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3) The request as presented is out of date and in error.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.
- 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.
- 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.