental Assessment” does not satisfy the requirements of North Carolina’s law. We recognize that the Division and the applicant appear to be operating under the assumption that a section contained in last year’s regulatory grab bag bill supports their decision. See N.C. Sess. Law 2014-120, Section 37. This change in the law, does not exempt all IBTs from bi-state Army Corps of Engineer’s reservoirs from SEPA. Rather the section states that an EIS isn’t required “unless it would otherwise be required by Article 1 of Chapter 113A.”

While current proposed IBT is significantly smaller than the originally proposal, the “preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum.” Sierra Club v. United States Dep´t of Transport, 753 F.2d 120 (D.C. Cir. 1985) (Describing extraordinary measures taken by Agency to reduce all impacts of noise from larger aircraft using Jackson Hole Airport). The Applicant has not demonstrated that it has included extraordinary measures to reduce impacts to a minimum. Rather the applicant only supposes that since no new construction will be directly required by the IBT, there will be no impacts from the IBT.

The reduced scope of the request is direct proof that applying complete SEPA review to IBT requests works as the drafters intended. By assembling better information on the actual water supply demand, the proposal now more accurately represents projected demand. While many water supply infrastructure construction related impacts have been avoided, the development growth fueled by the new water supply has not been evaluated at all.

SEPA’s reason for existence is to cause agencies to examine the environmental impacts before they make a decision. Like the National Environmental Policy Act (“NEPA”), the SEPA statute is aimed to produce better decisions and to arm citizens with procedural tools to hold agencies accountable for making those decisions transparently. The predicate for requiring an EIS is the significance of the potential environmental impacts. Until and unless an agency studies the impacts and reports their study the public cannot be satisfied that the agencies are seriously considering the environmental effects of each alternative available to them. Orange County v. North Carolina Dep’t of Transp., 46 N.C. App. 350, 383 (N.C. Ct. App. 1980).

February 20, 2015 Page 5

Even if the decision to do an EIS instead of an EA was discretionary, it is clear that an IBT of this size would trigger the requirements of N.C. Gen. Stat. § 113A-4. The General Assembly itself has declared the importance of all issues involving the allocation and use of waters within the Roanoke River Basin, especially as they relate to Kerr Lake. “The State reserves and allocates to itself, as protector of the public interest, all rights in the water located in those portions of Kerr Lake and Lake Gaston that are in the State.” See N.C. Gen. Stat. § 143-215.22B. Thus these water rights are state property and their use and allocation are subject to protection by the North Carolina Environmental Policy Act, above and beyond the statutory minimum provisions set forth in N.C. Gen. Stat. §143-215.22L.

  1. This Environmental Document was Inadequate to Support a Finding of No Significant Impact

To support a Finding of No Significant Impact (“FONSI”), we expect to see analysis of all the direct impacts of the proposal as well as the cumulative and secondary impacts of the proposal itself. Major secondary impacts of this proposal were not analyzed, creating undue segmentation of the analysis and major gaps. The North Carolina Environmental Policy Act requires that agencies take a hard look before making a decision on a proposal. The “hard look” doctrine indicates:

“What constitutes a “hard look” cannot be outlined with rule-like precision. At the least, however, it encompasses a thorough investigation into the environmental impacts of an agency’s action and a candid acknowledgment of the risks that those impacts entail. See Robertson, 490 U.S. at 350, 109 S.Ct. 1835 (agencies must assure that “the adverse environmental effects of the proposed action are adequately identified and evaluated”); Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir.1999) (Hughes River II ) (same); 40 C.F.R. § 1502.14(a) (agencies shall “[r]igorously explore and objectively evaluate all reasonable alternatives”) (emphasis added)”.

Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir. 2005)

According to this doctrine, this environmental document does not provide such a hard look. The following examples support our contention.

The Water Treatment Plant (“WTP”) expansion’s potential impacts on wildlife were not discussed in section 5. Construction expanding the WTP’s capacity to 20 mgd depends on the approval of this IBT request. Lack of construction in this proposal is cited as the reason behind the conclusion of no direct impacts on species, yet no details are provided as to any ramifications of the WTP expansion-related construction (section 2.1). Further, these expansions will also certainly spur growth and development and the secondary impacts of this development are not assessed at all. No discussion of the impact of “smaller water line construction” or its impacts on species is provided in section 5.

February 20, 2015 Page 6

Analytical evidence and sufficient discussion are lacking throughout section 5 to support the conclusions that there are no impacts on federally listed species (sections 5.12 and 5.13). The conclusions of no direct impacts or no significant secondary and cumulative impacts are made without supporting information behind the claims. For example, although 5.12.1 states that no significant changes will occur in lake elevation, lake and basin hydrology, or water quality in the source basin, there is no data provided as to which levels are considered significant for the involved species. Secondly, in section 5.12.2, minimal impacts to water quality and sensitive species aquatic habitat in the Tar River basin aren’t further defined or explored. As a third example, section 5.13.1 fails to include any consideration of downstream effects on species in the source basin. Analysis in sections 5.12 and 5.13 do not specifically address the endangered and threatened species present including: Atlantic Sturgeon, Roanoke Logperch, Southern Bog Turtle, James Spinymussel, Dwarf Wedgemussel, Tar River Spinymussel, Small Whorled Pogonia, Small-anthered Bittercress, and Smooth Coneflower that are discussed in 4.12 and 4.13.

In addition, the statement that “water quantities needed to protect aquatic habitats would remain available” in the Secondary and Cumulative Impacts section of 5.12.1 does not meet the standard of a hard look. Further definition of these quantities and discussion of how their appropriate levels would be monitored and ensured is missing. Without the data and analysis, this is a simply an unsupported conclusion. The Environmental Assessment’s Section 5’s examination of the proposed IBT’s impacts on shellfish, fish, wildlife, natural vegetation and their habitat lacks any real supporting detail to merit the FONSI.

In sum, our comment is that the environmental document provided is legally insufficient to meet the requirements of SEPA and factually to support a FONSI. These defects must be corrected for a thorough and accurate analysis of impacts. This is the minimum that is required to achieve the statute’s objectives of informed public debate that results in an informed decision.

Very Truly Yours,

Ryke Longest


KLPW will follow with additional input and efforts to squelch the water withdrawal proposal by the Kerr Lake Water Resource System.

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A fairly visible lake support group is up in arms about a proposed and scheduled-to-be-signed water use agreement that could take 10 million gallons of water a day out of Kerr Lake, which could affect lake levels.

A news release sent to KLPW and authored by Deborah Ferruccio, a leader the lake support group called Preserve our North Carolina Lakes Community calls for an emergency meeting urging local area citizens to attend to discuss how to stop local Henderson, Vance and Warren officials from signing an agreement that would “permanently send massive amounts of water from Kerr Lake to the Neuse and Tar Rivers.”

That meeting is scheduled for this Thursday, April 23rd at 6:00 PM in the Vance County Commissioners’ Room at 122 Young Street, Henderson, NC.

Known for her advocacy of protecting lakes and rivers, Ms. Ferruccio has pointed to confusing and hurried manner public officials have moved on obtaining the excessive amount of water from Kerr Lake.  She continues that the governmental efforts have not been transparent and now her group and those persons from the general public must get involved.

Continuing with the bullet-pointed issues and questions, Ms. Ferruccio wrote:

  • The Kerr Lake Regional Water System, including the City of Henderson and Vance and Warren County Commissioners, are seeking certification from the N.C. Department of Environment and Natural Resources (DENR) to transfer ten additional million gallons of water per day (MGD) from Kerr Lake Reservoir in order to “meet the system’s projected water demands.”
  • According to Henderson City Councilman Mike Inscoe, the water transfer is “vital to rural communities for future growth and economic prosperity.” Which rural communities is he talking about, those outside cities such as Raleigh and Louisburg?
  • Upon closer examination of the potential      impacts of such a water transfer, it is not the water that needs to be      diverted.  Rather, it is the direction of economic development that      needs to be diverted to where the water already is, here in the Kerr Lake      region. On what basis then can local Henderson, Vance and Warren officials      honestly justify sending the most valuable resource of this “economically      distressed” Tier 1 area — our precious water supply —  to “economically      prosperous” Tier 2 and 3 counties hungry for growth and economic      development?
  • The Neuse River begins in a pond in Durham      County and flows into Falls Lake which supplies water to a half      million people in Raleigh and six other municipalities in eastern Wake County: Garner, Knightdale, Rolesville, Wake Forest,      Wendell and Zebulon. Falls Lake has water quality problems. The Neuse River Basin is one of the fastest growing river basins      in the country. The Tar River provides      water to Franklin County and Louisburg.
  • If you don’t think there could be a likely      giant sucking sound from the water transfer and that the water removal      would be only “a drop in the bucket,” then you don’t know where the Neuse      and Tar Rivers flow and that Raleigh is projected to run out of water in      20 years.
  • If you don’t think that sucking sound,      combined with global warmings’ inevitable droughts, could turn Kerr Lake’s      shoreline into mudflats and concentrate pollutants that would affect      wildlife and water quality, then you’ve not seen the look of western      over-drained, dried-up lakes.
  • What data and comprehensive studies,      including independent assessments, have determined that the water transfer      will cause “no significant environmental impact” and that “the level of Kerr      Lake won’t be impacted?” Whose drought and economic development models      have been used in these studies?  Why have local officials not      insisted on a comprehensive Environmental Impact Statement (EIS) to make a      sound interbasin transfer decision instead of basing the decision on an      abbreviated Environmental Assessment (EA), which, according to the EPA, is      only a preliminary step to an EIS concerning projects that may have a      significant environmental impact? Do Tier 1 “distressed” counties      officials believe that their constituents don’t rate the unabridged truth      about the potential impacts of the basin transfer? Do they think we don’t      have equal rights to information.
  • According to the EPA, “Ensuring environmental      justice means not only protecting human health and the environment for      everyone, but also ensuring that all people are treated fairly and given      the opportunity to participate meaningfully in the development,      implementation, and enforcement of environmental laws, regulations, and      policies.”
  • The public hearing notification process has not been transparent or just; therefore, citizens are calling on officials to extend the April 30 public comment deadline indefinitely so that a series of public hearings can allow for a public information campaign, a proper Environmental Impact Statement to be discussed and drafted, and so that stakeholders who have the most to lose can be partners in the decision-making process.
  • The people of this region have the right and esponsibility to protect their own natural resources and economic      interests, and their sentiment should determine the region’s future, not a      handful of political and government officials. According to Abraham      Lincoln, “In this and like communities, public sentiment is everything.      With public sentiment, nothing can fail; without it, nothing can succeed.”

Ms. Ferrucio and her group are taking the message directly to as many public venues as they can and ask, “Please be part of the sentiment that helps protect our region’s interests. Convince your friends, families, and colleagues to join you at Thursday’s meeting. Meanwhile, contact your local officials by phone, email, text, tweet, and in person. Tell them to cancel the interbasin public notice deadline and to let citizens weigh in at future, well-publicized public hearings. Go to: ej-pp.org for the contact list and Facebook: Preserve our North Carolina Lakes Community.”

If you want to contact Ms. Ferruccio directly, write to info@kerrlakeparkwatch.org and we will provide you with that information.

And, if you are interested in the long term future of Kerr Lake as we are at Kerr Lake Park Watch, then go to the meeting.





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