19970722 Ver 2_Complete File_19990909

LJATER & LRND SECTION Fax~919-716-6766 Sep 14 '99 14 18
,. _
State of North Carolina
M~cHne~ iv ens~v Department of JuSNce
nrr~x+Nev rnwaan~ P. O. BAX 62A
I~ALEtGH
2?t~02.062A
FA~.X TRANSMISSION
ENVIRONMENTAL DIVISION
919-716-6600
Fax: 91.8-719=6768
ATTORNIIY-CLIENT PRMLEOED DOCUMENT
AND A'~'YORNEY WORK PRODUCT
NOT A PUBLIC RlCORD PURBUAN'T 70 N.C. DEN. 8TAT. §132-1.1
To: John Dorney, Esq. Date:
Fax #: [phone] pate
From: Kathy Coopcr/Patricia Rogers
Subject: Deop River, et al v DENR, et al
September 14, 1999
P. 01
42including this covex sheet.
COMMENTS:
For your information. If you have ar-y questions, please contact me.

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 14 18 P. 02
E ~'
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IAI THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF NORTH CAROLINA, COUNTY OF RANDOLPH
DEEP RIVER CITIZENS' COALI~'ION, Sd ~, )
Petitioners,
v_
NORTH CAROLINA DEFARTMEN'P OF
ENVIRONMENT AND NATURAL RESOURCES,
Respondent,
CITY OF GREENSBORO,
Rcspondent•Intervenor,
PIEDMONT TRIAD REGIONA.I. WATER
AUTHORITY,
R~spandent-Intervenor
Case No. 99 EHR 0560
(consolidated with 991rIiR 0613)
PETITIONERS' MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 56(a) of the North Carolina Rules of Civil Pzoccdurc, incorporated
through 26 NCAC 3.0101(1), petitioners Deep River Citizens' Coalition, the American Canoe
Association, inc., and Deep River Coalition, Inc. hereby move for summary judgment. For the
reasons set forth in their mtmorAridum in support of this motion, petitioners submit that this
Office should grant their motion and revoke tht ~U 1 Watcz Quality Certification that respondent
Department of Environment and Natural Resources issued to the piedmont Triad Regions] Water
Authority on 1vlazch 11, 1999. A proposed order is attached.
Respectfully submitted,

WATER & LAND SECTION Fax~919-716-6766
.~
• - .
September 9, 1999
Sep 14 '99 1419 P. 03

BRUCE J. TERRIS
DEMIAN A. SCHANE
Terris, Fravlik & Millian, LLP
1121 12th Strcct, N.W.
Washington, D.C. 20005
(202):682-2100
s~~ ~dg5
~~
MARSH SMITH, N.C. Bar No. 16828
Cu~ipgh~tt~ Dcdmond, Petersen & Smith, LLP
P.O. Bex 1468
Southern Pints, N.C. 28388
(910) 6950800
Attorneys for Pctitiouers
r
2

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1419 P. 04
. .
i CBRTIFICA'1"E OF SERVICE
I hereby certify on this 9111 day of September 1999, that I have caused a true copy of the
foregoing "Petitioners' Motion for Summary Judgment," and the proposed order, to be delivered
via Federal Express overnight mail,~.postage pre-Paid, to the following:
Charles D: Case
I~uuton 8t Willianns
phe I~annover Square, Suite 1400
Fayetteville Strcct Mall
Raleigh, N.C. 27401
George W. House
William C3~. Ross, Jr.
Broolts, Pierce, McLendon, Humphrey & Leondard, L.L.P.
230 North Elzn; Street
Suite 2000
Greensboro, N.C. 27401
Linda A. Miles
- . ~ Attorney, City of preensboro
301 .WestWashington Street
kelvin Municipal Office Building
Greensboro, N.C. 27402
Kathryn Jones Cooper
Special Deputy Atcorncy General
N.C: Department of Justice, Environmental Division
I l 14 West Edenton Strut
Rooms 311 '
Raleigh, N.C. 27602
3.

WRTER & LRNU SEC1iUN Fax~919-(16-E~(bb Sep 1U 'yy 14~1y r.~~
. -' ". -
. IN TT~E OFFICE OF ~,DNIlNISTR.ATIVE HEARINGS .
r f) STATE OP NORTH CAROLINA, COUNTY OF RAND•OLPH 1~ ' '' `
CA 11Lr~,1`IS' COAI,I'TION>~Cl [II , ~ " ' .
' • DEEP RIVER '" ~^ :,, ' "~ ~ '~ - ~ 5 1`
' ~ ~ ~ ~ petitioners,, !,} ,
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NORTH CAROLINA DEP~ARTNIEN'T OF ' '~]°- ~ ~ ~ 1) ~: .. :.~; , s ,_~ ~;;, • # -
ENVYRONMENT AND1~TPiTIJRAL RESQI7RCES, ` -~,, ) ,` t~ ` r
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WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1421 P. 06

~ 'TABLE Ok' CONTENTS
LIST OF EXHIBITS .. ........ ......... ......................... ii
I. PETITIONERS .... _ ........ ....................................1
II. PROCEDURAL HISTORY . ............... . . . ........... . ................ 2
ITT. STATUTORY FRAMEWORK ............. .......... .... ............... 2
,A,. NORTH CAROLINA ENVIItONMENTAL POLICY ACT ................ 2
B. CLEAN WATER ACT ..... .... ..... . . ......................... 5
IV. STATEM~"T OF FACTS ................ ....... . . .... . ............. . . 8
V. ARGUMENT ...... ...............................................14
A. SL'rlvIlvfARY JUDGMENT STANDAR U .............................. 14
B_ PETITIONERS HAVE STANDING .................................. 15
C. RESPONDENT VIOLATED NCEPA B'Y ISSUING A 401 CERTIFICATION
BASED ON A DRAFT ENVIRONMENTAL IMPACT STATEMENT ...... 16
D. RESPONDENT VIOLATED THE. WATER QUALITY CERTIFICATION
REC}ULATIONS BECAUSE IT ISSUED THE 401 CERTIFICATION
EVEN THOUGH THE CONSTRUCTION OF THE DAM WILL
RESULT IN VIOLATIONS OF THE DEEP RIVER' 5 'WATER-QUALITY
STANDARDS .... .............. ...........................:.. 19
E. RESPONDENTVIQLATED THE WATER QUALITY CERTIFICATION
REGT~LATIONS BY ISSUING} THE CERTIFICATION EVEN THOUGH
I'TRWA NEVER FILED AN APPLICATION .......................... 29
F. RESPONDENT ABUSED ITS DISCRETION BY DENYIl~G PETITIONERS'
REQUEST FOR A PUBLIC FEARING ON THE 401 CERTIFICATION
DECISION ...... ....................... .................... ..31
VI. CONCLUSION ....:.. ..:....... ................................. .33

WATER & LAND SECTIDnI Fax~919-716-6766 Sep 14 '99 1421 P. 07

• PETITIONERS' EXHIBIT LIST
1. Deep River Citizens Coalition v.-North Casolina Dept of Environment, Health and
Natural Resources, No. 9~-CV-02584, N.C. Super. Ct., Wake County, May 12, 1994
2. Respondent's Response to Petitioners' First Sct of Requests for Production of
Documents, July 8, 1999,
;_ Cape Fear River Basinwide Water Quality,Management Plan,, October 1996 (excerpt)
4. North Carolina's 1998 303(d) List (excerpt)

5. l
Draft Envizonmental lmpaet Statement, Randleman Lake, Ju~oe 1997 (excerpt)
6. N. Leroy Pof~ et al., T'lu Natural: Flaw Regime, 47 Bioscienee 769, 777 (December
1997)
7. ~ A.i~davit of James Lamb (unexecuted)
- S. Affidavit of Patsy Hill
9. Affidavit of Scott Lineberry. (uncxccuud)
10. Affidavit of Paul Ferguson
11. Affidavit of Michael Whitson
12. Affidavit of Rick Jobasott (unexecuted)
13. Affidavit of Charles Holder
I4. Affidavit of Richard Harrison
15. T .otter from John Dorney to John Kime of 08/20/97
16. March 11, 1999, 401 Water Quality Certification
17. Respondent's Responses to Petitioners' Second Set of Requests for Production of
Documents and Answers to Petitioners' First Set of Interrogatories, August 30, 1999
_u_

WATER & LAND SECTION Fax ~ 919-716-6766 Sep 14 ' 99 14 21 P. 08
r 18. March 1998 Draft Nutrient Reduction Stxategy and Implementation Plan (excerpt)
19. Report of Proceedings, Proposed Reclassification of Segments of tht Deep River
(Proposed Randleman Reservoir); Public Hearing, September 1, 1998 (excerpt)
20. Memorandum from Ja~son:Doll to Boyd DeVane of 02/24/98
21. City of Highpoizrt's 1993 NPDES Permit fvr Eastside W astewator Treatment Pla~r~t
22. City of Highpoint's applicatiog to upgrade Eastside wastewater Treatment Plant to 26
MGD, May 26, ,1999 (excerpt)
23. City of Highpoint's January 1,1999, permit modification for Eastside 'Wastewater
Treatment Flant
24_ Summary of civil penalties paid by City of Highpoint's Eastside Wastewater Treatment
Plant to the United States Treasury
25. Letter from United States F,nvironmental Protection Agency to United States Army Corps
of Engineers of 10/06/97
26. Memorandum fzom Roa Linville to Coble a:ad Mauney of 02/20/98
27. United States Army Corps of Engineers' July 10,1997, Section 404 Public Notice
e.
28. Letter from Alan Horton to John Domey of 11 /1 S/98
29. Letter from A. Preston Howard; Jr. to Alan Horton of 03/10/98
30. Email from Boyd DeVane of 06/03/98
-ii-

LJATER & LAND SECTION Fax~919-716-666 Sep 14 '99 1422 F'.Uy
i

INT'RODUC'TION
Petitioners Deep River Citiztns':Coalition, the American Canoe Association, Inc., and
Deep River Coalition, Inc. have irioved this Office for an order grantimg than summary
judgment. Petitioners subunit this m~mora.ndum in support of that motion.
On March 11, 1999, respondent North Carolina Department of Environment and Natural
Resources issued a 401 Water Quality Certificatioq (hereafter "401 Certification") to the
Piedmont Regional Triad Water Authority (hereafter "PTRWA") for the construction of
Randleman Dam and Reservoir (hereafter "Randleman Dam")• In doiztg so, respondent failed to
comply with the requirements of the l~octh Carolina Environmental Policy Act (hereafter
"NCEPA"), N.C.(3.5.1-113A, etsaq:, and with the Water Quality Certification regulations, ISA
NCAA 2TT.0500, et seq.l~
I
PETITIONERS
Petitioner Deep River Citizebs Coalition ("DRCC") is ar- unincorporated, not-for-profit
association with its principal place of business in Randleman, North Carolina- DRCC is a
membership organization w~h nppro~tiapaiatcly 50 members in North Carolina.
Petitioner American Canoe Association, Inc. ("ACA") is anot-for-profit corporation,
incorporated under the laws of New York. Its principal place of business is in Springf eld,
Virginia. ACA is a membership organization with approximately 1,000 members in North
Carolina.
'-'Petitioners have raised other claims is their petitions. If petitioners' motion for summary
judgment is denied, petitioners intend.ta pursue those claims, as well as the claims presented in
this rnotioa, at the contested case hearing.

WATER & LAND SECTION Fax~919-716-brbb Sep 1u 'yy 1u~11 r.lu

. _ Petitioner Deep River Coalition, Inc. ("DRC") is snot-for-pro£t corporation,
incorporated under the laws of North Carolina. Its principal place of business is in Southern
Pines, North Carolina. DRC is a mct~bership organization wrath approximately 30 members in
North Carolina.
II
PROCEDURAL HISTORY
Petitioners Y3RCC and the A;CA filed their petition for a contested case hearing on May 3, .
1999. Petitioner DRC filed its petition on May 11,1999. This Office consolidated the cases on
Tune 2,1999.
TiI
STA,TC170RY FRAMEWORK
A. NORTH CAROLINA ENVIROrfMENT.AL POLICY ACT
NCEPA provides that "it shall be the policy of the State to seek, for all of its citizens,
safe, healthful, productive and aesthetically pleasing surroundings; to attain the widest ramge of
beneficial uses of the environment without degradation, risk to health or safety; and to preserve
the important historic and cultural cleutents of our common inheritance." N.C.Q.S. 113A-3. To
fulfill this policy, NCEPA requiras.~hat every state agency prepare an envi.rorunental impact
statement (hereafter "EIS") to be included in every. report or rccomm,endation on any action for a
project that significantly affects the c}u8lity of the environment. N.C.C}.S. 113A-4. "the primary
purpose of an EIS is to serve as a decision-snaking tool to ensure that the purposes and policies
defined in f NCEPAI are Siven ~ull'consideration in tha ongoing programs and actions of state
government." 1 NCAA 25.0601. In addition, NCEPA provides that the "policies, rules, and
2

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 14.22 F'. 11
public laws of this State shall tie interpreted and administered in accordance" with the Act.
N.C.G.S. 113A-4(1).
Pursuant to NGEPA, the North Carolina Department of Administration (hcrcaft~r
"NCDA") has adopted regulations implementing the statute. N.C.G.S. l 13A-11(a). According
to these regulations, NCEPA applies when there are (1 NCAC 25.0108)=
(1) an expenditure of public;monies or use of public land; and
(2) an action by a state agency subject to this Chapter, and
(3) a potentiai environmental effect upon either natural resources, public healtb~ and
safety, ~aatvral beauty, or historical or cultural elements of the state's common
inheritance.
NCDA's regulations provide that an "`€a]etidn' includes but is not limited to licensing,
certification, permitting, "' * * .and other ssmilar final agency deeisioms the absence of which
would preclude the proposed activity." 1 NCAC 25.0108(b)(1).
Unless the action falls belo~- an agency's minimum criteria, the agency must prepare
either an cnvuronmcntal assessment (hereafter "EA") ox au EIS ~ I NCAC 25.0401(a). If an EA
is prepared and the agency deterrines that the project will not have a "significantly adverse
effect on the quality of the environment," the agency must file a Funding of No Significant
Impact I NCAC 25.0401(d)_ if the ~ency determines from the EA that rho project will have a
signuficant, adverse cff~et on the environment, the agency must file an EIS.'-~ 1 NCAC
25.0401(e).
~' Activities which respondent has goncltxded will normally be below NCEPA's minimum criteria
can be found at 15A NCAC 1 G.0504.
~~ The agency can bypass the $A and begin with the preparation of an EIS. 1 NCAC 25.0401(b).
3

-~.
WATER & LAND SECTION Fax~919-716-666
Sep 14 'yy 14~1s r.il
if an EIS is prepared, the agency must first prepare a draft and circulate it for comments.
1 NCAC 25.0605(x). Before the agency can proceed, the agency must prepare a fugal EIS which
incorporates the comments that wen m2~de oa the draft. 1 NCAC 25.0605(b), (c). Finally, the
agency must prepare a Record of Decision (hereafter "ROD"). l NCAC 25.0606. The ItOD
xn,ust contain the following information. (1 NCAC 25.0606):
(1) a statement of what the decision was and the pmject or program it was for;
(2) identification of all alternatives considered and specifying those considered
environmentally :preferable;
(3) a discussion of why the cl~.osen alternative is most appropriate; based upon economic
or technical consideradonsr or agency statutory mission, and how it balances
environmental and other state policies;
(4) a certification that all mans of avoiding or minimiting environmental impacts set out
in the EIS will be incorporated into the project or program, and if not, why they are not.
A copy of the record of decision shall be seat to the Clearinghouse to be sent to all review
agencies, and a notice of its availability shall be published in the Eavironmcntxl Bulletin.
In discussing how the EIS carves the goals of the National Environmental Policy Act
(hereafter "NEPA"), 42 U.S.C. 4321, et seq., the Supreme Court has stated that the EIS
requirement has two principal fttnctions. Robertson v. Methow Valley Citizens Council, 490 U.S-
332, 349 (1989). First, it "ensims that the agency; in reaching its decision, will have available,
and will carefully consider, ~detaileil information concerning significant environmental impacts "`
* *." Ibid. Second, it "guarantees that the;etevant information will be made available to the
larger audience that may also play a role in both the decisionmaking process and the
implementation of that decision." Ibid.. Thus, "by focusing the agency's attention on the
environmental consequences of a proposed project; NEPA ensures that important effects will not
be overlooked or underestimated only to bo discovered after resources have been committed or
4

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1425 F'. 15

the die otherwise cast" (citations omitted). Ibid. According to tht North Carolina Court of
Appeals, "to the extent that the fed~rat environmc~tal law is relied upon to meet the requirements
of NCEPA, the federal regnirements are by reference enforceable against North Carolina
agencies as state law." Orange County v North Carolina Department of Transportation, 46
N.C. App. 350, 368, 265 S.E.2d 890 (1;9$0).
B. THE CLEAN WATER'ACT
The requirement that P'IRWA obtain the 401 Certification from respondent stems from
Section 401 of the CIean Water Act, 33 U.S.C. 1341(x)(1). Section 401 states:
Any applicant for a P'ederat,lice~tse or permit to conduct any activity includixtg, but not
limited to, the construction or operation of facilitiies, which may result in any discharge
irno the navigable waters, shall.provide the licensing or permittiwg agency a certification
from the State tit which the discharge orignates or will originate * * * that any such
discharge will comply with'tbe applicable provisions of stctions 1311, 1312, 1313, 1316,
and 1317 of this title_
Section 303 of the Act, 33 U.S.C: Y313, requires states to adopt and update state water-quality
standards for interstate waters.
Before construction on Randleman Dam can begin, PTRWA needs to obtain a permit
frobn the United States Army Corps~of Engineers (hereafter "Corps'') to fill wetlands_u 33 U_S_C.
1344_ Prior to issuance of a wctlaads.permit, PTRWA must obtain a 40I certification from
respondents stating that the construction and operation of Raztdlcman Dam will not result in
°-' PTRWA's application for the 40.4 permit is currently pending.
si N.C.G.S. 1438-282(a)(1)(u) authorizCS the North Carolina Environmental Management
Commission (hereafter"EMC'.') to issue 401 certifications_ EMC has delegated that authority to
the Division of Water Quality within the North Carolina Department of Environment and Natural
Resources. 15A NCAG 2H.0502{a).
5

WRTER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1423 P. 14

violations of the Deep ltiver'sweter-quality standards. 33 U.S.C. 1341(a)(1}; 15A NCAC
2H.0500. When a state provides a ~lOl water-quality certification, the United Statcs
Environmental Protection Agency (hereafter "EPA") requires that, inter alia, the certification
include a "statement.thattpere is a reasonable assurance that the activity will be conducted in a
mariner which will not violate applicable water quality standards * * *." 40 C.F.R. 121.2(3).
The North Carolina Legislature has authorized EMC to develop the State's water-quality
standards. N.C.O~.S. 143-214:1. According to the legislature (N.C.G.S. 143-211):
Standards of water and air purity ,shall be designzd to protect human health, to prevent
injury to plant and animal life,~to prevent damage to public and private property, to insure
the continued. enjoyment ofthe natural attzactions of the Statc, to encourage the
expansion of employtnert.opportunitics, to provide a permanent foundation for healthy
industrial devclopmcnt and to secure for the people of North Carolina, D1ow and in the
future, the beneficial vaes of these great natural resources.
EMC has established different types .of c]assifications for bodies of water and the
applicable water-quality standards for those classifications. 1 SA NCAC 28.0200. Tkxe watcr-
quality standards for the Upper Deep River, which is classified as a Class WS-1V body of waters'
can be foumd at 15A NCAC 2B.02I 1(3) and 15A'NCAC 2B.0216.
In considering whether to approve an application for certification, the agency must first
determine whether the proposed activity will rcmo^ve or degrade the body of water's existing
uses. t SA NCAC 2H.0506(a). 1`f those uses will not be removed or degraded, the agency must
issue the certification if the activity (1SA NCAC ~H.0506(b)):
6i Qn November 12, 1998. ~1vIC reclassified the Upper Deep River from Class C to Class WS-IV
waters in order to allow this part. of the river to be used as a water supply. See 15A NCAC
2B.0248.
6

WATER & LAND SECTION Fax ~ 919-716-6766 Sep 14 ' 99 14 24 P. 15
~ (1) has no practical alternative under the criteria outlined in Paragraph (f) of this Rule;?'
(2) will minimize adverse impacts to the stur€ace waters based on consideration of
existing topography, vegetation, fish and wildlife resources, and hydrological conditions
under the criteria outline iu: paragraph (g) of this Rule;
(;) dots not result in the degradation of groundwater or surface waters;
(4) dots not rt'sult in cumulative, impacts, based upon past or reasonably anticipated
future impacts; that cause or will cause a violation of do.+vasrtream water quality
standards;
(5) provides for protection of downstream water duality standards through the use of on-
site storm water control measures; and
(6) provides for replacement of existing uses through mitigation as described at
Subparagraphs (h)(1) o~this Rule?
1 SA NCAC 2H.0506(f j provides that a "lack of practical altesnaiives may be shown by
demonstrating tbtat, considering tb~ potential for a reduction in size, configuration or density of
-- the proposed activity and all alternative designs[,].the basic project purpose cannot be practically
accomplished in a manner which would avoid or result in less adverse impact to surface waters
or wetlands."
v Paragraph 15A NCAC 2H:0506(g) provides that."[m]in;,,,i~gtion of impacts may be
demorxstxated by showing that the surface waters or wetlands are able to continue to support the
existing uses after project completion, or that the impacts are required due to:
(1) The spatial. and dimensional requirements of the project; or
(2) The locationof any. eaasting structural yr natural features that may dictate the
placement or configuration of the proposed project; or
(3) The purpose of the project and bow the purpose relates to placement, configuration or
density.
P~ 15A NCAC 2H.0506(h)(1) provides that the agency "shall coordinate mitigation requirements
with other permitting agencies that are; requiring mitigation for a specific project. Mitigation
required by the U.S. Army Corps of Engineers shall be considered to constitute the mitigation
required by the certi£~cation tmless the [agency] determines that the mitigation proposal does not
meet the criteria established in Subparagraph (~ of this Paragraph." 15A NCAC 2H.0506(h)(6)
requires that wetlands be replaced based on a l:l ratio at a minimum.
7

WATER & LAND SECTION Fax:[phone] Sep 14 '99 1424 P. 16
~ If any one of these factors cannot be;'met, the agency cannot issue the certification.
..~
l'V
STATEMENT 4F FACTS
The current project to build Randleman Dam and Reservoir took shape in the late I980's.
On August 18,1988, PTRWA petitioned EMC for approval to use the power of eminent domain
to purchase land for the pro,}ect anti to divert 28.5 million gallons per day (hereafter "MGD") of
water from the Deep River Basin. to the Haw River Basin and 2 MGD from the Dcep River Basin
to the 'Yadkin River Basis.
On October 18, 1991, a l?EIS for the interbasin transfers and for PTRWA's use of the
power of ezniment domain was cotnpleEed and approved. However, on Novezzaber 26, 1991, an
EMC Hearing Officer recommezlded thaf EMC deny PTRWA's petition because of serious
water-quality problems in the upper Detp River area and significant threats from the nearby,
'~
abandomcd High Paint landfill, Randleman Town Dump, and Seaboard Chemical landfill. The
Hearing Officer also recommended, that PTRWA pursue other water-supply alternatives which
could provide ahigher-quality source, .Notwithstanding these recommendations, on February 12,
1992, EMC approved the interbasin transfers and atithorized PTRWA to use the power of
eminent dvznain to acquire land for. the construction of Randleman ]aam_
On March 5, 1992, petitioner. Deep River Citizens' Coalition, Scott Lineberry, and Quy
Small challenged EMC's decision both in the North Carolina Superior Court and in the North
Carolina Office of Administrative Hearings (hereafter "OAH"). On May 12, 1994, the Superior
Court overturned 1/MC's decision because EMC did not resolve the water-quality problems that
had been raised and because EMC relied on a FE1S that failed to analyze all of the environmental
8

WATER & LAND SECTION Fax~919-716-6766 Sep 14 'yy 1415 F'.1r
_ impacts and reasonable alternatives of the project. Deep River Citizens Coalition v. North
ti
Carolina Dept of Environment, Health and Natural Resources, No. 92-CV,02584, N.C. Super.
Ct., Wake County, May 12,1994 (attached as Pet. Bx. 1).
On June 6, 1995, the North. Carolina Court of Appeals reversed the Superior Court's
decision on the Srouztd that the. Superior Court lacked jurisdiction because the petitioners had zzot
exhausted their administrative remedies. Deep Ricer Citizens Coalition a NCDENR, 457 S.E.2d
772 (N.C. Ct. App. 1995). According to .the court of appeals, the petitioners should have pursued
their case in OAI-T first. The petitioners never proceeded with the cast before OAH because they
lacked the necessary funds.
On July 10, 1997, the Corps published a notice that PTRWA had applied for a permit to
fill wetlands under Section 404 of the Clean Water. Act, 33 U.S.C. 1344, and that a draft
environmental impact statement (Hereafter "DEIS") for the Randleman Dam project had been
compiled. Although PTRWA never filed an application with respondent for the 401
Certification under 1 SA NCAC 2H.0502, respondent has staled that the Corps' publzc notice
triggered the application.process.. Pet. Ex. 2, p. 2, para. 1.
Several state and federal ageaeies have commented on the DEIS. Their comments raise
the same concezrts regarding the Upper Deep River's water quality, the suitability of the location
for a water supply, and the potenti$lly grave environmental consequences from the construction
of Randleman pawn as were raised in 1991 when the FEIS for the interbasin transfers and use of
eminent domain was approved...
In November 1997. PTRWA.requested that.EMC reclassify the portion of the Deep River
where Randlcmaa Dam and Reservoir wi}1 be built from Class-C waters to WS-IV waters so that
9

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1425 P. 18

it could be used as a r~iatec supply, . Eiv1C held a public hearing on September 1.1998. On
. ~.
November 12,1998, ENiC voted in favor' of the reclassification. The reclassification iscontained
in the Randleman Lake Water supply Watershed Protection Rules, which became final on April
1,1999. See 1 SA NCAC 2B.0248-.15A NCAC 2B;0251.
On March 11, 1999, respondent issued the 401 Certification. This certification is a
statement that the construction and operation of Randleman Dann will not degrade the water
quality of the Deep River or result is violations of its water-quality standards.
The Deep Raver begins in eastern Forsyth County and flows about 1 I b miles to i.ts
coA~ucnce with the Haw River. Cape Fear River 13asinwide Water Quality Maniageznent Plan,
October 1996, Pct. Ex: 3 (hereafter " Basinwide Plan"), p. 4-22. There are 16 damson the Deep
River between Highpoint and the Haw River conflucncc which "slow the river's velocity and
limit the system's assimilative capacity."'a Ibfd. According to North Cazolixaa's I998 303(4)
List,u~ tl~e upper portions of the Deep River are considered to support partially its designated
uses, wback~ range from Class WS-IV (water supply) to Class C.'~ Pet. Ex. 4, p. T-2. "Streams
rated as either partially supporting. or nonsupporting are considered impaired" (emphasis in
101 On page 6-35, the Basinwide Plan states that there are 17 dams.
iU Section 303(d)(1) ofthe Clean Wattr.Abt, 33 U.S.C. 1313(d)(1), requires, inter alia, that each
state develop a list of waters that are, not meeting the state's water-quality standards. North
Carolina rates a waterway as either not supporting or partially supporting that waterway's
designated classification, unless thC`Stag did not evaluate the waterway. Pl. Ex. 4. p. 14.
'-" A Class WS-IV use.is given.to those waters that ere "protected as water supplies which are
generally in moderately to highly .developed watersheds." 1 SA NCAC 2B.0I 01(c)(6). A Class C
use is given to "freshwater protected for secondary recreation, dishing, aquatic life including
propagation and survival, and wildlife." 15A NCAC 2B.0101(c)(I). Class C is the lowest rating
possible for freshwater. lbid.
10

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 14.25 P. 19
original). Basinwide PIan, p. 4-53.: As the North Carolina Division of Water Quality (hereafter
"DWQ") has explained, the "Deep River has~scvere nutrient problems, and the Deep River and
many of its tributaries have been lilted as impaired waters. Three factors: impoundments which
affect stream velocity, point source. nutrient loading, and nonpoint source loadings, play a
significant role in the control of eutrophication and [dissolved oxygen] standards violations in the
Deep River." Id., p. xi. As a result; "water quality in the Deep River continues to be stressed,
and further improvements in.quelity may be limited by izlcrcasing urbanization." Id., p. 422_
lZandleman Dam will be upproximateIy 2,090 feet long and 102 feet above the existing
strearnbed. DEIS, p. 5-8 (attached as Pet.. Ex: 5). The dam will create a reservoir cavcring about
3,000 acres, thereby raising the.aut'face water IeveI to 682 feet above mean sea level (m.s.l_)?~
Ibid. This will have significant, adverse envirpnzmeatal effects.
The constxvction of the.dam and reservoir will destroy 121 acres of wetlands. DEIS, p. 5-
20. Wetlands are important for flood control because they "act as natural sponges by slowing,
absorbing, and gradually releasing water fxoxzi precipitation and runoff to groundwater and
surface streams." DEIS, p. '413. Furthermore, wetlands trap sediments which "is extremely
valuable for pollutant removal because. sediments often carry with them chemically or physically
bound phosphorus, heavy metals, organic compounds, and pesticides." 1"Gid. The DEIS explains
that (ibid):
VV'etlands are among tha most productive ecosystems in the world and rival the most
productive farznlaad. Wetland plants are e$eient converters ofsolar energy, converting
sunlight into plant material or biomass. This plant material is food for a multitude of
animals and provides a key link is~the food chain.
'-'~ However, Table 8, page 3~3, indicates that the surface level will reach 705.3 m;.s.l.
11

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1426 F'. 2U
, Wetlands perform vital. ecological functions that are essential for the continued existence
°~'•. of resident and transietit wildlife. Wetlands provide food, breeding and nursery habitat,
and shelter for both aquatic and terrestrial organisms. Many animals seek refuge in
wetlands.
The construction of Randleman Dana will also inundate 28 nines of free flowing streams,
force the relocation of 28 residences and 1 business, and destroy 2,143 acres of forested land and
868 acres of agricultural lands.. DEIS, p: 5-2. Fifteen to SO acres of the inundated land is
considered to be prime farmIand.and 400 acres have the potential to be prime farmland. DEiS, p_
4-8. "Primp farmland soils produce the.highcst yields with m;n;n,ai expenditures of energy and
ecomomic resources. Farming these soils results in the least damage to the environment_ The
acreage ofhigh-quality farmland is limited, so the wise use of the Nation's prime faririland is
extremely important" .Fbid.
The operation of Randleman Reservoir will require the transfer of 28.5 MGD of water
from the Deep River Basin to.the Haw River Basis and 2.0 MGD to the Yadkin River Basin.
DEIS, p. 3-22. An "[i~zlterbasin transfer not only eliminates the availability of the water from the
basin but it also has the potential to ineccasc the degree of pollution of the water remaining in the
basin" North Carolina v. Hudson, :731. F. Supp. 1261, 1273 {E.D.N.C.1990), a~`irmed sub nom.
Roanoke River Bgrin Assn x ,Hudson, .940 F.2d 58 (4th Cir. 1991). certforarf denied, 502 T.S.
1092 (1992). The DE1S explains (p. 3 2l):
The effects of such transf~as arc to deprive some streams (in tlae water supply basin) of
their natural flow rates and provide unnaturally high flows in other streams (in the
discharge basins}. In addition, the water discharged fi-om the [wastewater treatment
plants] into the receiving streams maybe of lower quality than the water supply
withdrawn. Such alterations of natural conditions may result in changes of biota within
and adjacent to the affeet:sireams. Changes within streams may include alteration of
water temparatures, dissolved oxygen levels, nutrient concentt'aiions, and concentrations
of chemical pollutants. Ch~ges adjacent to streams may include altered groundwater
12

WATER & LAND SECTION
Fax~919-716-6766 Sep 14 '99 1426 P. 21
levels which affect the suitabilit3- for plant growth and the types of plant communities
able to thrive.
In this case, the: average tlovv of the Deep River will be reduced by 76 percent at
Randleman and by 9 percent aCMoncure (which is 88 miles downstream from the darn) during
the filling stage o:f the rescrvoir.~~ DEIS, p. 5-5. The downstream consequences of this reduction
may be dire. The assimilative capacity of the Deep River from Carbonton Dann to the Haw 1Zivcr
confluence is nearly exhausted:, Basinwi~de flan, p. x. As DWQ has explained (id., p. 4-29):
The water quality issues is the Deep River are further complicated by a series of dams
(impoundments) which redticc velocity (time-of-travel) by pooling water upstream from
each dam, especially duriz~g.low,flow conditions when in-stream waste concentrations are
at the highest percentage and wain temperatures contribute to biological productivity
*. The increased retention time.provided by these dams allow utilization of nutrients by
aquatic plants (algae) resulting in excessive chlorophyll a and major cl~angcs in
[dissolved oxygen].
The water transferred flotn the Deep River will be discharged into the Haw and Yadkin
River Basins as treated wastewater... I>EIS, p. 5-17_ The addition of the treated wastewater to the
Haw River Basin will increase the.base flow in the Flaw River and its tributaries, North and
South Buffalo Creeks. Ibid. It is estimated that in the early part of the Randleman Dam's
operation, 33 percent of the average flow in Buffalo Creek~~ will be treated wastewater. ,ibid.
By the time the entire interbasin transfer is utilized; 50 percent of the average flow in Buffalo
Creek will be treated wastewater. Ibid. Similarly, after the interbasin transfer to the Yadkin
L~ Once the dam is operating, it is estimated that the reductions in £low will be 27 percent at
Randleman and 3 percent at Moncurc. DEIS, p. 5-6.
~~ The DEIS does not specify v~ihethei this refers to North Buffalo Creek, South Buffalo Crcck,
or both. Because the City of Greensboro operates two wastewater treatment plants that discharge
t,nto Non1a Bui~alo Creek (16 MG©) and South Buffalo Creek (20 MCiD), petitioners assume that
the DEIS is referring to both. See Basinwide Plan, p. 4-14.
13

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1426 P. 22

River Basin, it is estimated that 27 percent of the average flow in that basin will be treated
wastewater. DEIS, p. 5-1 $.
The creation of the resen-oir will also kill a significant, though unspecified, number of
wildlife. AFIS, p. 5-20: Some terrestrial anunais will be killed directly from the irrtpoundmer~t
of the water and others will be killed ,indirectly by .the loss of available habitat. Ibid. $ird
species will also decrease from the loss of habitat, although this may change if and when the area
becomes rcforestcd. Ibid. lash species that can only survive in free-flowing streams will perish.
DEIS, p. 5-21. Izt addition, "flow stabilization belgw curtain types of dares, such as water supply
reservoirs, results in axtificially~eonsfant environments that lack natural extremes." N. ireroy
Puff, et al., The Natxaal Flow Regime, 47 Bioscience 769, 777 (December 1997), Pct. Ex_ 6
(attached). This can "dramatically affeetQ both aquatic and riparian species in" tht river. Ibid.
V
ARGUMENT
A. SUMMARY ND(~IviENT STANDARD
Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary
judgment shall bt granted ''if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if arty, show that thew is no genuine issue as to
any material fact and that [the moving] party is entitled to a judgment as a matter of law." The
Supreme Court has held ihax (Celotex Corp. v. Catrett, 477 U.S. 3I7, 322-323 (I986)):
Rule 56(c) mandates the entry of sanunary judgment, after adequate time for discovery
and upon nnotion, against a party :who .fails to make a showing sufficient to establish the
existence of an element cssentinl .to that party's case, and on which that party will bear
the burden of proof at trial. 1'n such a situation, there can be "no genuine issue as to any
material fact," since a complete failure of proof concerning an essential element of the
14

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1427 P. 23
nonmoving party's case necessarily rendersall other facts immaterial.
Accord Anderson v. Liberty Lobby, 7nc., 477 U.S. 242, 249 (1986) ("["T]l~ere is no issue for trial
unless thcrc is suf~icicnt cvidcnce favoring the nonmoving party for a jury to return a verdict for
that party"). As demonstrated below (pp. 1b-32), there is no genuine issue as to any material fact
concerning respondent's failure to comply with NGEPA and with the water quality certification
regulations. Therefore, petitioners. are' entitled to summary judgment. zf petitioners' motion is
granted, there will be no need to hold the hearing in this case.
B. PETITIONERS HAVE STANDIN4
The North Carolina Administrative Procedure Act (hereafter "NCAPA,") provides that
"[a]ny person aggrieved.may commence a contested case hereunder." N.C.G.S. 150B-23(a).
The NCAPA defines a "person aggrieved" as "any person or group of persons of common
~~~ , interest directly or indirectly affected substantially in his or its person, property, or employment
by an administrative decision.". N:C.G.S.150B-2(~. According to the North Carolina Supreme
Court (Empire Power Co: v_, North Gvroli~a Department of Errvironment, Health and Natural
Resources, 337 N.C. 569, 588, 447 S.E.2.d 76& (1994). (quoting 1'n re Assessment of Sales ~'ax,
259 N.C. 589, 595, 131 S.E.2d 441,, 446 (1963)):
The expression "person aggrieved" has no technical meaning. What it means depends on
the circumstances, involved. tt has been variously defined: "Adversely or injuriously
affected; damnified, having a grievance, having suffered a loss or injury, or injured; also
having cause for complaint: MoFe ,specifically, the word(s) may be ezziployed meaning
adversely affected in respect of legal rights, or suffering from an infringement or denial of
legal rights.
Petitioner DRCC is submitting ,affidavits from James Lamb, Patsy 1 Till, and Scott
Lineberry. Pet. >/xs. 7, 8; 9. Petitioner ACA is submitting affidavits from Paul Ferguson and
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WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1427 P. 24
Michael Whitson. 1'ct. Exs. 10, 11: Petitioner DRC is submitting• affidavits from Rick Johnson,
Charles Holder, and Richard Harrison. Pct. Exs. 12, 13, 14. These affidavits demonstrate that
petitioners' members are persons aggrieved under.the NCAPA.'~' See Orange County v. North
Carolina Department of Transportation; supra, 46 N.C. App. at 360-362, 265 S.E.2d 890
(holding that plaintiffs had standing to~ challenge under NCEPA the approval of a highway
because they were "persons aggrieved" `since they owned land in the highway's corridor and had
suffered a procedural injury from the agency's failure to follow NCEPA's requirenr-ents).
C. RESPONDENT VIOLATED NCEPA BY ISSUING A 401 CERTIFICATION
BASED ON A• DRAFT ENVIRONMENTAL IIvIFACT STA'I`EMEN"f
Respondent improperly based its decision to issue the 401 Certification on a DEIS rather
than a FEIS_ NCEPA appliesto the Randlernazt Din project because the issuance of the 401
Certification satisfies all three requirements for NCEPA to be applicable: the project involves an
expenditure of public,monies and use of public lagd, the certification constitutes an, action by a
state agency (p. 3), and there are pgteretial, adverse,environmental effects that may result from
the construction of the dam (pp. 10.14). See 1 NCAC 25.0108.
The NCEPA process is not complete until a Seal EIS and an 1ZOD have been issued. See
1 NCAC 25.0400, 25.0600. The process begins with the preparation of either an l/A or an EIS.
1 NCAC 25.0401(a). If fhe :proposed activity.has the potential to cause adverse effects on the
environment, then the preparation and circulation of a draft EIS is required. 1 NCAC 25.0401; 1
'~ The affidavits of Mr. Lamb, Mr.: Lineberry; and Mr. Johnson arc currently unexeeuted_
P~titioncics wi11 submit the executed~versions as soon as they receive them from the affiants.
Respondent has received executed versions of Mr. `Y,amb and Mr. Lineberry's affidavits throagh
discovery.
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WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1428 N. 15
,,. NCAC 25.0605(a). Aft~'~comznerlts'on the draft EIS have been received, a final EIS must be
' issued. l NCAC 25.0605(c). Finally, the agency must issue an ROA. 1 NCAC 25.0606. The
agency may not proceed with its action until this process is complete. 15A NCAC 1 C.0~402(b)_
The Corps, in coordination with pTRWA and respondent, prepared the DEIS for the
Randleman Dam project. l;Iowever, the Corps has not completed the FEIS. Therefore,
respondeitt relied on the DEiS in making its determination to issue the 401 Certification.
Consequently, respondent's issuance of.the 441 Certification violated NCEPA.
This case is nearly identical to Matter of Environmental Management Comm 'n Final
Order Granting a Certificate oJAuthority to Orange Water and Sewer Authority, 280 S.E.2d 520
(N.C. Ct. App. 1981); appeal aRer remand; 341 S.E.2d 588 (N.C. Ct. App. 1986), review denied,
346 S.E ?d 139 (N.C. 1986) (hereafter, "-,Orange Water and Sewer Authority"). There, EMC
authorized the Orange Water and Sewer Authority (hereafter "OWASA") to use the power of
eminent domain in order to constFttct'a dam and reservoir at Cane Creek. 280 S_E_2d at 522-524.
The Cane Crcck Conservation Authority, an unincorporated association of affected landowners,
challenged this decision: The North Camlina Court of Appeals held that the issuance of the
certificate to acquire lands through eminent domain violated NCEPA because EMC "should have
had before it a final environmental impact statement before rendering its decision * * *." Id. at
526. According to the court, the issuance of the certification was a "State action which, if it
significantly affects the environment, necessitates an impact statement." Ibid. The court then
found that the proposed reservoir. vriould affect 700 acres of land and that there was sufficient
evidence to conclude that there are "potentially serious, adverse environmental effects which
cannot be avoided * * *." 16id.
l7

WATER & LAND SECTION Fax~919-rib-brbb Sep 14 'yy 14.121 r. Lb
OVVASA had argued that ati E1S 'was not required because the Corps would fik a fiztal
E1S before the project would begin.. 28Q S.E.2d at 527. The court rejected this argument
because (ibid.):
[7'Jhe purpose of am environxental impact statement is to provide the responsible State
agency with a useful deeisionmaking tool. In order for the statement to be a dccision-
making tool, the responsible State, agency must have the statement before it when it is
determining the action it `is going.to take ox recommend. In the present case, the fact that
the U.S. Army Corp[sJ of Engineers was is the process of preparing an environmental
impact statement is not.aufficient to comply with the requ.irem,ent that the Commission
itself considtlr the statement. and that the Commission circulate the environmental impact
statement amonE other State agencies which, because of special expertise or jurisdiction,
have an interest in the environmental impacts involved. [citation omitted)
~~
The Orange Water and Sewer Authority, decision is diapositive here. Like the agency in that
case, respondent issued the certification before the final ~):S has been issued. Therefore,
respondent's failure to wait for the.final $IS and ROA violated NCEFA.
The reasons for this failure are unclear. Respondent's own regulations provide that if "an
agency is considering a proposed action for which an environmental document is to be or is
being prepared, the agency shaII promptly notify the initiating party that the agency cannot take
final action until the environmental documentation,is completed and available for use as a
decision-making tool." 15A, NCAC;IC,.0402(b) u! Pursuant to this provision, John Dorney, an
1?~ The federal regulations fox eompliatiee .with NEPA contain the saint Iinoitation on an agency's
ability to proceed in the absence of a final EYS and ROD. 40 C.F.R 1506.1 provides:
(a) Until an agency issues a record of decision as provided in § 1505.2 (except as
provided in paragraph (c) of this section), no action concerning the proposal shall be
taken which would:
(1) Have an adverse environmental impact; or
(2) Limit. the choice of reasonable alternatives.
(b) If any agency is considering an ap~licati:on from a non-Federal entity, and is aware
that the applicant is about to take an action within the agency's jurisdiction that would
18

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1428 P. 27
employee of respondent, notified PTRWA that respondent "cazmot issue the 401 Certification
until the project has received a Finding of No Sigtrifieant Impact (FONSI) or Record of Decision
(R.OD) from the State Clearinghouse in accordance with NCAC 15A: O1C.0402." Pct. Ex. 15.
See Fort Stefvart Schools v, Federal Labor Relations Authority, 495 U.S. 641, 654 (1990) ("It is
a familiar rule of administrative law that an agency must abide by its own regulations") (citing
Vltarelli v. Season, 359 U.S. 535, 547, (1.959)). Nonetheless, for reasons unknown to petitioners,
A. Preston Howard, Jr., former Secretary of respondent, issued ~e 401 Cez~bification on Mr.
Howard's last or second to last day.in' office.
- In any went, the reason for the failure is irrelevant since respondent's issuance of the 401
Certification before the final E13 has' been cotttpleted violated NCEPA and respondent's
regulations. Thus, petitioners' motion for summary judgment should be granted.
~'-' ~, D. RESPONDENT VIOLATED'THE WATER QUALITY CERTIFICATION
REQULATIONS BECAUSE IT ISSUED THE 401 CERTIFICATION EVEN
THOUGH THE CONSTRUCTION OF THE DAM WILL RESULT IN
VIOLATIONS' OF Tl~ DEEP RIVER'S WATER-QUALITY STANDARDS
Federal and state regulations require that a 401 water-quality certification be issued only
if it provides reasonable-assurance that the proposed activity will not result in violations of ~torth
Carolina and the federal govcrntrient's water-quality standards. See 15A, NCAC 2I~.0500; 40
C.F_R. 121.2. Accordingly, the 40I Certification states that the "application [for the
certification] along with other environmental protcartion provisions outlined in this document
meet either of.the criteria in paraEraph (a) of this section, then the agency shall prornptty
notify the applicant that, the.agcncy will take appropriate action to insure that the
objectives and procedx~res of NEPA are achieved.
Accorcl33 C.F.R. 230.22.
19

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 14.29 P. 28
provides adequate assurance that the discharge of fill material into the waters of Deep River and
~1
the proposed development will not result in a violation of the applicable Water Quality Standards
and discharge guide}fines." Pet, Ex. 16. As will be demonstrated below, respondent has
acknowledged in its own documents that this statement is false because, although the State's
chlorophyll a standard is 40 µg/l for alI fresh_surface waters, the State's modeling predicts that
tlae Deep River's chlorophyll a levels`will significantly exceed this value once the dam is
constructed. See 15A NCAC 2B.0211(3)(a). Therefore, petitioners submit that this Office
should revoke the 401 Certification; because it is indisputable that the construction of Randleman
Dam and Reservoir will result is violations of the State's chlorophyll a water-quality standard.
On July 29, 1999, petitioner's served their first set of interrogatories on respondent. In
response to petitioners' question asking respondent to identify the values of the water-quality
parameters that respondent has estirriated will exist is the Deep River and Randleman Reservoir
after the dam is constructed, respondent stated (Pet. Ex. 1 ~:
There are no relatively certain, accurate, calibrated response estimates available for these
parameters, as the Randleman Reservoir has not yet been constructed. Estimates have
bccn made using best professional judgment, evaluations on overall use support, non-
calibrated predictive water quality mathepaatical models, reviews of existing water _
quality infor~iation, consideration of the positive impacts and measures foulad in the
Randleman Lalce. Water ;Supply Watershed:. Nutrient Management StrategyJ, and
consideration of additional. information that Inns bccn provided to Respondent through a
substantial public participation process.
Respondent then cited two documents: ,the March 1998 Draft Nutrient Reduction Strategy and
Implementation Plan forRandlemaa Lake (hcrcaftar "1998 Implementation Plan") and the
Report of Proceedings Proposed Reclassification of Segments of the Deep River (Proposed
Randleman Reservoir) Public Hearing, September 1, 1998, Jamestown, N.C. (hereafter "Report
20

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1429 P. 29
of Proceedings"). Pek Frxs. 18, 19; However, as demoastratcd below (pp. 22-29), both of these
documents predict thatthere will be significant chlorophyll a violations as a result of the
construction of Randleman Dam.. Furthermore, these predicted violations underestimate the
actual violations that can be expected to. occur because there arc major flaws in the assumptions
of both documents' modeling. Consequently, it vitas, and still is, not possible for respondent to
provide "reasonable assurance that the activity will be conducted in a manner which will not
violate applicable watex quality staadards." 40 C-F.IZ. 1z1.2(a)(3). See also 33 U.S.C.
1341(a)(1); 15ANCAC2H.OS06..
Phosphorus and nitrogen, lcaown as nutrients, are "common components of plant
fertilizers, aniziaal and human wastes, vegetation and some industrial processes." Basinwide
Plan, p. 3-3. They comp from both point and nonpoint sources. Ibid. Specifically,
"[a]gricultural runoff,and wastewater treatmont plants along with urban storm water, forestry and
atmospheric deposition are the main sources of nutrients." Ibid_ An overabundance of these
nutnicixts "can stimulate the occurrence of algal blooms and excessive plant growth in quiet
waters such as ponds, lakes, reservoirs and estuaries," Ibrd. The effects of this occurrence aze ss
follows (ibid.):
Algal blooms, through respiration and decomposition, deplete the water column of
dissolved oxygen[!] and eau contribute to serious water quality problems. Nutrient
ovcrenrichment and the resultertt problems of low dissolved oxygen arc called
eutrophication: In addition to the.problems with low dissolved oxygen, the blooms aze
aesthetically undesirable, impair recreational use, impede commercial fishing and pose
difficulties in water treatment at water supply reservoirs. [emplxasis in original]
"~ "The concentration.ofdissolued oxygen (DO) in a water body is one indicator of the general
health of en aquatic ecosystem:" Sasinwide Plan, p. 3-1. "Maintaining a sufficient level of
dissolved oxygen in the water is critical to most forms of aquatic life." ,Ibid.
2I

WATER & LAND SECTION
Fax ~ 919-716-6766 Sep 14 ' 99 14 29 P. 30
The risk of eutrophication can be measured by awater-body's level of chlorophyll a which, in
excess of 40 µg/I, "is indicative of excessive algal growth and portends bloom conditions-" ,(d.,
p. 3-6.
Respondent's modeling indicates that, with tke WWIP at its current location and
discharging 26 MQD of trcate~ wastewater with a concentration of 0.2 mg/I of total phosphorus,
there will be serious chlorophyll a violations. The modeling predicts that the average Ievels of
chlorophyll a in the upper seg~etst of the Deep River will be 8 I µg/1 during low flow years
(with violatior~.s occurring 83% of the time), 61 µg/l during high flow years (with violations
occurring 67. I % of the time), aad 67 j~gl! during average flow years (with violations occurring
73.3% of the time). T998 Implementation Plan, p: 3-31. Thus, as the Plan explains, "it will be
difficult or infeasible to achieve the nuisance frequency goal within the Deep River I segment,
due to the natural hydraulic characteristics of the proposed lake." td., p. 2-10.
Moreover, the 1998 Implementation Plan indicates that it is impossible for Randleman
Reservoir to meet the State's chlorophyll a standard pf 40 µg/1. The Plan's "model predicts that
the goal of less than 5 .percent. of days with chlorophyll a concentrations greazer than 40 µg/1
would not be met in the uppermost part of the Deep River arm due to nutrient loads from [the
Highpoint East Wastewater Treatment Plant (hereafter the "WWTP")~ alone and with no
watershed contribution of Ioadt even with the WWT'P attaining a vary high degree of nutrient
removal." 1998 Implem~ez~tation Plaa, p. 2-4. In other words, even if the WWTP dramatically
reduces the amount of nutrients'that it~is discharging into the Deep River and if we assume that
there will be absolutely no phosphorus comutg from non-point sources, there still will be
chlorophyll a violations in the upper Dccp River.
a~ .

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1430 P. 31
The plan also predicts that`if the WWTP's discharge paint were moved to a Iocation
r--.
below Randleman Reservoir so that no phosphorus from the WWTP entered the Reservoir, "the
predicted average chlorophyll a concentration in this segment would be 46 µg/1 with a 48%
probability of concentrations .greater than 40' µg/I." Id., Section z, p. 6. Thus, it is clear that even
if no phosphorus enters'the reservoir from the W'VVTP, there will still be violations of the
chlorophyll a standard.
`~ T'he seriousness of the predicted chlorophyll a violatio~as is compounded by the fact that
there are two major flaws in the ,1998 Implementation Plan.
First, in determining the ~mouat of nutrients that would enter Randleman Reservoir, the
Flan assumed that the land usa conditions were those that existed in 1989. 1998 Implementation
Plan, pp. 2-5 to 2-6. However, when latxd.ases change to accommodate growth, increased
-•-. ~ nutrient Loading occurs. As the Plan explains, "[t]o the extent that forest land use is converted to
urbanized land uses[,] increases in nutrient loading:will occur. Increased impervious surface
cover accompanying urbanization will also change nmoffpatterns." Id., p. 2-12. This area of
North Carolina has been experietuing tremendous growth in the past 10 years. Id., p. 1-1.
Therefore, the use of 1989 data calls into question the validity of the modeling for the nozz-point
source discharges of nutrients. As: one of respondent's ~mpIoyees explained (Pet. Ex_ 20, p- 2)-
The area of uncertainty in the ,[Plan's] modol that may be the largest concern is azt overall
potential to under estimate non point source (NPS) nutrient loading. * * * (T]he land use
data utilized to.calculate "entreat" NPS nutrient loads (via export coefficients) is actually
the 19891and use data previously assembled by Black & Veatch. Hence, the data is
nearly 10 years old at this point and most likely underestimates the present levels of
development in•an arcs with growth rates as high as the Triad. The projected land use
scenarios used to calculate fliture NPS loads are also partly based on an extrapolation
from this °currertt" land use data..
zs

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1430 P. 32
Thus, it is virtually certain that the violations that arc predicted to occur will be even more
serious than has bees estimated.
Second, the 1998 Implementation Plan's modeling substantially undcresLimates the
amount of phosphorus that the WWTI~ ,discharges, and will continue to discharge in the future,
into the Deep River and Raadl~man Reservoir. The Plan's model assumes that the WWTP is
currently discharging 10.5 MGD vNifh a total phosphorus concentration o~4 milligrams per liter
(hereafter "mg/1") and a total nitrogen concentration of 20 mg/1. 1998 Implementation Plan, p. 2-
8; Appendix I, p. A-I~1. However, since at least February 1, 1993, the WWTP has actually been
discharging 16 MGD. Pet Ex. 21. Therefore, provided that the concentration level of
phosphorus in the WVVTP's discharge continued to average about 4 mgll when the WT7'p
upgraded to 16 MC~D, the model nadcrestimates tfie total ammount of nutrients that WW'I'P is
discharging into the Deep River.'.-°~
In addition. the Plan's model assumes, that in the future, wjaen the nutrient reduction
strategy is in effect, the WWTP wi~l.be discharging 26 MGD with a concentration of 0.2 mg/1 for
total phosphorus (as opposed to the 4 mg/1 of phosphorus that the Plan's model indicates that the
~~ The quantity of any. given compound (or eIemcat) that gets discharged from a point source is
dependent upon the concentration. level of that compound and the amount of effluent (in this
case, wastewater) that is gating discharged.. Thus, if a plant discharges 10 gallons of water per
day and that water has a concentration of 1 kilogram of copper per gallon, the plant will
discharge 10 kilograms of copper pex day. When the amount of affluent that is being discharged
from a source increases in 4uantity,ie.g.,fmm 10 MGD to 20 MGD, and if there is no change in
the concentration level of any given'cotnpoundeontained in the water, the total quantity of that
compound that is discharged will increase. For example, if wastewater contains 1 kilograms of
copper per gallon and .the discharge quantity increases from 10 million to 20 million gallons per
day, the amount of copper that is discharged will increase from IO to 20 million kilograms per
day (assuming that the plant continues to discharge its wastewater with a copper concentration of
1 kilogram. per gallota).
24

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1431 P. 33
WWTP is currently discharging). 1998 Implcmrntation Plan, p. 3-31. The Plan states that as
"part of the stzatcgy for protecting the proposed Randleman Lakc, it is expected that [the
WWTP's permit] will include a 0.5,: mg/1 limit for total phosphorus * * *." Id., p. 3-1. Then it
states that the WWTP's disclmrge will;drop down to 0.2 mg/1 through financial incentives
offered by PTRWA. 1'bid.
This reduction in the phosphorus: concentration cannot be justified The Plan states that
data collected from the WWTP indicate that, between 1986 and 1989 and between 1996 and
1997, the WWTP's wastewater hag had an average concentration of 4 mg/1 ol'phosphorus_ 1998
Implementation Plan, Appendix T, p. A=I-1. According to the WW'TP's May 26, 1999,
application to upgrade its facility to 26 MGD, its wastewater in the past year has had an average
concentration of 3. I 1 zng/1 far phosphorus. Pet Ex. 22, item 14. Furthermore, wtrtn EMC
-~ prornulgated the strategy for protecting the Randleman Dam and Reservoir, it declined to
incorporate the 0.5 mg/1 phosphorus limit, principally because "having specific point source
limits in a rule make future permitting changes extremely difficult and does not pro'vidc the
opportunity to address water quality impairments ixr a timely fashion." Report of Proceedings, p.
11. Instead, EMC recommended that the Divisiou~of Water Quality include in the WWTP's
permit a phosphorus limit of 0.5 mg/l. Ibid. In spite of this recommendation, the WWTP's
current discharge pcr~rtit, as modi5ed o-t 3anuary 1, 1999, does mot contain any limit for total
phosphorus but zncrcIy requires the. WWTP to motitor its discharge for total phosphorus on a
monthly basis_ Pct. Ex. 23, p. 3.
Moreover, respondent has made:no showi.ag that financial incentives will result in the
discharge level being reduced b~! well over 90 percent from 3 mg/I to 0.2 mg/1. Indeed,
25

WATER & LRND SECTION Fax~919-716-6766 Sep 14 '99 1431 I'. 34
respondent has not even set forth what the financial incentives are and the calculations on which
this 0.2 mg/1 Ievel is based. In these circumstances, the 0.2 mg/1 level is entirely speculative.
Therefore,'the use of a phosphorus.limit of 0:2 mgn for the WWTP whose discharge in the last
10 years has mcvcr had arz annual .average of phosphorus less than 3 mg/1 and whose pcrtnit
currently does not contain any limit for;phosphorus means that the model almost certainly
underestimated the amount of'phosphorus that wilt enter the Randleman Reservoir from the
ww-j'p 7~
However, even if the 0.2 mg/l level could be supported, the 1998 Implementation Plan
concedes that when the WW'IP is operating at 26 MCID, the only way for there to be no
chlorophyll a violations for more than S% of the time during the algal growing season is if the
plant discharges phosphorus.at,a concentration of 0.008 mg/1 during tow flow years and 0.025
•'- • t mg/1 during average flow years. 1.998 Implcmczitativn Plan, p. ES-2. Thus, it is absolutely clear
that after Randleman Reservoir is completed,.there.will be chlorophyll a violations and the •
concomitant risk of eutrophicatiott.
The Report of Proceedings contains the AMC Hearing Officers' recommendation that the .
Upper Deep River be reelassr~'ied to Cltcss WS-1V waters so that the Reservoir could be built and
used as a water supply: The Report of Proceedings appears to contain a much more sinr~plified
20~ zt is also worth noting that the VVWTP has a history of violating its permit. Petitioner
American Canoe Association sued the WWTP under the Clean Water Act in order to force the
WWTP to comply with its perritit. As a result of this lawsuit, the WWTP entered into a consent
decree on July 2, 1997. Petitioners are.submitting a summary of civil penalties that the WWTP
has paid to the United States Treasury:far permit violations that the WWTP committed during
1998 and 1999. See Pet.'Ex. 24., This summary shows that since January 1998 and through May
1999, the WWTP has paid $50,537.50 in civil penalties.
26

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1431 P. 35
. _ amalysis of the predicted chlorophyll a:violations. ,Report of Proceedings, pp. 3-16. Nonetheless,
it also concludes that there will. be cltlorophyll a violations, although to a lesser degree than the
1998 Implementation Plan. Id, pp: 8, 1 &19.
The Report of Proceedings', conclusions with respect.to the predicted chlorophyll a
violations was based on the modeling of respondent's former employee, Jason Doll. On
February 24, 1998, Mr. Doll stated'tliat'the most recent version of the eutrophication model
"predicts that under existing land;use and wastewater discharge conditions, during an average
flow year, mean growing season cl~ Iilorophyl a in the upper Deep River (Deep River 1) segment of
the reservoir will be 95.µg/1, and that nuisance levels will eadst 89% of the time." Pet, Ex. 20, p.
1. Mr. Doll then concluded, "[r]egardless of the modeling scenario utilized, it is highly likely
that chlorophyl a levels in violation of water quality standards will be predicted to persist in this
. ~ arm of the reservoir for the majority of the growing season." Ibid.
The Report of Proceedings'' aaalj!sis reflects Mr.17oll's conclusions. According to the
Report (p. ~:
[i]f the High Point Iraxsstside discharge were to remain at its present site and discharge at a
0.5 mg/1 phosphorus effluepi concentration into the Dccp River Scgmcnt 1, the average
chlorophyll a value expected in that segment of the Iake, during the growing season,
would be 76 pg/1. Also, fbe models predict that the waters would violate the 40 µg/1
chlorophyll a standard 80%. of the time during the growing season (May through
September). This level of eutmphication would result in unacceptable water quality
conditions in that arm oftlic lake.
As a resuit of these predicted violations, EMC recommended that when DWQ issues the
VVVVTP its discharge permit. DWQ require that the discharge point be moved 1.5 miles
downstream. Report of Proceedings, p. 11. Idowever, under that scenario, there will still be
chlorophyl! a violations. The R~pact indicates that, with the WWTP's discharge point relocated
27

WRTER & LAND SECTION Fax ~ 919-716-6766 Sep 14 ' 99 14 32 I'. 36
and a phosphorus permit Iimit of Q;5 mg/1, the average chlorophyll a level in the Dccp Rivcr
segments 1 and 2 is predicted to be 39 µg/1 and 31 µg/1 respectively. Id., p. 8. Although these
values aze below the standard of 4'Q µg/1, they are averages. Since segment 1 is estixuated to have
an average value of 39 µg/1, it is certain that them will be violations. In fact, the Report predicts
that segziaent 1 will cxpcricnce chlorophyll a:violations 37 % of the growing season and segment
2 will experienec such violations 24% of the growing season. Ibid. Moreover, as EPA has
pointed out (Pet Ex. 25; p. 4):
An argument is made flint tb~e overall avcragc lake chlorophyll "a" will z~aeet state criteria;
however, these criteria musf be~ inet at any point in the lakc. In addition, the State
chlorophyI1 "a" criteria is a daily maximum criteria while the (DEIS] analysis estimated
in stream chlorophyll "a'' concentrations only on as annual and growing season basis. It
is reasonable to expect that some daily chlorophyll "a" concentrations will exceed
average conccntcatioms.
Thus, the Report of Proceedings. indicates that there will be violations of the Deep River's
chlorophyll awater-quality standard.
In addition, like the 1998 Iniplemcntation Plan, the assumptions ire the Report of
Proceeding's modcli~g aze flawed:
First, the Report's modeling assumed that the WVVTp would be meeting a phosphorus
G
concentration limit of0.5 mgll. As:shown.above (pp. 24-24), this seriously underestimates the
amount of phosphorus that the WWI'p will discharge into the reservoir-
Second, the Report's modeling. was based on average flow conditions. As the State of
North Carolina has argued in the past, modeling should include an analysis of low flow
conditions- In North Carolina v.' Hudson, 66S F. Supp. 42'8, 438 (E.D.N.C. 1937), appeal after
remand to agency, North Carolina. v Hudson,. 731 F. Supp. 1261 (>r.D.N.C. 1990), the State
28

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1432 P.3~
azgued that:
[R]eliance on average flows to determine water quality impacts is "misplaced" because
water quality analysis must be based on lost flow (drought) canditions. When the amount
of water in the. river is at its;lowcst point pollutants aze at their greatest concentration
because the amount of water available to dilute them is Limited.
Thus, had the Report also included modeling under low flow conditions, it undoubtedly would
have predicted greater chlorophyll a violations than those predicted under average flow
conditions. See 1998 Implementation Plan, p. 3-3I.
If violations are. predicted,. respondent is not permitted to issue a 401 certif cation. 15A
NCAC 2H.0500; 40 C.F.R 121. As oue of respondent's employees expressed it, a "violation of
the standazd is a violation of the• standard." Pet. Ex. 2b, p. 2. ~ CotuequentIy, considering that all
of respondent's modeling indicates ;that violations of the States water-quality chlorophyll a
standard will occur, and these predictions substantially underestimate the actual violations that
aze likely to occur, petitioners submit that it was improper for respondent to issue the 401
Certification for the construction of Randleman Dam and Reservoir.
E. RESPONDENT VIOLATED THE.WATER QUALITY CERTIFICATION
REGULATIONS.BY ISSUING TIC CEIZTII~'ICATION EVEN THOUGIi
PTRWA NEVER F~I,ED AN APPLICATION
Tlae water-c}uality certiflcatiott regulat}ons pmvide (15A NCAC 2H_OS02):
(a} Application for certifc.~ition.. Any person, as defined in Article 21, Chapter 143,
North Carolina Genera! Statutes, desiz~ing issuance of the state certification or coverace
under a general certification required by Sxtion 401,of the Federal Water Pollution
Control Act as amended shall $fe'with the Director ofthe North Carolina Division of
Water Quality (director), at the office in Raleigh, North Carolina, an original and six
copies of an application for certification. * " "The application shall specify
(1) the date of the application;
(2) the name, address, and phone number of the property owner;
29

WATER & LAND SECTION Fax ~ 919-716-6766 Sep 14 ' 99 14 32 P. 38
(3) if the applicant is a corporation, the state in which it is domesticated, the name
of its principal officers; the name and address of the North Carolina process
agency, and the name of the individual who shall be primarily responsible for the
conduct of the activity for which Certification is sought;
(4) the natwe of the activity to be=conducted by applicant;
(5) whether the discharge has occurred or is proposed;
(6) the location of the discharge, stating the municipality, if applicable; the
county; the drainage bASin;.the nattte of the receiving waters; and the location of
the point of discharge with regard tot he receiving waters;
(~) a description of the.recciving waters, including type (creek, river, swamp,
canal, lake, pond or; estuary) if applicable; nature (fresh, brackish or salt); and
wetland classification;
(8) description ofthe•type of waste treataicnt facilities if applicable.
(b) Maps_ Thez~e shall be attached to the application a map(s) or sketch(es) of sufficient
detail to accurately delineate the boundaries of the lands owned or to be utilized by the
applicant in carrying out its activity; the location; dimensions and type of any structures
erected or to be erected on said lands for use in connection with the activity; and the
location and extent of the receiving waters, including wetlands within the boundaries of
said lands.
In this case, PTRGVq, never subnZitted an application for 401 Certification. PTR'DVA only
applied to the Corps for a permit under Section 404 of the Clean Water Act to fill wetlands for
the construction of Randleman Dam. Acearding to respondent, the Corps' public notice that this
application had been filed was t1u application for the 401 Certification. Pet. Ex. 2, p. 2, para. 1.
Respondent has stated that the Corps' notice "is the trigger for 401 Water Quality Certification
under North Carolina law and there; isn't a separate `application' as such." Ibid_
The Corps' notice is clearly riot an application under the water-quality certification
regulations. The regulations explicitly require the person desiring the issuance of the
certification to file unoriginal asid six copies of the application. That person here was PTRWA,
30

WATER & LRND SECTION Fax~919-716-6766 Sep 14 '99 1433 P. 39
not the Corps. The regulations also require that the application describe the receiving waters and
attach maps providing sufficient detail. The Corps' notice contains neither. See Pet. Ex. 27.
Petitioners az~e unable to locate any IegaI authority that supports respondent's use of the
Corps' public notice as the 401 certification. application. Therefore, petitioners submit that
respondent violated. the water-quality certification regulations when it issued the 401
Certification without requiring PTRWA to file an application_
F. RESPONDENT ABUSED I'TS DISCRETION BY DEN'Y7NG PETITIONERS'
REQUEST FOR A PUBLIC HEARING ON THE 401 CERTIFICATION
DECISION
- The water-quality certifiication regulations provide that if the Duector of the North
Carolina 17ivision of Water Quality "determines that it is in the public interest t}aat a public
hearing for the purpose. of reviowing public comment and additional information be held prior to
granting or denying certification, the Director shall so notify the applicant" and provide notice to
the public. 15A NCAC 2H.0504(a). On November 15, 1998, Alan Horton, a member of
petitioners Deep River Citizens' Coalition and Deep River Coalition, Inc_, sent a letter requesting
that a public hearing be held on the 401 Certification. Pet. Ex. 28?'~
Four months Inter, on March.l0, 1999, A. Preston. Howard, Jr, sent Mr. Horton a letter
denying his request for a public hearing. Pct. Fx. 29. Mr. Howard explained that (ibid.)-
[He and respondtnt] have weighed the cost to government agencies, the cost to the
applicants, and the delay in supplying the water needs of tine region against the potential
far obtaining additional information applicable to the 401 decision. We have concluded
that there have been autple opportunities for the public to provide information relevant to
our decision. Furthermor+~,.we izave rio evidence that there are sectors of the public who
-" The date on the letter contains a. typographical error. The letter is dated November 15, 1997,
but it was actually scut on November 15, 199$.
31

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1433 P. 40
have not been afforded these opportunities or that anyone has additional, previously
undisclosed information that would differ $om what we have received thus far. As you
know, the Division held a workshop in June of 1998 and a public hcarin,g in September of
1998 in Guilford County.
However, notwithstanding lYli.,Howard's comments, respondent knew that sections of the
public had not been afforded adequate opportunities for comment. Prior to the issuance of the
401 Certification, respondent's employees discussed the prospect of addressing questions
concerning the Decp River's water-quality problems and decided to circumvent those questions.
The day before the June 1998 workshop that is referenced in Mr. Howard's letter, Boyd DaVane,
an employee of respondent, sent'an a-mail to 13 fellow employees in which ~e stated (Pct. Ex.
30):
I talked with ,Till Hickey at kagth today about the issue of predicted violations of the
chlorophyll a standard in Randleman Lake and what would we say if a person at the [June
1998] workshop asks if the Director could issue a 401 Certification since our models
~"`~ , predicted there would be violatiops of a [water-quality] standazd. lgcr strong guidance
was to say "that issue is not under consideration at this time, it is not the purpose of this
meeting[.]" Site said tbiat tht404 and 401 rules are complex and we arc not in a position
of predicting how they would apply to this situation. * * * To the question of "how can
the EMC allow a lake to be built that will violate standards,[") we can respond that the
decision on building the lakewi:ll be made by the Corps of Engineers and not the EMC
but that the EMC would decide fadditional management actions were appropriate #'or the
lake. Some of us have. already received these questions and at the meeting tomorrow, we
will probably hcaz them again:
Therefore, respondent's coatention.that there had been "ample opportunities" for the
public to provide input on the water-quality issues is erroneous since the respondent expressly
stated that it would avoid answering any question concerning the Deep River's water quality-
Consequently, respondent abused :its discretion in refusing to hold a public hearing on the 401
Certification decision, which is the most;important issue in this case.
3z

WATER & LAND SECTION Fax~919-716-6766
Sep 14 '99 1434 P. 41

CONCLUSION
For the foregoing reasons, .petitioners. submit that their motion fox summary judgment
should be granted and the 401 Certification should be revoked.
Respectfully submitted,
w. /7
~~r d <'~
BRUCE J~. TERRIS
DEMIAN A. SCHANE
Terris, Pravlik & Millian, LLP
1121 12th Street, N.W.
Washiagton, D.C. 20005
[phone]
MARSH SMITH, N_C. Bar No. 16828
Cunningham, Desmond, Petersen & Smith, LLP
. P.O. Box 1468
$outh~cu Pines, N.C_ 28388
[phone]
Attorneys for Petitioners

WATER & LAND SECTION Fax~919-716-6766 Sep 14 '99 1434 P. 42
,~
• C£RTTFICAx'E OF SERVICE
I hereby certify on this ~~ day 'of September 1999, tk~at I have caused a true copy of the
foregoing "Petitioners' Iv,(emorandum in Support of Their Motion for Summary Judgment" to be
delivered via Federal Express overni~lit mail, postage pre paid, to the following:
'Charles D. Case
Hunton &.'Williams
One Hannover Square, Suite 1400
Fayetteville Street 1vlall
Raleigh, N.C. 27401
.George W. House
William (}. Ross, Jr.
Brooks, Pierce, McLendon, Iiunnphrey & Leondard, L.L.P.
230 North Elm Street
Suitt 2000
. Greensboro, N.C. 27401
Linda A. Milts
Attorney, City of Greensboro
301 West Washington Street
Melvin lVlunicipai Office Building
(3reeitsboro, N.C. 27402
Kathryn )ones Cooper
:Special'. Deputy Attorney GeAeral ,
N.C. Department of Justice, Enviroxuncntal Division
1'114 West Edenton Street
Room 311
R$leiglz; N.C. 27602
I
L~/ut.t.~., - ~h
DEMYAN A. SCHANE
34

ti
STATE OF NORTH CAROLINA
~~, ~ . I ., ~ _ _ - _
COUNTY OF RANDOLPH
~i;_ ~,
~~_ ~;. _.
- •;
DEEP RIVER CITIZENS' COALITION, et al.,
Petitioners,
v.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES,
Respondent,
and
CITY OF GREENSBORO and
PIEDMONT TRIAD REGION.-~L WATER
AUTHORITY,
IN THE OFFICE OF
ADMINISTR-~TIVE HEARINGS
Case No. 99 EHR 060
(consolidated ~~•ith 99 EHR 0613)
,,,
• r~ s ~;
~ ~ 7 2~0
Vr`ETLANDS GROUP
'?~r'~.TLR UALQ In SECTION., .
RECOMMENDED DECISION
~.u
Intervenor-Respondents.
On May 3, 1999, the Deep River Citizens' Coalition and American Canoe Association,
Inc. filed a petition for a contested case hearing challenging the Clean Water Act Section 401
Water Quality Certification determination made by the Respondent Department of Environment
and Nat~.tral Resources, Division of Water Quality ("Respondent'') for the proposed Randleman
Reservoir in Guilford and Randolph Counties ("Water Quality Certification")(99 EHR 060).
On May 11, 1999, The Deep River Coalition, Inc. filed a petition for a contested csse hearing on
the same Water Quality Certification (99 EHR 0613). The cases were consolidated on June
?,1999. On August 17, 1999, the City of Greensboro ("Greensboro") filed a motion to intervene,
~~hich was granted on August 18, 1999. On August 17, 1999, the Piedmont Triad Regional
Vdater Authority ("Authority") tiled a motion to intervene which ~-as granted on August 19,
1999. The Deep River Citizens' Coalition was dismissed on September ?0. 1999. for failure to
satisfy the jurisdictional requirements of N.C. Gen. Stat. §5 1-69.1 and 66-6S ~ti~hich dismissal is
memorialized by Order dated November 1. 1999.
This matter came on for hear~n~ before Administrative Law Judgz R,~b~ ~ Roosevelt
Reilly, Jr. on October 13, 1999. in Raleigh, North Carolina. for consideration of the following

i.
motions: (1) Petitioners' Motion for Summary Jud~~ment; and (~~ Intervenor-Respondent City of
Greensboro's Cross Motion for Summary Judgment. "
APPEAR~.tiCES _~"
For Petitioners: Carolyn Smith Pravlik
Demian A. Schane
Terris, Pravlik & Millian, LLP
Washington, D.C.
For Respondent: Kathryn Jones Cooper
Special Deputy Attorney General
North Carolina Attorney General's Ofnce
Raleigh, North Carolina
For Intervenor-Respondent
Greensboro:
For Intervenor-Res_ondent
Authority:
George W. House
William G. Ross Jr.
Brooks, Pierce, McLendon, Humphrey &:. Leonard. L.L.P.
Greensboro, Noru`i Carolina
Charles D. Case
Hunton &: Williams
Raleigh, North Carolina
IssL~Es
Did Respondent substantially prejudice Petitioners' rights and exceed its author.'tZ• or
jurisdiction, act e:~oneously, fail to use proper procedure, act arbitrarily or capriciously, or fail to
act as required by law or rule, when it made a 401 Water Quality Cerification Bete... ination
favorable to the Piedmont Triad Regional Water Auti~iority on l~larch 11, 1999?
Petitioners urge four resons for their belief that this Issue should be ans~.ye:ed in
a=i~:natively:
i. Respondent issued the 401 Water Quaiin• Certification pror to tine li.S.
Army Corps of Engineers ("Corps") completion of a Final Eryiroru-:iental
L~npact Statement.
ii. Respondent issued the 101 «'ate~ ,•~iir,~ Certification ir. spite or l:ayir.~~
. Q _.._
received and reyieu•ed nu~ient respor_se n:odeiin~t that Predicted ft:tu:e

concentrations of chlorophyll a in the upper tv~•o segments of the proposed
Randleman Lake in e~ccess of 40 µ~/1 under certain possible sets of
assumptions.
-.
iii. The Respondent never received a complete Application fora 401 Water
Quality Certification from the Piedmont Triad Regional Water Authority.
iv. The Respondent denied a request by one member of one Petitioner for a
public hearing.
For the reasons set forth in the Findings of Fact and Conclusions of Law, I do not find
Petitioners' reasons persuasive and believe the Issue should be answered in the negative.
FLNDINGS OF FACT
Parties
Petitioner American Canoe Association, Inc. is anot-for-profit corporation organize
under the laws of the State of New York, with its principal place of business in
Springfield, Virginia.
2. Petitioner The Deep River Coalition, Inc., is a North Carolina non-profit cororation.
Respondent North Carolina Department of Environment and Natural Resources is an
agency of the State of North Carolina organized and existing pursuant to Chanter 14: B of
the General Statutes of North Carolina.
=. Intervenor-Respondent Piedmont Triad Regional Water Authority is a regional rate:
authority crested and existing pursuant to acts of the Gene: al Assembly including Article
1 of Chapter 162A of the North Carolina General Statutes:
~. Intervenor-Respondent City of Greensboro is a municipal corporation of the State of
Norr~h Carolina organized and existing pursuant to acTs of the General Assembly.
including Chanter 160A of the North Carolina General Statutes and the various acts of the
General Assembly that constitute the Charter of the City of Greensboro, and is a member
of the Piedmont Triad Regional `eater Auzl`tort~~.
The Proposed Randleman Reser~~oir: 30 Years and Counting
c. The Ra.*~dleman Reservoir proiec: has a Ions history dating back mere than .0 years. In
i96~, Congress autinorized tl':e cors~ttc:ion of the 10.100 acre multi-purpose Randleman
Lake project by the Cors. The project ryas to have a lake of ..0-f acres s;YT-ounded b~~
another 7.Of: acres of lard for food control and recreation. T're Cores t=,~:,ded s:.yerai

studies on the anticipated water qualir; characteristics of the proposed rese:-~•oir. .also,
the Corps prepared and published the first draft Environmental Impact State:ne:~t f "Firt
DEIS") and the first final Environmental Impact Statement (`'First Fi/IS"~ on ti,,~
proposed project. T'ne environmental review documents discussed the impact; of W.d
alternatives to the Randleman Lake project. Petitioner's Exhibit 19 at 1.
7. The Authority, consisting of the municipalities of Archdale, Greensboro, I-ii2h Point.
Jamestown and Randleman, and Randolph County, was incorporated in 1986 for the
purpose of purchasing water from the federal reservoir. However, char?es in federal
funding policies caused the Corps to withdraw its support of the project in 1987.
Petitioner's Exhibit 19 at 1.
8. The Corps completed the First FEIS for the Randleman Lake project before it u•ithdre~.v
from directly funding the project. Thereafter, the Authority conducted its o«:~
independent study of water supply alternatives and decided to pursue corsrsc;ion of t::e
reservoir, without direct funding from the CotFs, as a single purpose ware: sut,oi~: oroiect
with the same 3,04 acre reservoir pool size proposed by the Corps, but tl:e ~:,ou.,t or'
surrounding land was reduced to 3,000 acres. Petitioner's Exhibit 19 at 1.
9. Randleman Lake, as proposed by the Authorn•, would be cons~scted zt tre sa.:,e c..
site a.*Id with the sane normal elevation of 68? feet above mean sea le•.-el t~.zt «-c•~lc
flood the same 3,0-'.~ aces as preciously' contemplated b_v the Cor_ s. Greensboro's
Exhibit 16 at Bates ~ o. 3 i i 6.
10. On or about August 18, 1988, the Authority petitioned the North Caroiira E~,~•~:o--:-;~-:_:.'
iVlanagemeat Commission ("EVIC") for the power of eminent domain to purc:,2se 1~.~
for the Randleman Lake project and to transfer up to 2 million gallons peg dw frCi:` •-
Cape Fear basin to the ~"adkin basin and also to divert within the Cane Fear basi un to
28.E million gallons per dav_ of waver from the Deep River to the Hats Ri~.e-.
Respondent's Exhibit 3-~.
11. The North Carolina Division of Water Resources prepared and pubiis:.mod a d:~~
Environmental Im~~act Statement ("Second DEIS") and a final Eavirorli:lental I~:_~ =ct
Statement ("Second FEIS") which discusses the impacts of and alternatives to the
Randleman Lake project. Petitioners' Exhibit 19 at 1; Gre~nsbora's Exhibit 16 at
Bates'.~o. 38~-i.
--. On Fec~~sr 6, 1 ec ~ . ~e E`1C held ? ^u~ t he:.ri-ta •
' :. i.c in Randle:..a.~~. No- ; Cam; ,:: a.
part of its review ~nurs•~*a to forn:e: N.C. G~^. Stat. ~~ 16?:?-7 and 1~' `-.S=•i e• -R
R.rldle:rl~rl Lake proiect. Petir'oners' Esaibit 19 at 1; Respondent's Elalblt;= at 1.
--. The Di~.aion of «~~*.e. Resources ce.: ^iete~ •C.. ~ - - _ - -.
Doctll;.ent''(`'Re~,•ie~.~ Doc•.:rneat`') that incor'-orated W r :; •; rh, j.: - - - ~` ~_~~.
R~.rlCle:-:a.*: La.~e F• ol:c ~:,.,,•.. _ ~ 6, la~l ~s ~ 1 pe c \ ~ _~`^-_ ~~~~._.
'41_ - -~ - ~" ~ ~~•_=-~~ Greensboro's E1~1bIT 10 a. h'ltes
u.

14. On or about July 8, 1991, the Authority submitted to the U.S. Army Corps of En~1ineers
an application, signed by John F. Kime, Executive Director of the Authorir~, to construct
the proposed dam and reservoir ("Authority's 404 and 401 Application"). The Authority
notified the predecessor of the North Carolina Department of Environment and Natural
Resources ("DENR") of the Authority's 404 and 401 Application by letter of the same
date addressed to the Division of Water Resources with a copy to the Wildlife Resources
Commission. The Authority's 404 and 401 Application included the following heading:
APPLICATION
FOR
PERMIT TO EXCAVATE A?~1D/OR FILL WATER QUALrrY CER i IFiCATION
EASEMENT M LANDS COVERED BY WAi cR CAMA PER,'v1IT FOR titAJGR PERMIT
Affidavit of John F. Kime at Exhibits 1-3.
1 ~. The Second FEIS was issued on October 18, 1991. The State Clearinghouse reti•iew•ed,
and, on November 1 ~, 1991, approved the Second FEIS. Respondent's Exhibit 34.
10. On November 26, 1991, the Review Document, the Second FEIS, and comunlents on the
Second FEIS that had been received by the State Clearinghouse and the Division of `b'arer
Resources, were all mailed to the E~1C members. Respondent's Exhibit 34 at 1.
1 i. On December 12, 1991 and by amencment of Febrsar~ 21, 199?, the E?~1C a::~hor~zed the
Authority to use the power of eminent domain to acquire land for the lake arld authorized
the transfer of up to 2 million gallons per day from the Cape Fear basin to the ~"adkin
basin and also authorized the diversion within the Cape Fear basin up to 28.E million
gallons per day of water from the Deep River to the Haw River. In making its decision,
the EMC considered the input received at a Febnlar~ 6, 1991 public headng and nutrient
response modeling output that predicted concez~ations of chlorophyll a in excess of 40
µg/1 would occur at certain times in certain water quality se~rlents of Randlema.*I Lake.
Petitioners' Exhibit 19 at 1; Greensboro's Exhibit 16 at Bates Dios. 3 i68, 37i0, 3888-
3889; Respondent's Exhibit 34.
18. In June, 1997, the Corps completed a draft Environmental Impact Statement for the
issuance of a 404 Permit for the Randleman Lake project ("Third DEIS''). Petitioners'
Exhibit ~.
19. Based upon the Third DEIS, which contained references to the First and Second FEIS
documents, the Corps specincrlly sought a Section 401 Certification from tine State of
?~iorth Carolina for the proposed rese~,'eir. Juh• 10, 1997 "Randleman Lal:e. Guilford
and Randolph Counties, forth Carolina Section -10.1 Public tiotice and \otice of
Ati•ailabilitti• of Draft En~•ironmeatal Impact Statement" ("Corps' Public \otice%401
AppIication''). See Petitioners' Exhibit 37.

20. The DVv'Q specifically ac:u-iowledged the receipt on July 11, 1997 of the Co:~s~ Pudic
Notic~~401 Application as an application for a Section 401 Ce~ificat;on. Petitioners'
Exhibit 1~.
21. Based upon earlier eutropiucation modeling done for the Authoritti•~ by Tetra Tec:;. DV~~Q
requested additional eutrophication modeling by Research Triangle Institute. P.~search
Triangle Institute's final report entitled Eutrophication Modeling for the Randleman Lake
Project delivered to the DENR Division of Water Quality on September ;0, 1998
generally supported the findings in Tetra Tech's analysis. The Research Triangle Institute
report includes nutrient response modeling output that predicted future concentrations of
chlorophyll a in the upper two segments (1 and 2) of the proposed Randleman Lake in
excess of 40 µQ/1 during the summer growing season under certain sets of assurzotions.
Greensboro's Exhibit 7. '
22. To address the modeling predictions and to add further protection against eutronhication
in Randleman Lake, the Eti1C, at the request of the Director of D~~'Q, pro:;lui2~t~d
nutrient controls in excess of the controls usually applied to WS-Iti' «•aters. 1:.-. ti C:? C
2B .0248 - .021 {Randleman Lake Water Supply Watershed tiut_ient ~-1a~~^_r^er,t
Strateov or Randleman Rules). The Randleman Rules include ago-essive steos to a-=~~-
_~....~
both point source a*id nonpoint source nutrent loads and wouid conse~ue~:\' limit
chlorophyll a concenrations. Afrer a September 1. 1998 Public Hearng.~t;.e re~.r:~
Ofncers' Report to the E~iC ("1998 Hearing Officers' Repor' j c^ '>>•~~~ -~~- ~~
combi^ation of the Randle.~~an Rules with other control measures available to t_e D«"Q
will prevent average c:Iloroph~~ll a concentrations in excess 40 p?.'1 in ail se_~--~~a o,
Rancleman Lake under the various rr~ode'.ing scenarios considered. inc:tiding t ~ r::os
conser-.~ative scenario of the s•~:L;,e: growing season. Greensboro's Exhibit 12 at 9 and
Petitioners' Exhibit 19 at Bates ~o. 727; the 1998 Hearing Ofilcers' Repor, lead the
ERIC to adopt the Randleman Rules on ?~ovember 12, 1998; Gre~asboro's EThibIt 6
at37.
'-~. I1Z Ja.-iua:-v, 1999, the Division of ~~'ater Qualitti- completed its re~: ie•.v oI tl:e fr=o.:..a:ier.
received and prepared its responses to the questior_s and comments received or. tole 1 nird
DEIS. Gre~asboro's EThlblt5 6, 8. T'ne Division of Water Quaiit~' fo„~-~d°^ this
dOCtlrnenT t0 the CODS tC '~addresS the OlltStandiri~ \i~3ter-gllaht-~' related CL'~StO^S ..
Greaasboro's Exhibit 8.
2 ' . B~~ le::er dated ?March 10. i oeo. uhe Di ~ s' r • - -
'i ion of ~\~ater Quality nor_r_e:: ~L-. A' -o~:or_
t::at the Division wouid net held a ~~ ~~
public he_::rg on the reaue a ~' _
Ce: ~~. cation for the Ra.*id:eT: n L:.k~ p oiect. Greeasuor o ~ ~ ~ ~ ~L~
al~ed ` D'S Ex111IJII j ~ ^lc
e.`~I?1 t:`ie DIVISIOP.. CO%~i~:~ratl0r. - .,_ _ .~..•' _ O
Oi Cate. Cuallt`' gllestiCP_~ :: ec •. ~ ~ 1-
1<ortor.. ar:d corciude~~ t _. "\\~' a, ~._..` ..
. ~ 'i ;e 'r. .~e goner th~ouo_-I eac:i of your - -
u:at «~~ :ia\•~e area .~.~e fL _" ~' '.-~ ...._~. .....~
,u _ ir: _.::.::or. to conclude t.~:at L21z COP.Sti,,:C,:~,r; - -~ ~ ;`- ._ •~
aOt :e~~ i0 Jiii_T?IIlc.'"'t ., ..~--^ '~ : ~ _ ._ C: u... i° ~ '~\.:
_.._.._._.~. ..-~r~r- _ .~.~ ~.__.:~. i.l.P.:P. a1-'\ O1 ~!:: 5~:~..T"i.$ trial ar° -; ~~:. ..~ y:i`
r..,......r' '~ 11` r''("'."'t~ "O O1ri7 ..... ~ t.l~i•~~~C' ter.. ::~~\\'^lii..~. OQSi:iOn th .'.;~~°.~...~.~. _~ 'i"
..._..~..L ..
1 ~•~ 2000 b
wErLAr~cs cHOUf
"''TrR QUALITY SECTION

on the 401 ce:-tification." Greensboro's Exhibit 9.
2~. Historically, the chlorophyll a standard has not been used to pre•.•ent the creation of water
supply lakes (most notzbly Falls and Jordan Lakes), but has been used as a tri~l~=er or
indicator of the need for management strategies to protect nutrent-impaired waters.
Affidavit of A. Preston Howard, Jr.
26. At the time the Director made the decision to issue the 401 Wate: Quality Certification to
the Authority, he was aware of nutrient response models that predicted instantaneous
chlorophyll a exceedances of 40 µ~/1 under certain scenarios in Water Quality Se?ments
1 and 2 of the proposed reservoir at certain times. Affidavit of A. Preston Howard, Jr.;
See also Petitioners' Exhibit 18 at 2-2 to 2--1 (Mr. HoR•ard found that it was
unreasonable to expect modeling to predict 100% non-exceedance of 40µg./1).
27. On March 11, 1999, the Director of the Division of Water Quali~~ sinned G~;'ate: Quality
Certification No. 970722 for the Proposed Randleman Rese-:oir. At the time the
Director made this 401 Water Quality Certification deter: nation, he specifically
considered the existi_~tg Randleman Lake Water Supply Watershed nutrient ~lar:agement
Strate?y and the opnortuniry that the State would have to impose additional restrictions
on nutrient sources in the event of actual or threatened water c'....=lirv star_ca:d violations
afrer the reservoir is constructed. Afrdavit of A. Preston Howard. Jr.
28. The Water Qualin• Ce^incation's conditions include the follo~.-:g specinc re:ereace to
maintain at a minimum the high level of protection currently previced by the R~*idle.::an
Lake Water Supply Vv~atershed ~iutrient ?~1ar:agement Strate~•:
If any chances are made to 1 ~A ~ C A C 2B.0248, .0.=9, .02~ 0,
.02~ 1 adopted by the Environmental ivianaQement [Co--iissior:]
on November 12, 1998, that are not equal or more protective the n
these rules. then tl`iis Ce: incation is voided and r_e•.v ^ 0 i
Ce: ~iiication with public notice is required.
Respondent's Exhibit 31, condition 4.
CO'~CLh~SIOtiS OF LA`Z
"The subiect matter of a contested case hearna by the ALJ is WT s_~nc_: dz^ision. tender
~;.C. Gen. Stat. § 1 SOB-2 ~(al, the a T J is to dete.:nine w•he:her ~_;-aetitioner has met its
burden in showir.Q trat tl':e agenc_• subsea.^.tially pre;udieed pe~itie^e-'s riRnts. ~~:c u~iat the
a~e_^.c,. also acteC oL'ISiCe its author't~•. actec+ e.,one•ousl~_~ ccted 3.'~lr'~1~' ,i.Tld
CC~P.C:OL'Si~'. L'SeC li~::^.roL'C': pr~Ce'dLtre. Or Iatl~d IO 2Ct aS re'.7utre.: ^~' l~lv Lr :1:~. C.C. j
1~0~-==f,a;." Brirtlsaren. Inc. r.:~'orr1: Carolina Dept. o{ F. ::mar. R~sourccs. Dir. o{
t=acain•Sen•ices. :== S._..d '.f=. 11S ti.C..~~p. ~-° (1`?~=: •i. -

2. "An administrative law jud?e may:... Rule on all prehearing motions that are aut;:or:zed
by G.S. lA-1, the Rules of Civil Procedure...." N.C. Gen. Stat. § 1~0B-33(bj(~a~.
~. Prehearina motions authorized by N.C. Gen. Stat. § lA-1 include motions for su:-•:-::a.~:
judgment pursuant to Rule ~6. R. Civ. P. 56, N.C. Gen. Stat. § lA-1. Tree Rule irci~des
the following:
The adverse party prior to the day of hearing may serve opposing
affidavits. The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the afridavits, if any, show that there is no
genuine issue as to any materal fact and that any party is entitled to
a judgment as a matter of law.... Summary judgment, when
appropriate, maybe rendered against the moving party.
R. Civ. P. 56(c).
-'.. When a respondent establishes a complete defense to a petitioner's clain-~. s•~:.~.::`
judgment is proper. See Y~'ilder v. Hobson, 101 N.C. App. 70, 398 S.E?d 6~~ (1990;,
`. The summary judgment sought from this Office in this case is rendered in the fc:-: c; a
recommended decision. N.C. Gen. Stat. § 1 SOB-3 Vi(a).
6. Rule ~6 also provides the following:
Form of affidavits; further testimony; defense
required.--Supposing and o_DposinQ affidavits shall be made on
personal l:.nowled~e, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that tie
affiant is competent to testifz• to the ma~~ers stated therein. Swore
or certiried copies of all papers or pars thereof ~refe..ed to in a:-t
affidavit shall be az*~ached thereto or served thereu7th. The cou:~
may permit affidavits to be supplemented or opposed by
depositions, answers to inte.~o_atories, or further affidavits. When
a motion for summa~-v judgment is made and supported as provided
in this n:le, an adverse part~• may not rest upon the mere allegations
or denials of his pleading, but his response, by affidavits or ac
otherwise provided in this rule, must set for~h specific facts
showing that there is a genuil.e issue for tral. If he does not so
respond, s•~~:rrar: judgme .t. if approprate, shall be entered
a?airst him.
:. Civ. P. poi e';.
S

7. The Authority is required by Section 404 of the Clean Water Act, 3~ U.S.C. § 1 ~~.~. to
obtain a permit ("404 Pe.^nit'') from the U.S. Army Corps of Engineers ("Corps') before
constructing the dam for the proposed Randleman Reservoir because the placement of
construction materials at the dam site will constitute a dischar'g'e of fill rnatarial into
waters of the United States. 33 L.S.C. §§ 1344, 1363(7).
8. Section 401 of the Clean WaterAct, 33 U.S.C. § 1341, prohibits the Corps from granting
a 404 Permit to the Authority until the State of North Carolina either grants a certification
that the dischazge to be authorized by the 404 Permit will comply with the applicable
provisions of sections 301, 302, 303, 306, and 307 of the Clean Water Act or expressly
waives or by inaction waives its right to grant or object to the discharge.
9. The EMC is authorized by the General Assembly to administer the State's authority under
33 U.S.C. § 1341 of the federal Clean Water Act. N.C. Gen. Stat. § 143B-282(a)ll)(u).
The EMC has delegated its authority to the Director of the Division of ~~~ ater Qualitti•,
DENR. 15A NCAC 2H.0~00.
Adequacy of Application
10. The Authority's 40-^. and 401 Application submired in 1991 constir~:~s a ~~~ld
"application" for the Section 401 Ce^ification under the 16A NCAC 2H .000 noes. T'. e
Corps' Public Notice;'401 Application also constitutes a valid application for t're Section.
401 Certification, as authorized b~_ 33 CFR 32~.2(b)(1), thus independenti~• satisil•irg the
requirement in l~A NCAC 2H .000 et seq. for an "application.''
11. The Corps' Public Notice,~401 A.pt,lication complies with the pro~•isions fen ; ubiic notice
for water quality ce.~ificatiors under 1 ~A NCAC 2H.0~03(c), w•hic:~ pro~-ices t~.e
followzna:
The public notice requirement may also be satisfied by a joint
notice with the ... U.S. A.:nv Corps of Engineers according to their
established procedures.
12. Respondent had all of the necessa.n• information -- including the information provided b~~
the Second DEIS and FEIS, tre Third DEIS, and the Review Docur.~eat. and ali
information required by the 1 ~A NCAC 2H .000 rules -- at the time it made ti7e decision
and issued the Section 401 Ce: irica*.ion. Over the year and one-half pe.:od be:~~-een July
1997 and January 1999, t'~e Respondent considered the request for Section '.O1
Certification, sought and obtai^:e~d additional information (1~A NCAC 2I-; .O~O~~cll, and
conducted a review ar.~d irvesti~~tion of the information as it deemed ne~essW-~• (1 ~ a
NCAC 2H .0~ 02~e1) to e~: alu~:_ ~~; request for certification (1 ~A N C ~ ~ _ ~ .0. ~~~,.
i nLS. the Authorir~• cer.,.riie~d ~.t:~. ire acniicatior: recuire:ne^.ts.
,_. A11170ll~'1 an adminis~ati~•e bC~~ ,T.ust Iollo«~ its 0~~71 rules. Si1CSi;1.^.t:,~.: ~,`',:::~1:3r:L'~ 1S
Q

sufficient where the rule is procedural and its underlying purposes are fulfilled. Btirtit~el!
v. Griffin, 67 N.C. App. 198, 204-06, 210, 312 S.E.2d 917, 92I -22, 924, discr. rc~l'.
denied, 311 N.C. 303, 317 S.E.2d 678 (1984 j. In this case, Respondent and .-~uthorirv
have substantially complied with the procedural rules governiri~,; applications and the
purposes of the applicable rules have been satisfied. Even if actual compliance did not
occur, substantial compliance is sufficient and has been demonstrated in this case.
14. Neither the Petitioners nor anyone else has suffered any prejudice by any insubstantial
deviation from the procedural rule governing applications.
1 ~. Respondent did not exceed its authority or jurisdiction, act erroneously, fail to use proper
procedure, act arbitrarily or capriciously, or fail to act as required by law when it
determined that it had received a complete application fora 401 Certificatior_ for the
proposed Randleman Reservoir.
NCEPA Compliance
16. The Corps of Engineers rules provide the following with regard to the timinC of 401
Water Quality Certifications: `
If the district engineer determines that water qualirv certification
for the proposed activirv is necessary under the provisions of
section 401 of the Clean Water Act, he shall so noti~ the applicant
and obtain from him or the certtfytng agency a copy of such
certification.
***
(iij No pe.-tnit w711 be grantee until required ce. ification
has been obtained or has been waived. A waiver may be espiicit,
or will be deemed to occur if the certifying agency fails or refuses
to act on a request for cenircation within sixty days after receipt of
~, ~ ~ ~ ~ r<? r such a request unless the district engineer dete.~nines a shorter or
longer period is reasonable for the state to act. In determining

~ 7 ~ whether or not a waiver period has commenced or waiver has
occurred, the distict engineer w711 verify- that the certifying agency
_ has received a valid request for certification. If; howe~.~er, special
WETLANDS GROUT
~nTrrt (111,41_ITY SECTION:~ circumstances identified by the dis'sict engineer require that action
.
on an application be taken within a more limited period of time. ti.e
dis-sict engineer s:7a11 determine a reasonabie lesser period of time.
advise the ce: ifti•ing asencv of the need Tor action by a par-.ic~aiar
date. and that. if certification is not received by that date, it will be
considered tl';at the requirement for cer:iticatien hs been waived.
Simiiariv, if it appears tha*. circumstances may reasonably require a
period of time longer tha~i sixtti• days, the disu-ict enginz°:, b ed
10

on information provided by the certifying agency, will dete.:nine a
longer reasonable period of time. not to exceed one year, at which
time a waiver will be deemed to occur.
33 CFR 325.2(b)(1)(ii).
17. The North Carolina rules for -water quality certifications provide the follo~~ing with
regard to timing:
All applications for certification shall be granted or denied within
60 days after receipt at the offices of the Director in Raleigh, North
Carolina. Failure to take final action within 60 days shall result in a
waiver of the certification requirement by the Director, unless: (1)
The applicant agrees, in writing, to a longer period; (2) Final
decision is to be made pursuant to a public hearing; (3) Applicant
fails to furnish information necessary to the Director`s decision;
(4) Applicant refuses the staff access to its records or premises for
the purpose of gathering information necessary to the Director's
decision cr; (~) Information necessan~ to the Director's decision is
unavailable.
1 ~ A NCAC 2H.0~07(a).
18. Respondent's rules retarding the manasement of the 401 Cer~incation process do not
reference or incorporate Respondent's internal rules for complying with the NCEPA.
19. In spite of the lack of reference to the NCEPA rules, Petitioners point to the follo~;~ng
provisions in Respondent's internal NCEPA rules and urge then control tl-:e Respondent`s
conduct of the 401 process:
(a) While work on an environmental document is in progress. no
agency shall undertake in the interim any action which might liriit tlhe
choice among alternatives or otherwise prejudice the ultimate decision on
the issue.
(b) If an agency is considering a proposed action for w'nich an
environmental document is to be or is being prepared. the agency s:~all
promptly notify the initiating pam• that the agency cannot take final action
until the environmental documentation is completed a.nd available for t:se
as a decision-makira tool.
1 ~A NCAC 1C .0-'.0? ("Rule .040?")
.C'. 'Er.~~ironmemtal doc•.:ment" is derined in P --,.
tiCE A to mean an er:vironrne::t~~ _ssess.:.°nt
(`'EA"). an emvirormentai i;nz,act state:rezt ("EIS"). or a findir.R of no si_rs:c~,t i%:pac:

("FONSI"). N.C. Gen. Stat. § 113A-9(2).
1. The word "action'' is defined in the North Carolina Deparment of r.drni::istration
NCEPA rules to include "licensing, certification, permittin~,11-:e lending of c-edit.
expenditures of public monies, and other similar final aRencv decisions the ai;se~ce of
which would Dreclude the Dro~osed activity." 1 NCAC 25 .0108(b)(1 j (emp'r:asis added).
22. By its terms, Rule .0402 applies to and limits only interim or final a?Pnc :~ "action".
Furthermore, an agency is permitted to take an interim action (prior to completion of an
environmental document) if that action does not "limit the choice among alte.~,atives or
otherwise prejudice the ultimate decision on the issue." 1 ~A NC A C 1 C .0402(a ~.
23. Issuinv a Section 401 Certirication does not prejudice the ultimate decisien on the
proposed activity because the Corps may choose to deny the 404 Permit for the proposed
activity for many other reasons. Neither the Respondent nor any other State a2e::c•: is the
ultimate decision maker on a 404 Pe... it application for which the Corps is prepa_rng a
FEIS. The Corps makes the ultimate decision. Accordingly, Rule .0402 does not apple
by its own terms, and it does not limit the Respondent's right -- and statutor: obii~atior. --
to make a decision on an application for a Section 401 Ce-tirication in a ti:::~:~ ::~a:-.r:~-
under Respondent's rules at 1 ~A NCAC 2H.0~00.
=. A request by the Corps for a resperse to a Section 401 Certincaticn for t~:e r~..ose of
deter-ninina whether or not to issue a 40~ Pe.~nit fer the appiic.*;t's proposes ac:i~~i~~• is
not an aQeacy decision tl'tat is Qoyernec by Rule .0402. In ti`te cirumstar.ces cf t:le case
before the Administrative Law Judge a:-td E~1C, the 401 Ce°izication is nct :~e ~~ac,ior"
for which the environmental document is beins prepared.
=_. In the alternative, if Rule .0''02 sere to be found to apply, I rind t~:e c~:_.~~ie:ier_.
publication. and consideration by Respondent of the Second DEIS, the Seccnc sic. ,Y_C
the Third DEIS, and the Re~:iew Docu:-:ent would constitute suostar:tiai coy~.:ni:~.ce ar:d
satisfy Rule .0•'.02. Burx•e11 v. GriiJrn. 67 N.C. App. 198, 20-''.-06. 210, .12 S.E._d 917.
921-22, 924, discr. re1•. denied. 311 N.C. 303, 317 S.E?d 678 (198'.).
26. The Director did not exceed his authorty or jurisdiction, act e.~oneousi:~, f.ii to use
proper procedure, act arbitra-iiv or capriciously, or fail to act as required b:• lat:~ :ti~hen he
deteinined that he had the information necessary to mW~e the '.O1
deteinination required b~~ ~ a~ ~T C.r:_= cation
. 1_A NC. ~ _.-i .007.
Denial of Public Hearing Re ;uest
_ 1cA ~~~C ^1T~ .0~~'.~ ~ _ _ ..
~- = a ~u~her'~es :. e Director to e•.,.. _~r
~1'IIe:~`:~r t0 hold a t)L'D11C her':n_o pr ~ -'Ol ~'~ - .~ ..~.~._...::~
~:.D11C.~.ilOn based L~~n h:c _
r - ~t ~-'-
~`ne ~l~r a herring ~t~~lliQ ~~ In uhe pL'~liC iraereSt. - .-._._-•--~-

28. The letter dated March 10, 1999, from the Division of Water Quality not'?,ing tiL.:?.lan
Horton that the Division would not hold a public hearing on the issuance of a Water
Quality Certification for the Randleman Lake project makes it clear that R. s:once:;t not
only did not abuse its discretion. but instead gave careful and thorough consiaeration to
the decision on whether or not to hold a public hearing.
29. The Director did not exceed his authority or jurisdiction, act erroneousi... fail to use
proper procedure, act arbitrarily or capriciously, or fail to act as required by law in his
March 1999 decision to not hold a public hearing prior to his decision on the 401
Certification for the proposed Randleman Reservoir.
Reasonable Assurance That Water Quality Standards Will Not Be Violated
30. The North Carolina fresh surface water quality standard found at 1 ?.?. NCAC
2B.021l(3)(a) provides the following:
Chlorophyll a (corrected): not greater than 40 ua/1 for lakes.
reservoirs, and other slow-moving waters 'not designated as trout
waters, and not greater than 15 uz/1 for lakes, reservoirs. and other
slow-moving waters cesiopated as trout waters (not applicable to
lakes and reservoirs less than 10 acres in suface area): the
Commission or its desi-*tee may prohibit or limit any discharge of
waste into surface waters if, in the opinion of the Director, the
surface waters expen-Ince or the discharge would result in growths
of microscopic or macroscopic vegetation such that the standards
established pursuant to this Rule would be violated or the intended
best usage of the Ovate-s would be impaired.
15A NCAC 2B.021 I (3)(a).
i. The Director considered the discussion of projected chlorophyll a conce--a-rions Leer
various scenarios found in or in attachments to the Second DEIS. Seconc FEZ. inird
DEIS, the Review Document. and 1998 Hearing Officers' Report.
.2. Pursuant to discretion and authorit<• given the Director in 15A NCAC 2B.0=11(: the
Director included limitations in the 401 Ce: incation which vill prote,t R.:d,-man
Reservoir from violations or 1 5A NCAC 2B .0211(=)(a) and provided fcr the into^ded
best usage of the waters of Randleman Reservoir as Class WS-Iti' ?Z titer Sanniv
Raser•: oir.
ine Petitioners produced no a?i?cyits whic. in any v--av cont:adic; the
Di-__tor that the actions .a.?e.. the E-N1C and D ?N Q will protec, the w-a:_.
Randle.::ar: R-ser: oir.
A copy of the foregoing Recommended Decision was mailed to:
- Carolyn Smith Pravlik
34. Director did not exceed his authority or jurisdiction, act erroneously, fail to use grope:
procedure, act arbitrarily or capriciously, or fail to act as required b•: lam in his
consideration of water quality modeling of future chlorophyll=ta,concentrztior.s in the
proposed Randleman Lake and other information related to future concentrations of
chlorophyll a in the proposed reservoir in his determination that the 401 Ce: ification
application along wZth the other environmental protection provisions outlined in the 401
Certification provide adequate assurance that the discharge of fill material into the ~•aters
of the Deep River and the proposed development of Randleman Lake will not result in a
violation of applicable Water Quality Standards and discharge guidelines.
RECOiVi1ViENDEDbECISION
Based upon the foregoing Findings of Fact and Conclusions of La«•, it is he: eb~•
recommended that the issua.*tce of the Water Quality Certification for the proposed Randleman
Reservoir be upheld as the final agency decision in this case; that Petitioners' ~lotior, for
St=mmary Judgment be de:ued; and that Intervenor Respondent City of Gree^s~oro's Cross
Motion for Summary Judgment be granted.
ORDER
It is hereby ordered that Respondent serve a copy of the final decision. en t.e Of ce of
Ad.-ninistrative Hearings, P.O. Drawer 27447, Raleigh. NC 27611-7447, in accorcz-:ce ~,-itii ti.C.
Gen. Star. § 1~OB-36(b).
NOTICE
The final agency decision in this contested case will be made b~~ the E~1C. i n: pr.-ies
si:all have the right to file exceptions to this recommended decision and to present ~; _;ren
a*'g~.:ments. The Commission w711 serve a copy of its decision on all p roes, t'~e a-ome~•s of
record, and the Ofrice of Ad:-ninisuative Hearings. '
This the , ~ ''day of
M ~- ~-~ 2000.
~~ ~-.,...2a.-,-,...~ ~'
Robert Roosevelt Reilly, Jr.
Administrative Law Jude
14

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Thursday Randleman Dam Supporters
October 14, 1999
os:osAM Clear Hurdle With Lawsuit
Send this
to a friend -, Dismissal
Last 7 Days RALEIGH (AP) -- Piedmont Triad city leaders have cleared
another hurdle toward building a proposed dam to supplement
the region's water supply when a judge threw out a lawsuit
challenging the Randleman Reservoir.
Administrative Law Judge Robert Roosevelt Reilly Jr. dismissed
the lawsuit Wednesday by three environmental groups claiming
that the reservoir's water would be bad for fish. They also
claimed state regulators failed to follow proper permit
procedures.
The Piedmont Triad Regional Water Authority - of which
Greensboro is the largest member -still needs a final permit
from the U.S. Army Corps of Engineers to begin construction.
Authority executive director John Kime hopes the Corps will
make its decision within the next few months, with construction
to possibly follow next spring or summer. The reservoir would
take about three years to build and fill.
The judge's decision "ought to give the Corps some impetus,"
Kime said.
The environmental groups, which included the American Canoe
Association, can appeal the decision to state Superior Court.
Their lawyers said Wednesd~a}/ they will discuss that prospect
with their clients.
Greensboro and the other authority members -High Point,
Jamestown, Archdale, Randleman and Randolph County -have
been trying for years to get environmental permits to dam the
Deep River and create a new reservoir on the Guilford-Randolph
county line.
All authority members want the reservoir, but Greensboro's need
is most acute.
"We appreciate the urgency of Greensboro's needs," said High
Point Mayor Becky Smothers. "Ours is not there, but we
understand theirs."
Copyrioht ©1999 Associated Press. All rights reserved. This
material may not be published, broadcast, rewritten, or
distributed.
f

~f 2 ~ 10/14/99 8:56 AM

M ~ 4
~~ ~.)._,
~"" W Lf':~~s ~;~;ilu
STATE OF NORTH CAROLINA
COUNTY OF RANDOLPH
AMERICAN CANOE ASSOCIATION,
INC., and DEEP RIVER COALITION,
INC.,
Petitioners,
v.
I~
~ (~
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
Case No. 99 EHR 0560
(consolidated with 99 EHR 0613)
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES,
Respondent,
and
CITY OF GREENSBORO,
PIEDMONT TRIAD REGIONAL WATER
AUTHORITY,
Respondent-Intervenors.
AFFIDAVIT OF A. PRESTON HOWARD, JR.
A. PRESTON HOWARD, JR., being duly sworn, deposes and states:
1. I am currently employed as the President of the Manufacturers and Chemical
Industry Council of North Carolina, in Raleigh, North Carolina. From March 1993 to March 11,
1999, I was employed as the Director of the Division of Water Quality ("DWQ") and its
predecessor, the Division of Environmental Management ("DEM"), within the Department of
Environment and Natural Resources ("DENR" or the "Department"). From July 1992 until

March 1993, I served as the Acting Director of DEM, and from July 1980 to July 1992, I was
employed in various capacities from Regional Engineer for Water Quality to Regional Supervisor
for the Wilmington Regional Office of the Department.
2. I offer this Affidavit in support of Respondent's Response to Petitioners' Motion
for Summary Judgment to be filed in the above-captioned consolidated contested case.
As the Director of DWQ, I was responsible for the implementation and
enforcement of the State's water quality programs and was authorized, pursuant to delegation of
authority from the Environmental Management Commission ("EMC"), to act on requests for 401
Water Quality Certifications for projects requiring federal permits under Section 404 of the Clean
Water Act to discharge dredged or fill material into wetlands.
4. In my capacity as Director of the DWQ, I made the decision to issue the 401
Water Quality Certification to the Piedmont Triad Regional Water Authority ("PTRWA") for the
Randleman reservoir project. The 401 Water Quality Certification for the Randleman reservoir
project was issued on March 11, 1999, and certified that this construction project for the dam and
reservoir, which would result in 121 acres of wetland impact in Guilford and Randolph Counties;
would not result in a violation of applicable water quality standards and discharge guidelines.
(See Respondent's Exhibit 31).
I had two major concerns about issuing the 401 Water Quality Certification: (1)
whether the PTRWA would provide adequate compensatory mitigation for the loss of wetlands;
and (2) whether the PTRWA would have a nutrient reduction and watershed management
strategy in place to assure compliance with water quality standards and protection of public
2

health, aquatic life, and recreational uses in the future Randleman reservoir. Both of my
concerns were addressed.
6. My former staff in the DWQ began working with the PTRWA's consultant as
early as 1993, on the development of a compensatory wetlands mitigation plan and means to
reduce nutrient impacts in the upper Deep River watershed area.
7. Ten compensatory mitigation sites were approved by my staff by letter dated
September 25, 1998. (Respondent's Exhibit 32) In addition, in paragraph 5 of the 401 Water
Quality Certification contains the following condition concerning compensatory mitigation:
5. Compensatory mitigation shall be done to assure a 1:1 ratio of restoration
or creation of riparian wetlands in the watershed of the proposed reservoir. Sites should
include those discussed in DWQ's September 25, 1998 letter to the Authority. DWQ
shall be copied on a detailed mitigation and monitoring plan as well as the approved ratio,
location, size and method of mitigation (restoration, enhancement, creation, and
preservation) within 90 days after the permit is issued and annual reports for the entire
length of the monitoring period. The final mitigation plan shall be sent to DWQ within
three months of issuance of the 404 Permit. Mitigation shall begin in conjunction with
land clearing for the reservoir.
(Respondent's Exhibit 31)
8. On November 12, 1998, the North Carolina Environmental Management
Commission adopted the Randleman Lake Watersupply Watershed Protection Rules (15A
NCAC 2B.0248 through 2B.0251) (the "Randleman Rules"), which contain a combination of
requirements that I determined at the time of the 401 Certification -- and still believe today -- will
significantly reduce the nutrients and other pollutants in the proposed Randleman reservoir and
provide adequate protection of water quality standards, through the following actions as set out in
the Randleman Rules: a nutrient management strategy (2B.0248); wastewater discharge
3

r
requirements (2B.0249); the protection of riparian areas (2B.0250); and stormwater requirements
(2B.0251). (See Respondent's Exhibit 33) The Randleman Rules became effective April 1,
1999, in substantially the same form as they had been published and in the form as adopted by
the EMC in 1998. In addition to adopting the Randleman Rules the EMC also reclassified a
portion of the Deep River as a water supply (WS'-IV and WS-IV CAZ), where the proposed
Randleman reservoir will be located.
9. In addition to the protections afforded by the Randleman Rules and the water
supply classifications discussed above, the 401 Water Quality Certification that I issued in
section 4 contains a further condition concerning any attempts in the future to weaken the
Randleman Water Supply Watershed Protection rules as follows:
4. If any changes are made to 15A NCAC 2B.0248, .0249, .0250, and .0251
adopted by the Environmental Management Commission on November 12, 1998, that are
not equal or more protective than these rules, then this Certification is voided and new
401 Certification with public notice is required.
(Respondent's Exhibit 31)
10. At the time I made the decision to issue the 401 Water Quality Certification to the
Water Supply
Critical Area
4

12. My knowledge of potential exceedances of the chlorophyll a standard, when
PTRWA, I was aware that the nutrient response models predicted certain chlorophyll a
exceedances in certain segments of the lake at certain percentages during the growing season.
However, though not a modeling expert myself, I have worked with water quality modelers for
over twenty years, and during that time have learned that water quality modeling is not an exact
science. Models are simply one of the tools that DWQ uses to predict possible impacts on water
quality. Water quality models for reservoirs like the Randleman Reservoir are among the more
complicated to develop. I am also aware that most models used by DWQ incorporate, by
necessity, numerous assumptions. Further, in the absence of hard information to the contrary,
DWQ modelers tend to use default values that are on the conservative side, and thus, DWQ's
models yield conservative results. Thus, no one will know precisely whether or to what extent
exceedances of the chlorophyll a standard will occur until construction of the dam and
impoundment of the lake have been completed. Even then, it may take years before DWQ staff
and the PTRWA's consultants can judge how accurately their pre-construction modeling efforts
were in predicting the concentrations of various constituents in the completed reservoir.
11. The proposed lake is not the source of nutrients -- point source and non-point
source discharges are the causes. In the event that there are exceedances of the chlorophyll a
standard after the lake is constructed, it was my view that DWQ would and will pursue the
sources to reduce their nutrient loading to the lake to protect the water quality in the lake.
Historically, the chlorophyll a standard has not been used to prevent the creation of water supply
lakes (most notably Falls and Jordan Lakes), but has been used as a trigger or indicator of the
need for management strategies to protect nutrient-impaired waters.
5

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EHNR -DEPARTMENTAL RULES
TI SA: O1 C .0400

SECTION .0400 -OTHER REQU]' ~' ~ S
~~ .0401 AGENCY DECISION MAI~iG PROCEDURES
To ensure that EHNR agency decisions aze made in accordance with the policies and purposes of the
NCEPA, the continuing responsibility for conforming to existing and new procedures and rules shall be
conducted in accordance with the directives of the secretary. '
History Note: Statutpry Authority G.S. 113A-2; 113A-6; 113A-7; 143E-10;
E,8`: August 1, 1989;
Transferred from TIS.OID .0501 E„~: November 1, 1989;
Amended E„~: March 1, 1990.
~~~~~
:0402 LIl1ZTi'ATION ON ACTIONS DURING NCEPA PROCESS
{a) While work on an environmental document, is in progress, no_ agency shall undertake in the interim any
...
action which might limit the choice among alternatives or otherwise prejudice the ultimate decision on the
tssue. .
(b) If an agency is considering a proposed action for which an environmental document is to be or is being
prepared, the agency shall promptly notify the initiating party that the agency cannot take final action until
the environmentai~documentation is completed,.and~available for _use, as,.a„decision-making,.,tool..:, The
'notification shall be consistent with the statutory and regulatory requirements of the agency and may be in the
form of a notification that the application is incomplete.
(c) When an agency decides that a proposed activity, for which state actions aze pending or have been
taken, requires environmental documentation then the agency should promptly notify all action agencies of
the decision. When statutory and regulatory requirements prevent an agency from suspending action, the
agency shall deny any action for which it determines an environmental document is necessary but not yet
available as adecision-making tool.
History Note: Statutory Authority G.S. 113A-2; 113A-4; 113A-6; 113A-7,• 143E-10;
E„~: August 1, 1989;
Transferred from TIS.OID .0502 E„~: November 1, 1989.
.0403 EMERGENCIES
(a) Where emergency circumstances make it necessary to take an otherwise lawful action with potential
environmental effects without observing the public review provisions of the NCEPA, the agency taking the
action should notify the secretary and limit actions to those necessary to control and mitigate for the immediate
threat to the public health, safety; and welfaze.
(b) Agencies are encouraged to prepare and maintain environmental documents for repetitive emergency
programs affecting the public, to review the scope of involved activities, identify specific effects to be
expected, and mitigation measures that can be employed in various circumstances to assure protection of the
public and long-term environmental productivity.
History Note: Statutory Authority G.S. 113A-4; 113A-6; 113A-7,• 143E-10;
E, f~: August 1, 1989;
Transferred from TIS.OID .0503 E„~: November 1, 1989.
.0404 NON-STATE INVOLVEMENT AND CONTRACTORS
(a) If a lead agency requires anon-state entity to submit environmental information for use by the agency
in preparing an environmental document for the non-state entity's activity, then the agency shall assist by
outlining the types of information requested. The agency shall independently evaluate the information
provided and shall be responsible for its accuracy.
(b) If a lead agency pemuts a non-state entity to prepare an environmental document, the lead agency shall
furnish guidance and participate in the preparation, and take responsibility for its scope, objectivity, content,
- and accuracy. '
NORTH CAROLINA ADMINISTRATIVE CODE 01/07/92 Page 1
1s

STATE OF NORTH CAROLINA
COUNTY OF RANDOLPH
AMERICAN CANOE ASSOCIATION,
INC., and DEEP RIVER COALITION,
INC.,
Petitioners,
v.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
Case No. 99 EHR 0560
(consolidated with 99 EHR 0613)
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES,
Respondent,
and
CITY OF GREENSBORO,
PIEDMONT TRIAD REGIONAL WATER
AUTHORITY,
Respondent-Intervenors
RESPONSE TO PETITIONERS' MOTION FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
These contested cases were commenced by the filing of contested case petitions on May
3, 1999, by the Deep River Citizens' Coalition ("DRCC")~ and the American Canoe Association,
Inc. ("ACA") (99 EHR 0560) and on May 11, 1999, by the Deep River Coalition, Inc. ("DRC")
(99 EHR 0613), to challenge a 401 Water Quality Certification issued by the Respondent North
' On September 20, 1999, the Administrative Law Judge allowed Respondent's
motion to dismiss Petitioner Deep River Citizens' Coalition and the proposed order is being
circulated among the parties.

Carolina Department of Environment and Natural Resources ("DENR" or "Department"),
Division of Water Quality ("DWQ"). The contested 40l Water Quality Certification was issued
to Respondent-Intervenor Piedmont Triad Regional Water Authority ("PTRWA") for the
proposed Randleman Reservoir project.
Notices of Contested Case and Assignment, Orders for PreHearing Statements, and
Scheduling Orders for both cases were filed May 4, 1999 and May 12, 1999, respectively.
Notices of Appearance were filed by the undersigned counsel for the Respondent in both cases
on May 24, 1999. On May 27, 1999, the Petitioners and Respondent filed a Joint Stipulation to
Consolidate the cases for hearing, and a joint motion for an extension of time to file PreHearing
Statements. On June 2, 1999, the Chief Administrative Law Judge entered an order
consolidating both cases. On June 2, 1999, the Administrative Law Judge allowed Petitioners'
and Respondent's joint motion to extend the time for filing PreHearing Statements to August 9,
1999.
On or about July 16, 1999, Petitioners filed an unopposed motion to reschedule the
hearing, and on July 23, 1999, that motion was allowed. The hearing was rescheduled for the
week of October 18, 1999. On or about August 3, 1999, Petitioners filed another motion to
postpone the hearing, and on August 11, 1999, Petitioners' motion was denied. On August 9,
1999, the parties filed their PreHearing Statements in the matter, and Respondent filed the
Document Constituting Agency Action.
On or about August 17, 1999, Respondent-Intervenor City of Greensboro filed a motion
to intervene, and on August 18, 1999, the Administrative Law Judge entered an Amended
Scheduling Order which allowed the City of Greensboro's motion to intervene, set deadlines for
2

discovery, filing dispositive motions, conducting the prehearing conference and setting the
motions hearing date for September 20, 1999.
On or about August 17, 1.999, the PTRWQ filed a motion to intervene, and on August 19,
1999, the Administrative Law Judge entered another Amended Scheduling Order which allowed
the PTRWA's motion to intervene, and left the previous deadlines unchanged.
On ,Petitioners filed a motion to amend their petitions. On August 25, 1999,
Respondent-Intervenor City of Greensboro filed its opposition to Petitoners' motion to amend.
On ,Respondent filed its opposition to the motion to amend.
On or about August 25, 1999, Petitioners filed a motion for an extension of time to file
their motion for summary judgment, and on August 27, 1999, the Administrative Law Judge
entered a Second Amended Scheduling Order which kept the motions hearing date at September
20, 1999; set a different discovery closure date -- October 1, 1999; set a deadline for filing
summary judgment motions -- October S, 1999, with responses due within five business days
thereafter; set a hearing date on the summary motions -- October 13, 1999; set a prehearing
conference date -- October 15, 1999; kept the previous instructions for the exhibit format; and
kept the hearing date -- October 18, 1999.
On September 1, 1999, the Administrative Law Judge filed a Notice of Hearing
(September 20, 1999) on the Respondent's motion to dismiss and Petitioners' motion to amend
the petition.2 On September 1, 1999, the Administrative Law Judge entered an order allowing
a This motion was also allowed, with some modifications of the proposed amended
petitions. The proposed order should be circulating.
3

the PTRWA's substitution of counsel.
On September 8, 1999, the Administrative Law Judge allowed Petitioners' motion to file
a memorandum in response to Respondent's Response to Petitioners' Motion to Amend Their
Petitions.
On September 10, 1999, Petitioners served the parties with Petitioners' Motion for
Summary Judgment, Memorandum of Law and Exhibits. On September 13, 1999, Respondent
filed a motion for extension of time and continuances. On or about Septembe 15, 1999,
Petitioners filed a motion for a third amended scheduling order.
On September 20, 1999, the Administrative Law Judge heard argument on Respondent's
motion to dismiss as to Petitioner Deep River Citizens' Coalition, and on Petitioners' motion to
amend their petition. Respondent's motion to dismiss was allowed and Petitioners' motion to
amend was allowed, with some modification of the amended petitions. The Administrative Law
Judge allowed the Respondents and Respondent-Intervenors extra time, to and including
September 27, 1999, tofile their responses to Petitioners summary judgment motion. The
motions to continue the October 18, 1999 hearing were denied; however, the Administrative Law
Judge agreed to hold the hearing open until the week following the hearing to allow the
testimony of Preston Howard, former Director of the DWQ, who is unavailable the week of
October 18th. The Administrative Law Judge also gave the parties an opportunity to brief the
interbasin transfer issue.
Finally, the matter before the Administrative Law Judge is Petitioners' motion for
summary judgment.
STATEMENT OF THE FACTS
4

ARGUMENT
A. SUMMARY JUDGMCNT STANDARD
Summary judgment is a drastic remedy, First Federal Savings & Loan, Assn v. Branch
Banking & Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972), and must be used cautiously. See
Billings v. Joseph harris Co., 27 N.C.App. 689, 220 S.E.2d 361 (1975). A motion under Rule
56 should be allowed only where the truth is quite clear, Wurren v. Rosso & Mastracco, Inc., 78
N.C. App. 163, 336 S.E.2d 699 (1985), Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d
265 (1980), and when the moving party is clearly entitled to judgment in his favor as a matter of
law. Houck v. Overcash, 282 N.C. 623, 193 S.E.2d 905 (1973).
Summary judgment is to be granted only where no genuine issue of material fact is
presented, Long v. Vertical Technologies, Inc., 113 N.C.App. 598, 439 S.E.2d 796 (1994), and
where a party is entitled to judgment as a matter of law. Bogle v. Duke Power Co., 27 N.C.App.
318, 219 S.E.2d 308 (1975). The burden is on the moving party to establish that there exists no
genuine issue of any material fact and that he is entitled to judgment as a matter of law. Norfolk
and Western Ry. Co. v. Werner Indus., 286 N.C. 89, 209 S.E.2d 734 (1974).
The question is whether the pleadings, depositions, answers to interrogatories, admissions
on file, together with affidavits, if any, show that there is any genuine issue as to a material fact.
Johnstaz Co. TBAs.c'n v. North Curolirta TB&R.D.A., 15 N.C.App. 492, 190 S.E.2d 264 (1972).
The test for the granting of a summary judgment motion is whether the moving party, by
affidavit or otherwise, presents materials which would require a directed verdict in his favor if
presented at trial. Haitltcoc•k v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865 (1971).
5

Lastly, when appropriate, summary judgment may be rendered against the party moving
for such judgment. Coulter v. City of Newton, 100 N.C.App. 523, 397 S.E.2d 244 (1990). When
a defendant establishes a complete defense to plaintiff's claim, summary judgment is proper. See
Wilder v. Hobson, 101 N.C.App. 70, 398 S.E.2d 625 (1990).
B. STANDING
The issue of standing as to the former Petitioner, Deep River Citizens' Coalition, was
resolved at the September 20, 1999 hearing on Respondent's Motion to Dismiss as to Petitioner
DRCC, where the Administrative Law Judge allowed the motion and dismissed the petition as to
Petitioner DRCC because the unincorporated association had not complied with the requirements
of G.S. 1-69.1 or G.S. 66-68. Thus, the remaining petitioners in this case are the American
Canoe Association, Inc. and the Deep River Coalition, Inc., although Respondent reserves the
right to challenge their standing at any later point in these proceedings should the evidence
warrant such a challenge.
C. RESPONDENT DID NOT VIOLATE THE NORTH CAROLINA
ENVIRONMENTAL POLICY ACT BY ISSUING A 401. WATER QUALITY
CERTIFICATION BASED ON A DRAFT ENVIRONMENTAL IMPACT
STATEMENT.
1. NCEPA Requirements
- EIS Requirement (OWASA I)
Rules
- Federal document can substitute for state document
6

dorney letter
2. The Respondent can take action based on a Draft Environmental Impact
Statement where federal law requires it.
In Orange County v. North Carolina Department of Transportation, 46, N.C.App. 350,
265 S.E.2d 890 (1980), the appellants therein contended that a final Environmental Impact
Statement had not been prepared prior to the Board of Transportation's decision to select a
highway corridor location. The Court of Appeals found that the issue wasn't ripe until a federal
location approval had been obtained and concluded:
Even if this claim were ripe, however, the federal transportation regulations explicitly
require that the State highway agency select a highway corridor location based on the
draft EIS so that a final EIS can be prepared for the selected location 23 C.F.R.
§771.18(j)(3); the State authorities were therefore doing exactly what they were supposed
to do.
46 N.C.App. at 383, 265 S.E.2d at 911. It is Respondent's contention that the Orange County
case stands for the proposition that the State can take actions based on a Draft EIS where federal
law requires it.
Under §401 of the federal Clean Water Act, applicants for all federal licenses and
permits, including 404 permits) must obtain a 401 Water Quality Certification prior to issuance
of the federal permit, and the 401 Water Quality Certification decision must be made within a
reasonable time (not to exceed one year) from the receipt of the application or it is deemed
waived. Thus, since Respondent is required to make a 401Water Quality Certification decision
within 60 days of receipt of an application, unless an exception applies, but not later than one
~' The State rules require a decision within 60 days of receipt of an application for a
401 Water Quality Certification, unless exceptions listed therein apply, 15A NCAC 2H.0507(a);
however, the exceptions contained therein cannot override federal law and the one-year waiver
provision of §401 of the Clean Water Act will apply if the State has not acted on a 401 Water
7

year from the date of receipt of the application, and since a 401 Water Quality Certification
decision must be made before a 404 permit is issued, it was proper for the Respondent to issue
the 401 Water Quality Certification challenged herein after the completion of the Draft EIS and
prior to the completion of the Final EIS, because failure to act within the proscribed time period
would constitute a waiver, and the federal 404 permitting decision could proceed without any
action from the State.
3. The challenge to the 401 Water Quality Certification issued on March 11, 1999,
may be moot since the State did not issue a 401 Water Quality Certification
within one year of receipt of either application from the PTRWA fora 401
Water Quality Certification for the Randleman project.
As discussed below in Argument E., on July 8, 1991, the Piedmont Triad Regional Water
Authority submitted ajoint-agency application, dated July 1, 1991, fora 404 permit from the
United States Department of the Army, Corps of Engineers ("COE" or "the Corps") and for a
401 water quality certification to the and to the State of North Carolina Department of Natural
Resources and Community Development4. That application was submitted to the Respondent,
through its Division of Water Resources. Respondent's records do not show that the July 8, 1991
application was ever acted upon so waiver may have occurred since no 401 Water Quality
Certification was issued by Respondent for this project on July 8, 1992 (one year from the date of
receipt of the application fora 401 Water Quality Certification).
Also as discussed below in Argument E., the July 10, 1997 public notice of the Corps'
Quality Certification within one year from the date of receipt of the application.
Respondent DENR's predecessor department

404 permit specifically provided that the Authority's application and that public notice
constituted an application fora 401 Water Quality Certification from the DWQ. (See
Petitioners' Exhibit 27, page 3. If the July 10, 1997 Corps' public notice and application for the
State 401 Water Quality Certification is the appropriate application, waiver may also have
occurred since no 401 Water Quality Certification was issued by Respondent for this project on
July 10, 1998 (one year from the date of receipt of the Corps' public notice and application for a
401 Water Quality Certification for the Randleman project). This would be true even though one
of Respondent's staffers, Mr. John Dorney, by letter dated August _, 1997, advised the
Authority that no action on its July 10, 1997 401 Water Quality Certification would be made
until the completion of the State Environmental Policy Act process, since the State cannot
override the federal one-year decision-making requirement found in §401 of the Clean Water
Act.
4. If waiver has not occurred, the 401 Water Quality Certification was issued
within 60 days of the former Director's determination by letter dated January
25, 1999, that the Y7'KWA's application was complete.
The rules governing DENR's 401 Water Quality Certification decision require agency
action within 60 days of receipt of the application, unless an exception applies. By letter dated,
January 25, 1999, from the former Director of the Division of Water Quality to the Corps, the
former Director considered the PTRWA's application complete, since compensatory mitigation
sites had been approved and the Randleman Water Supply Watershed Management rules had
been adopted. (See Respondent's Exhibits ) Since the 401 Water Quality Certification was
issued on March 11, 1999, it was issued within the 60 day time period required by the rules, and
could not have met the requirement of the rules if the decision had to await the completion of the
9

FEIS on this project.
5. The North Carolina Environmental Policy Act and the National Environmental
Policy Act are supplementary to the State's statutory authority to make 401
Water Quality Certification decisions within one year of the receipt of an
application.
D. RESPONDENT DID NOT VIOLATE THE WATER QUALITY CERTIFICATION
REGULATIONS BY ISSUING A 401 WATER QUALITY CERTIFICATION
WHERE NUTRIENT MODELING PREDICTS POTENTIAL EXCEEDANCES
OF THE WATER QUALITY STANDARD FOR CHLOROPHYLL A.
E. RESPONDENT DID NOT VIOLATE THE WATER QUALITY CERTIFICATION
RULES BY ISSUING A CERTIFICATE BECAUSE THE PIEDMONT TRIAD
REGIONAL WATER AUTHORITY DID FILE AN APPLICATION FOK A 401
WATER QUALITY CERTIFICATION WITH THE STATE.
1. The Piedmont Triad Regional Water Authority Did File and Application for a
401 Water Quality Certification with Respondent.
All applicants for a federal 404 permit must use a standard application form, form ENG
Form 4345. 33 C.F.R. §325.1. However, local variations of the application form may be used
for purposes of facilitating coordination with federal, state and local agencies. Id.
On July 8, 1991, the Piedmont Triad Regional Water Authority submitted ajoint-agency
application, dated July 1, 1991, fora 404 permit from the United States Department of the Army,
Corps of Engineers ("COE" or "the Corps") and fora 401 water quality certification to the and to
the State of North Carolina Department of Natural Resources and Community Development.
(See Respondent's Exhibit ; Affidavit of John Kime, paragraph _). The form, used by the
Corps and the State for 404 permits and 401 Water Quality Certifications, among other permits,
10

was labeled: "Application for Permit to Excavate and/or Fill, Water Quality Certification,
Easement in Lands Covered by Water, LAMA Permit for a Major Development." Id. Copies
were sent to the Corps and to Respondent's Division of Water Resources ("DWR"), since the
DWR was the lead agnecy on the eminent domain and interbasin transfer certificate before the
EMC. (See Respondent's Exhibits and ). Thus, even though the application was not
submitted to the Division of Water Quality's predecessor division, the Division of Environmental
Management, the division responsible for making 401 Water Quality Certification decisions,
(See Affidavit of Preston Howard, paragraph 3.), the application was submitted to the
Respondent, through its Division of Water Resources.
The form used by the the PTRWA was the type of form used for all 401 Water Quality
Certifications at that time in DENR and is the very type of form (local variation) contemplated by
the federal 404 permit rules in 33 C.F.R. §325.1.
2. The Jrcly 10, 1997 404 Permit Notice issued by the Corps Expressly Provided
that the PTR WA's Application and the Notice served as the Application for a
401 Water Quality Certification from the DWQ.
When a 404 permit application is received by the Corps, the agency must determine
whether an application is complete, and if it is not, additional information must be requested
within 15 days of receipt. 33 C.F.R.~~'325(a)(1). The Corps will determine that an application is
complete when it decides it has sufficient informatin to issue a public notice of the application.
33 C.F.R.~~'325(d)(9); see also 33 C.F.R.~~'325(a). In addition, DENR's 401 Water Quality
Certification rules require that the 401 Water Quality Certification application be noticed, 15A
NCAC 2H.0503(a), and also specifically provides that "the public notice requirement may also
be satisfied by a joint notice with the ...United States Army Corps of Engineers according to

their procedures." 15A NCAC 2H.0503(c).
Since Respondent's records do not contain any other public notices from the Corps
concerning this project, it appears that it took the Corps from July 8, 1991 to July 10, 1997, to
determine it had sufficient information to publish a public notice because on July 10, 1997, the
Corps pubished a Notice of the PTRWA's application fora 404 permit (to place fill materials
into the waters of the United States in order to construct the Randleman Dam and Lake, in
Guilford and Randolph Counties, North Carolina), and notice of the availability of the Draft
Environmental Impact Statement. (See Petitioner's Exhibit 27). The Corps' public notice for the
Randleman project also provides in pertinent part:
Generally, the decision whether to issue this Department of the Army (DA) permit will
not be made until the North Carolina Division of Water Quality (NCDWQ) issues, denies
or waives State certification required by Section 401 of the Clean Water Act. The
NCDWQ considers whether or not the proposed activity will comply with Sections 301,
302, 306 and 307 of the Clean Water Act. The application and this public notice for the
Department of the Army (DA) permit serves as application to the NCDWQ for
certification.
(See Petitioners' Exhibit 27, page 3) (emphasis added).
Therefore, the Corps' 404 permit notice put the public on notice about the need fora 401
Water Quality Certification for this project and put the public on notice that the PTRWA's
application and the Corps' public notice served as the application for the State 401 Water Quality
Certification (even though the 1991 application covered both the federal permit and the State
certification).
Thus, the PTRWA submitted an application to the Respondent fora 401 Water Quality
Certification for the Randleman reservoir project. Therefore, Petitioners' summary judgment
12

motion should be denied and summary judgment should be recommended in favor of
Respondent.
F. RESPONDENT DID NOT ABUSE ITS DISCRETION BY DENYING FORMER
PETITIONER DEEP RIVER CITIZENS' COALITION'S REQUEST FOR A
PUBLIC HEARING ON 1'HE 401 WATER QUALITY CERTIFICATION.
The decision to hold a public hearing prior to granting or denying a 401 Water Quality
Certification is discretionary with the Director of Respondent's Division of Water Quality. The
administrative rule governing publish hearings on 401 Water Quality Certifications is 15A
NCAC 2H.0504(a), which provides as follows:
(a) Public Hearing on Certification. If the Director determines that it is in the public
interest that a public hearing for the purpose of reviewing public comment and additional
information be held prior to granting or denying certification, the Director shall so notify
the applicant by registered or certified mail, return receipt requested, and shall publish
and give notice as required in Rule .0503(d) and (e) of this Section. Such hearing shall be
held within 90 days following the date of notification. The record of each hearing held
under this Paragraph shall remain open for a period of 30 days.
The operative provisions of this rule are "If the Director determines that it is in the Rublic interest
that a public hearing ... be held prior to granting or denying certification. 15A NCAC
2H.0504(a) (emphasis added). This provision is purely discretionary.
In this matter, on November 15, 19985, Mr. Alan Horton, the Acting Treasurer for the
former petitioner Deep River Citizens' Coalition and on that organization's behalf, requested a
public hearing prior to the issuance of the 401 Water Quality Certification. (See Petitioners'
Exhibit 28). By letter dated March 10, 1999, the former Director of the Division of Water
Quality, Mr. A. Preston Howard, Jr., denied the DRCC's request for a public hearing. (See
Petitioners' Exhibit 29) The letter provides in pertinent part,
l3

Many of the issues you raised are important to us and are critical to the
determinations that we must make in considering the 401 issuance. We have gone
through each of your concerns and believe that we have adequate information to conclude
that the construction of the reservoir will not lead to significant degradation in any of the
streams that are part of, or affected by, the reservoir. We accordingly believe that we are
now in a position to make a determination on the 401 certification.
We have also considered your request for a public hearing on the 401 certification.
We have weighed the cost to government agencies, the cost to the applicants, and the
delay insupplying the water needs of the region agains the potential for obtaining
additional information applicable to the 401 decision. We have concluded that htere have
been ample opportunities for the public to provide information relevant to our decision.
Furhtermore, we have no evidence that there are sectors of the public who have not been
afforded these opportunities or that anyone has additional, previously undisclosed
information that would differ from what we have received thus far. We have accordingly
decided not to hold a public hearing at this stage of the process. As you know, the
Division held a workshop in June of 1998 and a public hearing in September of 1998 in
Guilford County. Both were well-attended. Also, our staff members have been available
to take comments through various formats and our offices have been open for visitation
and consultation throughout this process.
(Petitioners' Exhibit 29, p 1) The Howard letter also goes further to address each concern raised
by the DRCC in the Horton letter.
The June 1998 workshop and the September 1998 public hearing were held to solicit
public comment on the proposed Randleman Water Supply Watershed Management rules. At
the workshop and the public hearing, water quality issues were raised that were pertinent to the
proposed rule and to the 401 Water Quality Certification, even though the 401 Water Quality
Certification was not the published matter before the public.
Advice from the Attorney General's Office staff attorney to the Division of Water Quality
staff, that they should focus on the proposed rules instead of the 401 Water Quality Certification
since the rules were slated to go before the Environmental Management Commission for
His letter is actually dated November 15, 1997.
14

adoption, does in no way mean that water quality issues raised during this rulemaking process
were not the same or similar water quality issues raised through the public comment process
concerning the issuance of the 401 Water Quality Certification.
Thus, the former Director of the Division of Water Quality determined that the issues
raised in Mr. Horton's letter were not new issues and decided, as it was in his discretion to
decide, that a public hearing would not be held prior to his issuance of the 401 Water Quality
Certification. This determination does not amount to an abuse of discretion and summary
judgment should be denied as to the Petitioners and recommended in favor of the Respondent as
to this issue.
CONCLUSION
For the reasons set forth above, summary judgment should be denied as to Petitioners
American Canoe Association, Inc. And Deep River Coalition, Inc., and allowed as to
Respondent.
Respectfully submitted this the 27th day of September, 1999.
By
MICHAEL F. EASLEY
Attorney General
Kathryn Jones Cooper
Special Deputy Attorney General
State Bar No. 12178
N.C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
15

CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing RESPONDENT'S
RESPONSE TO PETITIONERS' MOTION FOR SUMMARY JUDGMENT on the parties by
depositing the copies in the United States Mail, first class, addressed as follows:
Carolyn Smith Pravlik
Bruce J. Terris
Demian A. Schane
Terris Pravlik & Millian, LLP
1121 12th Street, N.W.
Washington, D.C. 20005
Attorney for Petitioners
Marsh Smith
Cunningham, Dedmond, Petersen & Smith, LLP
P.O. Box 1468
Southern Pines, NC 28388
Attorney for Petitioners
George W. House
William G. Ross, Jr.
Brooks, Pierce, McLendon
Humphrey & Leonard, L.L.P.
2000 Renaissance Plaza
230 North Elm Street
Greensboro, NC 27420
Attorneys for Respondent-Intervenor City of Greensboro
Linda A. Miles
City Attorney
City of Greensboro
P. O. Box 3136
Greensboro, NC 27402
Attorney for Respondent-Intervenor City of Greensboro
17

Greensboro's brief
Subject: Greensboro's brief
Date: Mon, 27 Sep 1999 10:36:27 -0400
From: Boyd Devane <[e-mail]>
To: Katherine Cooper <[e-mail]>
CC: Coleen Sullins <[e-mail]>,John Dorney <[e-mail]>,
Dennis Ramsey <[e-mail]>
I read Greensboro's summary judgment brief and felt ok with most of
it. There was however some of it that I would not have presented as the
state's argument. Should we be voicing objection to all of the
statements? Most of them should not hurt us although we don't see it as
they do. I was a little more concerned about the argument on page 9
which says that the "Sectrion 401 Certification is not an agency
decision that is governed by (the SEPA rules)" I would think that
we would like to preserve our ability to call for an EA or EIS on a 401
certification.
Could having the statement in the brief diminish our rights in the
future? Also, John may have other concerns over the 401 certification
issue. I also did not like their statement on page 21 that "Modeled
concentrations for a proposed lake that does not yet exist do not
activate the first trigger" the first trigger being the "not to exceed
40 ug/1" part of the Chlorophyll a standard in section 2B .0211. Could
this eventually be translated to prevent us from using predictive
modelling as a tool for controlling pollution? Although he says
modelling could be used to trigger the second part which enables the
director to control discharges when they would cause "excessive growths
. ." I really did not see the difference.
1 of 1 09/27/1999 11:09 AM

Serious loss potential
Subject: Serious loss potential
Date: Mon, 27 Sep 1999 18:13:18 -0400
From: Boyd Devane <[e-mail]>
To: Coleen Sullins <[e-mail]>
CC: John Dorney <[e-mail]>, Dennis Ramsey <[e-mail]>,
Gloria Putnam <[e-mail]>, Steve Zoufaly <[e-mail]>,
Greg Thorpe <[e-mail]>
Late this afternoon when I received Kathy Cooper's "Request for Summary
Judgment Brief", I felt uneasy about the arguments she was making about
issuance of the 401. She was basically saying that since our rule said
we had to act on certifications within 60 days, that we could not have
waited for the Corps EIS to be finished and complied with our rules. My
fear was that this could be used against us later to prevent John D.
from ever putting a 401 application on hold to require an EA. Kathy said
that my fear was real and the courts had ruled several times weakening
NEPA and since we have identical wording, we would probably lose also.
Unfortunately I was not able to get up with Dennis or John in time to
discuss it with them. But, I had to do something fast - Kathy's
document must be mailed tonight. I caught Greg just a few minutes ago.
We decided that Kathy should not use this agrument. She was willing to
take it out but said it would significantly weaken our chances of
winning. Greg's strong opinion was that it was worth it not to
potentially weaken John's authorities or possibly the nondischarge
permitting /SEPA requirements. I'm waiting now for Kathy to redo the
Brief and give it a final review.
1 of ( 09/28/1999 7:29 AM

89i15i99 08:33 PTRWA ~ 9197155637
.~
,.
j.
CIUIRL~E floI.LIS
REGULATORY CONSt1LTAN~ ~- ~'~
13$ Green Forest Drive
Wilmington, N.C. 28409
919/392-6833 or 749-0318
July 8, 1991
w
Regulatory Branch
U.S. Army Gorps of Engineers
ATTN: Mr. David Franklin
F.O. Box 1A90
uilmington, NC 28402-1890
Gentlemen:
_~~ ~'~
S~° ~ 9 fggca ~ .;~ ~ a

Yn behalf of the Piedmont Triad Regional Water Authority (PTRWA),
there is enclosed an application for a Department of The Army permit
pursuant to Section 404 of The Clean Water Act for the discharges of
dredged ar fill material into Waters of the United States and wetlands
as necessary to cvrstruct the Rar-dlQmar+ Aaa- and Reservgir an the Deep
River in Randolph and Guilford Counties, North Carolina.
Supportive information is listed as follows and is enclosed by
reference:
1. Gorps of Engineers Fit-al Er~viren,nental Inspect StaGematit for
~Randlernan Lake, February 1990 and as updated through 1985.
2. Stott of North Carolina Draft Environmental Impact Statement
for Randleman Lake, December 1990; including the supplemental document:
"Water Quality and Quantity Studies to Support Randleman Lake
environmental Lmpact Statement" prepared by alat.k ~ Veatch tOX PTRWA,
August 1990 and further supplemented by BdV letter of October 1490.
During the staterevi.ew process conducted by the N.C. Environmental
Management Commission to determine the issuance of a Certificate of
Eminent Domain, the issues of the Randleman project impact on Cultural
Resources and Endangered Species were noted by the N.C. Department of
Cultural Resources and the N.C. Wildlife Resources Commission,
respectively as having nqt been fully addressed. The Authority
recognizes that there is also a Federal statutory requirement for the
Corps of Engineers to address these matters in its regulatory process,
and has submitted this application at this time so as to initiate a
state/Federal coordinated review on these and other mutual issues as
well as to initiate the full range of the Corps of Engineers' "Public
Interest Review" and other review criteria attendant to a permit
decision under Section 404. In this regard, Lhe Authority requests that
the Corps accept this application as sufficiently complete to begin the
Section 404 process and to request agency end public comment. We
anticipate that ehe Corps will agree that the requirements of the
National Environmental Folicy Act can be satisfied by the preparation of
a topic-specific SvpplemenLal dbtument limited in scopt to those impaGtS
that are significantly different than previously addressed and to
matters that are subject to new review criteria not previously
satisfied.
N0.011 D02

Q9i15i99 08 33 PTRWA -~ 9197155637 N0.011 D03
• Y•
Page 2
Based on our recent discussion, we will anticipate a meeting Qf
Federal and state agancies in the near future to accomplish an agency
"scoping" process, Please let me knew iE I can assist Mich any
arrangements for thac meeting.
Ae such time as it is appropriate £ar the issuance of the Ceres
Public Notice, the Authority will furnish a set of pre-addressed mailing
labels a£ the addresse®s used far the NCEMC Public Notice of becember
28, 1990 which can be used to supplement the Corps l~g~s.
If, upon your review, additional information is needed, please
contact me directly about those requirements. I look forward to working
With you an this project.
Sincerely,
Charlie Kglii&
Encl
Cy. £urn ter/encl: Jahn Kime

09i15i99 08 33 PTRWA -~ 9197155637 N0.011 D04
_ ; ~F
APPLICAT IU1+1
FOR .
PERMIT T4 EXCAVATE AND/OR F(LL WATER QUALITY CERTIFICATION
EASEMENT IN LANDS COVERED 8Y WATER LAMA PERMIT F4R MAJOR DEVELOPMENT
Departn+cnt or AAminluration State of North Carolina Departmens of the Atmy
(GS 11]1 Gapartment of ntawnt tiesources tnd Community Dcrclopment Carps o/ Entiincers, Wllminelan Dist!kt
(G5 113229, to}2t5.3ti1ttl. t49-215.3(c).113A-114 (33 Cf11 209.~2~719)
'Plesse type or print and Fill in all blanks. If information is t+ot applicable, so indiato by placing NIA in blank.
I. Applicant
A. Name
First
yc! ~7 ~'r2
Last
Middle
A. Addn.KS Wre~~n~a~N L~~Dt:,~ ~t~l~ IGO z~i'G i'rsls»~~ l/J~gPoW//mow /C'OAD _
Street, P~ O. Box or Route
a i 7- 7
City or Town State Zip Coda phor+4
It. Lontion of Pr sed Rwlect:
A. County i? c a"~ Gu t c.Fo~
B. 1. City, town, Cammunily Or landmark IOW N ~'t_E ~ AN l ~ ~ ~-' __ __
2. Is proposed work within City limits? Yes No '~
C. Crock, ricer, sound or bay upon which project ie located or nearest named body of wafer to project
V is f~,
Itl. Description of Project ;-~~ t~~ '
A. I. Maintenance of existing project 2. New work t~~n-sm~c~ ~tm ~ K~~~ yer2
g. Purpuso of cxtdratit+n pr fill
1. Aceccs channel IenLth width depth
~_ 13uat basin Icn~th width depth
3. F ht area ~'g ~ length width depth _r ~ ~ ~~ ~~'^~~ ---
4. Uthar length width depth
C. I. Suilchead Irngth~~* Average distance waterward of MhiW (shoreline)
• ~' 2.. type of bulkhead canstrur lion (material)
U. Ezcavatcd materiel (tgtal fqr prgl~Gl)
t, Cu~iC yards ~. Type of material
E. Fill material to be placed 6clnw MFIW (sec also VI, A)
1, Cubic yards 2. Type of material ~.-.
IV. Land Type, Disnasai Area, and Construction Equi(lmt;tlt:
A. D~,es the area tc, be excavated include any rnarshlarid, swa~++p~ 0~ gther wetland? Yes ~ No
6. Dues the d'rspussl ilea inrludC any marshland, iwamp5 Or Gtht'r wptlpnd? Yes ~ No T,r
C: bi~pos$I Area
7. Location ~E-moss' ~tr'Z~' ~i~~
~, Do you claim title to disposal area? yE5
U. Fill material wurce if Till is to be [rucked in ~okV{uw Qt2t~+0.S t.J~~Ntrl Pr2o.11<zT
~. Hrsw will excavated malt'rlal be Cnlr,~pped and erosion Conirolled~ S~ +4 ~cea° a.,.s ~T'+a /V C.a41n E u~1Q67Mt''1A1'r'S
~~
1 • .l t~OC of equipment to be used ~anl>a~'r;!onra` pr4N5 . ,+Gt~b~t'~$ . ~~
y, Will marshland be crossed in transporting equipment to project site? if yes, explain ~n '
.~ -

09i15i99 08:33 PTRWA 3 9197155637
- ~
. Y. Intended tJsa of Project Area (Oeseribe)
N0.011 D05
A. 1. Prwate
2, Commercial
3
. Housrng ~evelo merit or IndyStrlal
~. Qttler u ~i G Fi ~t u L
t . Lbt ilie{i)
2. Elevation of~at(s) above mean high water
3. 54i) trpa and texu,re
4. Type of building fxilitlls or structures
S. Sewage disposal and/qr waste water treatment A_ EYistanB PIaAAe4
$. Oestiribe
6. Land Classifi~ation'(circle one) OEVELOPEp TRANSITIONAL COMMUNfTY RURAL
CONSERVATIQN OTHER .- ••• (See LAMA Loeat Land lJid Plan•Synopsis)
VI. peRiining ~ Fill avid Water Quatiq:
~1. Does the propped protect involvt the placeMent of fill matariais btlow mean high water? Yes 'f IVo
~~
e- t , Wiii any runoff or discharge enter adjacent water! 0s a result of projec[ activity or planned use of the ~`
ales following project wmptetion? Yls...._No`
2. Type of discharge
3. Location of discharge -
VI1. P-esenl rate of shoreline er6~ion (ii known):
Vifl. List pennh nymbitrs ~ iuue dates of pretriow Departn+ent 4f ,~,ty Corps of Enaincert a State permiu fa
work in Proleci area, if apdkable:
IX, ~~ of time required to complete prpj~; ~~ y ti^-sg pz ~ _
X. `In addition to the CQrnpleted application form, the following lams must be proridcd;
A_ Attach a Copy of the eed (with State application only) or other ir-3trument under which applicant
claims title to the affected property, dR if applicant is not elalrr±(n` to be tito owner of said property,
then forward a Dopy of tha deed yr other instrument under which the owner claims title plus written
Dermissien from the owner to carry out the praject on his land.
B, Attach an accurate wor, k plat drawn to scale on 6f, X 11"white paper {sa instruction baok-et for
details). Note: Qriginal drawj~a3 preferred • only hiEh quality copies accepted.
C. A copy of the application and piai must be served upon od'aceni riparian landowners by re8istered or
ceniiiep Mail or by publication {G.S. 1 l3-~Z9 (d))Enter date served . - _
D, List names and complete addrtsses of the riparian landowners with property adioining ippllCant's.
Such owners have 30 days irl which to submit comments to agencies listed below.
Xl. Certification nequlroment: I unify that to the best of my knowled$e~ the proposed activity complies
with the Stata of North Grolina'; >tpproytd Coastal management program and will be eonduq;,~ in a
manner consistent witH wch program.
X11. Any permit i:w4t1 pursuant to rhea application will allow only ~! development dr:scribed In this appli-
WtiOR and piai. Applicants should therCfara describe in the application a^~, plat all antfeipaeed detiel•
opment activities, including censLrlrctjon, excavation, filling, and sand cleaLine.
DATE /
Ode f•B2
Rer. t0~7a
SE6 REVERSE SIDE FpR MAILING IN~TRUGTI~NS
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09i15i99 08=33 PTRWA ~ 9197155637 N0.011 D07

~9i15i99 08 33 PTRWA 3 9197155637
~.
::,.:
C8A8LIE ilO1,LIS
REGULATORY CONSULTANT
138 Green Forest Drive
Wilmington, N.C. 28409
919/392-6833 ar 799-0318
July 8, 1991
Mr. J4hq N. Morris, Director
N.C. Division of Water Resources
P.0. Box 27687
Raleigh, NC 27611-76$7
DeAr Mr. Mvr.ris: ...,. .. .,... .. ._
I wish to Inform you that I have submitted today, in behalf of the
Piedmont Triad Regional Water Authority (PTRWA), their application far a
Federal permit pursuant to Section 404 of The Clean Water Act for
discharges of dredged yr fill material into Waters of The United States
or wetlands as neceseazy to construct tl+e ItAndleman Dam and Reservoir
project on the Deep River in Randolph and Guilford counties. This
application and the Section 404 process will be coordinated by Mr. bavid
Franklin of the Wilmington District Corps of Engineers.
Mr. Franklin indicated to roe that he plans to convene an "agency
,scoping meeting" in the near future to provide an opportunity for the
state and FedeXdl Agencies having an interest in this project to discuss
and comment on the information and documentation needed to satisfy thej,F
VaYiGus inttrests and requirements. Information about the time and
place for that meeting will be farthcoining.
Please refeX tO ,ny recent discussions kith you and with Mr. Richard
B. Hamilton, Assistant Director of Lhe N.C. Wildlife Resources
Commission regarding the issues raised in Mr, Hamilcon's letter of
February 4, i991 in response to the state DEIS on this project. It is
my understanding that Mr. Hamilton does not object to the. PTRWA
addressing those issues within the framework of the Section 444 process
tether than within the state EIS. We discussed the fact that these
issues could not be ignored because the Federal Fish and Wildlife
Coordination ACt and the Endangered Species Act each have specific
requirements chat are incumbent on the Corps of Engineers in their
review prvsess plus the Federal permit can contain conditions that Would
be enforceable under Federal law, $eyohd thAt, I can assure you that
the PTRWA is fully committed to addressing these matters and we will
look forward tb a coordinated glialog with the N.C. Wildlife Resources
Commission and the U.S. Fish and Wildlife Service Conducted under the
Federal Section 404 process.
N0.811 D08

09i15~99 08 33 PTRWR 3 9197155637 N0.011 D09
-~ .fir'
Page 2
I am fuFnistting a copy of this letter to Mr. Ramilton to assure hfm
of our commitment to address the NCWRC issues within the Seetion 404
process. Without objection £rom hfm, the PT12WA will consider that this
commitment is a satisfactory re5POn5a to that itl~o listed in your letter
to Mr. Thomas Z. Osborne dated May 6, 1991.
i invite your or Mr. Mamiltor's eantact aith me if there ere #ny
questions.
-.. - - . _ __. ~.- .... ... .. ..., Sincerely;
Charlfe Hollis
Cy f'urn: Mr. RiChar~ $. Hamilton
Mr. .john Kime
Mr. David Franklin

WATER & LRND SECTION Fax~919-716-6766 Sep 24 '99 1057 P. 01
MICHAEL r'. 1CASLEY
ATTORNEY c1kNPAriL
~. o
.4~.
State of North Carolina
DepartmEnt of Jus1iC~
P. c5, SOX ~~f~
RALCIGH
' 2784~~)fi2B
FAX ~RANSMI~SI(~l~
ENVIR4:NMENTAI. ow~sioN
919-71~-6600
,. Fax' 9'19;718-676$
ArroRNEY-CLIENT PRML.EGED DOCUMENT
AND ATTORNEY WORK PRODUCT
NOT A PUBLIC RCCOlRD PURSUAN'~ TO N.C. GEN. STAT. §132-1.1
URGENT PIrEA~~ DELIVER UPUN RECEIPT!
To; Boyd Devane ~.
pWQ, DENR
Faa #: (919) ? 15-5637
.
From: Kathy Caoper/PatriciaBogers
Subject: Y7eep River Cations coalition
COMMEI~ITS:
Date: September 24, 19$9
Pages: 31 i~ciudin~ this cover sheet.
Attached is s capy of Greensboro's summary judgment brief. I am working on a separate brief Tor
the State; plea$o let me know if there is~.anything you think George needs to add or take out of his
brief.
\ ~~~tc~~~b,
~~~~~ ~,
~;~~~ ~
~~
~~~,~~ ~ ~

WATER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1058 P. 02
STATE OF NORTH CAROLINA • _
coUNTY of ~.AxnoLPH
pEEp RIVER ~.`ITIZENB'.COALITION;et u1•,,
Petitioners;
v.
NtyRTH CAROLINA DEPAR'T'MENT OF
E1vVIRbN11IENT ANA NATE)RAL : '
RESOURCES.
Respondent, '
_ and
CI'T'Y OF GREENSBbRQ,
PIEDMONT TRL~,A REQIONAL WATER
AU'THORYTY,
l~eapondebt I~tervenora.
IN THE OFFICE QF
' A,pMINI~TRATIVE BEARINGS
case Nu. 99 E>3R os6o
(consolidated with 99 EIIR OG13)
RESPONbENT ~1TERVENQR C~REEI~SBORO'S MEMORANDUM IN UPPOSYTION
TO PETITION)I+RS MCITION FQR SCIMMARX ~1'DGMEN'I'
AND IN SUPPQR'F dF. INT'ERVENOR RESPONDENTS MOTION FOR SLINIMAR~'
JUDGMENT ON THE ISSUES PItESE1+1TEb BY F~,~TIONERS' MOTION
The Intervenor Respondent City of Greensboro submits this Memorandum is appa'sitign
to Petitianers' Motion for Sunnunary 3udginent and in support of Intervenor R.espondent's Motion
for Summary Judgment on the'issues presented in Petitioners' Motion.
A. IN~'RODUCTION
The Petitioner ,Parties under :one assumed Mme or another have been attempting to thwart
the cans~druction of the Randleman'Dam and kanctldman Lake since at least March of 1992. (See
petitigners' Statement of Fncts in ,Petitioners' Memoranduun in Support of Their Motion for
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WRTER & LRND SECTION Fax~919-716-6?66 Sep 24 '99 1058 P. 03
Summary Judgnnent •filed September 30, 1999, page 8.} As Petitioners aclmowledge, they
dropped their first ~pp~ of the 1992 Environmental Management Commission (EMC) decision
to approve the friterbasin Transfer from the Deep River Basin to Haw and Yadkin River Basins.
However, in thi$ Petition they reassert and commingle a large subset of arguments relating to the
impacts froth these intcrbasin tranafcis (pp. 12-14), c.g. the reduce flow in the Deep River at
1vloncure, along with arguments. related to water quality impacts restilting from the construction.
of the Randleman Dam and Lake, e.g the placement of fill material in rxraters (including
vvttlaads) of the State.:' The:time far•arguing the i~atecbasin transfer impacts is iri the past and this
•
Court should require the Fetltioners;•ta eddress their facts and argluntnts at the Hearing on these
matters to tkxe non-interbasin transfer issues.
The piedmont :Triad Regional Water, Authority (the "Authority") proposes to Construct
Randleman Daar~ and'Rescrvoir m.Randolph and Guilford Counties. Tht purpose of the project
is to develop a safe aad:dependabIc water supply far the Piedmont Triad rtgioi] that will satisfy
the region's pxojectcd water demand for approximately 50 years. The need fbr the reservoir is
great. 'I'Ito City of Greensboro already; is• experiencing a continuing water shortago and, based on
expected rgonal growth and increases in water demand, other w2rtC~t shortages are predicted to
occur in other Authority comrntutitios shortly after the turn of the century. The Randleman
reservoir would increase the water supply, for the Authority's member gor+trzamonts by more than
SO percent and assure an adequate.; water supply for the region for decades to come, which is
essential for the continued economic growth of the region.
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IJATER & LAND SECTIDN Fax~919-716-6766
Sep 24 ' 99 10 58 P. 04
Construction of'thc dam would require placement of fill material iz~ l'k~e Amp River
approximately two milts. upstream ftotti the town of Randleman. This placement of fill material
in the Deep River will require foderal regulator~- approval under the Clean Watex Act, 33 ~'.S.C.
§§ 1251 et seq. Specifically, the Authority must. obtain, and has applied far, a permit fram the
U.S. Army Corps of Engineers (thG~"Corps"),pwsuant to Seetian. 404 of the Clean Water Act (a
"Section 404 permit"}: 33 U:S.C..~§:1,344.
However, under Section 401 of the Chan Water Act, 33 U.S.C. § 1341(a}, the Corps
cannot issue a Scction 404 permit for the Randlettten Dam project unless the state certifies - or
waives certification -- that the dischsrgc,of fill material far the project will not violate state water
quality standards.(a "Scction 401 .;~Cectiflcation"). The respondent issntd tht Section 401
Certification for the Randleman Dam project on March 11; 1999.
B. THE DEEP RIVER ~TIZENS'; COALTION DOES NOS' I'VE STANDING.
The Respondent Intervenor ~Grcensbaro adapts the arguments of the Respondent as set
forth in Respondent's Nldtioh to Dismiss as to Petitioner Deep River Citizens' Coalition filed
August 30, 1999. ~;
C. THE AUT~IORITY ANb .T'ItE C~~5 RI~OFEIrLY FILED APPLICATIONS
FOR A WATER' ~IIALITY CERTIFICATION
Qn Ju1y 8, 1991, the Authority. filed a standard form approved by the Corps and The
Department of NaturaE Resources and Community Development of the State of North Carolina
(predecessor of DENR) entitled .APPLICATION F4R PERMIT TC} EXCAVATE AND/QR
FILL and WATER QUALITY CERTIFICATION (1991 404/401 Application). (See Aft3davit
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WATER & LRND SECT ION Fax ~ 919-716-6766 Sep 24 ' 99 10 59 P. OS
of John Kime dated Septtmber 24, 1999 ).t Public notice of this 1991 404/401 A.ppliGati4x~
was given on July 10, k9g7 by the "Randleman Lake Cruilford Gild ~artdolph Counties, hlorth
Carolina Section 404 Public Notice ead Notice of Availability of Draft Environmaatal Impact
Statement." (Sex Ezhibit 27 to Petdtioaem Memorandum in Support of Their Motion for
Summary Judgment). This notice complies with the provisions far public notice under 15A
NCA.C 2H.0503, specifically:
(a) Notice of PuhIi~lion. Notice of each pending application for an individual
certification shall be published, one time in a newspaper having general circulation
in the county in which the dischergC will occur, or as provided in Paragraph (c~af
this Rule....
{c} The B~t'e nQtice~ iaauirement may also be satisfied by a ioint notice with the ,
U S Army Cis of En¢incers aocordina to their established procedures.
(Emphasis Added). lt'is.clear that Corps believed it had already had an application and it advised
the State that:
Generally, the decision whether to issue this Department of the Army (DA) permit
will not be made until the. Atorth Carolina Iaivisiuzt a;F watax Quality (~TGDWQ)
issues, denies, or waives, State. certification required by Section 401 of the Clem
'i~Vater Act z
Il<' 1'or any reason, this Court should,`dstkrmino theJuly 8, 1991 application to be ineffective, the
Corps' Section 404 Public Nptice constituted a valid "application" for the Section 401
Gertificatian. The Corps rulas provide that the district engineer may obtain a Socti.om 44 a
Certification from the applicant or:Jrom~ the cer~fiJying agency (33 Gk'lt 325-~(b)(1)) aid, i~p
1 Respondent's Respon$e 1. to Petitionets' p'irst Set of YZequests for Production of
Documents was in error. '
2 July 10, 1997 Section 404 Public Notice amd Notice of Availability of the Draft
environmental Impact Statement staled oa page 3
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practice, the Corps sometimes stakes the request for a Section 401 Certification. It specifically
did gp in this matter in the Section 404. Public Notice when the Corps unequivocally stated:
'~~ application and this public notice for the Department of Army (DA)
permit scrvts . a$ application to' the NCDWQ far (Sectioza 4U l j
GCrt],f C~ttoll~ 9 -
TJnder the Corps' rubs, ~wQ's right to; approve or deny the Section 401 Application should
f~ave been deemed waived b0 da}-s' from the ,date the Corps issued its request for a ccrtif cation
or, at the latest, July 9, 198 (one year.later) a Although tb.is actually constituted respondent's
second notice that the ,A,uthprity was applying for a Section 401 Certification for the proposed
Randleman dam project; this notice aad request was specifically acknowledged by DWQ.S
Whether in response to the Authority's July. 1, ! 991 ~ Application or the Corps July 10, 1997
Section 4Q4 Public Notice requcs~.far Certification, thG fprmal determination was made by Mr.
Howard's Certification of lvlarch 11;199.
Even assuming the .present application rules can be construed to require some other
formal application by the Authority, 'the .Authprity has substantially complied with the
requirernertts set forth in~the,~applicable rules of 15A NC,A.C 2H.Q~00 and substantial compliance
3 ld.
4 33 CFR 325.2(b)(1~(ii): states. "No permit will be granted until required
certification has been obtained of ha6 been w~iued., A waiver may be explicit, or will be deemed
to accur if the certtfying agency, fails or. refuses to .act on a request for certification within sixty
days der receipt of such. request unless the district engineer determines a shorter or longer
period is reasonable for the statt to act..... [i]f it appears that circumstances may reasonably
require a period of tuna longer than sixty days,: the district engineer, based on information
provided by tlae certifyylhg agency, `.wilI. determine a logger reasonable period of time, aaot to
eXCeEd OnE year, at which time a;waiver'will be deemed to occur."
S See Letter from 3ohn.l:3orney to John Dime dated August 20, 1997 (stating "[o]n
I I July 1997 we were notified of your t+equest for 401 Water Quality Certification").
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WATER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1100 P. 07
is sufficient.
An application is not an end in itself The requirement that a pel~On seeking a Section
441 Certification submit an "appliedtiaa" is a procedural requirement that has a $pecz~p purpose:
to pmvidc to the respondent the ~~necessary ~nformat3an to allow the respondent to review and
understand the facts and evaluate acid melee an informed decision on the request for certification.
See 15A NCAC 2H .0502(s} and- (b) (listing the information to be included in an "application").
An application is a means to an tnd: a proper and informed decision an tl~e applicant's request.
In this cast, the respondent ~ all of the necessary information at the time it made the
decision and issued the Section 4p.1 Certification. ~ Over the -year and one-half period between
3uly 1997 and January. 1999, .the respondent considered the Authority's or the Carps' request,
sought and obtained additional information (~15A NCAC 2H .0502(c}), and eandtict0d s review
and. investigation of tho information. as .it 'deemed necessary (1SA NCAG ZH .0502(0)) to
~; .
evaluate the request for certif cation,(15A NCAC 2H .0506).
Thus, the Authority substetitially complied with the purpose and the substance of the
application requirements under ~1 SA NCAC 2H .0502. While it is generally true under North
Carolina law that an adiniiiistrative body must follow its vwn rules, substantial compliance is
sufficient, as in this cast, where the ~niit is procedural 2uad its uildez~lyit]g puxpose5 vv0re ~tlfilled.
Burwell x Grif, fin, 67 N.C. App. X98,..204-06, 210, 312. S.E.2d 917, 921-22, 924, distr. rev.
denied 311 N.C. 303, 3I7 S.E.2d 678 (1984).
....,._:
In this cast, the purposes undtrlying the application rules wvexe fulfilled by the raspoiident
and th0 Authority - the needed infarniation was properly subnuttcd to and properly evaluated by
the respondent before the . Section 401 Certification was issued. If the lack of a specific
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document titled "Application" is a deviation from the rules, it is a technical, procedural deviation
that resulted in no prejudice.to the peddoners'or anyone else.
D. RESPONDENT DID 1~T4'F VIaL,ATE TOE NORTH CAROLINA
' ~NVTRONMEltiT'PAL POLICY ACT. BY ISSUING ITS SEC'T'ION 401
CER~'TFICATION - SEI~RE C4MPLETiQN Qk' T~ p7NAL
E1W'lltONMENTAIE, IMPACT STATEMENT FOR THE RANDLElVIAN DAM
PROJECT.
The petitioners dispute the .timiag of the $ectaQn 401 Certification. They argue that the
respondent was prohibited under the North Carolina Environmental Policy Act ("NCEFA") from
issuing a Section 40~I~ Certification uridl' the final Environmental Impact Statement ("EIS") is
issued for the project. Specifically; the petitioners rely on any NCEFA Wile which limits certain
state actions while an environitieiiZal document is begin prepared. 1 SA NCAC 1 C .0402. ,See
pct. lviem. at 17, 18.
The petitioners are wrong fait at least twa reasons. First, the NCEFA rule reFied on by the
petitioners, by its awn terms, does not apply ~to the respondent's Section 401 Certification.
Second, even assuming the Wile applies, it is, is the circumstances of this case, overridden by
federal law. Accordingly, the ,respondent did cot violate NCEFA by issuing a Section 401
Certification prior to completion: of the final EI5 fo: the Randleman Darn project.
It should be noted at .the cutest. that Petitioners' claims as to purported violations of
NCEFA are based on what atuounts'ta a~:r'equest tl>mt the NCEFA process be performed twice for
this project. As is reflected in documents included with the Pedtidners' own motion for
summary judgment, a draft and final EI3 has been prepared for this project as a part of the
process by which the EMC judged the project~before approving it under G.S. 162A=7. Report of
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IJRTER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1101 P. 09
Proceedings, Proposed Reclassificatson of Segments of the Deep River (Proposed Randleman
Reservoir, September 1, 1498, attached-as.Exhibit 19 to Petitipners' Motion for Summary. Thus,
the alternatives and i~itigatioa analysis contemplated under NCEPA was performed at that tune.
1. ],tULE .0402 DOES. NOT APPY.Y: TO THE ISSUANCE OF A S£CTION 4p1
CERTlPICATION.
Respondent's NCEPA `toles.. include a ru1e~ entitled "Limitation of Actions Duriuig
NCEPA Process." The rule provides:
(a) While work ori:an environmental documeat6 is in progress, no agency
shall undertake in the interim any action; which might limit the choice among
alternatives or otherwlse'prejttdice the ultimate decision on the issue.
(b) If : an .agency is : considering a proposed actions for which an
environmental document is to be or is being prepared, the agency shall promptly
notify the initiating party-::tbat :.the agency cannot take final action until tlae
e~avironmental documentation is. completed and available for use. as a decision-
. malting tool.
1 SANCAC 1 C .0402 ("Rule .0402'x.
So, Rule .0402: applies to, 'and limits, only some sort of interim or final agency "action" --
that is, some "licensing, certification, permitting, ... [or] other similar final agency decisions the
absence of which woteld preclpde tlf~e proposed gcliv~ty." 1 NCAC 25 .0108(b)(1) (emphasis
added). Furthermore, by necessary implication; an.agency is permitted to take an interim action
6 "Environmental document" is ref ned in NGEPA to mean an environmental assessmez~.t
("EA"), an enviro~aental impact ~ statement ("ELS"), or a finding of no significant impact
("FONSY"). N.C.G.S. § 113A~9(2).
~ The word "action" is defined in' the Departrnent of Admini,sttation NCEPA rules to
include "licensing, certification, permitting, the .lending of credit, expenditures of public monies,
and other similar final agcz~cy .decisiots the absence of which would preclude the proposed
activity." 1 NCAC 25 :0108(b)(1): .
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IJATER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1101 P. 10
(prior to completion of an NCEPA .environmental document) if that action does not "limit the
choice among alternatives or otherwise prejudice the ultimate decision on the issue:' 15A
NCAC 1 C .0402(x)_
A Section 401 Certification i9'not. an agency decision that is governed by Rule .0402. It
is not a final agency decision that is intended to authorize or deny authorization £or a proposed
activity, and a proposed..activity (such as~building_a darn) can occur in the absence of a Section
401 Certification. Ftuthermot+e..issuing a Section 401 Certification does not prejudice the
ultimate decision on the proposed: nctivitX; indeed, neither the respondent nor any other state
agency is the ultimate decisiorunelcer. Accordingly, Rule .0402 does not apply by its own terms,
and it does not limit the respondent's right -- and statutory obligation -- to issue aSection-401
Certification in a timely manner . ,
To see that this is so, it.is nenessary to present a more complete explanatipn oPthe Section
401 .Certification process thaw. is described in the petitioners' memorandum. Though the
petitioners describe the basics of the Section 401 Certification procedure, they omit entirely from
their memoraraduun a key aspect.o~tha procedure -the statutorily-mandated timing aspect.
(a) F~DERAC LAW RRQUIRES, TRAT TAE STATE ACT ON A REQUEST FOR SECTION 40,E
CERTIFICATION WI?'X1N 6O 'DAYS 01~ ,~C.~IVING A V~l,GXD .RE'QU,EST FOXt
CERTIFICATION; OTHERWISE, TffE ST'ATE'S RIGIifT TO CE.RTIFX IS WAIV,~'A
Section 401 of the Glean Water Act provides:
Any applicant. for a F~deiral .license. or permit to conduct any activity ...
which may result in any. discharge into. the navigable waters, shall provide the
licensing or permitting 'agency `.s eerti~ication from the State in which the
discharge originates ,.. that any such discharge will comply with the applicable
provisions of sections 131 I; ~ 1312; 13,13, 1316, and 1317 of this title. __. ,l'f the
State ... jaiLc or. refuses to act oa a request for certlficatlorr, within a reasonable
period of time (which slfral7 nat rxceed one .year) after receipt of such request
the Gertiftcation requireneentr ofthis subsection shaUf be waived with respect to
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WATER & LAND SECTION Fax ~ 919-716-6766 Sep 24 ' 99 1102 P. 11
such Federal applicatiati : No license or permit shall be granted until the
certification required by this section. has been obtained or has been waived as
provided in the preceding sentezice.
33 CJ.S.C. § 1341(a)(1) (emphasis added).
~.
There is no statutory de5nition of -what constitutes a "reasonable period of timie °' Instead,
federal agencies define that pericxl: for their own permitting programs- The Corps rules define the
period to be 60 days:
I~To permit will be mod. . required certification has been obtained or has
been waived. A waiver may be explicit, or will be deemed to occur if the
certifying agency fails or refuses to act on a request fox certification within sixty
days after receipt of such request ualess the district engineer determiuaes a shorter
or longer period is re~orieble for flee state to act. .-.. [1]f it appears that
circumstances. may reasonably require a period of dune longer, than sixty days, the
district engineer, based on. inforrn2~tion provided by flee certifying agency, will
deternine a longer reasonable period of time, not to exceed one year, at which
time a waiver will be deemed to occur.
:33 CFR 325.2(b)(1)(ii).
The waiver period begins to. run on the state's `receipt" of a valid request for Section 401
Certification. 33 CFR 325.2(bxl)(ii).g
a Cinder the Corps' Hiles, ~ such a xec}uest for a Section 401 Certification must be
"valid" under state law:
Many conunentnts objected. to the May 12, 1983, proposal to delete from
the July 22, 1982, regulations the:statement, "The request for certification must be
made in accordance with the regulations of the certifying agency." Deleting this
statement will.not delete. the requirement that valid requests for certiftcation must
be made in accordaRCe with State laws. However, we have found that, on a case-
by-case basis in some states. the state certifying agency and the district engineer
have found it beneficial to, h$ve. some flexibility to determine what constitutes a
valid z~equest.: Furtheriaore, we believe that the state has the responsibility to
determine if it:has retelved a valid request. If this statement were retained iia the
Corps regulation; it would require the :Corps to determine if a request has been
submitted in accordance with state law. To avoid this problem, we have decided
to eliminate this. statement.
51 FR 41206, 41211(Novernber 1:3,1986) (emphasis added).
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Sep 24 '99 1102 P. 12
So, under the Clean Water Act and the Corps' rules, if a valid request for Section 401
Certification has been made in accordance with state law, the X60-day clock begins to run. 7f the
state does not action a request for a Section 401 Certification within the 60-day period, it waives
its right to certify, and the proposed project can proceed in the absence of the state's Section 401
Certification. This part:of the procedure is missing from the petitioners' memorandum and their
legal analysis, but it is eritieal in this case. The state cannot wait forever. In particular, it cannot
await a final EIS. If it has received a valid request for a Section 401 Certification, it must act on
the request within the statutory time frame, or it loses the right to certify as a matter of federal
law.
(6) IN T,Ft'!S CAS,E,. TAE:STATFDETER11;tl,~M'ED THAT IT AAD RECEIVED ~# VA~1)7 R,~QUESI'
FOR S,EGT7ON COI CERTJFICATION,TN .1ANUARY X999, AND IT IIAD 60 DAYS ,!~RQM
TIJ'EN TO ACT ON TAE REQUEST OR WAIVE'!TS RIGfTT TO G,ERT,IFX.
` As noted previously, tile. Authority filed an.Application with the Corps for a Section 404
Permit and a Water Quality Certification. on July 1, 1991. (See Affidavit of John Kime date
September 20,1999 at Ealbibit ~~ The Corps issued its draft EIS for the Randlemaa
Dann project Section 404 permit application on July 10, 1997. In an accompanying public notice,
the Corps announced::"The,applic~ti4n<and this public notice for the Department of Army (DA)
perrz~it serves as applicatioa to the NCDWQ for [Section 401] certification." Even if this Couxt
should detezzzaiz~e the July 8, 1991, application to be ineffective because of the subsequently
adopted rule at 1 SA NC,AC 2I~.0502(e), .the Carps'. documents submitted to the state constituted
clearly constitute a "valid" request for the Section 40I Certification.
Whether the respondent considered the $ectic,r~ 401 Certification request to be a valid
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application is not particularly important: The documents cleazly show that the Authority and its
consultants submitted a number of, documents over a period of a year and a half that pz~ovided
additional infarmation (testing, modeling, etc.l to address water quality concerns raised by
respondent_ In addition, during this time period, the i ~ respondent proposed (and the
Environmental Management Commission adopted) a series of publicly-noticed rules related to
the proposed Raudlemen Dam tit were; designed to ensure that the project would not violate the
state water quality standards. 1 SA I3CAC 2$ .0248-.0251.
This process was -perfectly iri accordance with North Carolina law governing Section 401
Certifications. The North Carolina ivies for obtaining a Section 401 Certification are in 15A
NCAC 21d Section .0500_ See Rule .OSUI(b~ ("[t}hese Rules outline the application and review
procedures for activities that require: water quality Certifications ... pursuant to Section 401 of the
Clean Water Act"). 'Fhe rules confAmplate an "application for certification" and they list the
information that must be contained in .an application. $ut rules also provide that DENR staff
"shall conduct such investigation. as the Director deems necessary" and that "[t]he birector may
request, and the applicant shall fiirnisb, any additional information that may be found necessary
for the proper consideration: of the application." 15A NCAC 2H .0502(c) and .0502(e).
In cor~.fozmity with federal law, the DENR rules require that as application for a Section
401 Certification "shall be granted, ,ar: denied within 60 clays after xeceipt at tine offices of the
Director in R.aleiglr..._" 1SA NCAC 2pF :0507(x). Under the North Carolina rules, a failure to
takc final action within 6A days will .result in a waiver of the certification requiz~eniezit, except
where the applicant agrees to a longer time period, a public hearing is held an the applicatiozi,
information necessary to the decision is unavailable, or the applicant fails to furnish information
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WATER & LAND SECTION Fax [phone] Sep 24 '99 1103 P. 1a
or provide access to records or the site. 1SA NCAC 2H .0507(a).
In this case, though the original appiieatioa. was submiitted to the respondent in either July
1991 or July 199?, it is obvious from the documents that the respondent found it needed more
information than was :found in the. Draft Environmental Impact Statement to make the Section
401 Certification decision and. requested "additional .information ... necessary for the proper
consideration of the application". ead "conduct[ed] :.such investigation as the Dirtctar deem[ed]
necessary...." 15A NCAC 2H:4507(a)
Hy the ez~d of January k999, ;respondent had completed what it detenorximed to be its
required investigation and had received sufficient ~atJditiona] information such that it could make
a "proper consideration. ~of the application." This is reflected in Director Preston Howard's setter
to the Corps dated January 25, .1999. Ia that setter, Mr. Howard stated:
In our November 1997 meeting on the proposed Randleman Reservoir, we
agreed to provide your agency with Qdditionol information on the class cation
and quality of the Deep River, waters which would form that lake. As 1 informed
you then, our Commission. would be :considering reclass~ng those waters and
requiring a management strategy .which would lie useful to you in addressing the
water quality issues remaining in the EIS. The Commission has completed the
reclassiftcationptocess and adopted a management strategy and 1 am now able to
submit chat information to you for usi>sg in the finalization of the EIS.
paring the pasta year, we have devoted considerable resources to the
reclass~eation process and to many of the issues associated with the EIS
finalization_ The Enviro-tnaenta! Management Commission has addressed those
issues in several meetings this past year and made decisions and took actions
which, we believe; will have a significant impact an the water quality of the lake.
The major action taken was . Ehe. approval by the Commission to reclassify
segments of the Deep 'River as suitable for water supply.... The Commission
voted on November 12, .1:99$ to approve the reclass~cation and also to
implement rules which. ;they referred to as the "Itandlemm1 Lake Watershed
Management ,,Strategy. ".:The rules contain. a combination of requirements which
we believe will stgnificaruly reduce the nutrients and other pollutants to the lake
and provide adequate protection of the water quality standards....
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WATER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1104 P. 15
... Dur decision:to reeontmend making the reclassification wars based on extensive
point and nonpoint source modelling e}~orts and confrparison .of the predictions
v~ith other similar lakes in the Piedmont area of the slate. Based on our
r~wdelling r,,E}!orts and associated predictions, we have concluded that
implementation of the nibnuge-nent strategy to co,ntro! point and nonpoint
sources of pollutants w1J1 provide sufficient protection to support the designated
use of the Bandlen~K ~teservoir as a pub!!c water supply.
Letter from A Preston Howard, Jr:: to Dr. G_ Wayne Wright dated January 25, 1999, at 1-2
(emphasis added).9 '
Thus, as of :approximately the end of January1999, the respar~dent had sufficient
information to make the Section 441 Certification decision. Regardless of whether the 60-day
waiver period began to run at au eatlier,time;'it cle$rly began with the Director's conclusion that
DWQ had sufficient information.to.make adecision on the Certification. 33 U.S.C. § 1341(a)(1);
33 CFR 325.2(b)(1)(ii); 15A NCAC 2H '.U507(a). Within the required 60 days, Mr. Howard
issued the Section 401' CeRiftcation on lvtarch 11, 1999.
(c) NCEPA RULE..(1~02 DOES NOT APPLY TO TAE AUTHORITY'S REQUEST FOR
SECTTON:~OI 'CERTIF11Ci~ITION AND DOES NOT REQUIRE THAT 'THE CERTIFICATION
DECISIONAWAIT ~fF.:l°'lNAL EIS FOIL TALC RANpLEMANI~AM PROJECT.
As indicated previously, NCEPA Rule .0402 applies to, and limits, only some sort of
interim or final agency "action" -- that ia,::sonte: "licensing, certification, permitting, ... [or] other
similar final agency decisions for ab~rnce ~of which would preclude the proposed activity," and
9 See also Memorendtam from Boyd DeVane to Larry Coble aad others dated
January 28, 1999; Letter from. A Preston I~oward, Jr. to Alan Horton dated March 10, 1999
("[w]e ... believe that we have adequate information to conclude that the carashuction of the
reservoir will not lead to significant degradation in any of the streams that are part of, or affected
by, the reservoir" and "[w]e accordingly believe that we are now in a position to make a
determination on the 401 certification").
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WATER & LAND SECTION Fax ~ 919-716-6766 Sep 24 ' 99 1104 P. 16
it allows an agency to take any interim action (prior to completion of an NCEPA environmez-tal
document) if that aetioh does: not..".limit the choice -among alternatives or otherwise prejudice the
ultimate decision on the issue." 1 NCAC 25 .O1t}8(b)(1) (emphasis added); 15A NCAC 1C
.0402(a). The rule doss not apply to a Section 401 Certification decision.
First, it is not an "action" as flint term is defined in the NCEPA rules. An "action" refers
to an agency final permitting or cettification decision "the absence of which would preclude the
proposed activity" 1~ NCAC 25 ..0108(b)(1): A Section 401Certification decision is not such a
decision. It does mat authorize a proposed pxoject,.and a project can occur in its absence; that is,
the state can decide to waive. the decision or simply not act on a Section 401 Certification request
inn a timely znazu~er..:Since the Iishdleman Dam project can go forward without a Section 401
Certification -- that is, since,. in tbe.~ words of the definition, the absence of a Section 401
. Certification does not necessarily ..."preclude the proposed activity" -- Rule .0402, by its very
terms, does not apply to the certification decision...
Second, even if the Section 401' Certilcation decision is an "action" as defined under
NCEPA, it is not an action that "ptejudice[s] the ultimate decision" regarding the proposed
project. 15.A NCAC .2 C .0402(a).. Yndeed, the state is not making the "ultimate decision" on the
pezznit for the Ran.dlernan Dem project; the Corps is. Accordingly, if the Section 401
Certification decision is an "action," 'it is an iriterirn action authorized by Rule .0402.
This males sense from a palioy perspective. Rule .0402 is a state rule, governing state
agencies. It was written ta. preclude eazly, action by a. state agency that would prejudice the final
decision by the state decision maker. In this case,.however, the "ultimate decision on the issue"
will be made by a federal agency, not the state. The rationale for the rule -- the concern about
15 .

WRTER & LAND SECTION Fax ~ 919-716-6766 Sep 24 ' 99 1105 P. 17
"prejudic[ing] the ultimate decision" -- does nit apply in a case where the atatc is not making the
"ultimate" decision to approve or denx the permit for the project See, e.g., In re LcMC Final
Order, 53 N.C. Abp. 135,144,.280, S.E2d 52fl; 527 (1981) (tie purpose of an EIS is "to provide
the responsible State agency with a useful decisiontnaki~og tool").
A Section 401 Certification: decision-does not iA,volve weighing impacts and mitigation
measures; it involves the narroweL. question of wixetlter the proposed project will comply with
applicable water quality standards. DENR's NGEPA rules contemplate an "ultimate decision" by
the state. 'The rules provide that,: "[ajs part of: making a decision on project for which an
environmental document has . beta prepared, the agency decision-maker shall review the
document and ... [tJhe resulting decision shall be. made after weighing all of the impacts and
mitigation measures presented iti .the environmental document...." 15A NCAC 1 C .0102(b). The
°Gorps weighs and determines, the balance of ,competing interest in Section 404 permit
application, not the State of Naxth Carolina.
'thus, from a policy standpoint, it does not make sense to require that the state await a
final EIS before deciding on a roquest for a Section 401 Certification. The certification
requirement applies only requires, a: state to determine whether a discharge from such a source
will violate water quality standards, established purruant to cextaan speci.~ied sections aI'the Clean
slater Act. 33 § U.S.C. 1341(a~; ' P..U.D. Na_ 1 of Jefferson County v. Washington Dept. of
Ecology, 511 U.S. 700, 707-09 (199.4); Oregon Natural Desert Assn. v. Dombeck, 151 F.3d 945
(9th Cir. 1998). A state's authority Wider Section 401 is restricted to issues of water quality.
~4merican Rivers, Inc., v. FERG 129 F:3d 99,107 (2d Cit. 1997)- Thus, the certification process
as a relatively narrow. factuat/legal inquiry that focuses on one environmental tissue -water
16 .

WATER & LRND SECTION Fax~919-716-6766
Sep 24 '99 1105 P. 18
quality.
On the other .hand, as EIS. can ane~yze many environmental impacts other than water
quality impacts. See, e.g., 1 1VCAG 2'S. 0108(a) "{NCEPA rtiles apply to "any situation 'wlaere
there is ... a potential environmental effect upon either natural resources, public health and safety,
natural beauty, or historical or cultural: elements of the state's common inheritance"). And, in
this case, the ultimate :decision whether to .issue a Section 404 permit will be the result of public
interest balancing process that considers not just water quality concerns, but a numbex of othex
considerations, including "conservation;.economics, aesthetics, ... fish and wildlife values, flood
hazards, floodplain values, land use, navigation,. shore erosion and accretion, recreation, ...
energy needs, safety; food. and. fiber .production, mineral needs, considerations of property
ownership and, in general, the needs and welfare of the people." 33 CFR 320.4(a). There is no
justification for requiring the state,to. await a review of all such impacts before deciding the
narrower water quality issues. See,: e.g., : Eadvert Cdi„ffs' Coordinating Committee, Inc. v. AEC,
449 F.2d 1109, 1125 (D.C. Cir: 1971) (distinguishing water quality certifications from "the very
different operation of balancing the overall benefits and casts of a particular proposed project" as
required under NEPA).
Accordingly, the respondent did not violate N'CEPA by issuing its Section 401
Certification prior to issuance:of'the final EIS for the Randleman Dam project Section 404
permit application. T'o the contrary, the respondent was required by federaX law to issuerts
Section 401 Certification within 60 days after receiving sufficient information to make the
decision, and there is nothing in.Rule .0402 that would require the respondent to await the final
17

~1ATER & LAND SECT ION Fax ~ 919-716-6766 Sep 24 ' 99 1105 P. 19
EIS before making the decision}O ..
2. ~F RULE..0402: WERE TO BE CONSTRrIED TO APPLY T4 TItE X5SUANCE pF A
SECTION 401 CERTIFICATIOI~F, 'THAT RULE IS OVERRIDDEN BY FEDERAL LAW.
Assuming Rule .0402 (1SA NCAC 1C :0402) weze intended to apply even if the
"ultimate decision" is -made by , a , federal decision maker, the respondent nevertheless is
authorized to issue a Section 401 Certification before issuance of the final EIS in order to comply
with federal law_ The. NCEPA statut,~ and rules contemplate that, if there is some conflict
between NCEPA and federal law,: the federal law will govern.
Nothing in this 'Article [the NCEPA] shall in any way affect nor detract
from specific statutory. obligations of any State agency
(1) To comply. with criteria or standards of environmental quality oz to
perform other etaUitory obligations imposed upon it,
(2) To coordinate.. ar: consult with any other State agency or federal
agency, or
10 For all these reasons, Ia re ENfC Final Order CYrantimg a Certificate of ,A,utlaority to
Orange Water and Sewer Autharity;S3.N.C. App. X35, 280 S.E.2d 520 (1981}, app. after remand,
80 N.C. App. 1, 341 5=1;.2d 588, discr::rev, denied, 317 N.C. 334, 346 S.E.2d 139 (1986), is not
analogous, much less diapositive, as the petitioners assert. Pet. Mem. at 17-18_ The Orange
Water and Sewer Authority case,: did not involve .the Section 401 Certification program and
overriding federal law (i.e., the federally-mandated time limits). To the contrary, the case
involved astate-issued .permit -- .a:~certificatiaon to authazize the v~-ater and sewer authority to
acquire lands by eminent domain -- ~ which the state agency was the final decisionmaker. Rule
.0402 may apply to a final $gency decision such as.in Orange Water and Sewer Authority, but it
does z~ot apply in this case, where . the state .agency is. not the final decisianmaker and where,
under the circumstances: of :the Section 401 Certi$cation program, the project can occur in the
absence of any state certification. And the fact that an employee of respondent was not familiar
with all the legal complexities of.the Section 401 Certification program (see Pet. Mem. at 1 B-I9,
citing Letter of Jahn Dor~ney, ;Pet: , Ex, 15) cannot be evidence of the respondent's legal
obligations under Rule .0402, nor can that fact impose legal constraints that aze not imposed by
the language of the rule. Finally, even if Rule :04x2. could be interpreted to apply to a Section 401
Certification decision, the rule ie .superseded by federal later, as dcmoz~strated below.
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IJATER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1106 P. 20
(3) To act, or. te>rain from acting contingent upon the recommenda-
lions oz~ certiication of any other State agency or federal agency.
N.C.G.S. § 113A-7.
Thus, by its specific terms, NCEPA does not affect the respondent's statutory obligation
io perform its certification c~uty.within;the time required by Section 401 of the Clean Water A,ct,
nor does it affect respondemt's statutory: obligation to "eoardinate" its Section 401 Certification
with the relevant federal perautting authority. Other provisions of the NCEPA statute aad Hiles
reinforce the conclusion that federal law cantFals:: The statute provides:
The Genexal Assembly authorizes snd directs that, to the fullest extent
possible: ' .
(1) The policies, rules, and public laws of this State shall be
interpreted: and. administered in accordance with the policies set
forth in this Article; and
` (2) EveYy .State agency shall include ... a detailed statement by the
responsible official....
N.C_G.S_ § 113A-4 (emphasis.added). .
Similarly, the. NCEPA rules. provide that,.:"to tRe fullest exler~t possible, all agemcies'
policies, rules, and regulations s~all,:be interpreted and administered in accordance with the
purposes and policy :set out in G:S. I.13A-2 and 3 and this Chapter."11 1 NCAC 25 A107
(emphasis added). And the }aENR NCEPA Pules explicitly provide that it maybe iz~passible in
some cases to abide by NCEPA:
Each EHNR agency .shall interpret, the provisions of ttie [NCEPA] as a
supplement to. its existing : authority and as a mandate to view its policies and
1' DENR's NCEPA rules provide that those rules, the general NCEPA rules (1 NCAC
25), and the NCEPA statute "shall. be read together as a whole...: ' 15A NC.A.C 1 C .0101(c).
19
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WRTER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1106 P. 21
programs in light of the [NCEt'A's] co~.prehensive environmental objectives,
except where .existing taw applicable M the agency's operations expressly
prohibits compliance or nrakrs conrplianc~e irnpossibl~
15A NCAC 1 C .0102(x).
In this case, federal law requires that. the state issue a Section 401 Certification within 60 days of
its receipt of the certificAtian request,. or.the state's right to certify is waived. It is z~ot possible to
prepare a final ErS in such a shorttime period even for a small project, much less for the
proposed Randleman Dam project., It is, not possible to prepare a final EIS in such a short time
period; indeed, in this, cast, though.the. draft EIS for the Randleman Dam project rwas issued in
Yuly 1997, the final EIS still has not bEen issued, more than two years later.
In sum, the respondent.wps =+oquired by federal law to issue the Section 401 Certification
when it did, or waive its right to-certify:.: Rule .0402 does not change this result. As written, it
dots not apply to a Section 4x1 CerEificetioa decision; or, if it does apply, it is superseded by
conflicting federal Iaw. Accordingly. the respondent did not violate NCEPA and, specifically,
NCEPA Rule .0402, by issuiag a Section 401, Cextifiea#ion prior to issuance of the final EIS_
E. THE PROPOSED RAATDLEtKAN LAKE WILL NOT VIOLATE T~ 15A NCAC
. 2H.0211{3)(s-) WATER QUAL~'I'Y STANnARD.
i. The Proposed : Randlciman Lake Wilt Not Violate the ].SA NCAC
2B.0211(3)(se) Waiter.. Qaelity Standard.
~'he proposed Randleman Lake will oat violate the two-part North Carolina fresh surface
water quality standard found at~ 1:SA NCAC 2H.0211(3){a). The standard was adopted for the
express purpt-se of prompting the promutgation of nutrient input comtrols to protect wrnters of the
20

WATER & LAND SECTION Fax~919-716-6766
Sep 24 '99 1107 P. 22
State such as public water supply lakes; not prohibit the creation of water supply lakes. Report
pn Public Hearings Concerntttg Arnendntents of the C~assificatians and Water Quality
Standards Applicable to the Surfrce Waters of Narrh Carolina XS N'CAC 2B .0100, .0200, and
.0300 at 1-3, attached as ]~xhi~it..~.. '#.'he standard has already triggered.the promulgation of
rules to control mutrient inputs to. the lake before; the lake is even built ,See ltandlernan Lake
Water Supply Watershed Nutrient Ma~nagement~ Strategy. 15A NCAC 2H .0248 - .0251,
attached as Exbi`bit .. In. addition, the standard will cozatinue in the future to prompt, as
needed, the promulgation of 'nutrient input centrals that will protect the water quality of
R.andlemaz~ Lake throughout the life: of the project.:
The standard uses t4vo different methods of evaluating plant abundance to trigger nutrient
input eontrois. The first trigger is the .quantitative measurement of the abundance of algae
(microscopic plants). The second trigger is the perceived or anticipated qualitatn~e abundance of
plants, including algae. Modeled; hypothetical concen#rations for a proposed lake that does snot
yct exist do not activate the first trigger; but can properly activate the second. The "BATHTUB"
modeling, see Randleman Lake Uraft ~l5 at. Appendix A p. IV-11,14 attached as Eihibit _,
and other infozxnation on future Qlant ,abundance in the proposed Randleman Lake has properly
triggered the promulgation of•nutrient input controls.
(a) .The $tepid~tad ~rigge~ the Promulgation of Nutrient Controls, Not
the Prohibition of':the Creatioa of a Water Supply Lake.
The pxoper operation of the plaatlnt~trieat standard was explained during the zule-
making process that established the`standard; as follows:
21

WRTER & LAND SECTION Fax:[phone] Sep 24 '99 11:07 P. 23
A standard for Chlorophyll a has been established which will provide a
basis for nutrient control in areas where over-enrichment or accelerated
eutrophication is now or .is' becoming a proble~aa_ Friar to requiring control of
nutrients in any. particular watershed, the staff will make a thorough evaluation
of the particular area. assess ,the sources of the nutrients (both point and non-
point), and develop a : eontrai strategy tailored to the pazticular situation. The
final control strategy will: be subjected to public comment and must be approved
by the Enviromnental Management Commission prior to implementation.
Report do P~thlic Flearings Concerning:Amendments of the ~Classiftcations and 'V~ater Quality
Standards Applicable to the Surface Waters of Nonh Carolina IS NC~4C 2B .0100, .0200, and
`.0300 at 1-3 (attached as Exhibit y„~.'Z .
The Fetitioners':.miscon8truation of the pl~f:/nutrient standard as an anti-lake standard
would lead to a patently absurd result: , upstream dischargers of excessive nutrients would be
"protected" from the more stringent water quality mandates that may arise from the creation of
amore sensitive downstream receptor; :a water supply lake. However, tlae imtent of the North '
Carolina. General Assembly is:.to. protect such waters as the proposed lake. According to the
General Assembly, the; waters to' be protected by the EMC's water duality standards include
'z In 1979, the: standard incladod only the quantitative trigger, the 40 ~g/1 chlorophyll
a co~acentration. As discussed below,. the hypothdical numbers generated by "BATHTUB" or
other models should not. activate the quantitative trigger. Moreover, even if such hypothetical.
numbers are Bused, the standard, is e~cpressly intended to prompt nutrient input controls, not
prohibit lakes.
22

WATER & LRND SECTION Fax:[phone] Sep 24 '99 11:08 P. 24
the following:
atty...lake, [or].:.reservoir,...whether...nat~ral or artilficial, that is contained in,
flows through,. or borders.upon ahy portion of this State....
1v.C. Gen. Stat.'§ 143-2120. The General Assembly leas also declared that the public policy
underlying those water~quality protections includes the following:
Recognizing that the water And air resources of the State belong to the people,
the General Assembly .affirms the State°s ultimate responsibility for the
preservation and development :of these resources in,the best interest of all its
citizens and declares the prudent utilization of these resources to be essential to
the general welfare....Standards of water and air purity shall be designed
to...secure for the. :people of.' North C~rolizta, now and in the future, the
beneficial uses of these great natural resources.
lv. C. Gen. Stet. § 143.-21.1. (doclatation of public policy). Petitioners would have the EMC
standards of waver purity, contrary. to ..public policy, proltiblt ,cattier ttia~a protect the ~naost
essential beneficial use of water, .public.wateF supply.
..
In summary, the standard; if properly construed ands applied, will actually ensure that
flee quality of the water is tlu ps~opoeed. RandJecnan Lake .will be protected from excessive
nutrients from upstream sources throughout the Lifetime of the Lake.
(b) Quantitath-e Measurement Trigger
When the standard was. first. adopted in 1979, only the quazttitative trigger, the 40 µg/1
concentration was included, as follows: .
Chlorophyll a: not .greater than: 40 ug/.l for lakes, reservoirs, and other slow,
moving waters: not designated as .trout waters, and net greater than 15 ug/1 for
lakes, reservoirs, and other :slow-moving waters designated as trout waters. (Not
applicable during the months of December through March; nor applicable to lakes
and reservoirs less than.l0 acres is surface area.)
Former 15 NCAC 2B.0211(a)(1 }, attached as; Exhibit _ Chlorophyll a is one of several types
23~

WATER & LRND SECTION Fax [phone] Sep 24 '99 1108 P. 25
of chlorophyll found In algae... ROBERT. G. WETZEL, L1QviNdLOGY 331-337 (1975), attached as
Exhibit .Chlorophyll ar can be isolated from algae present in a water sample and measured,
providing a quantitative indent of the abundance of the algae in the waterbody sampled. Sae td
.. :.
The plant/nutrient standard uses thin index of algal abundance to indicate whether nutrient inputs
are excessive and warrant regulatory controls.
Petitioners argue that "BATH'FiTB" modeling, see Petitioners' Brief at Exhibit 1 S p. 3-
27, suggests future chlorophyll a concentrations in excess of 40 µg/1 in the proposed Randleman
Lake. Petitioners' Brief 20. However, .the numbers generated by models of lakes that don't exist
are not quantitative measuFemettts. ~as anticipated by the nutrient/plant standard. The standard
provides a second trigger that can reasonably incorporate and:apply this more qualitative type of
information is
(c) Qualitative Evaluation Trigger
A 1989 amendment ostablished the current version of the rule by adding the
qualitative trigger, as follows:
Chlorophyll a Ecorrected): not greater than 40 ug/1 for lakes, reservoirs; and other
slow-moving waters not desisted ~ trout waters, and not greatex tb,an 1 S ug/1
for lakes, reservoirs,:and:othex slow-moving wote~rs designated as trout waters (not
applicable to .lakes and reservoirs less than ZO acres in surface area); the
Commission or its deai~nea may: prohibit. or limit agy discharge of waste into
surface waters ~ if, in, the opinion of the Duector, the surface waters
experience or the :discharge would result in growths of microscopic or
macroscopic vegetation ~iaeh that the standards established pursnar,t to this
~tnle woald be violated.. or: the intended. best wage of tine waters would be
impaired.
~'' As discussed above, eve if model-generated numbers were su£~cicnt to activate this
quantitative measurement trigger, which .they are not, the result would not be lake prohibition.
24

WATER & LAND SECTION Fax~919-716-6766 Sep 2a '99 1109 P. 26
15A NCAC 2BA211(3)(a)(exnpbasis added).~a Modeling, combined with professional judgment,
can reasonably be considered ` by ..the' DWQ Director in formulating his opix~iozt about the
anticipated conditions in a waterbody even though that waterbody does z-ot yet exist_ Modeling
is merely a tool for anticipatiwg future. conditions, not a quantitative deterzninativn off' those
conditions.
According to Petitioners, the modeled hypothetical chlorophyll a concentrations in excess
of 40 µg/1 in the proposed~ltandleman fake constitute a basis for prohibiting the construction of
the water supply lake. According . to .Petitioners,. tlxe standard leaves the decision about water
supply projects at the mercy of the =aw output of the ``HAT~TTUB" model, with no interpretation
or evaluation by the responsible officials. ~ Their, construction ignores the second part of the
plant/nutrient standard. -.
The second part of the two-part standard provides for clualitative evaluation -- the
Director's opinion -- to trigger nutrient controls. The formulation of that opinion can properly
include hypothetical numbers.:e9 well as actual, measured concentrations of substances. The
qualitative trigger is accompanied by a statement of authority allowing a very focused response to
excessive nutrients. 7'he )<989 amendment was explained during rule-making as follows: .
.0211(1)(b)(3)(A} allows EMC or.its designee to limit discharges of nutrients to
isolated bodies of water, e. g:. a Lake cove, which are shown to be nutrient
sensitive, rather. than reclassifying an entire river basin as nutrient sensitive
waters (NSVV), thereby avoid. requiring more stringent nutrient limits on all
discharges in a basin.
is The standard was also amended,. apparently In 1985, see former 15 NCAC 2B
.0211(b)(3)(A), to clarify that. the 40. µg/1 concentration is compared against "chlorophyll a
(corrected)," i.e., the quannflcatioa produecd by speciSc laboratory procedures. The 1989
amendment also made the chlorophyll a concentration applicablle year-round
25
4

WATER & LAND SECTION Fax~919-716-6766 Sep 24 '99 1109 P. 27
Report of Proceedings for the Proposed Revisions to the 'V~ater Quality Standards and Stream
Classification Rules ~at p. S~12, attached as F.xhibft _. Tj~hus, the qualitative trigger can be
used to prompt control of specific discharges as: well as the broader actions contet~lated four
....
the quantitative trigger.
On behalf of :the bEM, Gregory Thorpe, supervisor, 'Water Quality Standards and
Assessment ~lJnit, Water Quality; Suction, explained the amendment at public hearing as
follows:
'X'here is a change being proposed for: the chlorophyll h narrative standard which
would give the direcEor, of the: Division of Environmental Management the
authoriCy to designate. very.. etnall isolated bodies of water as Nutrient Sensitive
Waters. The. discharge of mttrients ~ such as nitrogen and phosphorus to small
bodies of waters, such as Lake Cpve05 could be limited rather than the way it is
currently done_ The entire basin is. usually classified as Nutrient Sensitive
Waters and more stringent mmrient limits: are set for' those waters for all of the
dischargers within that basin,
Report of Proceedings for the Proposed Revisions ro the Waxer Quality Standards and Stream
GZassifccarion Rules at p. Q12,. attach~ad as ~~rhibft ~. 'Thus, the express intent of the second
part of the standard is the same ee the: first; to protect lakes and other waters from excessive
mutriemts by triggering appropriate controls on sources of nutrients.
(d) RSndle~n..Lake Water ,Supply Watershed N'utrlent lvlauageznent
Strategy
'T'he "BA'T'HTU$" modeling results for tl~e proposed. Randleman Lake have been acted
on exactly as anticipated by thC. plant/m~trient standard. The Director has incorporated the
information in malting judgmeDts., about how best to protect Randleman Lake from excessive
upsrreazn nutrient inputs. Nuttienf :controls have 'in fact been promulgated to protect the lake_
26

WATER & LAND SECTION Fax~919-716-6766 Sep 2a '99 11 10 P. 28
See Randleman Lake Watec Supply Watershed Nutrient Management Strategy. 15A NCAC 2$
.4248 - .0251.
In summary, the standard hay been properly applied to the proposed Randleman Lake,
triggering tl~e promulgation of nutrient input eontivls and note t}ae prohibition of a water supply
Lake. The standard will .continue to :ensure that the water quality of Randleman Lake is protected
from excessive nutrient inputs throughout the life of the project.
2_ The Stste's Conslderalilaa of Avenge Chlorgphyll a Values Is Reasonable.
In the Report :af Decision fi+om the :Public Hearing : of September 1, 1995, the three
hearing officers for the EMC specifically considered the chlorophyll a situation in the upper
reaches of the Randleman Lake watershed and recommended:
...when an approximation of the nonpoint source controls recommended
by the staff in [thee. Iiapoleman Rules] are applied to the model, along witlx
relocation of the. [Eastside High Point Waste Water plan] discharge, the
predicted average chlorophyll a value for the Deep Raver Segment 1 would
be 39 ~tg/l and in Segment 2, the predicted chlorophyll a average would be
31 ~. The. hearing officers concluded that, in their opinion, the benefits
of keeping the predicted chlorophyll a values ~ Segment 1 in compliance
with the standard; did' justify the anticipated. cost of relocating the
discharge. ~ .
Report of Decision pages 9-10. ..
Petitioners admit-that when modeling efforts take into account the relocation of the High
Point wastewater discharge, .the. resulting average chlorophyll a values for all water quality
segments of the Lake area under 40 µg/!.: Petitioners' Brief 27-28. However, they argue, that the
ENIC Hearixig Q£~iicers did not :understand the appropriate way to coasidez Ltze Chlorophyll a
standard. Petitioners contend that a .comment. by as EPA staff member constitutes a mandate to
the State of North Carolina that :the .only correct interpretation of the Srate's water quality
27

WATER & LAND SECTION Fax~919-716-6766 Sep 24 '99 11 10 P. 29
standard prohibits the use of average chlorophyll a concentrations. Comments by EPA personnel
are not authoritative. There is no fe3erad water quality standalyd for chlorophyll a. EPA did not
even comment on the plant/nutridnt standard during the; various State nzlemakings that
established the standard. EPA is not only purporting to interpret a North Cazolina standard it did
not promulgate oz urge, but to contradict the interpretation which the State has consistently
applied to that standard
Chlorophyll a .concentrations at even a single location on a lake can be dramatically
dift'erent depending on the depth .of the .sample taken. See WETZEL 331-337. T)espite such
natural variations, Petitioners argue that the 40 µgn concentration must not be exceeded in any
sample, i.e., it is a maximum for any paint on a lake, at any depth, at.any time of the yeaz. Such a
result has no relationship to the lake`s overall water quality.
F. RESPONDENT DID NUT ABUSE TFS DISCRETION DENYING PETITYONEIt'S
REQUEST FOR AI~OTIIER PIEJHIrIC SEARING
A public hearing is :e., discretionary :decision of the Director of DWQ_ 1 SA NCAC
2I~_0504 states:
If the Director determines that`it is in the.public interest that a public hearing for
the purpose of reviewing public .comment and additional infornn~ation be held prior
to granting or denying certification, the Director shall ... .
In this matter, the D~VQ and EIvIC:lu~d held numerous public:heatings on Randleman 17am and
Randleman Lake and it is clear the Director did not believe another public heating at the request
of N1x. Alan Horton was warranted.
28

IJATER & LRND SECTION Fax~919-716-6766 Sep 24 '99 1110 P. 30
G. EVEN IF' RESPdNDENT .INTERVENOR GREENSBORO'S REQUEST FOIZ
SUMMARY J~JDGMENT ON THE I85UE5 RASED BY TIC PlETITIONER'S
MOTION FOR Si3MMARY JUDGEMENT IS DENIED, QUESTIONS OF FACT
EXIST W)<IICIi PRECLUDE GRANTING PETITIONER'S 1VIOTYON
1?or the reasons discussed above, Greensboro believesa, that summary judgment should be
granted in its favor and. irn against the.Petitioners. Howevejr, should the Court determine that
summary judgment .is not appropriate to be grewted in favor of Greensboro and the other
respondents, Greensboro believes. and urges that it would not be appropriate to grant summary
judgment in favor of the Petitioners, for, among reasons, there are material facts at issue that
prevent granting summary judgment in Petitioners'. favor.
Respectfully submitted, this;the of September, 199.
Respondent lnte~-ez~or City of Greensboro
.. >~y:
Linda A. Tviiles
P.O. Box 3136
'Crreensboro, N.C_ 27402
. [phone]
City Attorney for the City of Greensboro
By:
Creorge W. Idause .
~. William G. Ross, Jr.
~' S. Kyle Woosley
V. Randall Tinsley
Brooks, Pierce, McLendon, Humphrey &
Leonard
P.O. Box 26000
Greensboro, N.C. 27420
[phone]
Environmental Counsel City of CXreensboro

WATER & LAND SECTION Fax~919-716-6766 Sep 1u ~yy 11.11 ~•vj
CERTIFICATE OF SBRYICE
t''r1GAn~.~w.a -a art.ca~~tr- k'ra~
I hereby certify. that the foregoing. A~'IDAVI'F Ol~ JOHN F`. K.IIME has been duly served upon all
parties of record by band delivery to.tht following:
The ~Ionorable Robert RooseveltReilly, Jr.
Administrative Law Judge..
Office of Administrative Hearings
424 North $lounr Stroat .
Capehart-Crocker House
Raleigh, N.C. 276] I~7447
and by placing a copy in.the iTnited States Matl, first class, postage prepaid, addressed to the following:
$ruce J:.Tetris,:I~aq:
Demian A. Schane, Esq.
Terris, Pravlilc & Million, LLP
1121 12th Street,N.W:•
VV'ashiagton, D.C. 20005.
Marsh Smith,. l:sq.:. ',
Cunningham, Redmond. Petersart & Smith, LLP
P.O_ IIox 1468
Southern Pines, North Caro}ina 2B368 ,
Linda A. Miles, Esq.
pttorney,:City of,G[eensboTo
301 West Washington Street
Melvin Municipal Office Btiitding
Greensboro, NorthCarolina 29402
I{,atbxya:Jones Cooper. Esq.
Special Deputy Attorney Gcncrel
N.C. Deparbeoent.of Justice; Environmental Division
1114 West F,dentott Strzot, Room 311
Raleigh, North Carolina ,27602
Charles D. Case, Esq.
Hunton & Williams
Box 109
' ~lC 27602
Raleigh,
This the day of September; 1999.

WATER & LAND SECTION Fax~919-716-6766 Sep 1 '99 13 10 P. 01
,. ,
. ~.
••..,..~
State of North Carolina
MICHAEL F. Ei1.S1.EY DC~jaftrflerli Of JuStiCE
nrn~wvgv GENERAL ~P_ ~. 80X 62D
~ RAL.E!(iH
2~so~~o6aQ
F~-~ 'TRAI~SIVYISSI
ON
ENVIFlONMENTAL DIVISION
cb r st ~ i e-aeoo
f~ic: iG I pl 71 ~7da
ATTORNEY CLIENT PRIVIr_ECED/A'TT~pRIYEY WORK-PRODUCT AND NOT A PUBLJC RECORp
To: Tommy Stevens ~ Date: September 1, 1999
(fax programmed)
Dan McLawhorn
(fax programmed)
Coleen Sullins
(fax programmed)
Boyd DeVanc
fax#: [phone]
John Dorsey
fax#: [phone]
Fax #: scc above Pages: 7, including this cover sheet.
Frow: Itathryni Jones Cooper
Subject: Deep River cast
COMMENTS:
Attached is a copy'of the ALJ's moist recent Second Amended Scheduling Order. The
AL,J will hear the motion to amenii the petition on September 20; discovery has been extended to
October 1st; he has extended the date.for tiling summary judgment motions to October Sth; our
responses are due 5 business days linter, by October 12th; summary judgment motions will be
heard on October 13th; the PreHearing Conference and exchange of exhibits will occur on
October 15th; and the hcarittg is still on track for Oetobcr 18th in High point. Since Preston is
definitely unavailable the week of October 18th, since it is very likely that the ALJ will make the
State put on its evidence first, and sir-ee opposing counsel just told me yesterday that their case
may only last one day, please let me know what you think about us taking Preston's deposition in
late September since DENR will have to'payfor tha deposition. I can'do it on the 22nd, 23rd,
24th or 30th. I'm meeting~with Preston this.~ftcrnoon to find out his schedule.
I kravc also attached a copy of the Motion from Huston & Williams to substitute counsel

IJATER & LAND SECTION Fax ~ 919-716-6766 Sep 1 ' 99 1310 P. 02
FILED
s~rATE OF NORTH CAROLINA IN THE OFFICE OF
COUNTY OF RANDOLPH ! QUC ~ ~ ~~ ~~ ~~~ ~I99 HR 0 601EARINGS
99 EHR 0613
DEEP RIVER CITIZENS COALITION ET AL
Petitioner
v,
DEPARTMENT OF ENVIRO1~~v1ENT AND
NATURAL RESOURCES,
Respondent ,
and
CITY OF GRE~TSBORO.,
PIEDMONT TRIAD RE(~lONAL WATER
SYSTEM.
Respondent-Intervenors
S1vCOND
AMENDED SCHEDULING
ORDER
A Motion to Amend: Petitions was tiled on August 19, 1999. Two Responses have
been faxed. A Motiozx for Extension of Time to File Motions for Summary Judgxacnt has
also been faxed. Furthermore,"the undersigned notes that it is inconsistent to k~avc
discovery continue after Motions for Summary ludgmcnt are heard_ Therefore, with the
patience of counsel, another~seheduling Order is entered:
1. Mahon to Amend Petitions will be heard on September 20, 1999, at 1:00 p.m.
at the Office of Administrative Hearings in Raleigh.
2. Discovery shall be ,completed by October 1, 1999. Discovery shall be
conducted in accordance i~+ith the North Carolina Rules of Civii Procedure and 26 NCAC
3.0112 (Hearings Rttles of the Ol;~ec of Administrative Hearings).
3. Motions for Stuntnary Judgment and memoranda shall be filed and personally
served on ail counsel by°October: S, 1999. Responses, including any affidavits, shall be
filed and personally served, on ail; counsel within five business days from the date of
service of the Motion. No.Reply Brie#s are permitted.
4. Motions for Sut~lary Judgment will be heard on October 13, 1999, at 9:30
a_rn, at the Office of Admitiistrativc Hearings in Raleigh.
~. The parties shall hold: a Preheating Conference on October 15, 1999. The
partier stzall submit for approval an Order on Final Pre-trial Conference or a Notice of
Settlement and Withdrawal Hof Petition on tltc first day of the hcarin~. Scc Rules of
Practice for the Superior anti District Courts_
6. The parties shall prepare and number (e.g. Pl, P2, P3) an original and five
copies of each exhibit - oae :for petitianer, one for respondent, two for the intervenors,

WATER & LAND SECTION Fax~919-716-666 Sep 1 '99 13 11 P. 03
i
i
one For the witness, and one. for the judge. (.f a party has ten or more exhibits, the cxhibits
shall be bound and indeXed: Original exhibits and the witness'copy shall be retained by
the judge forpreparation of the official record.
7. The Hearing will cottunenee on October I8, I999, at 9:~0 a.m. in High Point
and continue during that week unfit completed_ A Notice of Hearing will be mailed.
8. MEpIATION SHOUCA ALWAYS BE CONSIDERED BY THE PARTIES.
This the 27'h day of August., 1999.
Robert ovscvcl Refill ,
Adzrtinistrativc Law Judge

WATER & LAND SECTION Fax~919-716-6766
t~ copy c~F~the foregoing was mailed to'
Carolyn Smith Pravlik
1121 12~h Strcct NW
Washington, DC 20005
Marsh Smith
22~ North Bennett Street
Southern Pines, NC 2838.8.
ATTORNEYS FOR P~TITIOI~ER
Kathryn J. Cooper _
PO Box 6?9
Raleigh, NC 27602-0629.
ATTORNEY 1:OR RESPONDENT
Gcorgc W. House
William G, Ross Jr.
2;0 North Elm Street
Greensboro, NC 27420
ATTORNEY 1;OR CITY OF GR1r1rN5BOR0
Linda A. Miles
City Attorney
City of Greensboro
l'O I3ox 3136
Greensboro, NC 27402
ATTORNEY FOR CITY OF GREENSBO1t0
Virginia G. Booker
2216 W. Meattawview Road; Suit.201
Greensboro, NC 27407
ATTORNEYFOR PTR'WA,'
Charles D Case
Hunton & Williams
One Hannover $qua~ Bldg
PO Bo.c 109
Raleiggh NC 27602
ATTORNEY FOR PTRWA.
This the 27`h day of August, 1999.
Sep 1 '99 1311 P. 04
~ !~
xce "nistrat~v earings
P. O. Drawer ?7447
Raleigh, North Carolina 276 1 1-7447
(919)7;;-?698
FaY: 919/733-3407
~ mail: nrcilIy@oah_state,nc.us

WATER & LAND SECTION Fax~919-716-6766 Sep 1 '99 13 11 P. 05
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF R.ANDOLPH .
~iuGl ~ `. ` • • ~ 99 EHR 0560
(consolidated with 99 EI-IR 0613)
FILE
~, r
ADM~IkIS ~ ~ ~•
DEEP RIVER CITIZENS' COALITION; et al,
Petitioners,
v.
NC DEPARTMENT OF ENVIRONMENT, MOTION FOIL SUBSTITUTION
AND NATURAL RESOURCES, ~ OF COUNSEL
Rcspondertt.
and
CITY' OF GREENSBORO, and .,
PIEDMONT TRIAD RECIIONAI. WATER
AUTHORITY,
Respondent-lntervenars.
i
On behalf ofRespondent-Intervenor Piedmont Triad Regional Water Authority (the
Authority), the law ~rtn of Hunton & 'Williams moves to be substituted for Vixginia G. Booker as
counsel for the Authority. As indicated, below, the Authority's Executive Director requests and
authorizes this substitution. A proposed order is attached hereto.
The Authority.vKas incorrectly idcntiSed as the Piedmont Triad Regional Water System
in its August 17, 1999 motion to inttrvene~.

r
WATER & LAND SECTION Fax~919-716-6766
Respectfully submitted,
Piedmont Triad Regional Water Authority
'~
hn Kimc
Executive Director
2216 W. Meadowview Rd. Suite 201
Grccnsboro, NC 27407
[phone]
Dated: ,August 27. 1999
2
Sep 1 '99 1312 P. 06
Hunton & Williams
les D. Case
N.C. State Bar No. 7652
Craig, A. Bromby
N.C. State Bar No. 6526
Ethan S. Naftalin
N.C. State Bar No. 18716
Post Office Box 109
Raleigh, NC 27402
[phone]

IJATER & LAND SECTION Fax~919-716-6766 Sep 1 '99 13 12 P. 07
...~
v
The undersiCned hereby certifies that a.copy of the foregoing MOTION FOR SUBSTITUTiOiY OF
COUNSEL has been duly served upon ali~parties of record by heed delivery to the following;
i
I
The Honorable Robert Roosevelt Reilly, Jr.
Administrative Law Judge
Ot'l~oe of Ada-inistrative Hearit-gs
424 Nad- Blount Street
Capehart~rocicer House
Relei~h. N.C: 27611-7447
And by serving Bald copies via facsimile atd Also by, depositing them In a depository of the United States Postal
Service, first-class postage pmpald,.eddreased asfollows:
Attoro~ [off Petitioners
Carolyn Smith Pravllk
8nxce J. Terris
l~hgi~n A: Schane
'orris, Pravlik A Millian, LLP
1121 12'~ StreetN_W.
Washingtoa,~ D-C. 20oos
Marsh Smith
, Dedcnond, Peterson dt Smith, LLl'
P,O. Box.1468
3outhtttt Pines. N.C. 28388
Attorney for Re~poadent
IGttltrytt Jones; Cooper
Speoitt) Deputj± Attorney General
North Caroling riepartment of Justice
P.O: Box 629:
Raleigh, N.C:,276g2-0629
Attorneys for,Respondent-Intervenor
Gwrga W. House
William t3. Ross, Jr.
Brooks, Pierce; McLendon, Humphmy,
dL Leonard, LLP
2.000 Renai~aaiice Plaza
230 N;,EIm'Street
Gnentboro; .N:C. 27420
Linda A. Miles
City Attorney .
City otOroensboro
P.O. Box 3136:
Geeeeeboro. N.'C. 27402
This the l~ of August, 1999.
I ~
4
~~

WATER & LAND SECTION Fax~919-716-6766 Sep 13 '99 1834 P. 01
s
s"'_.
~,
State of North Carolina
MICFIAEL F, EASLEY Department Of Justice
ATTORN@Y OBNERAL P. Q, BOX G29
RALEIGH
27~2~Q62fa
F~-X ~l~:Al~SMI~~IUN
ENNIRONMEN~'AL DIVISION
cfl I fl1 71 66600
FAx: (9I 9) T ld-d76d
ATTY)RN~Y-CLIENT' PRIVILEGED/ATTURPIEY.WORK-PRODUCTAND NOT A PU6LIC RECORD
TO: DAN MCLAWHOR#t DATE: $EPTEMSER 1 3, 1999
(FAX rROORAMMED)
CoL,EEN StJLLIN=
(FAX PRQGRAMMEO~
BOYO DTdVANE
F,~x#: 715-5637
JOHN DORNEY
RAX#: 733-~95fl
FAX #: SEE ABOVE hAOti: ~, 1NCLIJCING THIS COVER
SHEET.
FROM: KATHRYN JONES COQ~R.
SUk'3JECT: DEE(a RIVER CASE)
CONIIVIENTS:
Attached is a copy of our motiot>< for an extension of time to file a response the
petitioners' summary judgmont:motion; for a continuance of the September 20t}i motions hearing
to September 24th, and for a. continuance of the contested case hearing to either October 27, 28th
and 29th, or to the week bcginnin~ Novetnbar I Sth. Since we don't know if the ALJ will grant
the motion, we need to continue to proceed as if he will not. I am working on a draft of the
Response to Petitioners' Motion for Summary Judgment and will try to have a fzrst draft to you
by Tuesday afternoon or Wedneaday~moruing. I will most likely need affidavits from Sohn
Dorncy and Preston Howard and will preparo them as soon as I finish the first draft of the
response..If I need others I will let you lmow by tomorrow.
Unless the AL.I grants our motion, our response must be persons~lly served on the 5th
business day after the date of service, which is by Friday, September 17, 1999. That means we
need to have the response mailed by Fed' Ex on Thursday, September 16, 1999, unless we get
someone tv drive it to Washington on Friday.
~~~

WATER & LAND SECTION Fax~919-716-6766 Sep 13 '99 1835 P. 02
,,. .,`~
.~
~,
.~~.
State of North C~d~ln~ ~~ rii I,~y'
MICHAEL F. F,AS!_8Y DCpartmCnf OE ~UStICC Roply to:
ATTORNEY CCNGRAL P. O, BOX fi2y Kathryn Jones Cooper
FILED Cnvlronmental Division
RALEIGH ~FFICf nF Tel:(919)7t6-6600
?7602-0GZ9ADN1It7IS1~!F.'. ~ ~ ~~etfX919)716-6766
September 13, 1999
Honorable Robert Roosevelt Reilly, Jr.
Administrative Law Judge
Post Office Drawer 27447
Raleigh, NC 27611-7447
Re: Deep River CYt~iens' Coalition, et ate, v NCDENR,
99 EHR 0560 and 99 EHR 0613, Randolph County
Dear Judge Reilly:
Enclosed please Snd the original and two copies of the Respondent's Motion for
Extension of Time and ContinuattcCS.
Sincerely,
Kathryn .1 es Cooper
Special beputy Attorney General
WP 35391-1
~~~

WATER & LAND SECTION Fax~919-716-6766 Sep 13 '99 1835 P. 03
STATE OF NORTH CAROLINA ~ IN THE OFFICE OF
COUNTY OF RANDOLPH ~~P 13 ~ S{;; ~,STRATIVE HEARINGS
DEEP RIVER CITIZENS' COALITION, .et~l,., ) .
Fii,ED
O~FICf: QF )
Petitioners,'ADN-HIS?Rqr~~~:~ Hi~~t~,;;r:,
v. )
NORTH CAROLINA DEPARTMENT OF ) Case No. 99 EHR 0560
ENVIRONMENT AND NATURAL ) (consolidated with 99 EHR 0613)
RESOURCES, )
).
Rispondent, , )
and )
;)
CITY OF GREENSBORO, )
PIEDMONT TRIAD REGIONAL WATER )
AUTI~IORITX, )
Respondent-Lttcrvenors. ) ,
RESPONDENT'S NfOTION FQR
EXTENSION O~ TIME AND CONTIlVt1ANCES
NOW COMES the Respondent, North Carolina Department of Environment arxd Natural
Resources ("NCDENR"), Division of Water Quality ("DWQ"), through the undersigned Special
Deputy Attorney General, and pursuant to Title 26, N.C. Admin. Code, r. 3.0115(a), makes the
following motion: (a) for an extension of time of tizrcc additional business days to file a
response to Petitioners' Motion. for, Summary Judgment; (b) for a continuance to September 24,
1999, of the September. 20, 1999 hearing ~n Petitioners' motion to amend tl~eir petitions and
Respondent's motion to dismiss, Which would also include a hearing on Petitioners' motion for
summary judgment; and (c) far a continuance Qf the October 18, 1999 contested cast heating to

WATER & LAND SECTION Fax ~ 919-716-6766 Sep 13 ' 99 1835 P. 04
2
either October 27, 28 and 29, 1999, or to the week beginning November 1 S, 1999. In support of
this motion, Respondentwould show the following;
1. Petitioners served a motion for summary judgment, a supporting memorandum
and thirty exhibits on the opposing parties on Friday, September 10, 1999. As required by flat
Administrative Law Judge's Second Amended Scheduling Order filed August 27, 1999,
responses to summary judgment motions must be filed and personally served on all counsel
rvitltin five business days from the dak: of service of the motion. In this matter, the responses
will need to be ready by Thursday, September 16, 1999, in order for them to be served on
opposing counsel by the fifth business day from the date of personal service of the motion
(September 17, 1999). Four days is. not an adequate amount of time within which to respond
Petitioners' motion for summary judgment. Therefore, Respondent is requesting an additional
three business days (to and including; September 22, 1999) within which to file and serve, by
overnight mail, a response to Petitioners' summary Judgment motion and atay supporting
memoranda, affidavits and exhibits.
2. Pursuant to the Second Amended Scheduling Order and the Notice of Hearing
filed September 1, 1999, Petitioners' motion to amend their petitions and Respondent's motion
to dismiss art scheduled for hearing oa September 20, 1999. If the Administrative Law Judge
allows Respondent's request for an extension of time to respond to the summary judgment
motion, responses will be served after the<$eptember 20th hearing, and the panics will have to
wait until October 13, 1999, for tha hearing: on the summary judgment motion. If the September
20th hearing is continued to Septerobcr 24, 1999, the summary judgment motion could be heard
along with the other two motions; and the:parties would have more limo to prepare for the

WATER & LAND SECTION Fax~919-716-6766 Sep 13 '99 1836 P. 05
3
contcstcd case hearing, if that becomes necessary. Therefore, Respondcnt is requesting a
continuance of the September 20, 1999 hearing to apd including September 24, 1999, and is also
requesting that Petitioners' motion: to amend their petitions, Respondent's motion to dismiss and
Petitioners' motion for summary judgment be heard at that time.
3. While Respondent ig aware of the Adtninistrativc Law Judge's Ordcr denying
Petitioners' motion to continue thahearing past October 18, 1999, Respondent respectfully
requests tiaat the Administrative Law !edge reconsider that order. The former Director of the
Division of Water Quality, Mr. Preston Howard, who is a key witness for the Respondent, will
not be available on October 1 S, ,1999, and the parties are attempting to find a date that fits within
all of our schedules to have a depcysition to elicit Mr. Howard's testimony prior to trial; however,
Respo~ndeut believes his live testimony would be the best evidence in this case. Mr. Howard is
available October 27, 28 .and 29, 1999, and is also available November I5, 16, 17 and 19, 1999.
Therefore, Respondent would request that the October 18,1999 hearing be continued to either
Qctober 27, 28 and 29 or. to the wak beginning November 1 S, 1999.
4. Counsel for the Petitioners and counsel for each Respondent-Intervenor do not
oppose this motion. Moreover, if having the hearing in High Point presents a problem for the
Administrative Law Judge on any.of the dates mentioned in paragraph 3. above, counsel for the
Petitioners also does not oppose having the hearing ip Raleigh, North Carolina.
WHEREFORE, Respondent respectfully requests the Administrative Law Judge to order
the following:
1. What the parties shall have an additional three business days, to and including,
September 22, 1999, within which tb:file and serve by overnight mail on all counsel, their

WATER & LAND SECTION Fax:[phone] Sep 13 '99 1836 P. 06
4
responses to Petitioners' motion for Summary Judgineat;
2. That the hearing on September 20, 1999, skull be continued to September 24,
1999, at which tithe Petitioners"tnotlon to amend their petitions, Respondent's motion to dismiss
and Petitioners' motion for summary jud~nent shall be heard.
3. That the October l 8, 1999. hearing in this contested cast shall be continued to
either October 27, 28 and 29, 1999 or the week beginning November 15, 1999.
Respectfully submitted this the 13th day of September, 1999.
MICHAEL F. EASLE'Y
Attorney General
By
Kattuyti nes C per
Special ttorney General
Stag Btu No. 12178
N.C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
[phone]

WATER & LAND SECTION Fax~919-716-6766 Sep 13 '99 18.36 P. 07
5
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing RESPONDENT'S
MOTION FOR EXTENSION OF TIiVIE AND CONTINUANCES by depositing the copies in
the United States Mail, first class; addressed as follows:
Carolyn Smith Pravlik
Bruce J. Terns
Demian A. Schane
Terris Pravlik & Millian, LLP
1121 12th street,. N.w.
Washington, D.C. 20005
Attorney for Petitioners
Marsh Smith
Cunningham, Dedmond, Petersen & South, LLP
P.O. aox 1468
Southern Pines, NC 28388
Attorney for Petitioners
George W. House
William G. Ross, Jr.
Brooks, Pierce, McLendon
bluzxxplarey & Leonard; L;.L:P.
2000 Renaissance Plaza
230 North Elm Street
Greensboro, NC 27420
Attorneys for Intervenor-Respondent City of Greetsboro
Linda A. Miles
City Attorney
City of Greensboro
P. O. Box 3136
Greensboro, NC 27402
Attorney for Intervenor-Respondent City o~ Greensboro

WATER & LAND SECTION Fax~919-716-6766 Sep 13 '99 18~3r F'.0~3
6
Charles D. Case
Hunton & Williams
One Hannover Square Btrilding
P,O. Box 109
Raleigh, NC 27602
Attorney for Piedmont Triad Regional Water Authority
This the lath day of September; 1999.
IvIICHAEL F. EASY,EY
Attornc ne
By
Kathry Ja Doper
Special De ty Attorney General
State $ar No. 12178
N.C. riepartnnent of Justice
Environmental Division
Post OtlFice Box 629
Raleigh, NC 27602-0629
[phone]
wp35374-1

IJATER & LAND SECTION Fax~919-716-6766 Aug 23 '99 17:31 P. 01
,..
~~
•...,..•
State of North Carolina
MIGHAF,t, R. HASLEY .DCpaflmenfOf,llJS~iCC
ATTOl1NEY fiRNEItAL ~ P. O. BOX C72~
aAi.I~ir,H
~~~~~oe2n
SAX ~~.A-:NSIVIISSION
ENVIRONMENTAL DIVISION
~. (9 I B) 7 I e-6500
FAx: (9I 91 7I 8-6766
ATTORNEY -CLIENT PRIVILEOED7 ATTORNEI' WORK-PRODUCT AND NOT .o f U4l.tC RECORO
To: Tommy. Stevens Date: August Z3, 1999
(fax programmed):: .
Coleen Sullins
(.fax programmed) .
Boyd DeVane
fax#: [phone]
John Dorney
fax#: [phone]
Fa:~ #: see above Pages: 4, including this cover sheet,
From: Katluyn Jones Cooper .
Subject: Uecp River Draft Proposal to Settle and Dismiss the laws>lit
COMMENTS:
Please review the attached draft tarrguage from the Petitioners to resolve this case, Essentially
they would withdraw their petition, DENR would withdraw the 401, and DENR would issue a
new 401 after the final EIS is completed... This doesn't mean that they won't 61e a contested case
petition after the next 401 is issued; however, the petitioners believe their case is moot (that is,
they no longer have a case) if the current 401 is withdrawn- 1 know this is short notice, but 1
would like to meet tomorrow 8/24799,, to discuss it, because if we decide to settle, we won't have
to file the summary judgment motion and briefs next Monday. Of course Greensboro and the
PTRWA will have to sign off on any settlement, but I'd like to know your position tirst.
~~
i

' ~ WATER & LRND SECTION Fax~919-716-6766
RUG, -23' 991NON) 16:60 ~ : TERR1 S, PR4YL I K & MI LL I AN
Rug 23 ' 99 17 32 P. 03
TEL~242 289 6795 }',UU1/UUS
1N THE OFFYCE..OF AAMIlIY6TR,ATIVE HEARINC}S
S?A,TE OF I~TObCTH CAROLINA, COtJN'I'Y Ol RANDOLPIi
T?EIrP RIVER CI'I?2P1~T8' CQALTI'lON,~~„ )
Petitia~aes. )
v. )
1VORTH CAROLQJA DF1PA1~T~8N'F OF )
ENVIRONA~NT AND NATURAL RESOURCES, )
Rapandait.; )
STIPULATION
DRAFT
Casa No. DD EI~t 0560
(consolidated with 99 EHR 0613)
Ptu~nt to Rune 41 of the Narch.Carolina Rules of Civil Procedure, ir1CO1"poi'atcd throe~h
26 NCAC 3.0101(1), piltiancra Reap Rivor Cadzens' coalition, Aalerica+n CanoC Association,
Iua., and Aeep Rivar Coalition, Ina. and'tespondegt North Carolina Department Of F.aviranmant
and Natural Resources hmsby agreo;
1 _ ~'etitiw-ets' petitlon~ !~ s oot~ted caso bcari~ era disraisncd rvithour prdjudice;
2, The 401.^Wit~ Qwtity Certiflcatioa that respondent iesucd to the Piodnaont Triad
Roetiot~al Water Authority for t~ eonatiuatlan of Randleman 13am and Rcsorva9r is vacated;
3. Pursuant to the~ap~able ate e~ldlnr federal regulations and after tlu oongplctioa
and approval of a ~ envimna~tsl impAat etatemetn, reapendeat will issue a uevv 40l Watcr
Quality CerdflcaGten fot R~dlamet Ram sod Re9crvoir,
CAROLNN SMITITI PRAVLITC
>31zuc~ ,r. ~s
AEMIAN A. 3C1;iAATE
Torras, Pravlak 6c 1VYitlian., LLP
3121 12th Stz~at~ N.w.
Waahingu~n, ]2,C. 20005.4632
[phone]
MARSH SMITH (N.C. Bar No. 16628)
Cunnir~haao~, Redmond, Patc+rsea d~
Smith, LLP
P.O. Box. 1468
Southern Pines, N.C. 28386
[phone]

STATE OF NORTH CAROLINA
COUNTY OF RANDOLPH
DEEP RIVER CITIZENS' COALITION, et al.,
Petitioners,
v.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
~,
~/
NORTH CAROLINA DEPARTMENT OF ) Case No. 99 EHR 0560
ENVIRONMENT AND NATURAL ) (consolidated with 99 EHR 0613)
RESOURCES, )
Respondent, )
v. )
CITY OF GREENSBORO, )
Intervenor-Respondent. )
DRAFT 8/23/99
RESPONDENT'S RESPONSE TO PETITIONERS' MOTION TO AMEND PETITION
NOW COMES the Respondent, North Carolina Department of Environment and Natural
Resources ("NCDENR"), Division of Water Quality ("DWQ"), through the undersigned Special
Deputy Attorney General, and pursuant to Title 26, N.C. Admin. Code, r. 3.0115(a), makes the
following response to Petitioners' Motion to Amend Petition, which was mailed on August 13,
1999, and received by Respondent's counsel on August 19, 1999.
1. Petitioners Deep River Citizens' Coalition ("DRCC"), the American Canoe
Association, Inc. ("ACA, Inc.), and the Deep River Coalition, Inc. (DRC, Inc.) seek to amend
their petitions. The petitioners have attached two separate amended petitions to their motion to
coincide with the two petitions filed in these consolidated cases (99 EHR 0560 and 99 EHR
0613).

2 DRAFT 8/23/99
2. In the motion, petitioners seek to amend the petition to state clearly the bases for
their claims. In support of the motion petitioners contend:
a. The hearing is scheduled for two months from now (October 18, 1999)
and their claims were raised in their PreHearing Statements filed on
August 9, 1999, so Respondent won't be prejudiced by the amendment;
b. Justice requires the amendment since:
(1) Petitioners were not on notice that the Piedmont Triad Regional
Water Authority's application fora 401 Water Quality
Certification was complete and pending; and
(2) No administrative record was compiled in this case so it wasn't
until July 9, 1999, when Respondent responded to Petitioners'
requests for production of documents that petitioners were able to
begin to form more clearly the bases for their claims.
3. A comparison of the original petitions and the proposed amended petitions is
provided as follows:
a. DRCC and the ACA, Inc. (99 EHR 0560)
Paragraph Petition Proposed Amended Petition
OAH Form Petition same OAH Form Petition, except arbitrary
and capricious is not checked
Introduction challenges 401 Water Quality challenges 401 Water Quality
Certification for impact to 121 acres oi~ Certification for impact to 121 acres of
wetlands wetlands and also attempts to challenge
30.5 million gallon interbasin transfer of
water from the Dee River Basin to the

3 DRAFT 8/23/99
Paragraph Petition Proposed Amended Petition
Haw and Yadkin River Basins
1. Describes the DRCC, including date same; but adds sentence concerning
formed, composition of its members, DRCC being an unincorporated
purpose and address association with about 50 members in
North Carolina
2. Describes ACA, Inc., including corp. same
status, place of business, membership,
purpose and address
3. States that petition is filed on same; but adds two adverse impacts: loss
organization's behalf and on behalf of of wildlife; development that will result
its members; describes where members
live in connection with the proposed
reservoir, property condemnation, and
the reservoir being a source of drinking
water for some members; lists adverse
impacts to members
4. lists four general reasons why the same2
agency's action deprived them of their
property and otherwise substantially
prejudiced their rights: respondent
exceeded its jurisdiction and authority;
failed to follow proper procedures,
acted arbitrarily and capriciously and
failed to act as required by lawt
4.a. lists a specific reason why the agency's different: "violated the North Carolina
action deprived them of their property Environmental Policy Act, N.C.G.S.
and otherwise substantially prejudiced 113A, et seq. (hereafter "NCEPA") by
their rights: "issued the [401] relying on a draft Environmental Impact
certification prior to the State Statement;"
Clearinghouse Record of Decision or
Findin of No Si nificant Im act in
' Although tour reasons are cited in the narrative, a fifth reason, that the agency acted erroneously is
checked on the petition itself.
` Only tour reasons are checked on the proposed amended petition itself: exceeded its authority or
jurisdiction; acted erroneously; failed to use proper procedure; and failed to act as required by law.

DRAFT 8/23/99
Paragraph Petition Proposed Amended Petition
Accordance with NCAC
15A:O1C.0402 even though the North
Carolina Division of Water Quality had
stated that this was needed before the
project could proceed;"
4.b. second specific reason: "failed to hold different: "violated NCEPA by relying
a requested public hearing on the on an Environmental Impact Statement
certification even though there was that was inadequate under state and
significant public interest in the matter federal law;"
and even though the Deep River
Citizens' Coalition had requested such
a hearing;"
4.c. third specific reason: failed to different from petition but same as the
investigate properly the effect that this paragraph 4.a. in the petition: "issued
project would have on the water quality the [401] certification prior to the State
of the Deep River and downstream Clearinghouse Record of Decision or
waterways and the full impacts of the Finding of No Significant Impact in
interbasin transfer to the impaired Accordance with NCAC 15A:O1C.0402
waters of the Haw River (Jordan even though the North Carolina Division
Lake);" of Water Quality had stated that this was
needed before the project could proceed;"
4.d. fourth specific reason: issued the different: "issued the 401 Certification
certification before the resolution of the even though no formal application had
Seaboard Chemical /High Point been submitted;"
Landfill site remediation;"
4.e. fifth reason: "failed otherwise to different but the same as paragraph
comply with relevant statutes and 4.b. in the petition: "failed to hold a a
rules;" requested public hearing on the
certification even though there was
significant public interest in the matter
and even though the Deep River Citizens'
Coalition had requested such a hearing;"
4.f. none in petition same as paragraph 4.c. in the petition:
"failed to investigate properly the effect
that this ro'ect would have on the water

DRAFT 8/23/99
Paragraph Petition Proposed Amended Petition
quality of the Deep River and downstream
waterways and the full impacts of the
interbasin transfer to the impaired waters
of the Haw River (Jordan Lake);"
4.g. none in petition same as paragraph 4.d. in the petition:
issued the certification before the
resolution of the Seaboard Chemical /
High Point Landfill site remediation;"
4.h. none in petition same as paragraph 4.e. in petition: "failed
otherwise to comply with relevant statutes
and rules;"
5. Catchall provision re: other facts and same
issues arising during the course of~ the
hearing to support the allegations
Prayer for relief: giant contested case same
hearing and revoke 401 Certification
b. DRC, Inc. (99 EHR 0613)
Paragraph Petition Proposed Amended Petition
no OAH Form Petition OAH Form Petition, arbitrary and
capricious is not checked
Introduction challenges 401 Water Quality challenges 401 Water Quality
Certification for impact to 121 acres of Certification for impact to 121 acres of
wetlands wetlands and also attempts to challenge
30.5 million gallon interbasin transfer of
water from the Deep River Basin to the
Haw and Yadkin River Basins
1. Describes the DRC, Inc., including same; but adds sentence concerning the
date formed, composition of its corp. having 35 members in North
members, and purpose Carolina, and provides the address
2. address different; in the proposed amended

6 DRAFT 8/23/99
Paragraph Petition Proposed Amended Petition
petition, the address is placed in
paragraph 1. and paragraph 2. is almost
the same as paragraph 3. in the petition
with the following changes: doesn't
allege that many members live in close
proximity to the Deep River; modifies the
language in the petition which states that
many members get their drinking water
i'rom the Deep River to state that many
members receive or will receive their
drinking water from the Deep River; adds
sentence that many members wi I I be
directly and adversely affected by the
reduction in Flow of the Deep River; adds
loss of wildlife to list of adverse impacts
3. States that petition is filed on see paragraph 2. in proposed amended
organization's behalf and on behalf of petition and revisions stated above;
its members; describes where members
live in connection with the Deep River, paragraph 3. in the proposed amended
and the Deep River being a source of petition is the same as paragraph 4 in the
drinking water for many members; lists petition
adverse impacts to members
4. lists four general reasons why the see paragraph 3. in proposed amended
agency's action deprived them of their petition and revisions stated above;
property and otherwise substantially
prejudiced their rights: respondent
exceeded its jurisdiction and authority;
failed to follow proper procedures,
acted arbitrarily and capriciously and
failed to act as required by law
4.a. lists a specific reason why the agency's paragraph 3.a. in the proposed amended
action deprived them of their property petition
and otherwise substantially prejudiced
their rights: "issued the [401] different: "violated the North Carolina
certification riot to the State Environmental Polic Act, N.C.G.S. 11A,
Only four reasons are checked on the proposed amended petition itself: exceeded its authority or
jurisdiction; acted erroneously; failed to use proper procedure; and tailed to act as required by law.

DRAFT 8/23/99
Paragraph Petition Proposed Amended Petition
Clearinghouse Record of Decision or et seq. (hereafter "NCEPA") by relying on
Finding of No Significant Impact in a draft Environmental Impact Statement;"
Accordance with NCAC
15A:O1C.0402 even though the North
Carolina Division of Water Quality had
stated that this was needed before the
project could proceed;"
4.b. second specific reason: "failed to hold paragraph 3.b. in the proposed amended
a a requested public hearing on the petition
certification even though there was
significant public interest in the matter different: "violated NCEPA by relying
and even though the Deep River on an Environmental Impact Statement
Citizens' Coalition had requested such that was inadequate under state and
a hearing;" federal law;"
4.c. third specific reason: tailed to paragraph 3.c. in the proposed amended
investigate properly the effect that this petition
project would have on the water quality
of the Deep River and downstream different from petition but same as the
waterways and the full impacts of the paragraph 4.a. in the petition: "issued
interbasin transfer to the impaired the [401] certification prior to the State
waters of the Haw River (Jordan Clearinghouse Record of Decision or
Lake);" Finding of No Significant Impact in
Accordance with NCAC 15A:O1C.0402
even though the North Carolina Division
of Water Quality had stated that this was
needed before the project could proceed;"
4.d. fourth specific reason: issued the paragraph 3.d. in the proposed amended
certification before the resolution of the petition
Seaboard Chemical /High Point
Landfill site remediation;" different: "issued the 401 Certification
even though no formal application had
been submitted;"
4.e. fifth reason: "failed otherwise to paragraph 3.e. in the proposed amended
comply with relevant statutes and petition
rules;"
different but the same as paragraph
4.b. in the etition: "failed to hold a a

DRAFT 8/23/99
Paragraph Petition Proposed Amended Petition
requested public hearing on the
certification even though there was
significant public interest in the matter
and even though the Deep River Citizens'
Coalition had requested such a heat•ing;"
3.f. none in petition same as paragraph 4.c. in the petition:
"failed to investigate properly the effect
that this project would have on the water
quality of the Deep River and downstream
waterways and the full impacts of the
interbasin transfer to the impaired waters
of the Haw River (Jordan Lake);"
3.g. none in petition same as paragraph 4.d. in the petition:
issued the certification before the
resolution of the Seaboard Chemical /
High Point Landfill site remediation;"
3.h. none in petition same as paragraph 4.e. in petition: "failed
otherwise to comply with relevant statutes
and rules;"
5. Catchall provision re: other facts and paragraph 4. in the proposed amended
issues arising during the course of the petition; same
hearing to support the allegations
6. again provides a general list of why no paragraph 5, or 6. in proposed
Respondent has substantially impaired amended petition
Petitioner's rights
Prayer for relief: grant contested case same
hearing and revoke 401 Certification
4. The motion to amend should not be allowed for the following reasons:
Respondent will be prejudiced if the amendment is allowed at this stage of
the proceedings. That the hearing is only two months away, is reason enough not to allow the

9 DRAFT 8/23/99
motion to amend the petition. It would be extremely unfair to Respondent to have to litigate new
issues raised in Petitioners' PreHearing Statement and the proposed Amended Petitions that were
not raised in the Petitions since: Respondent's PreHearing Statement and pre-trial preparation
has been based on the allegations in the Petitions; the doctrine of res judicata should apply to one
of the proposed new issues, the interbasin transfer from the Deep River Basin to Haw and Yadkin
River Basins (see discussion below); the allegations in a Petition are akin to averments in an
indictment, see Parrish v. North Carolina Real Estate Licensing Bd., 41 N.C.App. 102, 254
S.E.2d 268 (1979) (decided under former 150A-23), and respondent should only have to prepare
a defense for what is alleged and not for what Petitioner determines during the course of the
contested case proceeding he should have alleged. Petitioners should not be allowed to change
the rules of the game more than three months after their contested case petitions were filed when
we are on the verge of filing dispositive motions in this case (due August 30, 1999).
b. The Authority's application for a federal permit under Section 404 of the Clean
Water Act to dredge and fill 121 acres of wetlands to construct the Randleman reservoir and a
Draft Environmental Impact Statement for the project were noticed to the public on July 10,
1997. That public notice was the first time DWQ as well as the general public became aware that
the Authority had applied fora 404 permit and it implicitly put everyone on notice that a state
401 Water Quality Certification would be necessary for the project to go forward.4 On August
The notice from the Corps served as notice to the public and to the State of North Carolina that
PTRWA would need a 401 Water Quality Certification for the project and that the DEIS would serve as the basis
for the State's determination of whether to issue the 401 Water Quality Certification. No separate application was
made fora 401 Water Quality Certification and a separate application was unnecessary where the State 401 Water
Quality Certification is but one part of the process for obtaining a federal 404 permit. a State 401 Water Quality
Certification is a prerequisite to obtain a 404 permit; however, the issuance of a 401 Water Quality Certification is
no guarantee that a 404 permit will be issued.

10 DRAFT 8/23/99
_, 1997, the DWQ issued a letter to the Authority advising that a 401 Water Quality
Certification would not be issued until the SEPA document was completed. As early as
Alan Horton, a of Petitioner of DRCC requested a public hearing before the issuance of the
401 Water Quality Certification. So at least as early as Petitioner DRCC had actual
knowledge that a 401 Water Quality Certification for the Randleman Reservoir was under
consideration by DENR. Moreover, the 401 Water Quality Certification was issued on March
11, 1999, after comments were made to the DEIS and responses to the comments were provided
to the Corps as part of the NEPA process which is taking precedence over the state NCEPA
process. However, Petitioners' petitions were not filed until May 3 and 11, 1999, respectively.
There was nothing to keep Petitioners from making a public records request to obtain the records
concerning the disputed 401 Water Quality Certification during the period prior to tiling the
contested case petition and no such request was made. It took until July 7, 1999 for Respondent
to produce the records requested pursuant to Petitioner's First Request for Production of
Documents; however, it should not have taken Petitioners over one month after those records
were produced to move to amend the petition, especially when at least Petitioner DRCC has
known about the interbasin transfer issue since it filed a contested case petition in to
challenge that action by the North Carolina Environmental Management Commission. As
discussed below, the contested case petition was withdrawn by Petitioner DRCC and the doctrine
of res judicata should apply to prevent that decision from being litigated now in this challenge to
the issuance of a state 401 Water Quality Certification.
In the proposed amended petitions, Petitioners want to challenge the
decision of the Environmental Management Commission to allow the 30.5 million gallon

11 DRAFT 8/23/99
interbasin transfer of water from the Deep River Basin to the Haw and Yadkin River Basins to
create the Randleman Reservoir. This same challenge was made by Petitioners DRCC and two
individuals, one of whom is a member of the DRCC, Scott Lineberry. They withdrew their
petitions on ,after the North Carolina Court of Appeals had remanded their case back to
OAH subsequent to procedural appeals concerning the proper forum for third party to challenge
agency decisions. Because Petitioner DRCC failed to prosecute the interbasin transfer case, the
doctrine of res judicatu should prevent Petitioner DRCC from being able to refile a contested
case more than four years after withdrawing a contested case petition involving the same subject
matter. Furthermore, the Administrative Law Judge should not allow the ACA, Inc. or the DRC,
Inc. to challenge the interbasin transfer decision, certainly not on a motion to amend the petition
where these groups are challenging an agency action (Certificate Authorizing Eminent Domain
Proceedings, which also allowed the inter-basin transfer at issue) different from the agency action
(401 Water Quality Certification) being challenged in the original petition. The Administrative
Law Judge should also deny the proposed challenge where the agency action proposed for
challenge occurred more than six years ago, well beyond the 60 day period for filing contested
case petitions under N.C. Gen. Stat. ~ 150B-23(fi).
d. Petitioners DRCC and ACA, Inc. want to add following new language in the
proposed amended petitions: two adverse impacts: loss of wildlife; development that will result.
Petitioner DRC, Inc. wants to delete the provision that many of its members lived in close
proximity to the Deep River, wants to modify the language concerning the members who get
their drinking water from the Deep River to state that many members receive or will receive their
drinking water from the Deep River; and wants to add the following new language to its

12 DRAFT 8/23/99
proposed amended petition: many members will be directly and adversely affected by the
reduction in Clow of the Deep River; loss of wildlife to list of adverse impacts. Both proposed
amended petitions want to add the following specific reasons why they have been deprived of
property and their rights have otherwise been substantially prejudiced: (1) Respondent "violated
the North Carolina Environmental Policy Act, N.C.G.S. 11A, et seq. (hereafter "NCEPA") by
relying on a draft Environmental Impact Statement;" (2) Respondent"violated NCEPA by
relying on an Environmental Impact Statement that was inadequate under state and federal law;"
and (3) Respondent "issued the 401 Certification even though no formal application had been
submitted." The same rationale applicable in criminal proceedings, that an indictment must
charge the offense with sufficient certainty to apprise the defendant of the specific accusation
against him so as to enable him to prepare his defense, is applicable to factual allegations in
contested case petitions. See Parrish v. North Carolina Real Estate Licensing Board, 41
N.C.App. 102, 254 S.E.2d 268 (1979) (decided under former 150A-23). Normally in criminal
cases, a trial court will dismiss a case if the evidence at trial is different from the crime charged
in the indictment. [CITE] Although we haven't reached the trial yet, the Petitioners should be
held to the allegations raised in their original petition and should not be able to change the rules
of the game at the 11th hour.
For the reasons set forth above, Respondent requests that Petitioners' motion to amend the
petitions be denied.
5. Even if the Administrative Law Judge should decide to allow the motion to amend
the petitions, the petition of Petitioner Deep River Citizens' Coalition should be dismissed
because

13 DRAFT 8/23/99
the Deep River Citizens Coalition does not meet the definition of a "person" as defined in the
Administrative Procedures Act and therefore does not have standing to bring this contested case
petition.
"Person" is defined in the APA as follows:
"Person" means any natural person, partnership, corporation, body politic and any
unincorporated association organization, or society which may be sued or be sued under
a common name.
N.C. Gen. Stat. § 150B-2(7). (Emphasis added).
N.C. Gen. Stat. § 1-69.1 authorizes unincorporated associations to sue and be sued as
follows:
All unincorporated associations, [organizations or societies], ...whether
organized for profit or not, may hereafter sue or be sued under the name by which they
are commonly known or called, or under which they are doing business, to the same
extent as any other legal entity established by law and without naming any of the
individual members composing it.... Any unincorporated association, ... bringing a
suit in the name by which it is commonly known and called must alle eg_the specific
location of the recordation required by G.S. 66-68.
Highlands Township T uxpuyers Association v. Highlands Township Taxpayers Association, Inc.,
62 N.C.App. 537, 538, 303 S.E.2d 234, 235 (1983). (Emphasis added). [N.C. Gen. Stat. §] 66-
685 requires that [an organization] "operating under an assumed name file a certificate, stating the
N.C. Gen. Stat. § 66-68 provides in relevant part that
(a) Unless exempt under subsection (e) hereof, before any_person or partnership en~a~*,es in business in
anv county in this State under an assumed name or under any designation, name or style other than the real name of
the owner or owners thereof ...such person ...must file in the register of deeds of such county a certificate Tip ving
the following information:
The name under which the business is to be conducted;
The name and address of the owner, or if there is more than one owner, the name and address of
each.
(b) If the owner is an individual or a partnership, the certificate must be signed and duly acknowledged
by the individual owner, or by each general partner.

14 DRAFT 8/23/99
name and address of the owner(s), in the office of the register of deeds of the county in which
the business is conducted." Highlands Township Taxpayers Association v. Highlands Township
Taxpayers Association, Inc., 62 N.C.App. at 538-539, 303 S.E.2d at 23.5.
Strict construction of G.S. 1-69.1 requires that before an unincorporated association may
gain the privilege of [suing] in its common name, first there must be recordation of the necessary
information required by G.S. 66-68 and then allegation of its specific location. Highlands
Township Taxpayers Association v. Highlands Township Taxpayers Association, Inc., 62
N.C.App. at 539, 303 S.E.2d at 236. See also Cherokee Home Demonstration Club v. Oxendine,
100 N.C.App. 622, 397 S.E.2d 643 (1990).
There is no allegation in the petition or the amended petition the Deep River Citizens'
Coalition's compliance with N.C. Gen. Stat. § 1-69.1 that it has recorded a Certificate of
Assumed Names with a county register of deeds in the manner set out in N.C. Gen. Star. § 66-68.
Moreover, as is shown by Respondent's Exhibit No. 1, which is a true copy of the assumed
names registry index pages in located in the Randolph County Register of Deeds Office from
1980 to the present, the Deep River Citizens' Coalition has not registered a certificate of assumed
names in the Randolph County Register of Deeds Office as required by N.C. Gen. Scat. § 66-68.
By failing to meet the requirements of N.C. Gen. Stat. §§ 66-68 or 1-69.1, the Deep River
Citizens' Coalition is not authorized to sue or be sued in its capacity as an unincorporated
association and thus does not meet the definition of a pec•son under N.C. Gen. Stat. § 150B-2(7).
Therefore, the petition and the proposed amended petition, if allowed, should be dismissed as to
the Deep River Citizens' Coalition.

15 DRAFT 8/23/99
CONCLUSION
Petitioners' motion to amend the petitions should not be allow because Respondent would
be prejudiced by allowing the proposed amendments at this stage of the proceedings.
Furthermore, even if allowed, the petition and proposed amended petition of the DRCC should
be dismissed because that unincorporated association has not made the requisite assumed names
tiling required by N.C. Gen. Stat. § 66-68 or the requisite allegation of recordation in the petition
or the proposed amended petition required by N.C. Gen. Stat. § 1-69.,1 sufficient to allow it to
sue and be sued, thus the Deep River Citizens Coalition doesn't meet the definition of a person
set forth in N.C. Gen. Stat. § 150B-2(7).
Respectfully submitted this the 23rd day of August, 1999.
MICHAEL F. EASLEY
Attorney General
By
Kathryn Jones Cooper
Special Deputy Attorney General
State Bar No. 12178
N.C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
[phone]

16 DRAFT 8/23/99
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing RESPONDENT'S
RESPONSE TO PETITIONERS' MOTION TO AMEND PETITION by depositing the copies in
the United States Mail, first class, addressed as follows:
Carolyn Smith Pravlik
Bruce J. Terris
Demian A. Schane
Terris Pravlik & Millian, LLP
1121 12th Street, N.W.
Washington, D.C. 20005
Attorney for Petitioners
Marsh Smith
Cunningham, Dedmond, Petersen & Smith, LLP
P.O. Box 1468
Southern Pines, NC 28388
Attorney for Petitioners
George W. House
William G. Ross, Jr.
Brooks, Pierce, McLendon
Humphrey & Leonard, L.L.P.
2000 Renaissance Plaza
230 North Elm Street
Greensboro, NC 27420
Attorneys for Intervenor-Respondent City of Greensboro
Linda a. Miles
City Attorney
City of Greensboro
P. O. Box 3136
Greensboro, NC 27402
Virginia G. Booker
2216 W. Meadowview Road, Suite 201
Piedmont Triad Regional Council of Governments
Greensboro, NC 27407
Attorney for Piedmont Triad Regional Water Authority

17 DRAFT 8/23/99
This the 23rd day of August, 1999.
MICHAEL F. EASLEY
Attorney General
By
Kathryn Jones Cooper
Special Deputy Attorney General
State Bar No. 12178
N.C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
[phone]
wp

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 1508 P. 01
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COMMENTS:

WATER & LAND SECTION Fax:[phone] Aug 20 '99 1509 P. 02
IN THE pFFICE OF AbMINISTRATIVE HEARINGS
STATE OF NORTI-I CAROLINA, COUNTY OF RANDOLPH
DEEP RIVER CITIZENS' COALITION, ~ gL,, )
Petitioners, )
v. )
NORTH CAROLINA DEPARTMENT OF! )
ENVIRONIv1E'NT AND NATURAL RESOURCES, )
Respondent. )
1
Case No. 99 BHR 0560
(consolidated with 99 EHR 0613)
PETITIONERS' MOTION TO AMEND TI~IR PETITIONS
Pursuant to Rule 15(a) of the North iCarolina Rules of Civil Procedure, incorporated
through 26 NCAC 3.0101(1),. peHtioners~Deep River Citizens' Coalition, the American Canoe
Association, Inc., and Deep River Coalition, Inc. hereby request that this Ofi''ice allow petitioners
to amend their petitions. Respondent Nortfi Carolina Department of Environment and Natural
Resources has stated that it does not consent to this motion. Amended petitions are attached.
Petitioners Deep River Citizens Coalition and the American Canoe Association, Inc. filed
a petition for a contested case hearing on.:IVI<ay 3,1999, challenging respondent's issuance of a
401 Water Quality Certification (1lereatter:"401 Certification) to the Piedmont Triad Regional
Water Authority (hereafter "PTRWA"). Pctitiontr Deep River Coalition, Inc. filed a petition
challenging the same 401 Certification on May 11, 1999. This Office consolidated the cases on
June 2, 1999.
Petitioners seek to amend the petition in order to state clearly the bases for their claims.
The hearing is scheduled to be held two mgnths from now (October 18, 1999) and petitioners
provided respondent wlth their specific clams in their prehearing statement which was filed on
August 9, 1999. Petitioners therefore submit that respondent will not be prejudiced in any way

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 20 ' 99 15 09 P. 03
from their filing of amended petitions..
Furthermore, justice requiros that petitioners be pcrnxitted to amend their petition.
First, respondent never provided public notice that PTRWA's application for the 401
Certification was complete and pending as required by 1 SA NCAC 2H.0503. Instead,
respondent used the United States Corps of;Army Engineers' July 10, 1997, public notice of
PTRWA's application for a Clean Water Aft Section 404 permit to fill wetlands as tht public
notice for the March 11, 1.999, 401 Certification. Thus, petitioners were not on notice that
PTRWA's application was complete and pending?r
Second, no administrative record .was compiled in this case. It was not until July 9, 1999,
when respondent responded to petitioners' icquests for the production of documents that
petitioners were able to begin to fora! more] clearly the bases for their claims.
Therefore, because respondent will not be prejudiced if this Office allows petitioners to
file amended petitions and because justice requires that petitioners be permitted to do sa,
petitioners submit that their motion should be granted. See Chicora Country Club, Inc. v. Town
ojErwin, 128 N.C. App. 101, .109 (N:C. Ct App. 1997) (North Carolina "courts have
consistently held that a motion to Atu~nd a pleading should be freely allowed").
Respectfiiliy submitted,
CAROLYI~1 SMITH PRAVLIK
BRUCE J. Tl/RRIS
DEMIAN A. SCHANE
Terris, Pravlik & Millian, LLP
1~ Petitioners did hear nimors to this effect.: However, those rumors cannot relieve respondent of
its duty to comply with the Water Quality Certification regulations.
2

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 20 ' 99 15 09 P. 04
1121 12th Street, N.W.
Washington, D.C. 20005
[phone]
a^n~ S~~ c~~5
/"~
i MARSH SMITH, N.C. Bar No. 16828
Cunningham, Dedmond, Petersen & Smith, LLP
P.O.13ox 1468
_. ', Southern Pines, N.C. 28388
[phone]
j Attorneys for Petitioners
August l3, 1999
CERTIFICATE OF SERVICE
i hereby certify on this ~ day of August 1999, that I have caused a true copy of the
foregoing "Petitioners' Motion to Amend. Their Petitions" and the proposed order to be delivered
via first class mail, postage pre-paid, to the; following:
Kathryn Jones Cooper
Special Deputy Attorney General
N.C: Department of Justice, Environmental Division
P.O. fox 629
Raleigh, N.C. 27602-0629
/I
DEMIAN A. SCHANE
3

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 1510 P. 05
1N TH1; OFFICE OF ADIvfl1VYSTRATIVE IiEARINdS
STATE OF NORTH CAROLINA, COUNTY OF RANDOLPH
DEEP RIVER CITIZENS' COALITION, c_t ~, )
Petitioners, )
v_ )
Case No. 99 EHR 0560
NORTI-I CAROLINA DEPARTIVIEN'I' OF. ) (consolidated wiith 99 EHR 0613)
ENVIRONMENT AND NATURAL RESOURCES, )
Respondent: )
ORDER
Upon consideration of Petitioners'. Motion to Amend Their Petitions, it is this day
of ,1999,
ORDERED that petitioners may file amended petitions.
ROBERT ROOSEVELT REILLY JR.
Administrative Lar~- Judge

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 15 10 P. 06
MMf~w~.lr~~lClRaftY Al TYPR
STATE OP trORTH CAEOLDJA M THE OFFICE OF
ADWNISTRATIVE H8A111N~
CO(~y OF 11) K a d o v b„
(2)The Deep River Citiza'ns'.Coa~ition
{'y/IW.rl~.ri~~ 1.1~~~~~ )
~.Ail~' p`_m~r{~~~n Caflo A~..~'n_ InC.)
(y0w mss) rt7TI10N6w. I )
r~TITION
v. ) FOIL A
CONTESTED CASE It$AEINO
North Carolina De t. :of
~;nvr - agd YaL ~ nl. Bea.ourcea )
EESrONDENT. )
(Tbe Sues ~~eoer a 1oan4 itba~ ~ yae aey ~elyer)1rE) )
1 berebp l.k far ~ oa~sa0'oMr h.~w M ~wW' hr rjr I~lanM C.ealir Qearrl>f Sunre X150&11 beewe dBapoodrs
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A/n+iefwatew N~rin~, l.O. DNr~ 17sa7. ~ IiC:'nsl 1-url.

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 15 10 P. 07
ATTACIEDISENT TO FIRST AMENDED PETITION
Petitioners request a contested case hearing as provided for by North Carolina General
Statute 150B-23 because respondent granted, on or about March 11,1999, a Water Quality
Certification to the Piedmont'Trisd Rcgiorlal Water Authority (hereafter "PTRWA") under
Section 401 of the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., and the North
Carolina Water Quality Certification, regulations, 15A NCAC 2H.0501, et seq., for the
construction and operation of Randleman Dram and Reservoir (hereafter "Randleman Dam").
Randleman Dam will destroy 121 acres of vl~etlands, inundate 28 miles of fret flowing screams,
and transfer 30.5 million ,gallons of .water. per day from the Deep River to the Haw and Yadkin
River Basins.
Petitioners are the Dap River Citizen's Coalition and the American Canoe Association.
1. Petitioner Deep River Citizen's Coalition (hereafter "DRCC") was formed on
May 1 1, 1980, by a group of farmers and landowners in the area of the proposed Randleman
Reservoir. DRCC is an unincorporakd association with about SO members in North Carolina.
The group was formed out of wnarn for the water quality in the area. The address of the Deep
River Citizen's Coalition is 1539 Commonwealth Road, Randleman, North Cazolina 27317-
7146.
2. Petitioner American Canoe Association, Inc. (hereafter "ACA") is a not-for-profit
corporation organized under the,lawa of thee, State of New York, wlth its principal place of
business in Sprinigfield, Virginia: ACA is ~ membership organization with approximately 35,000
meml~rs nationwide and over 1;000 cumbers in North Carolina. ACA is dedicated to the
preservation and protection of America's natural areas, focusing primarily vn rivers, streams,
lakes, coastal waterways and their surrounding environments. ACA's address is 7432 Alban

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 15 10 P. 08
Station Boulevard, Suite B-232, Springfield, Virginia 22150.
3. Petitioners file this Petition on their own behalf and on behalf of their members.
Many of the members of the organizations live inclose proximity to the proposed Randleman
Reservoir, some members.have had their property condemned to build the reservoir, and many
members will get their drinking water 9'omthe reservoir when it is complete. These members
will be directly and adversely affected by reduction in their property values, the loss of wildlife
and the wildlife's habitat, the degradation of water quality in the Deep River and downstream
waterways, the reduction in the quality of their drinking water, the development that will result,
and other impacts from construction of Randleman Dam.
4. In issuing the cergf cafe, respondent exceeded its jurisdiction and authority, failed
to follow proper procedures, acted attiitrariky and capriciously, and failed to act as required by
law and rule. SpeciRcally, responde.~t:
a. violated the North Carolina Eavironrlaental Policy Act, N.C.G.S. 113A. et
seq., (hereafter "NCl~PA") by relylag.on a craft Environmental Impact Statement;
b. violated NCEPA by ielying on as Environmental Impact Statcmtrat that
was inadequate under state and federal law;
c. violated NCEPA when it issued the 401 Certification prior to the State
C baring House Record of Decision as s+oquirod by 15A NCAC O 1 C.0402, even though the North
Carolina Division of Water Quality had stated a Record of Decision was needed before the 401
Certification could be issued;
d. issued.the 401 Certif cation even though no formal application had been
submitted; and
2

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 15 11 P. 09
c, failed to hold a requested public hearing on the 401 Certification, even
though there was significant public interest in the matter and even though the Deep River
Citizen's Coalition had requested such a hearing;
f. failed to invesfigste properly the effect that this project will have on the
water quality of the Deep River end.dovmstream watctwvays and the full impacts of the interbasin
transfer to the impaired waters of the ~-Iaw River (Jordan Lake);
g. issued the 40I Certification before the resolution of the Seaboard
i
Chemical /High Point Landoll site ccmediation;
h, failed otherwise to comply with relevant statutes and rules.
5 p~~ facts and issues may arise during the contested case hearing that will further
support the allegations made by petitioners above.
Wl-IEREFORE, petitioners request that a contested cast hearing be granted and that the
401 Certification be revoked.
i CAROLYN SMITH PRAVLIK
BRUCE J..'TEIiRIS
DEMIAN A. SCHANE
Teixls, Pravlik & Millian, LLP
1121 12th Street, N.W.
Washington, D.C. 2ooos
[phone]
MARSH SMITH, N.C. Bar No. 16828
Cunningham, Dcdmond, Petersen & Smith, LLP
P.O. Box 1468
Southern Pines, N.C. 28388
[phone]
Attorneys for Petitioners
3

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 1511 P. 10
':
CERTIFICATE OF SERVICE
In addition to serving a copy of this First Amended Petition on respondent as certified on
the cover page, l hereby certify that a copy vVas served on John Kimc, Piedmont Triad Water
Authority, Wilmington Building; Suite 1217,, 2216 West Meadowvicw Road, Greensboro, N.C.
27407, by deposit in the United States.Mail,postage prepaid.
This is the 13th stay of August,1999:
/~t • S~~
DEMIAN A. SCHANE
4

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 15.11 P. 11
pi f fIm OfP1C~ Of
STATE Of NOR7R CAROLMA An~IQ'I~AT~ ~~
OOUNTY OF (1) R_ ' o v h
C.
~.ar esme) lET1'f10~1Q '
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North Catalina Dept.'.of
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(ibe Sore apncr ar baW ~+ wbid~ yaa ~ ~Yi'~- )
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See attached
r, ~iull~~
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(K~ ~ 11'M~t~ aeea~ adEllrerl ~,)
{~) 8aro,e+t of dwee fate. IMt ~ a/tery ar M~1 iet i (drtdt a IetR ara 6wo rri oaArtwl
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(~ otc 8 ~~ ¢ N Yrer pYr rent (9101
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wdedaiwradvlo tea. l.O. Dwwa ?1M~. Rom NC Zlil >-TI~f.
e.If tfLq

WATER & LAND SECTION Fax:[phone] Aug 20 '99 15 12 P. 12
ATTAC1FIlViENT TO:FIRS'Y' AMENDED PTTIT'IUN
Petitioner requests a coatestod cast hearing as provided for by North Carolina General
Statute 1508-23 because respondont granted, on or about March 11,1999, a Water Quality
Certification to the Piedmont Triad Regional Water Authority (hereafter "PTRWA") under
Section 401 of the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., and the Nortta
Carolina Water Quality Certification regulations, 15A NCAC 2H.0501, et seq., for the
construction and operation of Randleman Dam, and Reservoir (hereafter "Randleman Dam").
Randleman Dam will destroy 121 acros of wetlands, inundate 28 miles of free flowing streams,
and transfer 30.5 million gallons of Wetter, p~+r day from the Deep River to the Haw and Yadkin
River Basins.
l . Petitioner Deep River Coalition, Inc. (hereafter "DRC") is snot-for-profit
corporation organized under the laws of the' State of North Carolina, with its principal place of
business in Pinehurst, North Caroline; DRC is a tpcmbership organization with approximately
3 S nnembers in North Cara~lina. DRC was formed to prevent a large hog fanning operation from
entering the pastoral community of Moore County and to protect and enhance environmental
qualities around the Decp River. DRC'a address is P.O. Box 514, Southern Pines, North
Cazolina 28388-0514.
2. Petitioner files thu Potition on its own behalf and on behalf of its members.
Maury DRC members receive, or will,:receive, their drinking water ffom the Deep River Many
DRC members will be directly and adversely ~~~ by reduction in the flow of the Deep River,
the reduction of their property values; the loss of wildlife and the wildlife's habitat, the
degradation of water quality in the Deep River and downstream waterways, the reduction in the
quality of thcix drinking water, and.other Impacts from constzuction of Randleman Dam.

1JATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 15 12 P. 13
3. In issuing the certificate, respondent exceeded its jurisdiction and authority, failed
to follow proper procedures, acted arbitrarily and capriciously, and failed to act as required by
law and rule. Specifically, respondent:
a. violated the Noicth Carolina Environmental Policy Act, N.C.Ci.S_ 113A, et
seq. ,(hereafter "NCEPA") by relying on a draft Environmental Impact Statement;
b. violated NCEPA by relying on an Environmental Impact Statement that
was inadequate under state and federal law;,
~, violated NCEPA when it issued the 401 Certification prior to the State
Clearing House Record of Decision ~s n9 by 1 SA NCAC 01C.0402, even though the North
Carolina Division of Water Quality had stated that a Record of Decision was needed before the
401 Certification could be issued;
d. issued the 401,Certification even though no formal application had been
submitted; and
e. failed to bold a requested public heari~ag on the 401 Certification, even
though there was significant public interest in the matter and even though the Deep River
Citizen's Coalition had requested a heating;
f. failed to laveatigate properly the effect that this projat will have on the
water quality of the Iktp River. and dowh~tream waterways and the full impacts of the interbasin
transfer to the impaired waters'of the HawRiver (Jordan Lake);
g. .issued the 401 Cettifcation before the resolution of the Seaboard
Chennical / I3i~,h Point Landfill site remediation;
2

WATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 15 12 P. 14
h. failed otherwise to comply with relevant statutes artd rules.
4. Other facts and' issues may arise during the contested cast hearing that will fitrther
support the allegations made by petitioner:.
WIiEREFORE.petitioner tequests`that a contested case hearing be granted and that the
401 Ccctification be revoked. ,
. ~ c l~ • ~Ut~i~`'~
CAROLYN SMITH PItAVL1K
BRUCE J. TE1tRIS
DEMIAN A. SCHANE
Terris, Pravlik & Millian, LLP
1121 12th Street, N.W.
Washington, A.C. 20005
[phone]
~~ Sw~ a/~s
MARSH SMITH N.C. Bar No. 16828
Cunningham, Redmond, Petersen ~ Smith, LLP
P.O. Box 1468
Southern Pines, N.C. 28388
[phone]
Attorneys for Petitioner
CERTIFICATE OF SERVICE
In addition to serving a copy ofthis First Amended Petition on respondont as certified on
the cover page, I hereby certify that a ~opy~was serves on John Kime, Piedmont Tried Water
Authority, Wilmington Building, Suito.1217, 2216 West Meadowview Road,
Orccnsboro, N.C. 2740, by deposirin the United States Mail, postage prepaid.
This is the lath day of August, i99~. ~ - ~v~~
DENIIAN A. SCHANE
3

WATER & LRND SECTION Fax~919-716-6766 Aug 20 '99 15 13 P. 15
FILED
' OFGICt= OF
STATE OF NORTT~I CAROLINP~O''~''. ~~' ~ r. ~ !~° ~ ~ `' IN THB OFFICE OF
MINIS99R~HR 0560EARINGS
COUNTY OF RANDOLP~I QUG 18 2 ~~~ PSI '~
99 EIdR 0613
DEEP RIVER CITIZENS e4AI.ITION ET AL,j
petitionef )
v. )
DEP.ART`MEN1' OF ENVFRONIVIENT AND ~ AMENDED SCHEDULING
NATURAL RESOURCES; ORDER
Rcspondettt ~
And ~
CITY OF GREENSBORO; }
Respondent-lntervenor )
The pity of Greensboro faxed a Motion to Intervene on August 17, 1998- The
original parties do not ob'ect. Thezefore, although the Motion is filed one hundred and six
days after the filing of ~e first Petition, the Motion to Intervene is ALLOWED to the
extent that ~hedule ~s ~ cre~b borironpleixlentetdreso c thatelalls the~partles~ widinproceed
tollowln$
expeditiously in zesolving thesc;contested cases:
1. Discovery m,ay continue, if necessary, until October 4, 1999. Discovery shall
be conducted in accordance with the North Carolina Rules of Civil Procedure and 26
NCAC 3.0012 (Hcaririgs Rules of the Office of Adil1inistzativc Hearings).
2. pispositive motions `and memoranda shall be filed and served by Aurgusc 30_•
999. Responses, includ'iag any affidavits, shall be filed and served within ten days from
the date of service of the motion. No Reply Briefs arc permitted.
' the
3. A Motion Hearing is scheduled for Se em 20 99 at 1:04
f ;rostra ,ale; fh.
4. The parties shalt hold a Prchearing Conference during the week of October ~-,
1999. The parties shall sub~iZit for approval an Order on Final Pre-trial Conference or a
Notice of Settlement and .Withdrawal of Petition, within five workint? daYS after the
Prehcari of .See Rules of practice for the Superior and District Courts.
5. The parties .shall preppare aztd number (c.g. P1, P2, P3) five copies of each
exhibit -one: fez counsel, one.; for opposing counsel, one for the intervenor, one for the
witness, and one for the 3udge If a party has ten or more exhibits, the exhibits shall be
bound and indexed. Original Exhibits and one copy shall be retained by the judge for
preparation of the official record. ~

IJATER & LAND SECTION Fax~919-716-6766 Aug 20 '99 1513 P. 16
~• ~
6. The~liearing will. coixkznence on October l8, 1999, at 9;30 a.zxt. in High Point
and continue until completed::..
7. M)/DIATION SHOLtLD A1.,WAYS BE CONSIDERED EY THE PARTIES.
This the 18'" day of August, 1999.
! Ro ext ooscvch~Rei l~,~r.
Administrative Law Judge

J
WATER & LAND SECTION Fax~919-716-6766
~.
A copy of the foregoing was mailed to:
Carolyn Smith Pravlik
1121 I2`h Street NW
Washington, DC 20005
Marsh Smith
225 North l3cnriett Stzeei
Southern Pines, NC; 28388
ATTORNEYS FOR PETITIONER
Kathryn J. Cooper
PO Box 629
Raleigh, NC 27602-0629
ATTORNEY FOR RESPONDENT
William CT. Ross Jr.
230 North Elm Street _
Crrccnsboro, NC 27420 '
ATTORNEY FOR INTERVENOR
This the 18'" day Ot A[tgttst, 1999.
Aug 20 ' 99 1513 P. 17
~-
0 ntstratzve arings
P. O. zaw 27447
Raleigh, North Cazolirta 2761 I-7447
[phone]
F'ax: 919/733-3407
e mail: [e-mail],ztc.us

TIME AND LEAVE ACCOUNTING SYSTEM
Employee User Instructions
CONTENTS
~' Starting the System
Exiting the System
Navigating the System
Log In
Password
Set Employee
Weekly Time
Rules For Entering Weekly Time
Weekly Time Validation
Submit Month
Printing Your Timesheet
Balances
Page
2
2
3
3
3
4
4
4
a
6~
7
_,~

~~
1

Introduction
The DENR Time and Leave Accounting System (TEAS) is intended for the standardized
collection and reporting of employee work and leave hours. It is also designed to
automatically compute the amount of leave earned by an employee. TEAS is an Internet
based application that can be used by any employee who has access to the Internet. This
accessibility should make it possible for most employees to enter their own time into the
system. Employees can electronically submit a completed timesheet to their supervisor
for approval.
Starting the Time and Leave Accounting System (TEAS)
1. Open your web browser. The system will run on either Netscape version 2.0 and
higher or Internet Explorer version 3.0 and higher.
2. Enter the web site address that was provided to you into the `Location' field in
Netscape or the `Address' field in Internet Explorer. Press <Enten. The Log In
screen will appear. Note:. In order to avoid entering the~site address each~ime~ou
use the system, you can "bookmark" the site.
3. Enter your User Id and Password. If you do not know your User Id or Password,
contact your timesheet coordinator. After entering User Id and Password, click the
`Login' button. The TEAS screen for time entry will open.
vim. ~o ~a ~~
~liesfis'}~~~o ~~rr~iias .m.,, n.. J. W ,...._ ,_ .
-_ . .
_ .. Login .
~ your ,ua ID ma passwnta
use ID :. ooiza
passavord: •••••,
-"
Exiting the TEAS
To exit the system, simply close your web browser. Warning: Time entry must be
`saved' prior to closing the browser or the entries will be lost.

2

Addendum Employee User Instructions
Set Employee -This function is used by employees who have been delegated the
responsibility for timesheet maintenance for other employees. Do the following in order
to select the employee whose timesheets you wish to work on.
1. Click the `Set Employee' button. The Set Employee screen will display with a list of
employees that have been delegated to you.
2. Click on the employee that you want to select, then click on the `Set Employee'
button. The employee's name that you have selected will appear at the top of the
screen.
After selecting the employee, click on the `Weekly Time' button to enter time or click on
the `Submit Month' to view and submit timesheet to supervisor.
Ede Edu view Go t<ommunicatw Help
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FuHCnoNS Employee: Employee, A A (123-45.6789)
ii.n.y~s~ Pick as tznployee from We foltowi.Zg list..
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Submit Month
Balances
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Balances -This function displays a summary of the employee's leave activity for the
selected month. It also displays a 12 month summary of compensatory time activity.
Note: The leave balances for a selected month may not be computed correctly until that
month has been subazitted to supervisor. In some cases when an employee's status has
_ _~ changed in some way during the month, such as going from part-time to full-time, the
leave balances must be adjusted by your timesheet coordinator.
1. Click on the `Balances' button. The Balances screen will be displayed.
• You can navigate to next and previous months by clicking on the `Month»' or
`«Month'. You can also change months by entering a date in the `Set Month' field
and clicking the `Set Month' button.
• If you navigate to a month where no timesheet has been entered, a message: "The
timesheet for this month has not yet been entered." will be displayed.
_aX
t
Fie Edd View ~o ~orturnmcata Nelp _
r 4` ~'•~~ ~ TT ~ f~-.ar*iKr~fi: i~ s~' +~y _ ~ t Y .^ -
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A ~ ~ -Whale Related
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FuRCrt;oNS Employee: Strawa, Mike . (221.2-2223)
p`.;,,,y,-M-
to For themoathof?/1998
Timeshtxt Status: Exported to Controllc
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Comp Community Advcse
Time InvolvmmtIWeatha I ~
Child Stck Vacation~Unkrtown,
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• If you navigate to a month where no timesheet has been entered, a message: "The
timesheet for this month has not yet been entered." will be displayed.
• If the system has determined that there are timesheet waznings or errors, they will be
displayed in a message box at the top of screen. The timesheet cannot be submitted to
your supervisor ifi there aze errors. You can submit to supervisor if there are only
warning messages. To correct errors, you will usually use the `Weekly Time'
function. You should review for accuracy before submitting to supervisor.
2. To submit timesheet to supervisor, click on the `Submit Timesheet' button. If there
are no errors, the timesheet status displayed at top of screen will change to
`Submitted to Supervisor'.
3. The timesheet can be unsubmitted to supervisor as long as the timesheet status
remains `Submitted to Supervisor'. The timesheet status will change when approved
by your supervisor. To unsubmit, click on the "Unsubmit Timesheet" button.
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Printing Your Timesheet - A copy of your monthly timesheet can be printed from the
`Submit Month' screen.. The printing of timesheets requires that Adobe Reader software
be installed on your computer. Clicking on the `Adobe Acrobat Reader' link can
download a free copy of~the software or your LAN manager can install the softwaze..If
the Adobe Reader has been installed, click on the `Download Timesheet' link. This
process can take a few seconds. Adobe Reader will display the timesheet. You can print
from this screen or save the file to your disk.
6

Weekly Timesheet Validation
When weekly time is saved, the results of the save are displayed in a message box located
at the top of the screen. If there aze no errors or warning conditions, the message box will
contain only "Times were saved successfully." There are two possible message types.
Warning messages indicate possible error conditions while Error messages indicate a
definite error condition. If the system detects errors or warning conditions, they will be
displayed in the message box. Timesheets that contain only warning messages can be
submitted to your supervisor for approval while timesheets with error messages must be
corrected before they can be submitted for approval.
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Submit Month -This function is used to view an entire month of time entry, submit, and
unsubmit the timesheet to your supervisor, and print your timesheet. The status of the
timesheet will be displayed at the top of the screen.
1. Click on the `Submit Month' button. The Submit Month screen will display.
• You can navigate to next and previous months by clicking on the `Month»' or
`«Month'. You can also change months by entering a date in the `Set Month' field
and clicking the `Set Month' button.

Set Employee -This function is not used by most employees. It is used primarily by
coordinators and supervisors.
Weekly Time -This function is used by employees to enter time worked, and leave
taken. This screen is;the default screen displayed when you log into the system.
_ _~ 1. Click on the `Weekly Time' button. The Weekly Time screen will display with the
latest week for which time has been entered.
• You can navigate to next and previous weeks in the month by clicking on the
`Week»' or `«Week' buttons.
• You can navigate to next and previous months by clicking on the `Month»' or
`«Nlonth'. You can also change months by entering a date in the `Set Month' field
and clicking the `Set Month' button. The format for this date is mm/yyyy.
• If you navigate to a month where no timesheet has been started, a message: "This
timesheet has not yet been created" will be displayed. To start a new timesheet for a
month, click on the `Create New Timesheet' button.
Rules for Entering Weekly Time ``-
When a new timesheet is created, the Fund, Activity, RCC, and work codes used in
the previous month are carried forward. You are not required to remove these codes
if they are not needed. Enter a valid Fund, Activity, RCC, and Leave (work} code for
each work or leave row needed for time entry. If additional rows are needed, enter
the number of additional rows needed and click the `Add Rows' button. Note: the
system will automatically create a row for holiday leave for months containing
holidays. The Fund, Activity, and RCC code must be entered for rows with a holiday
leave code even if the holiday does not occur during the week you are entering.
Time should be entered as hours and minutes separated by a colon. Example: an hour
and a half would be entered as 1:30. Full time employees must enter time in half-
hour increments. Part-time employees can enter any number of minutes.
Leave time should not be entered which when combined with work time will cause
total hours to exceed an employee's base period. Most full time employees have a
base period of 40 hours per week while some full time employees have a base period
of 80 hours over a two-week period. Part-time employees' base period is determined
by their work percentage of full time. Apart-time employee who works half time
would have a base period of 20 hours.
Example for full time employee:
You enter 8 hours vacation on Monday. You enter 9 hours work for each
remaining day of the week. When you save the time entries, you will receive an
error message stating that leave is not required. You should reduce the vacation
hours for Monday to 4, which will reduce total hours for the week to 40. Save the
time entries again and the error is corrected.
Weekly time entries must be saved prior to navigating to another screen or closing
the system. Save time entries by clicking on the `Save Week' button.
The `Recalculate' button can be used to re-edit weekly time without saving.

Navigating the System
Movement from screen to screen in TLAS is accomplished by clicking on the navigation
buttons located on the left side of the screen. You should not navigate by using the
`Back' or `Forward' buttons provided by your browser.
Buttons located at the bottom of the screen are used for saving time entry or changing
time periods.
TLAS Functions
Log in -Returns to the.Log In screen.
Password -This function is used to change your password. Passwords must be changed
at intervals as determined by Division policy. You will be automatically notified when it
is time for a change in your password. You can change your-password at any'tim
1. Click the `Password' button. The Change Password screen will display ,.
2. EnteL your old password, your new password, re-enter your new password and click
the `Change' button. If there are errors, they will be displayed at the top of the
screen. If there are no errors, your password will be changed and the Weekly Time
screen will display.
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timesheet for this month has not yet b
• If the system has determined that there arec tilnn sThe ~~~ et °~n ~ be submitted to
displayed in a message box at the top of
your supervisor if;there are errors. You u w~ us~uall se then Weekly T'meonly
_ warning messages. To correct errors, yo Y
function. You should review for acc ~ k on the eSubmit~Tlmesheete button. If there
2. To' submit timesheet to supervisor, c
are no errors, the timesheet status displayed at top of screen will change to
of our monthly timesheet can be printed from the
printing Your Timesheet - A copy y A
`Submit Month' screen. The pnnting of timeshe..ts requires that Adobe~Reader software
on the Adobe Acrobat Reader link can
be installed on your computer. Clicking
download a free copy ofthe software or your LAN manager can install the software..If
the Adobe Reader has been installed, click on the Downlaadthe~mehheetlt You cans Pmt
process can take a few seconds toAdo e ~Sader will d sp y
from this screen or save the f Y
6
`Submitted to Supervisor'.
3. The timesheet can be unsubmitted top ~ esheet sotatu wille hange when approved
remains `Submitted to Supervisor .
by your supervisor. To unsubrait, click on the "I,jnsubmit Timesheet" button.

Navigating the System
Movement from screen to screen in TLAS is accomplished by clicking on the navigation
buttons located on the left side of the screen. You should not navigate by using the
_ _, `Back' or `Forward' buttons provided by your browser.
Buttons located at the bottom of the screen are used for saving time entry or changing
time periods.
TLAS Functions
Log in -Returns to the Log In screen.
Password -This function is used to change your password. Passwords must be changed
at intervals as determined by Division policy. You will be automatically notified when it
is time for a change in your password. You can change your password at any time°~ .d
1. Click the `Password' button. The Change Password screen will display ~ -~
?. Enter your old password, your new password, re-enter your new password and click
the `Change' button. If there are errors, they will be displayed at the top of the-
screen. If there are no errors, your password will be chanced and the Weekly Time

RESPONSES TO PETITIONER'S MOTION FOR SUMMARY JUDGMENT
On page 13, referring to the consequences of the reduction of average flow during the
filling stage of the reservoir as "may be dire" is not supported by facts. Although the
average flow will be reduced during this time, water quality standards are designed to
provide protection at the low flows expected to occur during aten-year period.
Therefore, the reduction in average flows, not to be reduced below the seven-day, ten-
yearflow projections, should not trigger violations of water quality standards.
On page 17, citing the "Orange Water and Sewer Authority" case where the judge rules
that the EMC "should have had before it a final environmental impact statement before
rendering its decision." is not appropriate. It is acknowledged that this "state" action did
need an EIS prepared to comply with SEPA. However, since the Department of
Administration's rules were amended approximately five years later (T01:25 .0402) to
enable the use of documents prepared under the National Environmental Policy Act to
constitute compliance with SEPA, citing this case is not appropriate.
On page 22 -The Nutrient Reduction Strategy and Implementation Plan references a
"goal of less than 5 percent of days with chlorophyll a concentrations greater than 40
ug/1". This "goal" is not a state standard but was suggested by the consulting firm that
prepared the document. The chlorophyl a standard in the Environmental Management
Commission's rules does not specify any specific allowances for exceedances.
Page 23, last paragraph. Brief states that the modeling may underestimate current
nutrient loading since it relies on 1989 land use data to estimate current conditions. First
of all, the 1989 land use data was only a minor element used in the future land use
projections but most importantly, the strategies that were developed by the Division and
the EMC focused on an evaluation of projected FUTURE conditions (seep 7-8 of the
Report of Proceedings). Projections of future land use were based on an assessment of
likely growth through the year 2025, relying on estimates from a regional transportation
study, as well as data on soils and site suitability, land use regulations, population growth,
planned sewer line extensions and other factors.
On page 24, the statement that: "Thus, it is virtually certain that violations that are
predicted to occur will be even more serious than has been estimated" is totally in error.
The statement is based on the High Point Eastside WWTP meeting limits met in the past.
The new permit will be issued with limits of 0.5 mg/1 phosphorus and the discharger will
be required to demonstrate that it can meet those limits before expansion approval will be
given.
On page 25, The petitioner claims that the DWQ permit "does not contain any limit for
total phosphorus" as was recommended by the Commission. The Commission's

recommendation was that the 0.5 mg/l limits would be applied before any expansion was
allowed, not on the existing permit. The proposed new permit, now under consideration,
does contain requirements for that limitation of phosphorus.
On page 26, The Petitioner's position about what is needed to protect the water quality is
based on models and implementation actions that were later modified. For example, the
petitioner relies on the modeling in the "Draft Nutrient Reduction Strategy" which
included a discharge into the sensitive Segment 1 of the lake which is not part of the final
Commission strategy. The continued reference to these modeling results, even though
the Petitioner recognized that the final recommendations of the Commission did not
include a discharge into Segment 1 of the lake is misleading.
On page 30 -The contention that the PTRWA did not submit an application according to
the State's rules is false. The PTRWA did submit an application to the U5 Army Corps
of Engineers on July 8, 1991 on adual-agency form used by the Corps and the
Department. Appropriate maps were also included in that submittal. The standard
language in the individual permit public notice from the Corps of Engineers states "The
application and this public notice for the Department of the Army DA permit serves as
application to the NCDWQ for certification." The Commission's rules in 15A NCAC 2H
.0503 (c) provide that one public notice will satisfy the requirements of both the 404
permit and the 401 certification and note in 15A NCAC 2H .0502(g) that the application
form for the 401 permit can be obtained from the Division of Water Quality or the U.S.
Army Corps of Engineers.
On page 32, the fact that the Division of Water Quality was coached on how to respond
to a potentially confusing issue cannot be construed to mean that the "respondent knew
that section s of the public had not been afforded adequate opportunities for comment."
Ample opportunity was given to comment at a public meeting and to prepare written
comments and a substantial effort was made to notify every person that had any previous
involvement with the Randleman issue of the public hearing.
Bottom of p 28 and top of p 29-notes that predictions were based on average flow
conditions and cites statements by the Department in another court case that low flows
rather than average flows should be used to determine water quality impacts. In some
cases, such as modeling for dissolved oxygen concentration below a wastewater
treatment plant, it is true that low-flow modeling should be applied. However, this is not
true for all situations. In particular, it is well known that where pollutants carried by
runoff are of concern, loading may be greater during higher flows. In looking at
eutrophication potential for a reservoir, the storm-related runoff is very important to
predicting the quality of the water and low-flow modeling would not include these
contributions.

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hIICI tAEL F. F_ASLEI'
.1 T-1'ORNE\' GENERAI.
Demian Schane
"Perris, Pravlik & Millian
1 121 12th Street, N.W.
Washington, D.C. 20005
8, 1999
i
Reply to:
Kathryn Jones Cooper
Environmental Division
Tel: [phone]
fax: [phone]
Viu Federal L:rpress
Re: Deep River Citizens Coalition, et al. v. NCDENR,
99,EHR 0560 anr10613, Randolph County
Dear Demian:
Enclosed please find Respondent's Response to Petitioners' First Set of Requests for
Production of Documents and the documents requested. We are only providing one set of
documents to the Petitioners, in four large notebooks. If that presents a problem for Marsh
Smith, he can come up to our offices to review any of the documents. We have provided an
Index to these documents to assist you with determining what the documents are and will also
provide a copy of this index to Marsh. To the best of my knowledge, these are all of the
documents in DENR's tiles concerning the March 1 I, 1999 401 Water Quality Certification
issuance to the Piedmont Triad Regional Water Authority for the Randleman Dam/Lake project.
If you have any questions, please call me at [phone].
Sincerely,
Kathry .1 es Cooper
Special puty Attorney General
KJC/klj
Enclosure..-~
cc: , Sohn Dorney (letter, response and index only)
Boyd DeVane (letter, response and index only)
Marsh Smith, Csq. (letter, respimse and index only)
wp 33R~33-I
State of North Carolina
UcCY~rtrnent Of Justice
I'. O. f~OX (i2S)
f2;ALEIGFi
"d7(iO:.~ O62c)
F~%'

STATE OF NORTH CAROLINA
COUNTY OF RANDOLPH
DEEP RIVER CITIZENS COALITION,
and AMERICAN CANOE ASSOCIATION,
Petitioners,
v.
N. C. DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES,
Respondent.
~ ~Y'HE OFFICE OF
,,;~a~o TTVE HEARINGS
~;~' ~~` ~
~~
1
99 EHR 0560
THE DEEP RIVER COALITION, INC.,
Petitioner,
v.
99 EHR 0613
N. C. DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES,
Respondent.
RESPONDENT'S RESPONSE TO PETITIONERS' FIRST
SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS
TO: Demian A. Schane
Bruce J. Terris
Carolyn Smith Pravlik
Terris, Pravlik & Millian, LLP
1121 12th Street, N.W.
Washington, D.C. 20005
Marsh Smith
Cunningham, Dedmond, Petersen & Smith, LLP
225 North Bennett Street
Southern Pines, NC 28388

2
Respondent, North Carolina Department of Environment and Natural Resources,
responding to Petitioners' First Set of Requests for Production of Documents, says:
PTRWA's July 10, 1997, application for the 401 Certification.
RESPONSE: This document, which is actually the "Randleman Lake Guilford and
Randolph Counties, North Carolina Section 404 Public Notice and Notice of Availability of the
Draft Environmental Impact Statement," is found at Tab 95 in Notebook #3. This notice, that the
Piedmont Triad Regional Water Authority has applied fora 404 permit, is the trigger for 401
Water Quality Certification review under North Carolina law and there i$n't a separate
"application'' as such. The Draft Environmental Impact Statement and the Appendices are found
at Tabs 98 and 99, respectively.
2. All documents relating to or concerning respondent's decision to issue the 401
Certification.
RESPONSE: The documents requested are found in Notebooks #1 through #4.
3. All documents upon which respondent relied in deciding to issue the 401
Certification.
RESPONSE: The documents requested are found in Notebooks #1 through #4.
4. The September 25, 1998, letter from the Division of Water Quality to )~TRWA
that is referenced on page 2 of the 401 Certification.
RESPONSE: The document requested is found at Tab 18 in Notebook #1.

This the 8th day of July, 1999.
MICHAEL F. EASLEY
Attorney Gene al
By
athryn J n Coope
State Bar No. 12178
Special Deputy Attorney General
N.C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
[phone] ,

~l
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing RESPONDENT'S RESPONSE TO
PETITIONERS' FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS has
been served on the attorneys of record for the Petitioners in this consolidated contested case by
depositing copies of the same in an official depository of the United States Ivtail, first class, postage
prepaid, and addressed to Petitioners' counsel of record, as follows:
Demian A. Schane
Bruce J. Terris
Carolyn Smith Pravlik
Terris, Pravlik & Millian, LLP
1121 12th Street, N.W.
Washington, D.C. 2000
Marsh Smith
Cunningham, Dedmond, Petersen & Smith, LLP
225 North Bennett Street
Southern Pines, NC 28388
This the ~ day of , 1999
IvIICHAEL F. EASLEY
Attorney General
B y ~i
Kathryn one Cooper
State Bar Iv .12178
Special Deputy Attorney General
N.C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
[phone]
wp 33846-1

f.
INDEX
Documents Produced in ~esp nse to ~((ll''
Petitioners' First Request for Production c~'~o~u~neri'ts
Deep River Citizens Coalition, et a~ ~ ~}
99 EHR 0560 and 99 EHR 0613, lean`
NOTEBOOK..#1
Tab Date Document Page
1 03/11/99 Letter from Preston Howard to John Kime, 1
Piedmont Triad [Regional] Water Authority
(PTRWA) attaching 401 Water Quality
Certification
2 03/10/99 Letter from Preston Howard to Alan Horton 7
re: Request for Public Hearing on 401
Issuance. Attachments: Letter from Jonathan
B. Butcher to Donald Cordell, re: Risk to
Randleman Lake from Seaboard/Riverdale
Landfill Site (Dated 2/25/99); and Memo from
Bill Meyer to Coleen Sullins, re: Remediation
Plans at Landfill Sites. (Received 3/4/99)
3 03/04/99 E-Mails - -Coleen Sullins to John Dorney, et 19
al.; John Dorney to Jennifer Gaddis
4 02/24/99 Final Rules - -Randleman Lake Watersupply 21
Watershed Protection Rules (] SA NCAC
2B.0248 through 2B.0251) and Assignment of
Stream Classifications for the Cape Fear River
Basin (2B.0311)
~ 02/24/99 Handwritten Notes of John Dorney re: 29
meeting between Dorney and Boyd DeVane
concerning Randleman Rules and Randleman
401
6 01/28/99 Memo from Boyd DeVane to Larry Coble re: 33
Randleman Document[s] (Attachments to this
memo found at Tab S)

Tab Date Document Page
7 O1 /21 /99 E-mails - -Alan Horton to Bill Holman; Bill 35
Holman to Alan Holman (dated 1/22/99); Bill
Holman to Preston Howard, et al., (dated
1/22/99); Preston Howard to Bill Holman, et
al. (dated 1/25/99)
S 01/25/99 Letter from Preston Howard to Wayne 39
Wright, Army Corps of Engineers (COE) Re:
reclassification of Deep River; Randleman
Lake Reclassification Strategy; Draft
Summary of DEIS Comments and Responses
Randleman Lake, December 1998, revised
December 14, 1998, Revised 1 /20/99
(attached)
9 01./18/99 Memo from John Dorney through Coleen 339
Sullins and Dennis Ramsey to Preston Howard
re: Alan Norton's Request for Public Hearing
(Attachment to this memo found at Tab 64)
10 01/13/99 E-mails - -Alan Horton to Boyd DeVane; 341
Boyd DeVane to Alan Horton; John Dorney to
Boyd DeVane, et al.
11 01/08/99 Rules -- Version of Randleman Reservoir 245
Protection Rules adopted by the
Environmental Management Commission
(EMC) on 11/12/98
12 01/04/99 Memo from Boyd DeVane to John Dorney re: 361
and attaching Draft Summary of DEIS
Comments and Responses Randleman Lake,
December 1998
13 12/11/99 Letter from Rebecca Smothers, City of High 671
Point to Dr. David Moreau, Chairman, EMC
and Wayne McDevitt, Sec. DENR Re:
Randleman Rules and resolving issues
involving the High Point Eastside Wastewater
Treatment Plant

Tab Date Document Page
14 12/10/98 Memo from Dedra Alston to Boyd DeVane re: 675
Request for Technical Changes [to Randleman
Rules] from Rules Review Commission
15 11/12/98 Agenda for Called Meeting of the EMC; 679
Action Item 980060 -Hearing Officers'
Report on the Proposed Reclassification of a
Portion of the Deep River (Randleman
Reservoir) and tributaries to Classes WS
(Water Supply) - IV and WS-IV CA
(Critical Area) [see Tab 19 for the full
report]; attached Explanation of Agenda
Items; and 11/3/98 Notice to Sec. of State re:
meeting
16 11/12/98 Handwritten notes of John Dorney re: EMC 703
meeting
17 10/01 /98 E-mail from James Ronald (Ron) Linville to 705
Pete Colwell Re: PTWRA Mitigation Plan
17A 09/30/98 Eutrophication Modeling for the 705A-1
Randleman Lake Project, Final Report
submitted to NCDENR, DWQ, by Research
Triangle Institute
18 09/25/98 Letter from John Dorney to Andrea Spangler, 707
PTRWA and Dr. Gerald McCrain, EcoScience
Corporation, re: Randleman Lake
Compensatory Mitigation Proposal
19 09/01/98 Report of Proceedings, Proposed 711
Reclassification of Segments of the Deep
River (Proposed Randleman Reservoir), Public
Hearing, Jamestown, NC
20 07/30/98 Fiscal Analysis Summary for Randleman 1221
Lake Water Supply Watershed Water Quality
Management Strategy

NOTEBOOK #2b
Tab Date Document Page
21 07/24/98 Public Hearing Information Package for the 1225
Randleman Lake Watershed Management
Strategy
22 07/20/98 Letter from John Dorney to Andrea Spangler, 1257
PTRWA and Dr. Gerald McCrain, EcoScience
Corporation, re: Randleman Lake
Compensatory Mitigation Proposal;
Attachment: Potential Mitigation Site
Locations, Randleman Dam Mitigation Site
Search,
Guilford & Randolph Counties, NC (dated
July 1998)
23 07/15/98 Impact Certification and OSBM Fiscal Note 1273
24 07/14/98 E-mail -- Ron Linville to Pete Colwell, et al., 1277
Re: DOT Meeting
25 07/14/98 Memo from Boyd DeVane to Joan Weld, 1279
Executive Assistant, Office of the Governor
Re: Proposed Rule Amendment ... (Proposed
Reclassification of the Deep River -
Randleman Reservoir as a WS-IV Water
Supply and Adoption of Rules to Implement a
Nutrient Strategy)
26 07/13/98 Fiscal Analysis for Proposed Randleman 1295
Water Supply Watershed Management
Strategy
27 07/09/98 Letter from John M. Hefner, USFWS to 1401
Reginald Sutton concerning USFWS concerns
and reservations re: proposed High Point
Eastside Wastewater Treatment Plant proposed
expansion
28 07/08/98 Handwritten notes of John Dorney re: 1405
Randleman mitigation site visitation

Tab Date Document Page
29 07/07/98 Memo from Liz Kovasckitz to John Kime re: 1411
Randleman Reservoir Nutrient Management
Strategy Fiscal Analysis
30 06/30/98 E-mail from John Dorney to Lin Xu re: 1433
Comments on Randleman Riparian Area
Protection rules
31 06/29/98 Eutrophication Modeling for the 1435
Randleman Lake Project, Preliminary Draft
Report
32 06/04/98 Letter from Pete Colwell to Andrea Spangler, 1467
PTRWA re: Randleman Lake Compensatory
Mitigation Proposal
33 06/04/98 Randleman Reservoir Workshop, Summary 1469
of Comments Received at the Information
Exchange Workshop, Jamestown, NC;
Attachments: Announcement of Public
Meeting, Announcement of Information
Exchange
34 06/03/98 Memo from Allen Wahab to Coleen Sullins 1491
re: Randleman Reservoir, High Point Eastside
W WTP
35 05/27/98 Memo from Andrea Spangler to Pete Colwell, 1499
et al. Re: June 3, 1998 wetland mitigation site
visit
36 05/18/98 Memo from Jerry McCrain to John Dorney, et 1501
al. re: mitigation acreage, Randleman
Reservoir Mitigation Sites
37 05/11/98 Handwritten notes of John Dorney re: 1505
contracting with RTI to develop modeling for
WQ nutrient loading [in Randleman lake]
38 05/06/98 Letter from Andrea Spangler to John Dorney 1507
re: Randleman Lake Potential Mitigation Sites

Tab Date Document Page
39 04/24/98 Letter from John Dorney to Andrea Spangler, 1511
PTRWA and Dr. Gerald McCrain, EcoScience
Corporation, re: Randleman Lake
Compensatory Mitigation Proposal
40 04/16/98 Handwritten notes of John Dorney re: 1515
Randleman wetland site visitation;
Attachment: Randleman Reservoir Mitigation
Areas
41 03/26/98 Water Quality Monitoring Data for Waters 1527
in the Upper Deep River Area May 5, 1997 -
September 3, 1997, NCDWQ, Water Quality
Section, Environmental Sciences Branch
42 03/25/98 Memo from Coleen Sullins to EMC Water 1573
Quality Committee re: Randleman Reservoir
Reclassification
43 03/02/98 E-mail from John Dorney to Preston Howard, 1583
et al. Re: Randleman Reservoir meeting
44 03/02/98 Handwritten notes from John Dorney re: 1585
Randleman Reservoir meeting
45 03/98 Draft Nutrient Reduction Strategy and 1587
Implementation Plan for Randleman Lake,
Hazen and Sawyer
46 03/03/98 EHNR APA Draft Rule to Assistant 1839
Secretary for Administration Cover Sheet
for Proposed Water Supply Reclassification
and Water Quality Management Strategy and
Water Quality Management Plan; 101
Attachment
47 03/01/98 Draft Randleman Reservoir Rulemaking 1842
Schedule
48 02/25/98 Handwritten notes of John Dorney re: 1844
Randleman meeting
49 02/25/98 Seaboard Chemical Corp. & Riverdale 1846
Drive Landfill Tables and Map

Tab Date Document Page
50 02/25/98 Classification Issues and Comments 1852
Received from Staff Review
51 02/25/98 Review of Randleman Lake Modeling 1864
Reports and Draft Nutrient Reduction
Strategy, Modeling/TMDL Unit
52 02/24/98 Memo from Jason Doll through Ruth Swanek 1872
to Boyd DeVane re: Draft Nutrient Reduction
Strategy, Proposed Randleman Reservoir,
PTRWA (February, 1998)
53 02/23/98 Memo from Steve Zoufaly through Boyd 1878
DeVane to Greg Thorpe re: Comments on
Proposed Randleman Reservoir Water Quality
Management Plan
54 02/23/98 Memo from Bradley Bennett to Boyd DeVane 1886
55 02/20/98 Memo from Ron Linville to Larry Coble, et 1888
al., re: Review of Randleman Lake Nutrient
Reduction Strategy and Implementation Plan
Draft, (For DWQ Internal Review Only)
56 02/19/98 Memo from John Dorney to Boyd DeVane re: 1894
Review of Draft report on Nutrient
Management Strategy and Implementation
Plan -- Randleman Lake
57 02/17/98 Memo from Corey Basinger through Steve 1898
Mauney to Larry Coble re: Comment -
Randleman Lake Nutrient Reduction Strategy
& Implementation Plan 2/98 Draft
58 02/11/98 Randleman Briefing Notes, N.C. DWQ 1902
59 02/98 Draft Nutrient Reduction Strategy and 1906
Implementation Plan for Randleman Lake,
Hazen and Sawyer

Tab Date Document Page
60 01/20/98 Memo from Owen Anderson, NC Wildlife 2100
Resources Commission to Reginald Sutton
concerning 201 Plan and Environmental
Assessment for the Eastside Wastewater
Treatment Plant Expansion and Upgrade
NOTEBOOK #3~
Tab Date Document Page
61 12/19/97 Memo from Preston Howard to Melba McGee 2102
re: Comments on DENR#874; DWQ#11763,
PTRWA Randleman Water Treatment Plant
EA, Randolph County
62 11/25/97 Memo from John Kime, PTRWA to Preston 2106
Howard, et al. re: request to place Randleman
Lake watershed reclassification on the
12/10/97 agenda of the EMC Water Quality
Committee
63 11/15/97 Letter from Alan M. Horton to John Dorney 2108
re: Randleman Lake 401 Water Quality
Certificate, request for public hearing
64 11/15/97 Handwritten notes of John Dorney re: 2114
Randleman Dam meeting
65 11/14/97 Letter from Wayne Wright, COE, to Melba 2116
McGee re: Randleman Lake Meeting
66 10/15/97 Memo from Melba McGee to Chrys Baggett, 2126
State Clearinghouse, re: 98-0134 Scoping
PTRWA, Transmission Mains, Guilford and
Randolph Counties (Attachments: Tabs 68, 69,
71, 74, 76, 86, 88, 128)

Tab Date Document Page
67 ] 0/13/97 Memo from Michelle Suverkrubbe through 2128
Coleen Sullins to Melba McGee re: Comments
on SCH#98-0134; DWQ #11742, PTRWA -
Randleman Water Mains and Facilities - EA
Scoping, Randolph and Guilford Counties
68 10/10/97 Memo from Owen Anderson, NC Wildlife 2130
Resources Commission to Melba McGee,
Scoping for Environmental Assessment for
PTRWA, Transmissions, Guilford and
Randolph Counties, NC, 98-0134
69 10/06/97 Letter from Phyllis Harris, Regional Counsel 2136
and Director, Environmental Accountability
Division, US EPA, to Col. Terry Youngbluth,
COE, re: Draft Environmental Impact
Statement on Randleman Lake, Gilford (sic)
and Randolph Counties, NC, June 1997
70 10/03/97 Memo from Michelle Suverkrubbe through 2162
Coleen Sullins to Melba McGee re:
Clarification on Comments on SCH#98-0029;
DWQ #11686, PTRWA, Randleman Lake
DEIS, Randolph and Guilford Counties
71 10/02/97 Memo from Melba McGee to Chrys Baggett, 2170
State Clearinghouse, re: 98-0029 DEIS for
Randleman Lake Guilford and Randolph
Counties
72 10/01/97 Memo from Owen Anderson, NC Wildlife 2174
Resources Commission to Melba McGee,
Draft Environmental Impact Statement (DEIS)
for Randleman Lake, Guilford and Randolph
Counties, NC, 98-0029
73 09/30/97 Memo from Michelle Suverkrubbe through 2180
Preston Howard to Melba McGee re:
Comments on SCH#98-0029; DWQ #11686,
PTRWA, Randleman Lake DEIS, Randolph
and Guilford Counties

Tab Date Document Page
74 09/18/97 Memo from John Sutherland, Division of 2188
Water Resources, to Melba McGee, re:
Randleman Lake Draft EIS
75 09/12/97 Memo from Michael Kelly, Division of Waste 2190
Management, to Melba McGee, re: Project
Number: 98-0134, Randolph County
(Attachments: 9/11/97 Memo from Philip
Prete, Solid Waste Section; 8/21/97 Memo
from Joseph H. Deakins, Hazardous Waste
Section; 8/20/97 Memo from S. Franch,
Superfund Section)
76 09/12/97 Memo from Steve Zoufaly to Michelle 2204
Suverkrubbe re: Environmental Review, #874
- Randleman Water Treatment Plant EA -
Guilford and Randolph Counties
77 09/10/97 Handwritten notes of John Dorney re: 2208
Randleman Site visits
78 09/09/97 Handwritten notes of John Dorney re: High 2210
Point/Randleman meeting
79 09/05/97 Handwritten notes of John Dorney re: High 2212
Point/Randleman meeting
80 09/04/97 Letter from Charles Powell to Peter Coldwell 2216
(sic) Re: PTRWA, Randleman Reservoir,
Wetland Impact Mitigation
81 08/26/97 Memo from Bill Meyer, Director, Division of 2220
Waste Management, to Melba McGee re: June
1997 Draft Environmental Impact Statement
for Randleman Lake, Guilford and Randolph
Counties, NC (EIS)
82 08/26/97 Memo from Jason Doll through Ruth Swanek, 2224
et al., to Michelle Suverkrubbe, re: Draft
Environmental Impact Statement, Proposed
Randleman Reservoir, U.S. Army Corps of
Engineers (June 1997)
10

Tab Date Document Page
83 08/20/97 Letter from John Dorney to John Kime, 2226
PTRWA re: 401 Water Quality Certification,
Randleman Reservoir, Guilford and Randolph
Counties, DWQ #97-0022, COE #199102669
(Attachment: EPA Guidance on Wetlands and
401 Certification)
84 08/19/97 Letter from Peter Colwell to Andrea Spangler, 2248
PTRWA, re: proposed wetland mitigation for
the Randleman Lake project
85 08/19/97 Memo from David Harrison to Melba McGee 2254
re: PTRWA Water transmission Mains and
Associated Facilities, Randolph County, NC
86 08/18/97 Memo from Ron Linville to Michelle 2258
Suverkrubbe re: Comments on Randleman
Lake Draft EIS
87 08/18/97 Memo from Don Robbins, Staff Forester, to 2260
Melba McGee re: EA Scoping for PTRWA
Water Transmission Mains and Associated
Facilities in Conjunction with Randleman
Lake Project in Randolph County
88 08/14/97 Handwritten notes of John Dorney re: 2266
Randleman meeting
89 8/13/97 Memo from Michelle Suverkrubbe to 2268
Interested DWQ Staff re: Draft Randleman
History
90 08/11/97 Memo from Lee Spencer, Public Water 2292
Supply Section, to Melba McGee, re: Project
No. 98-0029 -Proposed Randleman Lake,
Randolph County
91 08/08/97 Memo from Jimmie Overton to Michelle 2302
Suverkrubbe re: Comments on the Randleman
Lake Draft Environmental Impact Statement
11

Tab Date Document Page
92 08/07/97 Letter from Glen Simpson, Soil Scientist, to 2316
Eddie MacEldowney, re: Soil Evaluations of
Proposed Wetland Sites, Randleman Dam
Project
93 08/07/97 Memo from Don Robbins, Staff Forester, to 2328
Melba McGee re: USACE Draft EIS for
Proposed Randleman Lake in Guilford and
Randolph Counties, NC (PTRWA); Project #'s
98-0029, 92-0518 and 91-0487
94 07/21/97 Handwritten notes of John Dorney re: 2332
Randleman Lake Draft EIS, June 1997
95 07/10/97 Randleman Lake Guilford and Randolph 2336
Counties, North Carolina Section 404
Public Notice and Notice of Availability of
the Draft Environmental Impact Statement
96 07/09/97 Memo from Stephen Hall to Melba McGee re: 2344
DEIS -- Randleman Lake
97 07/08/97 Summary of High Point Meeting on 7/7/97 2348
98 06/97 Draft Environmental Impact Statement, 2356
Randleman Lake, Guilford and Randolph
Counties, North Carolina, US Army Corps
of Engineers, Wilmington District
99 06/97 Draft Environmental Impact Statement 2610
Appendices, Randleman Lake, Guilford
and Randolph Counties, North Carolina,
US Army Corps of Engineers, Wilmington
District
100 06/23/97 Letter from Brent McDonald to Andrea 2944
Spangler, PTRWA, re: Watershed protection
for proposed Randleman reservoir
101 05/27/97 Randleman Reservoir Loading Scenarios 2950
12

Tab Date Document Page
102 05/22/97 Advisory Memorandum from Francis 2952
Crawley, Special Deputy Attorney General, to
Steve Zoufaly, re: Reclassification of
Waterbody Based upon Standards
103 05/19/97 Letter from Peter Colwell to John Kime, 2958
PTRWA, re: Proposed Randleman Reservoir
Mitigation Sites
104 05/09/97 Letter from Wayne Wright, COE, to John 2962
Kime, PTRWA re: mitigation
105 05/09/97 Letter from Ron Linville to Randy McNeill 2968
re: City of High Point, Eastside Wastewater
Treatment Plant, Expansion and Upgrade,
Guilford County
106 05/06/97 Piedmont Triad Regional Water Authority 2972
Preliminary Design Guidelines and
Information for Constructed/Enhanced
Wetlands
107 04/10/97 Memo from Pete Colwell through John 2986
Dorney to Randleman Reservoir File re:
Mitigation sites
108 03/21/97 Memo from Brent McDonald to Andrea ,2990
Spangler, PTRWA, re: Local governments'
water supply watershed protection ordinance
revisions near proposed Randleman reservoir
109 03/21/97 Memo from Steve Zoufaly to Jimmie Overton 2992
re: Deep River Use Attainability Study
Request (Cape Fear River Basin)
110 02/27/97 E-mail from Ron Linville to Pete [Colwell) re: 2998
Randleman Lake/Landfill Mitigation
111 02/24/97 Handwritten notes of John Dorney, et al., re: 3000
Randleman Dam meeting
112 02/23/97 Handwritten notes of John Dorney re: 3006
Randleman Dam meeting attendees
13

Tab Date Document Page
113 02/21/97 Handwritten notes of John Dorney., re: 3008
Randleman Dam meeting
114 02/20/97 E-mail from Ron Linville to Phillip Todd re: 3011
B&B (Moose Lodge) and Associated Landfills
115 02/11/97 Letter from Donald Knorr to Aldridge Renn 3013
re: Water Classification
116 O 1 /24/97 Letter from Steve Tedder, [former] Chief, 3019
Water Quality Section, to John Kime,
PTRWA, re: Wetland mitigation and
stormwater management plans, Proposed
Randleman Reservoir, Randolph County
117 01/09/97 Handwritten notes of John Dorney re: 3025
Randleman
11.8 O 1 /09/97 Letter to Preston Howard from John Kime re: 3027
proposed reclassification of Deep River
119 11 /25/96 Handwritten notes of John Dorney re: 3031
Randleman
120 11/15/96 Handwritten notes of John Dorney re: 3033
Randleman meeting
121 10/29/96 Handwritten notes of John Dorney re: 3035
Randleman dam meeting
122 10/22/96 Handwritten notes of John Dorney re: Cone's 3037
Folly site meeting
123 10/15/96 Memo from John Dorney to John Kime, et al., 3039
re: meeting to discuss Randleman Reservoir
mitigation needs, Davidson County
(Attachment: 7/21/96 letter from Steve Tedder
to John Kime)
124 08/19/96 Letter from Randy L. McNeill to Alan Clark, 3044
Basinwide Planning Group, DENR, re: City of
High Point, NC, Eastside WWTP Expansion,
Environmental Assessment, Job No. E-1971
(BF) (Attachment: EA)
14

NOTEBOOK #4
Tab Date Document Page
125 06/05/96 Letter from Steven Kroeger to Drs. Doug 3420
Frederick and Russ Lea, Triangle Wetland
Consultants, re: Wetland and Habitat
Mitigation
126 12/06/95 Handwritten notes of John Dorney re: 3426
Randleman Lake mitigation meeting
127 10/6/95 Memo from John Dorney to Wetland 3428
consultants and municipalities re:
Modification to Certification for Nationwide
Permit 12 -Utility lines
128 07/10/95 Draft Wetland Mitigation Plan for 3444
Randleman Lake, Randolph and Guilford
Counties, North Carolina, prepared for
Piedmont Triad Regional Water Authority by
Triangle Wetland Consultants, Inc.
129 03/08/95 Handwritten notes of John Dorney re: Water 3540
Quality Committee meeting
130 03/03/95 Randleman Lake, Overview of 401 3546
Certification Issues
131 03/95 Water Quality and Predictive Modeling 3548
Studies on the Proposed Randleman
Reservoir, High Point, NC, by Patrick
Brezonik, Dept. of Civil Engineering,
University of Minnesota, for the PTRWA
132 02/28/95 Handwritten notes of John Dorney re: 3578
Randleman Lake potential issues
133 01/30/95 Handwritten notes of John Dorney re: 3580
Randleman Lake potential issues
134 10/1 l /94 Handwritten notes of John Dorney re: 3582
Randleman Lake /Dam
15

Tab Date Document Page
135 09/28/94 Water Quality Monitoring Data for Waters 3584
in the Upper Deep River Area, July 28-1992
- October 7, 1993
136 04/94 Randleman Lake 1994 Update to 3658
Environmental Impact Statement, prepared
for the PTRWA by Black and Veatch
137 03/02/93 Memo from Kurt Trumbower through Jimmie 3692
Overton and Jay Sauber to Ken Eagleson re:
Status of Randleman Lake Monitoring
138 02/21/92 Environmental Management Commission 3694
Corrected Certificate Authorizing the
Piedmont Triad Regional Water Authority
to Use the Power of Eminent Domain and to
Divert Water from One River to Another
Under G.S. 162A-7 and 153A-285.
139 12/21 /91 Minutes of the Meeting of the North Carolina 3714
Environmental Management Commission,
Raleigh, NC
140 11/08/91 Memo from Don Robbins, Staff Forester, to 3756
Chrys Baggett - SCH -DOA, re: State
Clearinghouse Review of the FEIS for the
Proposed Randleman Lake Project
141 10/91 PTRWA G.S. 162A & 153A-285 Review 3758
Document and Final Environmental Impact
Statement, Randleman Lake, Randolph and
Gulford (sic) Counties, NC, State of NC,
Department of Environment, Health and
Natural Resources (Appendices C and D found
at Tabs 144 and 143, respectively)
142 10/91 Water Quality and Quantity Studies to 4250
Support Randleman Lake Environmental
Impact Statement (12/1/90) and Water
Supply Alternatives Assessment (9/91),
prepared for PTRWA, By Black and Veatch
(Appendices C and D to 10/91 FEIS)
143 12/28/90 Notice of Randleman Lake Public Hearing 4490
16

Tab Date Document Page
144 01/08/90 Memo from Kurt Trumbower through Jay 4494
Sauber and Jim Overton to Ken Eagleson re:
Sampling of the Deep River Adjacent to the
Seaboard Facility
H~p 337A1-1
Endnotes
a. Because the originals had many copying styles (i.e., some one-sided and some two-sided), we have put
numbers on both sides of every page to eliminate potential confusion. In addition, there were some pages
intentionally left blank in the originals and we left them blank in the copies, although we didn't have time to
indicate as such on each blank page. If you have a question about a blank page and think we left out a page, just let
Respondent's counsel know.
b. The back of page 1675 (which is blank) [see Tab 45] was skipped during numbering.
c. The back of page 3010 (which is blank) [see Tab ] 13] was skipped during numbering. In addition, the last
page in Notebook #3 is page 3186 [see Tab 124] and the first page of Notebook #4 starts at page 3420 [see Tab
125]. We miscalculated the number of pages in Notebook #3 as we were trying to get these documents paginated,
so there are no documents from pages 3 ] 87 to 3419.
17

WATER & LAND SECTION Fax ~ 919-716-6766 Rug 2 ' 99 12 48 P. 01
'M
-~Yw~1
State of North Carolina
MICHAHL F. EASLEY DE~81ttITlCflt t7{ ~U9tICC
A'P11 >FtNKY OL'NGRAL ~ ~ P. O. BOX ~~~
f~ALEIGH
- 3$60a-UtC29
FAX TRANSMISSION
~NVIF20lVMENTAL DIVISION
91 ~716-6600
Fax: 9,19.718.8786
ATTORNBII-CLIENT
ANNI'Ji AT1'ORNI
NOT A PUBLIC Rl~CORD PUR;
To: Dan McLawhorn (Programmed)
Colleen Sullins (Pro~ammed)
Boyd Devine (7155637)
John Darvcy.(733-9959}
Faz f~:
From: Katluyn J. Cooper/Patricia Roger
Subject: Deep Citizens v DENR .
COMMENTS:
PRNILEGED DOCUMENT
iY WORK PRODUCT
~UANT TO N.C. GEN. STAT. §132-1.1
Date: August 2, 1999
Pages: 7 including this cover sheet.
` ,.~
+11'~

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 2 ' 99 12 48 P. 02
I~1 THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE.OF NORTH CARO~I,f~~, CA~~~' bF.RANDOLPHb~ ~
DEEP RIVER CIT12EN5 C0:~1;ITI.ON, ~ ~, ) ~
fi{•EO
OFFi~' ; u~ ""'~~°
Petitioners, AONINISTRr,.,,;: ~~ e~~ii?~~,5 ~~:~ c
-~.ov ~
v. )
_..•,
NORTH CAROLINA DEPARTMENT Of ~ ) Case No. 991~-IR OSbO ~
(consolidated vvttlf,99 EHR ~3)
ENVIRONMENT AND NATURAL RESOU1ZCIrS, )
' )
Respondent. )
,,. ~ )
ORDER
Upon consideration of Petitioners' Unppposed Motion to Rcsebedule the Hearing, it is
this ~3~ day of ~ 1999, ORDERED that the hearing will be held on
~t~~k o f_ct,~~ W tom,, 1999, in High Ppint, North Carolizia.
~ ~~ ~sr~, ~ ~t
Robert Itooscvelt Reilly Jr.
j Administrative Law Judge

WATER & LAND SECTION Fax~919-716-6766
A copy of the fore~~oing was mailed to:
Demian A Schane
Terris Pravlik & M~llian
1121 12`h Street N~i/
Washington DC 2005
Attorney for Petitioner
Mazsh Smith
Cunningham Dedmond Petersen
& Smith ~
225 North Bennett Street
Southern Pines NC 28388
Attorney for Petitioner. i
Kathryn Jones Cooper
Special Deputy Attorney General ,
NC Department of Justice '
PO Box 629
Raleigh NC 27602-0629
Attorney for Respondent -
This the ~~ of July,.1999. ~!
.: I
Aug 2 ' 99 12 49 P. 03
ce dtnitistra
'0 Dra er 27447
sleigh NC 27611-7447
19/733-2698
AX#: 919/733-3407

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 2 ' 99 12 49 P. 04
BBOO$S,;PIERC~, McLExnox, AVI~~H$EX & LEObt'Aa.A, L.T..P-
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130 FAY[TTGVILLE SfRCET MALL (276011 ~ YOOOREN~LYawxoz~z,~~
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F~CLIMILE fsis> •as.oaon
G=aelrsnoso. No~(~(~([ Cwxorzx.- Q~4zo
July; 30, 1999
Kathryn Cooper, Esquirq:
1`torth Cazolina Department of Justice.
Environmental Division
P. O. Box 629
Raleigh, l~torth Carolina ;27602 , i
Re: Randlcnaan Lake Water Suppl
Dear Kathy: I~
Enclosed is a draft of a suggested ~ttcr from the Division of Water Quality to the
appropriate office at Region N setting forth~the EMC's and the Division's ix-terpratation of the
chlorophyll a standard.
We believe this letter covers points of agreement we reached on July 19, 1999. Please
provide a copy to Dan McLawliom.,
Bill Ross will call you next week, to discuss this matter further.
Sincerely,
i
_~. ..,
George W. House
GWH/ lfw
Enclosure i '"") ,.~" ,~, .: ~ "` " P
~_. 1.~1
~ w ~I _,,,
~"
~,•1
i . - ~~ 2 1949 ~
~m;i~nr-je,,~l ~ivss:c~~

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 2 ' 99 1249 P. 05
[Mr. Heinz Mueller) or ~Mr. Mike McQee] or [other)
U.S. Environmental 1'rdtection Agency
Region 4
61 Forsyth Strcct
Atlanta, QA 30303-3104
Re: Randleman Lake Water Supply Watershed
Dear Mr. Mueller:
Recent questions from the (Warne of.officr] to the North Carolina Division of Water Quality
(NCDWQ) appear to be:based upon a misuri~ersianding rcgardinQ the proper interpretation of North
Carolina Fresh Surface Water Quality Standards for WS-N Waters, such as the standards applicable to
the waters of the proposed Randleman Lake Water Supply Watershed.
General Requirements for Class W51<V Vyaters
The general requirements for Class WS-IV waters are found in 15A NCAC 28.0216. The Best
Usage of Class WS-IY waters is defined ss "[s)ourccs of water supply for drinking, culinary, or food-
processing purposes for those users whsre a mor~ protective WTI, WS-II or WS--111 classif cation is not
feasible and any other bcstusagc specified for Class C waters." 15A NCAC 2B.0216(1). The types and
levels of protection reflect the fact that these water supplies "are generally in moderately to highly
developed watersheds." 15A NCAC 2B.0716(2).j
Such water supplies `follpw~n~ treatmentjrequired by the Division of Environmental 1•lealth, shall
meet the Maximum Contaminant Levet concentrations considered safe for drinking, culinary, or food-
processing purposes...." Id. In addition, "[s]ources of water pollution which preclude any of these
uses on either ashort-tet'm or long-tertit basis shall be considered to be violating a water quality
standard." Id.
Interpretation of Chlorophyll a Standard'and ~ ndteman Lake Chlorophyll a l~Yodeling
Apparently, your office has opined that langaage regarding chlorophyll a in 15A NCAC
ZB.0211(3)(a) is an absolute "daily maximum. criterion" which "must be met at any point" in Lake
Randleman. Based upon this interpretation; youroffice has indicated a concern about the modeling
results for Randleman Lake which indicate a potential for an exceedence of 40 ~eg11 of chlorophyll Cr
under worst case scenarios of future devclopmentiin Deep River Segment I of Lake Randleman.
The modeled ezceedences for Deep River, Segment 1 do not occur at the proposed water supply
intake. Randleman Lake will not be a sourC.C of crater pollution that will preclude any use or otherwise
violate a water quality standard. In fact special requirements for the lake's watershed beyond the general
requirements for Class WS-N will specifically target the nutrient inputs underlying the modeled
chlorophyll a exceedences.. See 1 SA NCAC 2B.0~48 - .0251. The finished water supply froth the lake
will meet all applicable drinking water statdards. ~
EPA's interpretation of 15A NCAC.2B.0~11(3)(a) contradicts the long-standing application of
the rule by the NCDWQ and is incorrecrtbr several reasons:
1. At the simplest lrvel, there is tto language in 15A NCAC 2$_0211(3)(a) which states
1

WRTER & LAND SECTION Fax ~ 919-716-6766 Aug 2 ' 99 12 50 P. 06
the 40 µg/l requitement is either"daily" or "at any point".
2. Interpreting the chlorophyll a language as an absolute daily maximum criterion
renders the remainder of the sentence in 15A NCAC 213.0211(3)(a) surplusage and without
meaning. Since ~ general axiom of statutory and regulatory construction requires that all
language be given meaning and the, whole harmonized, the remainder of the sentence in 15A
NCAC 2B.0211(3)(a) must be considered.: This part of the sentence states that the North
Carolina Environmental Management Cordmission (EMC) or its designee (here the Director of
the NCDWQ) "may prohiblt or limit any discharge of waste into surface waters if, in the opinion
of the Director, the surface waters :experience or the discharge would result in" a violation of
"the standards established by this Rvle" orj "the intended best usage of the waters would be
impaired...." (emphasis added.). If the 40 µg/1 were absolute, instantaneous, and lake-wide, as
suggested by the [name of officeJ; then the; second half of the sentence would have no meaning.
In fact, the words "may prohibit o limit" clearly demonstrate that it is the EMC or the
Director who determit>s~th~~ ec of a 40 ug/1 exceedence. In some cases, such an
exceedence may require no AeHon by the E~N1C or the Director. In other cases, such as with
Randleman Lake; the Direetorari~ the EM~ may choose to "limit" certain discharges to protect
the best usage of the, lake as a water supply in a moderately to highly developed watershed.
These limitations; are expressed in thcdesignation of the Randleman Lake watershed as a "critical
water supply watershed" and the concomitant decision to impost upon it "management
requirements that arc morc,atringent than the minimum statcwidt water supply watershed
management requirements" for Class WS-~V Waters. NCGS § 143-214.5(b). These
rcquiretnents are Set forth in 1 SA NCAC 2B.0248-.0251. Furthermore, the Director has required
the discharge of phosphorus frotri High Poi`nt's Eastside Waste Water Treatment Plant to be
reduced to .5 mgn and to be tttoved below Deep River Segment 1, the segment which experiences
exceedences of the 40µg/1 roquirement, in order to reduce the number of current and future
exceedences. Both the Director and.the EIviC acted precisely as 15A NCAC 2B.0211(a)
requires.
Under North Carolina law, the EMC's rulemaking actions are subject to review by the
North Carolina General Assetttbiy through the actions of the Rules Review Committee and .Point
Committer for Legislative Ovet'sigltt. Boni Committees accepted the recommendations ofthe
EMC and the Director with regard to the Randleman Lake Watershed.
3. It is important to note.that the discretion given the Director with regard to the 40 ug/1
requirement is not repeated in d7C" other water quality standards set•out in LA NCAC 2B.0211.
Therefore, the clear implication of the:languagc adopted by the EMC in the water quality
standards of 15A NCAC 2B.02I 1(3)(a) is that the EMC wanted the Director to consider the
importance of excessive chlorophyll 'a in "lakes, reservoirs, and other slow-moving waters", but
did not want to tic his hands with regard to how to respond to an exceedence.
4, Past application of thr standard by NCDWQ demonstrates that the suggested
interpretation by your staff is incorrect.. Si~tce the adoption of 15A NCAC 213.0211(a) in 1976,
the NCD~vQ has never issued a itotic.e of violation for an instantaneous, daily maxium
exceedence of 40 µg/1 in a water body. Whenever such an exceedence has occurred, the
NCDWQ has monitored the situation, and sdught nonpoint source and direct discharge
management strategies to reduce tht frequepcy of such occurrences. This is the situation in
several other major water supply reservoirs jwith which the NCDWQ is working to reduce
2

WATER & LAND SECTION Fax~919-716-6766 Aug 2 '99 1250 P. 07
chlorophyl] a concentrations.
Furthermore, the -EMG has historically interpreted the chlorophyll a requirement in 15A
NCAC 2B.Q21 ~(a} as an "avere~e"... In the Report of Decision from the Public Hearing of
September 1, 1998, the 3 Hearing Officers for the EMC specifically considered the chlorophyll a
situation in the upper reaches of the Randleman Lake watershed and recommended:
. , when.an approximation, of the nonpoint source controls recommended by the staff in
[the Randleman Ruks] are applied to the model, along with relocation of the [Eastsidc
High Point Waste Water Ftant] discharge, the predicted average chlorophyll a value for
the Deep River Segment 1 wouldjbc 39 µg11 and in Scgmrnt 2, the predicted chlorophyll
a average would be 31µg/1.... The hearing officers... concluded that, in their opinion,
the benefts of kccping..the predicted chlorophyll a values in Scgmcnt 1 in compliance
with the standard,. did~ustify the anticipated cost of relocating the discharge."
Report of Decision pages 9-IO.:'
5. We understand that 1BPA is currently developing water quality guidance with regard to
chlorophyll a and are advised that the preliminary preference of EPA is for some form of avcragt
standard, not an~ instantaneous, daily maximum. Because EPA has not expressed any clear
guidance on the.rhis matterand is leaning! toward something other Chan an instantaneous, daily
maximum, it seems unfair and unreasonable for the [name of office] to impose such an
interpretation on North Carolina and: wally disregard our State's historic and reasonable
interpretations of our own rules.. ~
NCDWQ has certifed that the Randleman project will not violate state water quality standards
and we believe your office should give a favorable opinion on the Section 404 application of the PTRWA
now being reviewed by the U.S. Army Corps of Engineers. The Randleman Lake is a critical water
supply for the mzmbers of the Piedmont Triad Regional Water Authority. If there are other questions
regarding our water qual!iry rules, we.would appreciate prompt communication and consultation.
Thank you for your. attention to this matter .
i Sincerely,
3

WATER & LAND SECTION Fax~919-716-6766 Rug 10 '99 1257 P. 01
MlCHnQ~ ~, EASLEY
nTronHEY pENRNnI
State of North Carolina
Department of ~usrlce
P. O. BAX egZg
Rn~~GH
27fin2.OE52~
~a/ ~ 1 ~ ~W~G~
~~ K~ ~ ~~
lytEss~n.y t7 ~ ~
q
.a I l ~o~" Q'
TItANS1VIISSION
ENWIRONMENTAi- DIVISION
:Ea 191 71 tft3p00
Fnx: (9 1 g> 7 ! e-6768
ATTO EY-CLIENT PRIVtI,TGED AND ATTORNEY WORK PRODUCT
NOT A PUBLIC RECORD PURSUANT TO G.S. 132-1.1
6 ^~~cP
To: Coleen Sullins Date: August I0, I999
(fax +~ programmed)
Boyd DeVane
(fax # [phone])
John Dorney
(tax # 733- 459)
pan McLa~horn
(fax # progrflimmed)
From: Kathryn Jon~CS Cooper Pages: 26, including this cover sheet.
Subjccc: D¢ep River Clt/itns' Coalklon, e1.aL, v
NDENR, ProHearing Statementa and
Document ConstitutinII Agsncy Action
COMMENTS:
Attached are copies of the Pctitioners' PreHearing Statement and Respondent's PreHearing
Statement and Document Constitutiti~ Agency Action filed yesterday in the above-referenced
consolidated contested cases. In addition, I have attached a news article just sent to me by Linda
Miles.
1 have talked to opposing counsel and we have agreed that DEN12 can f~lc responses to
Petitioners' First Sct ofjInterrogatories and Second Request for Production of Documents by
August 27, 1999. 1 als~ told him that I would either be filing the motion to dismiss by Friday
8113/99 or ora Tuesday, I8/I7/99, after John gets back. I'll. be working on that motion and
supporting memarandu>tin of Iaw today and tomorrow and will hopefully get a draft to you by the
end of the day on Wedl~esday, 8/11/99. Y will be in class on Thursday and Friday 8/12 and l3, so
Tuesday may be the bet day to file it so we're not all rushed.
Lastly, Greensboro and ~ he PTRWA have both said they plan to intervene.
y~r .~
Y
.~~.

,.
WATER & LAND SECTION Fax~919-716-6766 Rug 10 '99 1258 P. 02
discussed iri DWQ's September ?5, 1998 fetter to the Authority. D~i~Q shxli be cooi:d
on'.a detailed ttutigation and monitoring plan as well as the approvtd ratio, location. sire
and method of mitigation (restoration, enhancement, creation, and preservation) within
90idays after. the permit is issued and annual reporu for the entice lea;th of tae
- morlttoring period- The Taal mitigation plan shall be sent to DwQ within cktrce tnon[hs
of 'ssuaaee of the 404,permic. Mitigation shall begin in conjunction with land clerrin~
fo~the reservoir.
violatil ns of any condician herzin set forth shall result in revocation of This Certification
and may res tin criminal and/or civil penalties. T~iS Ccnificativn shall become null and voic
unless the ~ eve coadirivns are made conditions of the Federal Permit. This Certification shall
expire upon lexpiration of the 404 permit.
If this Certification is unacceptable to you, you have the righc to an adjudicatory hewing
upon written request wiritin.sixty f60).days following your receipt of this Certirication. x'nis
request mus~ be in the fornn of a written petition conforming to Chapter ISOB of the North
Carolina General Statutes anti $led with the Ofi"ice of Administrative Hearings, P.O. $ox ?7~7,
Raleigh, N.~. 27611-7447.' If modincadoas are made co an original Certification, you ha~c the
righc to an a lndieacoty he~riag oa the modifications anon written request within sixty (60) days
following rz eipc of the Cettificaaon. Unless such demands are made, this Certification shall be
Final and bia~iing.

WATER & LAND SECTION
ee~t0~ ae:a~
Fax~919-716-6766 Aug 10 '99 1258 P. 03
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WATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 12 59 P. 04
08i10i99 10:22 L~ DEFf ~ 919 716 6766 N0,t~63 D~
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• ~°"A"tied~ J~ Bl_ "!~ ,` .:;.:,d/ettgy wo~~t ~R~~ver~ ~ ~°~ W •~~° o p~Mt+ad
~ ~~4t the °~r ~adee m ~t ~ •~ +~doa, Rump~,py & .
Brm is •
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H+~ihlon q~ _ "aua," bo iald. Y ~ !5a whom, x.11. ~. ,Deed M~ ~ of .
bl~ 1 s ~~ . I~e~, the pr~-ot hcea a ~~ coq~1 ~' tba steto Dpi.
~ ~aKabtl~~~+f1r1 pe~~j , `.,d~~~d aiat lbQ~- ~t taroc~ ° (ie~es~utborh~• ~.
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eif~se.1! could ~ 4t0 otiah ' fill Lst qaa A ~'o+ott' pp+ dlenw, aqd~ 6 ~_ .
a~ Could Rio, ~~baQ :• jq,thAt ~ ~ 11bre lllad ~O4aboro Water ~ ~t.. .
~otl~e !br ~~W_ ae~ dt . ,, ~ ~° a a~:'dad dx bear- ~ ~~ ~~ he le
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• 1leh.~ .:• .. ~ tldl tom;, ~baro 1~ ~, 1Kile; NLd aad on," ire add ~„a Bo on
' ~ A't Issue ~ ~ '' ~ ~' '~ aptC'e i4~ ~ ~ bsp't t6t butt, o~F ~e"li cer-
much autr7Qpq ~~ L bow `.tt 16 d~~'• ~OBbOt+p or the ~' o! .
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i

WATER & LAND SECTION Fax~919-716-6766 Aug 10 '99
M
~p ~ ~
i
~~~~•
i State of North Carolina
MICH,~EL F, >~nst~v Department of Justice
AT'CORNEY GEIVER~L ~ P. Q. t3UX fi2A
R,~1_EIGH
z~tsoz•c)ea:a
11JyrV~~•~\3,~5 P. 01
'~ ~~y4~a V`~
FA-X TRA.NSMISS~4N
ENVIRONMENTAL. DIVISION
Ea ~ a~ ~ ~ a-aaoo
Fnx; f919> 7I8-6766
ATTORNEY-CLIENT.PRIV}LECED AND ATTORNIY WORK PRODUCT
NOT A PUBL}C RECQRD PURSUANT TO C.S. 132-1.1
To: Coteen Sullins Date: August 10, 1994
(fax # pmgramr»ed)
Boyd DeVane
(fax # [phone])
John Domey
(fax # [phone])
Dan McLawhorn
(fax # programmed)
From: Kathryn Jones Cooper Fages: 26, including this cover sheet.
Subject: Deep River Ct1lr~ns' Coa/ltlon,.e¢ af:, v.
NDENR, PreHearing Statemehts and
Doeum¢nt Constituting A~enCy Action
COMIv1ENTS:
Attached are copies of the Petitioners' PreHearing Statement and Respondent's PreHearing
Statement and Document Constituting Agency Action filed yesterday in the above-referenced
consolidated contested cases. In addition, I have attached a news article just sent to me by Linda
Miles.
I have talked to opposing counseE and,we have agreed that DENTt can file responses to
Petitioners' First Set of Interrogatories and. Second Request for Production of Documents by
August 27, 1999. I also told him that I would either be filing the motion to dismiss by Friday
8/13/99 or ort Tuesday, 8/l7/99, after John gets back. I'll be working on that motion and
supporting memorandum of law totlay and tomorrow and will hopefully get a draft to you by the
end of the day on Wednesday, 8/11%y9. [will be in class on Thursday and Friday 8/12 and 13, so
Tuesday may be the best day to file it.so we're not all rushed.
Lastly, Greensboro andlthe I'TRWA have both said they plan to intervene

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 1104 P. 01
~M
yfw..~~
i
State of North Carolina
MIr..MnEL P, r,.nslsv ~ Department o(Jusdc:e
ATTC~NN¢Y GENb-'U~ I .~ ~ P. O. BOX fi29
F(ALBIC'sH
L7c02.OCi2A
~A-~ TR~.NSMISSION
ENVIRONMENTAL DIVISION
ce I e> > I e-shoo
Fnx, (9 19) 7 I o-6766
ATTORNEY•CLIENT PRMLEGED AND ATTORNF,Y WORK P1tODUC'p
NOT A PUBLIC RECORD PURSUAN'X` TO G.S. 132-1.1
To: Goleen Sullins Date: August 10, 1999
(fax # programmed)
Boyd DeVane
(fax # [phone])
John Dorney
(fax # [phone])
Dan McLawhorn
(fax # programmed)
From: Kathryn Jones Cooper Pages: 24, including this cover sheet.
Subject: DRep River Cldzsns' CopllNon, u a~, v
NDENR, Prc~learing Statements and
Document ConstitutinE Agency Action
COMMENTS:
Attached are copies of the Petitioners' Prcklcaring Statement and Respondent's PreHearing
Statemcnt and Doetlment Constituting Agency Action filed yesterday in the above-referenced
consolidated contested cases.
I have talked to opposing counsel and we have agrccd that DENR can file responses to
Petitioners' First Sct of Interrogatories and Second Request for Production of Documents by
August 27, 1999. I also told hizn that I would either be filing the motion to dismiss by ):ridgy
8/13/99 or on Tuesday, 8/17/99, after Sohn gets back. 1'11 be working on that motion and
supporting memorandum of law today and tomorrow and will hopcfixlly get a draft to you by the
end of the day on Wcdncsday, 8/11/99. I will be in class on Thursday and Friday 8/12 and 13, so
Tuesday may be the best day to 41e it so we're not all rushed.
Lastly, Greensboro anc~ the PTRWA havc both said they plan to intervene.

' WATER & LAND SECT ION Fax ~ 919-716-6766 Aug 9 ' 99 1134 P. 01
- ~ e. o
~~..~
State of forth Carolina
`DcF)artment otJustice
MICHAFd. r• p,4S1.,EY P. O. BOX 62A
ATI't'NtNFiY GF.NLRAL ~ R/~I.EIGH
2~6o2o82A
RAI~SMISSION
~~ T
ENV1~tO.NMEN7AL DIV{SION
c919) ~ I e.caoo
Fnx; .cfl I fl) 7 1 6-6706
A'I"I'ORN)EY-CL p~Z~R~URD U SUAN'T OG.S.3~t,~RODUCT
1~dT A
-'~ Date: August 9, 1999
To: Colleen Sullins (Programmed)
John Dornoy (~ifi~}• 7.3 ~ `q' % J~
Aoyd DeV2ule (715.5637}.
Fax #: (Sec above) Pages: 9, b~cluding this cover sheet.
Froth: Kathryn Jones Cooper/Patricia Rogers -
Subjcct: Deep River Citizens' Coalition, et al., v_ DENR,
Petitioners' Second Set of Requests for Production of Documents
and First Set of Interrogatories
COMMENTS:
Please review the attached interrogatories [the actual questions begin on page 6] and advise me
as to who will be providing the responses. I need to send a rosponse to opposing counsel by
August 17th. Also, in the requests for production of documents [on page 4] they have asked for
copies of cassette tapes of: (1) the 9/1/98 hearing on the proposal to reclassify segments of the
4/8/98 5/l3
peep Riiver to Class WS-1V; EMC Watct Quality Gomxnittec meetings of 3/11/98, ,
98, and 7/8/98 [1 don't know if these:meetings are taped; if not. are there minutes from tl><e WQ
Committee meetings?]; and (3) the EMG meetings of 5/14/98, 7/9/98 and 11/12/98. The tapes
must also he sent by 8/?17. I would like to have all of the responses by 8/16, if possible, and if it's
not possible, plcafie let me know so that I can tell opposing counsel that we need more time to
respond.
T am working on the PrcHearing Statement today and should have it ready by noon. I'll fax you a
copy ati soon as it's ready if you have time to review it by 4:00 this aftcmoon.
T will also be preparing a tnotaon:to dismiss to file by Friday 8/13. I should have that rowdy for
your review and comments by Wednesday, 8/11.
wp 3asos-t
~~~

.,
IJATER & LAND SECTION Fax~919-716-6766 Aug 9 '99 1135
l _
IN ~'I-IE OFFICE OF ADNl:1N1S ~~ OF RANDOLPI'I
S"TATS Or NORTH. CAROLINA, CO
PEEP RIVER CITIZENS' COALITION.gS~•~ ~
Petitioners,., )
v. )
NORTH CAROLINA DEPARTMENT OF )
ENVIRONMENT AND NATURAL IrESOURCE5, )
Respondent.. )
P. 02
Case No. 991/HR 0560
(consolidated with 99 EHR 0613)
PETITIOriERS' SECOI~I3 SE ~~RE~~INTERROGA,TORIES ON
OF DOCt1MEi`1TS AND
Pursuant to Rules 26(b) attd 33 of North Carolina's Rules of Civil Procedure and to 26
C 3.0112, etitioners Deep `River Citizens' Coalition, American Canoe Association, and
NCA p
Deep River Coalition, Inc. hereby request that respondent North Carolina Department of
Environment and Natural Resources respond to petitioners' second set of requests for the
induction of documents and first set of interrogatories to petitioners' attorneys within 15 days o1'
P
sernce.
DEFINITIONS ANA INSTRUCTIONS FOR REQUESTS
FOR PROI7I3CTION OF DOCU1vIENTS
1. "Dam Project" shall, refer to tk-e construction and operation of Randleman Dam.
2. "Document" shall include, but not be limited to: (a) analyses, charts, forms,
grfiphs, letters, maps, memoran minutes, notes, e-mails, facsiroilc transmissions, records,
.'
reports, studies and all other forms of written communication; (b) data compilations from which
information can be obtained or translated, if necessary, by respondent through detection devices
into reasonably usable form; and: (e) films, photographs, slides, phoiiorcc:ords, tape recordings,
and all other forms of electronic and/or mechanical information.

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 9 ' 99 1135 P. 03
I
4
i
' " when raferring to a person, shall mean
3, "Identify" ,"identity," or'~identification,
that respondent shall state the person's (&) full name, (b) current or last known business and
residence addresses, (c) current or last ;known employer and employer's address, and (d) current
or last known occupation or position title.
4_ "Refer to" or "relate to" shall mean states, contains, describes, discusses, explains,
involves, refers to or relates to in any way
g ,;Respondent" shad ztiean, the North Carolina Department of Environmental and
Natural Resources, or. any division, officer, employee, consultant, or od~er agent of respondent.
6_ These requests for the production of documents seek all documents in the
possession, control, or custody of respondent and its officers, employees, agents, consultants,
servants, attorneys and assigns, as of the date on which the requests for the production of
documents were served.
7. If respondent is unable to respond to a request for the production of documents or
part therco.f, respordent shall state why it is unable to respond or supply the document or
documents sought and fully describe the.ef~orts made to locate the document. or documents.
g. If the response to any request for the production of documents consists in whole
or in part of an objection relating to;.or founded upon, any type of privilege or immunity:
(a) State the privilege or immunity claimed and state in detail the facts and
reasoning on which the claim of such privilege or immunity is based;
(b) Describe the nature of the document (e.g-, letter, memorandum, etc.);
(c) State the. date ofthe documczit; ,
(d) Identify the person who created or originated the document;
2

WATER & LAND SECTION Fax~919-716-6766 Aug 9 '99 1135 P. 04
(e) Identify the person who sent the document;
(fl Identify the.person who received the document;
(g) Identify cash Person, who saw the docuxncnt;
(h) Identify each person to whom some or all of the contents of the document
were communicated; and
(i) State the subject matter of the docuixtcnt.
9. If the response to any request for the production of documents consists in whole
or in part of an objection relating to~burdensomeness, with respect to each such response:
(a) Provide such documents as can be provided without undue burden; and
(b) State in detail the facts and reasoning on which the objection to providing
the document(s) is based, including: .
(i) p description of the process or method required to obtain any
document(s) not provided;
(ii) ".Che number of files and/or documents that would need to be
searched;
(iii) The number of employee hours required to conduct the search; and
(iv) The estimated cost of the search.
If the response to any request for the production of documents consists in whole or in part of any
other objection, state in detail the facts and reasoning on which the objection is based.
10. These requests for the production of documents are to be deemed continuing in
nature to the extent required by Rule. 26(e) of North Carolina's K.ules of Civil Procedure.
Supplemental responses are requested in the event respondent subsequCntly obtnin~ or b~comeG
3

WRTER & LAND SECTION Fax ~ 919-716-6766 Rug 9 ' 99 1136 P. 05
aware of the existence of documents that are in addition to those contained in its earlier
responses.
12EQLrESTS FOR PROD[YCTION OF DOCU1v1ENTS
1. Please providt any documents relied upon, referenced in, or gencxatcd in
respondent's answers to petitioners' first set of interrogatories. If respondent has already
provided such a document, identify itby bates number.
2. please provide the caesettc tapes that contain the recordings of:
(a) T1ae September 1, 1998, hearing on the proposal to reclassify segments of
the Deep River to Class WS-IV;
~b>
The meetings of the Water Quality Committee of the Environmental
Management Commission that occurred on March 11,1998, April 8, l 998, May 13, l 998, and
duly 8, 1998; and
~~~ The meetings of the Environmental Management Commission that
nccurred on May 14, 1998, 7uly 9, 1998, and November 12, 1998•
UEFI1~iITION'S AND INSTRUCTIONS FOR Il,JTERROGEITORIES
1, The definitions for petitioners' requests for production of documents arc
incorporated herein by reference.
2. These interrogatories seek all information in the possession, control, or custody of
respondent and its employees, agents, consultants, servants, attorneys and assigns, as of the date
on which the interrogatories were served.
3, Respondent may answer:any interrogatory or part thereof that requests the
identification of doeuments by attaching to its response copies of thy; actual documcrlts.
4

WATER & LAND SECTION Fax ~ 919-716-6766 Rug 9 ' 99 1136 P. 06
Respondent may also at~swcr any interrogatory or part thereof that requests the identification of
documents by referencing"documents t1~t rt has previously provided to petitioners. J.n either
case, respondent shall state specifically which documents axe responsive to particular
interrogatories.
4. If respondent is unable to $espond to an interrogatory or part thereof, respondent
shall state why it is unable to respond or supply the information sought and fully describe the
efforts made to locate the information.
5. If the response to any.interrogatory consists in whole or in past of an objection
relating to, or founded upon, any type of privilege or immunity:
(a) State the privilege or itxunuuity claimed and state in detail the facts acrd
reasoning on which the claim of. such privilege or immunity is based;
(b) Describe the nature of the communication or document (e.g., letter,
memorandum, telephone call, in person conversation, etc.);
(c) State the date;of the communication or document;
(d) Identify the person who created or originated the communication or
document;
(c) Identify the person wh.o originated rho communication or sent the
document;
(f) Identify the person who received the communication or document;
(g) Identify eai:h person who participated in the communication or who saw
the document;
(h) Identify each person to whom some or all of the contorts vl ttte
5

WATER & LAND SECTION Fax~919-716-6766
communication or document were communicated; and
Aug 9 ' 99 1136 P. 07
(i) State the subJect matter of the coium'unication or doctuncnt.
6. if the response to any interrogatory consists in tivholc or in part of an objection
relating to burdensomeness, with respect to each such response:
(a) Provide such information as can be ascertained without undue burden; and
(b) State in detail the facts and reasoning on which the objection to providing
any information is based, including: .
(i) A description of the process yr method required to obtain any
information not provided;
(ii) The number of files and/or documents that would need to be
searched;
(iii) The number of cxnployee hours required to conduct the search; and
(iv) The estimated cost of the search.
(e) State in detail whether the information not provided is available in
documents or other sources and, if so:
(i) Identify the docuuments or other sout~ces; and
(ii) State whether the documents will be made available for inspcc~on
and copying.
7. If tho response to any interrogatory consists in whole or in part of anY other
objection, state in detail the facts and reasoning on which the objection is based.
INTERROGATORIES
Explain in detatt the.bases for respondent's conclusion under 15A NCnC
6

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 9 ' 99 1136 P. 08
H.0506 that existing uses of the Deep, Rivcr will not be removed or degraded from the
z
construction and operation of Randleman Dam and Reservoir.
2 Explain in detail the bases for xespondent's determination under 1 SA NCAC
2I3.0506 as to how the Dam Project vnll. mtntm~u adverse impacts to the surface waters.
3 Explain in detail the bases for respondent's conclusion under 1 SA NCAL
2H.0506 that the Dane Project will not aresult in the degradation of groundwaters or surface
watcrs.
4, Explain in detail the bases for respondcnt's conclusion undo 15A NCAC
2H.0506 that the patr- Project will not resttlt in cumulative impacts, bascd upon pastor
reasonably a~iticipated future impacts; that cause or will cause a violation of downstream water
quality standards.
5, Identify which past or reasonably anticipated future impacts were considered in
reaching the conclusion that the Dam Project will not result in cumulative impacts that cause or
will cause downstream water-quality standards.
h. For each watcr-quality standard listed in 15A NCAC 2$.021 l (3) and 15A NCAC
2B.0216, identify the level that respondent estimates will exist in and downstream of Randleman
Reservoir after Randleman Dam is constructed. If the value estimated is an average, specify the
time over which it was caleulatcd and the geography which it covers. For example, if respondent
states that it cstimated the chlorophyll. a level to be 39 ug/1, state whether this is based on a
monthly, semi-annual, annual,'or some other average and whether this level applies to any one
point in Randleman Reservoir, a particular segment, or some other defined area.
7. For each waxer-qu~tity standard listed in 1 SA NCAC 28.02] 1(3) and I SA NCAC'
7

WATER & LAND SECTION Fax~919-716-6766 Aug 9 '99 1136 P. 09
idcnti the levy et.that respondcnt believes currently exists in the Deep River along the
2B.U216, f3'
sad site for Randleman Darn and Reservoir and when that level was measured. If the value
propo
is an average, specify the time over which it was calculated and the geography for which it
covers. For example, if respondent states that the current clilorophyll a level is 39 ug/l, state
w}1ether this is based on a monthly, semi-annual, at-nual, or some other avera8c and whether this
level applies to any one point ui Randleman Reservoir, a particular segment, or some other
defined area.
$, Identify what meagures will be takon to protect the water-quality standards in and
downstream of Randleman Reservoir .
Respectfully submitted, C
CAgOLYN SMITH PRAVLIK
BRUCE J. TERRIS
DEMIAN A. SCHANE
Terris, Pravlik & Milli, LLP
1121 12th Street, N.W.
y~7ashington, D.C. 20005
[phone] f
5~~~ ~l~s
~~
. MARSH SMITH, N.C. Bar No. 16828
Cunningham, Dedmond, Petersen & Smith, LLP
P.O. Box 1468
Southern Pines, N.C. 28388
[phone]
Attorneys for Petitioners
July 29, 1999

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 12 24 P. 01
M[CIinQL F. BA5t~EY
nTTpRNCY GENERnI.
~l ~~
~~_
..,....
State 4f North Carolina
Department o[~ustice
P. O, t30X t52A
FtAl.l/ICH
.~. 749~3.Ot52fl
~~ s ~vL ~'
(~~,<,)l
T~-,.NSNIISSION
.,
ENVIRONMENTAL DIVISION
•(fl I fll 7 1 6-6600
FN(t (919) 71 6-6766
i
i
ATTOIZI~IEY-CLIENT PRIVILEGED AND ATTORNEY WORK PRODUCT
NOT A PUBLIC RECORD PURSUAN'];' TO G.S. 132-1.1
To: Coleen Sul~ins Date: August 10, 1999
(fax # progratnmcd)
Boyd DeVanc
{fax k 715-5ti37)
John Domey
(fax # [phone])
Dan McLawhorn
(fax M progi~mmed)
From: Kathryn Jones Cooper P>,ges: 26, including this cover sheet.
Subject: Aeep Rlver ,Cltlzens' Coalklon, d ar<, v.
NDENR, PreHearine Statements and
Document Constituting Agerley Action
COMMENTS:
Attached are copies of the Petitioners.'. PreHearing Statement and Respondent's PreHearing
Statement and Document .Constituting Agency Action fled yesterday in the above-referenced
consolidated contested casts. In additiozl, I have attached a news article just sent to me by Linda
Miles,
1 have talked to opposing ,counsel and we have agreed that DENR can file responses to
Petitioners' First Set of Interrogatories 'and Second Request for Production of Documents by
August 27, ] 999. I also told him that.I would either be filing the motion to dismiss by Friday
8/13/99 or on Tuesday,~8/17/99, after:tohn gets back. I'll be working on that motion and
supporting memorandum of law today and tomorrow and will hopefully get a draft to you by the
end of the day on Wednesday, 8/11/99. I will be in class on Thursday arld Friday 8/12 and l 3, so
Tuesday lnay br the best day to file it so we're not all rushed.
Lastly, Greensboro and the P'I'R'WA have both said they plan to intervene.

WATER & LAND SECT ION Fax ~ 919-716-6766 Aug 10 ' 99 12 25 P. 02
en,-.~ayb~ry~ i~att~ NhtHVL!I( $, MIL 'P~ P02 AUG 10 '99 20104
IN THE OFFICE OF ADMINTST'RATIVE I~AI'ZlNpB
STATE OF NORTH CAROLINA, COUNTY QF RANDOLPH
DEfiP RIVER C 8' COAI;I~'ION, er a1., )
v. ~ )
Case No, 99 EHR OS60
NORTH CAROLINA DEPARTMBNT OF ) (comsaiidated vs+ith 99 EH1Z 0613)
>rNVIRONMENTiAND NATtJRAI, RESOURCFrS, )
Respondatt )
PETIT'IONERS' PREHF,ARINC} STATEMENT
P~asua~nt to N.C.G.S. i 501~33(bx4), 26 NCAC 3. D 104, and this Office's May 4, ] 999,
Order, petitioners Deep River Clans' Coalition, American Canoe Association, Ina and Deep
I
River Coalition, Ini. submit the following statemcnL
I
~T~fi OF T~ PIt.OCEEDINCt AND ISSUES TO BE RESOLV$D
Petitioners have chalicngeti tlu decision of respondcat North Carolina i)cpeztment o f
En'vavoment and Natural R,osouroes to issue, on March 11,1999, a 401 Water Quality
Certification (herder "CeriiSce~tion'~ ~ the Piedmont Triad Regional Water Authority
I
(hereafter "P'JRRrA") for the conahuetion ot'Rs~ndlemaa Dam and Resgwoir (hereafter
"R,andlcmau .pam"). ~ Petgiontts'nise throe issues,
~-. ~~HER RESPONDENT VIOI,ATL'l~ THE NORTH CAROLINA
fiNVIKONIvIENTALPOLICY ACT'pV'l lEN ITISSUED THE 401
CERT~ICATIOTI WITHOUT HA~Ta A FINAL RNVIRON'MENTAL
IivII~ACT STATT
i
Piro petitioners contend tl~t the decision to issue the 401 Certification violated the
North C9rolins Enviraome~l Pol(cy AcE (hereafter "NCEPA"), N.C.G.S. 113A, et seq., because
~ ,

LJATER & LAND SECTION Fax~919-716-6766 Aug 10 '99 1225 P. 03
26P_2896'795 TERRIS PRAULIK & MIL '7~~ P6Q AUG 09 '9~
rospoadeat had eomplet~ed only a Dtatt Envlro~cntal Impact Statcmcnt (hereafter "pEIS") for
the project.
I~CFPA provideb that every "egg' xhall inchide in every recommendation or report an
any action involving ex~ienditure of p~c m°neys or use of pubko land fox projects And
i
~~,~ signiflc~ti9 g ~ quAlity of the environment of this State, a detailed stRtement
by the responsible official setting f~osth' ` "`" tbo oQVironmental impact of the proposed action,
any si~nificaut adverse aA~~,eatat et>feotg, apy proposed -nitagatioa measures, the projeet's
effect on tho long-tertm ~uctivity of t!w environment, and Pro3' in+eversible and irretrievable
~ tha oct. N.C.4.S.113A-a('2).
environsnentnl changes Ct~u.9ed 1'yy ~
I
NCEPA authorrm9 the Uepotmatt of Adminis~ation t° "adopt rules to implement" the
Act. I3.C.Cl.S. 113A-1 ~. The ales adoptad~b'Y ~o ~epartraettt of Admuaistratlon stave that, for
the purport of NCFPA; "`Action' ietchtdes but is not limited to licensing, cerKftcarton,
i
p~,itting * * « and otltet similar Snal agency deeisioas the abscnee of wlueh would preclude
I
the proposed activity" (~,~i6 addedj. 1 NCAC 25.0108(bxl).
..
Rospondent's regulations pro'elde that "[i]f sn aQcncy is considering a proposed action far
which an environmentml document 38 to be or is being preparod, the agency shall promptly notify
,.
the initiating parry' that~the agency Cannot tako fia~al notion until the environmental
documentation is completed and avaitsblr for u~ es a deo~on-melting tool," I SA NCAC
1 C.0402(b). In coordi~aEion wig mpoadent, tho United Statoe Army Carps of Panglncers
~~ "~~s,~) prod ~ ~~ for Randlea4an Dam. Respondent notified pTRWA that it
could «ot make a final detetxnination on the 40] CcrtjScation until there ~uvas a final
onvironmental impact
"CIS"). Nonetheless, although the Corps l~ not
2
i~:~i
i

IJATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 12 26 P. 04
202289679:1 TERR I S PRAVL Y K & M I L 7~i P~ AUQ 89 "~9 15: 5Z
~1
tha 441: Cerd$cstion. Respondent's reliance on the DEIS in I.
issued the FE1S, reapondeat iissaed
in its determituttio ta. issue the 401 cation and its hue to wait until the Ti,na11;I5
male g ~..
is completed violated Nt~E1'A. ~~ ~ ,
~ G RESPONDENT' S RELIANCE ON A DELS 'W.AS
g. W'TdE'THI~R, .A35U1~9N
I'ERMIS~ISLE, TI38 DEIS IS ADEQUATE UNDER NCEPA ~
ondeut's reliance on the DEIS dxd not violate ~
Even if this Offs I concludae than r~ ~
IdCEPA, }1Cdtioncrs and that tbs DEIS i9 ia5ttfficie~ under NCEPA because the DE1S .
contains as inado4u~ alternatives tnelyt~ and sn inetdequate rnvlronmcntal cot~aquences
i ~
i
analysis. ~
o~ de that an EIS must, inter alia, explore and evaluate all
The NCEYaA 1i'egulatl p~
e alternatives a-d assess the eocie~ and economic pnpacts of each Altsrnaiive. ~ 1 NCAC ~ .
reasonabl ~
25.0603(4). The EIS must, to the alcteat possible, q how the purpose and need would be
Ibid. There ations also provride that
satisfied by each alternative and tine proposed actlvlty $'~
envirot-mentAl consequences, cumulative ~
the EIS must discuss tl~ direcx and indireu~E
~rvnmea~tat tffacts, the e!I'ect on the epvironment's long-term productivity, any irreversible I .
and irrotricvsbla givironmet-tsl alb, ~a possible confiiMS between the proposed activity
and the objectives of fPdderal, ~. mid bcel, pleas, Policies, and controls for the affeatcd area. l
Ncac 2s.o6o3(6).
I~.
This project wi1T 9Il 121 aot~es of wett~ds, inundate 28 mi1Ga of free-flowing streams,
~:
end send 30.5 million j~nllons of water p~ daY out of the beep Rivor and into the Haw at~d
1 considers the eottsequences that these actions will ~
Yadkin Riw+er Baalne. i 17-e DEIS it~deQ~~ Y
have ~, the equatio lif~i„ the people that use these bodies of water, and the surrpunding natural
I~
3

WATER & LAND SECTION Fax~919-716-6766 Aug 10 '99 1226 P. 05
2022Q96795 TERRIS PRAVL.IK & MIL ?S5 P04 AU[3 l79 '99 1~:5~I
1
l
envirennaen~ Fl~rthemrore~ dx p~q bogies with seven alternatives, including the no-action t
Ctail ail
alternative, and artalYms'otdY i'oor ~~' ~i0 ~~ alternatives that were araalyzed ~ d i .
,~ fi ndcnt did not serlouslY coasidor anY ~
involve the con4u'ttcfion of a dam. Coetso9 Y- ~° ~
and need for the project and avoid ~
reasonable alternative could s't~ P~1f080 f .
1.
endangering Imb1~ ~~ ancl.the aavit+ontY-eot. ~
C, WR RESPONDQNT COMpLCED WITH THE WATER QUALITY ( .
CER'TII'[CA'fION g,g(}UI;,A'i'~ONS IN ISSIJIN~' TIC 401 CERTIFICA'TZON ~I
~ ti 1SA NCAC 2H.0500, etscq., contain the
n~ way ~~ ~ ' ~t~ °~ I
~ ~ 40l water quality cectificution applications.
requfremeixes fvr requas~-n~ a~ ~pp8 :.. 1 ~ :.
!.
Kota'
Respondent violated the ur throe respects.
ifted to issue the 401 Certification when there had been no
First, respondent was not 1~
formal applicatiott fnr the cerNScadoa es squired by l SA NCAC 2H.0502. ~
end, ntapo abused ire diaaetion when it deternained that it was not in the public
~ ~p doci'ion to issue the 401 Ce.Ktification. 15A NCAC
interest to hold a publi~ heating
"determines drat it is in the public interest that a
2H.OS04(a) provides ttiat the if the agency .
public hearing for the ~nrposc of rariewin8 public comment and additional information be held i.
~~.
prior to gratning or de~v~ «xia-," ~ ~cY shall notit~ the applict~,t. In this case, a
pnbHe hearing was roquuted and deodod booause of the costs to tho government and because tike
public had already pI'o;bided input. However, at prior public hearings on different aspects of tlx
lie would be to table aU quesdons concerning
project, respondent expeosaly stated the rte po y
water-quality isswea- b~e~e they would be acbchesged in the 401 certification process. 'Ihc hl
public's input was thus never received on the water-quality issues. i
4 I
f

WATER & LAND SECTION Fax ~ 919-716-6766 Rug 10 ' 99 12 26 P. 06
a~896795 TERR I S PRAl1L. I K & M I L. '755 P05 AUG 09 ' ~9 13:32
' ~
Finally> ~ondent end ifl eluding, wider i SA NCAC 2H.0506, than (1) tha
existing uses of the 17ee~ ova 'mod a0'~ ~ doh by the construction of Randle Dom:
3 the ro ect will inininaize adverse impacts to the
2 the o'ect has no p~ctical atter~atives: () p j
() ~~
surface wale»; (4) the jest wit1. tract result in the de$~radation °f groundwalxrs err surface i
~ ativa im that wil! caasc violations of ~.
waters; (5) the project I'~ ~, in aumul p~
, sad the project provides for sufficient mitlgation.
downstream water-quality sta~idatds. (~
f n ~.
~ TYONERS' CLAYMS
PACTS A1~]D REASOiNS M SUPPORT OF PE'Tl
Darn and Reservoir tools shape in the late 198Q's. j
The current pmect ~ build Rendlanan
P~.'RWA pdidot~ed the Nozth Camlina Environmental ~ageQtent
On August 18, 1988,
IN ~ vql to eras the P~ of c7ninont domain to purchase ~"'-
Couunisxion (hereafter I SMC) fbr appro
i
land for tho project andE to divert 28.S,tntilion ~~ P~ daY (MQD} of water from the Deep
River Basin to the Yadkin River ~
River Basin to the N,avv River Basin aond 2 lvlaD from the Deep
Basin.
~'
On October 18,' 1991, a final emah~tunental impect statement for the interbasiit transfers
l I~.
and for PTRWA's use ~Of the povva of eminent domain waa9 Snalix~ed and approved. However, ~
that ~Mc am l~i~xwA's i
on November ZG, 1991,. an ENlC ~os'Ita6 Officer recommended Y I
l~
petition because of serious water-quality.pzoblems in tha Upper Deep River area and sig~cant
threats Erom the tuarby, abaadotred Higb Pont land$11, Randleman Town t5tunp, and Seaboard ~.
Chemical landfill. Thy Hearing t~iea also recommended that PTRwA pwrsue other water f
wlt~alt could parovid~s a higher quality source. Notwithstanding these
supply altemeGve®
i
recamrziendations, on ebruaty 12, I992f EMC approved lire interbasin transfcr3 and authoxlzed f
5 f
i
-...... ~__ -.....,._._ _.. _ i

WATER & LAND SECTION Fax~919-716-6766 Aug 10 '99 1227 P. 07
202289G?95 TERRIS PRAVLIK & MIL 755 P06 HUIa 1?d '~ a~:~J
~~
p'rRWA to use the powor of ~ domain t© acquire land for tho construction of Randleman I .
Dam,
On Marsh S,1 potitioaar Deep River CiRixens' Coalition, Scott Lineberry, and any
Small cbatlengcd the B C's doclsloa bode in tba North Carolina Superior Court and xn the North
„pAH"). On May 12,1994, the Superior
Carolina Office of Adauniets~ve geeringa (hereafter
~ bleros that
Court overhnncd EMC's Qeciaion bee~+i>se E1~C did trot tusolve the water•yualih' pro
~ act statement that failed to
bad been raised and ~ EMC reiidd on as environroea~ ~P
end reasonable alternatives of the project Deep Inver
analyze all of the onviromieatal
Citizens Coa~l'ttwn v N ie Carolha ~P ~t °f E"'''"0nme~' Nealrh and N'aturaI Resources, No.
92-CV~0258~, N.C. StipCr. Ct., Wako (;awttY,:May 12,1994.
On June 6,1995, tho North Carolbaa Court of Appeals o~vert-trned the Superior Court's
doelsion on the grounc# that the Superior Court laclacd jurisdiction because the Petitioners had not
exhausted tbair admutsteati~ ran~ea. poop River Citizens Coalition v. NC'AENR. 457 SB.2d
772 (N.C,199S7. Aco~rdln8 to the court:of appeals, the petidonera should have put~ued ~
casein OAH $rat. ~ petidor-ett never pr'w'i~ ~e ~e before OAH because they
lacked the neoessea5+ fends.
On ruly 10,19197, the Coops publ~+ed a notice ti~at PTR~VA hod applied for a permit to
fill wetlands under Set~ion 4Q4 of the Clam Water Act, 33 U.S.C. 1344, and that the Y7EIS far
Randleman Dam had ban compiled: ! AltbouSh PTXtWA never Sled an application with
i
respondent for the 40~ Certiflcadvn as ~~ ~' 15A NCAC 2H.0502, respondent has stated
that the Corps' public notice tri~red ~e applicadon process.
Several state ' .federal aiaraies have commented on the DEIS. Their comments raise
6
i -. ... _.. - .

IJATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 1227 P. 08
202@56795 TF~tF2I5 PR~1VL I K w M [ L '755 P0'7 ALIG 09 ' 99 15: b.i
the samo concerns ~ega~ the Upper. ~eP River's water quality, the suitability of the location
1 and ~ e po~tcntieIly brava, euvirontriental conscqueaoes from the ~nsizudion
for a water suPP Y~
of Ttandleman Dam as rsi90d 1p 1991 when the FIS for the iaterbasiu tcansfcrs and use of
eminent domain were ~
that EMC rocla9s~Y the portion of the Deep River
In November 199?, pTROVA requea
where Rat~dleulan Dmn-and g~pNOir, wlfl ~ built tom Class-C waters to W S-IV wate~'S so that
It could be used an a w~ ~pP1Y' EMC held a publio hearing on September 1,1998. Up to this
iirt, all of respondent] s modelin8 ~~~ ~ ~ copstruction of R,aadic~n Dam would
Po
exacerbate the Deq~ RiF~ver's '4' problems aad result in substantial violations of the
EMC's comments to the contrary, the esdmateS
river's avatar-queliry ~. Nalwime
at tits h ~ ~' t1-e po~-°d01D' ~a.yuality levels still indicated that t1u
water-gt~ity std could be v'iolaZed-
Nan~ath,eloss, on November 12..1948, EMC votod in favor of the reclassification. The
reclassification is oont in the:Raudlemen Lake'Wa~craap~lY watershed Protection Rulca,
which became final on Ap~l 1, T999..5~ 1 SA NCAC 2B.0248 -15A NCAC 2B.Q251.
Qn March 11, ~ 999, respcademt issued the 441 Cettiflcation. This certification is a
statemct-t that the con~u~on ~ oP~Qn of Raadl~ Dam will not degrade rho way'
i
quality of the Deep Rives or result in violations of its water~uality standards.
7
~.

IJATER & LAND SECTION Fax~919-716-6766 Aug 10 '99 1228 P. 09
2fd22896795 TERR:FS PRFl~JL I K & M T L '7~ P0B HUGi ~ ' 99 i 5 ` :r.3
1lI
Wl'TNFSSFS
At px'esentt,
intendlo Dell the Following rvitaesses to testit'y:
Patsy Hill
Scott Y.incbetrY
James Lamb
Chialca L. llolder
Dick Haaison
Rick .Yohnson
Paul Ferguson
K,cn~tb M. Whitson
rasan roll
Loo Spencer
Jobe Dorne~Y ,~~~
Michele SuvctldubUe
Ron Linville
A. Preston Howard, Jr.
I
Petitionex~c reserve the ri~htto call other wimesscs to testify in the event that petitionerR
find that their testimony is necex~arY.` Pe~itionors will identify those witnesses immediately to
this Office and counsel fotr respondent.
~ rv
DfSCOVER'Y
f in some diBCOvery. Petitioners intond to submit
'1`ho parties hav ~ already engaged
i
additional intemo8atorics and rGC1t>~ fer produclson of doewnemts, requests for admissions, and
the heazia,~ will tie held during the wak of October 1 ~,
requests to take depositions. Assenttidg
1999. petitioners expect that they wlll;tteed until September 27,1999, to complete their
discovery. ~ .:
8

WATER & LAND SECTION Fax~919-716-6766 Rug 10 '99 1228 N. 1U
2~Z696753 TERRIS PRAM.IK & MIL 755 P09 AUQ 05 '99 15:54
V
vErTUlr
.~ OfScx h~ led ~ leg to be held in High Poirot, North Carolina,.
petitioners do not object w this venue sei4ction.
1~ ~~
11~AR1NC3 LENQTH
will, seed. three to four days to pt+esent their case. This does
Petitioacrs gtimalo that they
not inchrdo the time ~ 'for rMpondarrt to presenX its poeitivn. Therefore. if respondent ,
states that it will need vile clay, p submit that the hearia8 will require few' to five days,
REPRESLNTATION C
Peddonere will lie nepnemted. by the undersl~ned couuael. I . .
. ViH
I~EARYNG DATE
As set forth ~ pedtioners' Mdion.to .postpone the Hearing, filed on August 6,1999,
petitioners request that the heeryng Ife bold at lerwt 30 days offer the data when flue Oi~ce rules
On the parties' diapositive rhofiar~s• . The brlc8ng for thoeo motioae i8 scheduled to be completed
by September 20,1999.1
1X ~.
~ ,
5~BCiAL CONSIDERATIONS
Petitioner does sot have imy special cvnstiderations toraise at this tiuro•
i
9

WATER & LAND SECTION
2022896796
I
Fax~919-716-6766
TERRIS PRAULIK & MIL
Aug 10 ' 99 12 28 P. 11
755 P10 AUI~ Q19 ' 99 16.54 „
RospECtfully submi
o,~a`
.w use n, . .
_.[phone] ,~
~ ~~, d~~
MARS~I SMITH, N.C. Bar No.1 ~ Smith, LLP
Cuaningbam. Declmond. PCterscn
P.O. BoS 1468
Southern Pines, N.C. 28388
[phone]
CpROLYN SMITH FgpYLIK
BRUCB J. Tl?RRIS
UBMIAN A. SCNpNE
Toms, Pravlik 8t Millian, LLP
.1121 12th Street, N.W.
ashi o D C 20005
AttomeYs far Petitioners
,giigu,~t 9,1999
CER'f1FlCATE OF 9ERVIC~

1 hereby certify ~ wig $h day of Au~uat 1999. that T have faxed and caused a true copy
of the foregoing "Pcdddnens' Preheari~ Stnte~t" to be dahveted via first class mail, postage
i
pre-paid, to the followig:
Katlnyu Jonea Cooper
Spoolul DoputY Attorney General
pc~rtmeat of Justios, Environmental riivision
P.4. aax 629
Ratelgh,.N.C:27602-0629
~ lw - ~~V
~~~R~~
DFMIA-N A. SCkIANE
,r
l .
,.

WATER & LAND SECTION
MICMAF.L F. E,'~SLEY
nTTOflNGV O;N6ML
Fax ~ 919-716-6766 Aug 10 ' 99 12 29 P. 12
~~'
.~
~ ~•
•~..,,..
State of North Carolina
oepanmern of ~ustlce
P, O. BOX F,2A
r~nr.-c1GH
27503-0(i2S~
August 9, 1999
FILED
~FF'1cE o~
Luc 9 2 ~s PN '9~
Reply to:
):athryn Jones Cooper
Environmcnttl Division
Tcl:[phone]
Fnx:(919)716.676G
Honorable Robert Roosevelt Reilly, J~:
Administrative Law!Tudgc
Post Off cc Drawer 27447
Raleigh, NC 27611-9447
Re: Deep jRlver Cltkens' Coalition, et a~, v, NCDENlt;
99 EHR 0560 and 99 EHR 0613, Randolph County
Dear Judge lZeilly:
Enclosed please find the original and one copy of the Document Constituting Agency
Action and Respondent's Prelicaring.Statement to be filed in the above-referenced consolidated
contested cases.
i Sincerely,
i
i
Kathryn Jones Cooper
Special Deputy Attorney General
'vV 34574-I
i
I_ ~

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 12 29 P. 13
FiLEC-
` OFi ~^ Ur
STATE OF NORTH CAROLINA A*~ --' ; ~s , ~ { :, ` ~ ~"~I~1 THE OFFICE OF
COUNTY OF RANDOLPH J
QUG ~
DEIrP RIVER CITIZENS' COALITION, ~j~,
Petitioners,
v. ~
NORTH CAROLIN~ - DEPARTMENT OF
ENVIRONMENT AlND NATURAL
RESOURCES,
Respondent:
2 ~RgTRATIVE HFARINCS
Case No. 99 EHR 0560
(consolidated with 99 EHR 0613)
RESPONDENT'S PREHEARING STATEMENT
NOW COMES the Respondent, Nolth Carolina Department of Environtncnt and Natural
Resources, through i Division of Water Quality, and pursuant to Title 26, N.C. Admin. Code, r.
3.0104, files this ~reHearing Statement in the above-captioned matter with the Office of
Administrative Hear~~ngs in accordance with the Order of June 16, 1999.
X. ISSUES TO BE RESOLVED,;AND T1~E STATUTES, RULE ,AND LEGAL
PRECEDENT INVOLVED.
A. Issues to- be Resolved.
(1) ~ Did the Respondent Department of Environment and Natural Resources
("DENR") exceed its jurisdiction and authority, fail to follow proper procedures, act arbitrarily and
capriciously or fail co aet as required by law when it issued a 401' Water Quality ("WQ")
i
i
i
~ the 401 Water RuaHty Certification was issued pursuant to Section 401 of the Federal Water Pollution
Control Act ("Ciean Watei Act", 33 U.S.C;`§1341),

WATER & LAND SECTION Fax~919-716-6766
Certification2 to the P
1999, for the propos
Carolina?
(2)
Aug 10 '99 1229 P. 14
2
Triad regional Water Authority ("PTRWA") on or about March l 1,
Randleman .reservoir project in Randolph and Guilford Counties, North
Moro specifically,
(a) Was .Respondent required to delay issuance of the 401 WQ
Certification until a 'the proposed project had received a Finding of No Significant Impact or a
Record of Decision from the State Clearinghouse in accordance with 1 SA NCAC 1 C.0402, where
DENR's Division of Water Quality ("DWQ") provided in an August 20, 1997 letter to the 1'TRWA,
that "the DWQ cannot issue the 441 C~rtifieation until the project has received a Finding of No
Significant Impact (FONS~ or Record of Decision (ROD) from the State Clearinghouse in
accordance with NCPiC 15.4: O1C,0402"?
(b) Did Respondent fail to hold a requested public hearing on the 401 WQ
Certification even thiugh there was significant public interest in the matter and even though the
Deep River Citizens' i Coalition, through one of its members, Alan Horton, had requested such a
hearing on Noverxaber 15, 1997? .
(e) Did Respondent fail to investigate properly the effect this project will
have on the water quality of the Dtep River and downstream waterways and the full impacts of the
interbasin transfer to the impaired waters of the Haw River (Jordan )rake)?
~(d) Did 'the Respondent issue the 401 WQ Certification before the
resolution of the Seaboard Chemical%-High, Point Landfill site remediation?
2 The 401 Water ~ ualiry Certification will be flied contemporaneously wick the filing of this PrcHear7n~
Statement as the document constituting agency action.
I

WRTER & LAND SECTION Fax~919-716-6766 Aug 10 '99 1229 P. 15
B. Stgt~tes, Rules,. and )Legal Precedent.
(1) The Federal Water Pollution Control Act, ("Clean Water Act"), as amcnded;
33 U.S.C. §§ 1251-1387, particularly Sections 401 (33 U.S.C. §1341) and
404 (33'U.S:C. §1344)
(2) National Environmental Policy Act of 1969 ("NEPA"), as amended, 42
U.S.C. §§ 4321- 4370d)
(3) ,The North Carolina Environmental Policy Act, N.C. Gen. Stat. § 11;A-1 ct
seq
(4) The North Cazolina Water and Air Resources Act, N.C. Gen. Stat. § 143-211
et seq.
(5) State Certification of Activities Requiring a Federal License or Permit, Title
40, Code of Federal Regulations, Part 121
(6) ~ United .States Army Corps of Engineers ("CGE'~ Procedt~res for
I Implementing NEPA, Title 33 C.F:R, part 230
('1) ~ COE Rules for Processing of Department of the Army Permits, Title 33
C.I+.R Part 325
(8) North Carolina Environmental Policy Act Rules, Title 1 N.C. Admin. Code
~ Chapter 25 ;
(9) DENIZ Rules governing Conformity with North Carolina Environmental
Policy Act, Title 1 SA N: C. Admin. Code Subchapter 1 C
(10) iThe North Carolina Environmental Managennent Commission's Rules
governing Water Quality Certification, Title 15A, N.C. Admin. Code,
(Subchapter 2H, Section .0500
i
(11) The North Carolina Administrative Procedure Act, N.C. Gen. Stat. Chapter
I150B
(12) Rules of the Office o~'Administrative Hearings, Titk 26 N. C. Admin. Code
Ch~ptcr 3

WATER & LRND SECTION Fax~919-716-6766
Aug 10 ' 99 12 30 P. 16
4
2. STATEME1~iT OF T)EIE FACTS AND REASONS SUPPORTING THE
RESPOND>~NTS' POSIETIONS.
A. Statement of thrFacb.
On or about IVlarch 1 }, 1999; the Respondent issued a 401 Water Quality (`'WQ")
Certification to the IiPiedmont 'l+riad Regional Water Authority ("PTRWA") for the proposed
Randleman reservoir Iproject in Randolph and Guilford Counties, North Carolina. DENR's issuance
of the 401 Water Quality Certification was triggered by the PTR.WA's application for a federal 404
permit3 (which was noticed on July 10, i 997), since the PTRWA's proposed Randleman reservoir
project would impact 121 acres of wetlands. In the 401 WQ Certification for the proposed
Randleman reservoir project, tht Respondent certified that "the application, along with other
environmental protection provisions outlined in this document provides adequate assurance that the
discharge of fill tnacerial into the waters of the Deep River and the proposed development will not
result in a violation o~ applicable Watcr.Quality Standards and discharge guidelines"
B. Reasons Supparting'the Respondent's Position.
Respondent cintends it did not exceed its jurisdiction and authority, fail to follow proper
procedures, act arbitrarily and capriciously or fail to act as required by law when it issued a 401
Water Quality Certification to tht Picdtnont Triad Regional Water Authority on or about March 11,
I
1999. More specifically, Respondent contends it'was not required to delay issuance of the 401 WQ
Certification until the project received a Finding ofNo Significant Impact or the State Clearinghouse
issued a Record of Decision, in spite of what is provided in the August 20, 1997 letter to the
'This is a permit
U.S.C. §1344.
discharge ieto or tTli wetlands pursuant Section 404 of the federal Clean Wnter Act, 33

WRTER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 1230 P. 17
II ~ 5
PTRWA because thi§ project is governed by the NEPA4 process. The ro'ect is overncd b the
p J g y
NEPA process since the federal 404 permit is what triggered the need for the State 40l WQ
Certification. The Stfite 401 WQ Certification is necessary for issuance of the federa1404 permit
and the State issued a 40] WQ Certification after commenting on, and after considering other
agency connmcnts, as ell as the, PTRWA's responses to, the Draft Environrncntal Impact Statement
("EIS") noticed by the. United States Army Corps of Engineers (COE) when the Randleman
reservoir project was I oticed on July 10,.1997. Moreover, The State's Environmental Policy Act
rules provide "(i]f an cnvirotunental document is prepared under the provisions of the National
Environzrlental Policy i et (NEPA) for a specific activity, and if.that doetunent is reviewed through
the Clearinghouse process, then this review shall constitute compliance with the requirements of this
Chapter for that activity.". 1 NCAC 25;,0402. Furthermore, NEPA does not require completion of
the final EIS or the R lord of Decision prior to a State agency making its decision on a state permit
or certification 'wluch }s necessary for issuance of a 404 permit. Thus, it was appropriate for the
Respondent to issue thf 401 Water Quality Cert~cation at cllis juncture in the NEPA rocess-
~ p
~b) The Director of the Division of Water Quality has the discretion to
hold a public hearing on a 401 WQ Certification where significant public interest exists. While there
was no public hearing hl ld solely on the 40.] WQ Certification prior to its issuance, there were other
ample opportunities for public eomtnent on.this proposed project, ineIuding a public hearing on the
reclassification of the Deep River to accommodate the Randleman reservoir project on September
f
I, 1998, where the issues raised and addressed in the public commenting and hearing process were
°(Natlonal Environ~cntal Policy Act, ss amended, 42 U.S.C. §§ 4321 - 4370d)

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 12 31 P. 18
similaz to the issues ~aised in the Deep River Citizens' Coalition's request for a public hearing,
rr~adc through Mr. Al Horton.
(c) Numerous studies have been conducted and models developed to
i
predict the water quality impacts of the Randleman reservoir on the Deep River and downstreann
waterways and the fu 1 impacts of the interbasin transfer to the impaired waters of the Haw River
(Jordan Lake), so there is no meritgble .basis for this claim that the impacts from the proposed
Randleman reservoir project have not been thoroughly investigated.
(d) Prior to issuance of the issue the 40l WQ Certification Respondent's
Division of Water Qua~ity conferred with the Division of Waste Management and also reviewed the
comments of the Di ~'sion of ,Waste Management on the Draft EIS concerning the Seaboard
ChemicaU Nigh Point ILandf 11 site remediation and the Division of Water Quality was satisfied that
i
these sites would not cause violations of water quality standards in the Randleman reservoir.
Finally, Petitio 'ers also allege. a fifth issue that Respondent failed othierwise to comply with
relevant statutes and rubs. Without knowing the statutes and rules of which Petitioners are referring,
Respondent contends i c Depaztmont's 'actions were proper and in full compliance with the law.
PROPOSED
A. Wltness~cs for the Respondent include, without limitatlon, the following:
(1) A. Preston Howard;. Jr., P.E., former Director, Division of Water Quality
(2) Boyd DeVane, Supervisor, Classification and Standards Unit Supervisor,
>3wQ, DENR . .
(3) Jay Sauber, Supervisor, Environmental $iologists, DWQ, DENR
(4) J~ilan Dorney; Supervisor Wetlands/401 Unit, DWQ, D1rNR

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 12 31
7
~5) ` Melba McGee, Project Review Coordinator, DENR
(6) ~Y Witnesses called by the Petitioners
$. 12eservatinn.
Respondent escrves the right to amend this witness list,
4- AISCOVER'Y.
P. 19
Respondent }~vishes to continuo pursuing discovery, as necessary, and expects discove can
II rY
be completed before the hearing, .if the cast is not resolved sooner by a nnotion to dismiss or
I
sunarnary judgment rttotions.
S• REQUESTk~D LOCAT)tON OF TIC HEARING.
Respondent would prefer to lutve the contested case hearing in Raleigh, North Cazolina since
alI of Respondent's ~vitnesscs are in Raleigh. In addition, Respondent would prefer to have the
hearings on any dispbsitive mofions-in Raleigh since counsel for Respondent lives and works in
Raleigh.
6• ESTIMATEI; LENGTH OF .HEARING.
Respondent estimate the hchrinB,of this contested case, if necessary will take at least two
days.
i
7• EN'T'RY OF PEARANCL.
Notices ofApp¢arance were filed in these cases on May 24, 1999. Again, Respondent will
be represented by Special Deputy Attorney Greneral Kathryn Jones Cooper_
8• SUGGESTED ~A'><'E OF HE
ARING.
With the e~-cept~on of Mr. FIoward, respondent's Witnesses expect to be ready to have a
hearing in this cased ;ng the week of October 18, 1999, unless this cast is resolved sooner on

WATER & LAND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 12 31 P. 20
8
dispositive motions. Mr. Howard will be uziavailable the week of October 18, 1999, however, he
should be back in is office by October 27, ] 999, and Respondent would respectfully request that
the cast be held open to take his; test~ny on the 27th to accommodate his schedule.
9. OTHERS ECIAI. MATTERS.
Respondent expects to file a motion to dismiss by the end of this week. ]f that motion is
unsuccessful, Respondent also expects to file a summary judgn~ent motion within the time frame
referenced in Petitioners' Motlon to ,Postpone Hearing mailed on or about August 3, 1999.
i
Furthermore, Respondcrtt reserves .the right to further amend its PreHcaring Statement.
Respectfully submitted this the 9th day of August, I 999.
M1C)"TAEI. F. EASLEX
Attorney General
.B
Y
i Kathryn one Cooper
Special D ty Attorney General
State Bar No. 12I 78.
N.C. bepartment of Justice
Environments! Division
Post Office Box 629
Raleigh, NC 27602,0629
(919) 7166600

UJATER & LAND SECT ION Fax ~ 919-716-6766 Aug 10 ' 99 12 32 P. 21
9
: CERTIFICATE OlF SERVICE
This is to rtify that `I. have. this day served a copy of the foregoing RESPONDENT'S
P1tEHEARING ST TEMENT' on.the attorneys of record fox the Petitioners by facsimile and b
- ~. y
depositing the cop~as ~n the United States Mail, first class, addressed as follows:
Carolyn Smith Pravlik
Bruce J. Terris
Dernian A. Schanc ~
Terris pravlik & Millian, LLP
1121 12th Street, N.~VV.
Washington, D.C. 20005
Marsh Smith
Cunningham, Dedmond, Petersen c~ Stnith, LLP
P_0, Box 1468
Southern Pines, NC x8388
i
i
This the 9th d~y of August, 1999.
I MICHAEL F EASLEY
~ 34S4S-i
Atto c en
i
sy
Kathryn Jone C oper
Special Depot Attorney General
State $ar No. 12178
N.C. Department of Justice
Environmental Division
Post Office $ox 629
Raleigh, NC 27602-0629
[phone]

WATER & LAND SECTION Fax~919-716-6766
•_....,~ ~..~vi~v~II11Ct11
~~ and Nat4ral ResourcEs
Division'oT Water Quality
James ,Hunt, ,~c., Governor
Wayne cDevitt, Secretary
A. Prest ~ n Howard; Jr.; P.1;,, Qirector
Mr. Cohn Kli'ime !
1'iednaonc Triad Water Authority
witminzto~ Bldj
s~ix~ lZl7
2? 16 West Meadowview Road
Gro~nsbora~, NC 27407-;480
Drat ivlr. ~e:
s/,. /s,
Re: Cs;tia~agon Pursuant to Section 401 of the Federal Clean Water r~-ct,
Propose~d~ Randleman Rcsetvoir
wQC Project rr 970722 COE ~19910~669
Guilford and Randolph Counties
Attacadd hereto is:a cony of Certification No. 3221 issued to the Pie3rnont Triad Regional
Water.~uth~riM.
Tf we c~a lae of further assistancw do not hesitate to contact us.
Sincerely,
Attachments
9707?? woe ~~ ~-
cc: Wil~mia~toa District Corps of Engine-_rs
Corns on Engineers Rlsleiah Field Office
R~Instoal-Saleru DWQ itagionaI Office
Mr. Joh~ Dotney
Mr. John Parker, Division of Coasra,I Ma~oagcment
CenoraI fjiles
Jerry McCrain; EcoScience, Tae.
Alan Iio n; Deep River Citizens' Coalition
Kathy ews, US IAA
Boyd De aae
Colean ~lIins
D
Aug 10 ' 99 12~ 2 P. 2;
• •
NORTIi CAROLINq D~,~,Jq-~-Mg~ QF
ENVIRONMENT AND N,~stJFtq` RE301.'RC~
A. Preston Howard, Jr. P.E.
cants ~y
Division oilNate~ quality E:nvironmQtttat Sciences Branch
Enviro. Scene Branca, ag01 Reedy, Cr9iik Rd., Raleigh, NG 27607 Telephone [phone] Fr1X ~ 7a-°oc~
An equal pportunlty Attfrtnanve AcSon F~nployQt • 507o re~dedll0% post consumer paper

WATER & LAND SECTION Fax~919-716-6766 Aug 10 '99 1232 P. 23
NOR'TFi C:~,ROLINA, 401 WATLR QUgI,~y CERTIFIC:~'I'ION
T$7S CERg7kTCaTION is issued in conformity with the requirements of Section 401
Public Laws ~2-500 and 95_217 of the United States and subject co the Noah Carolina Division
of Water ~ •ty (~y~r~ Regulations in ISA NCAC 2H, Section .OS00. It is issued to Piedmont
Triad Region Water Authority resuItin, in 121 acres of wetland impact in Guilford and
Randolph Couatdes pursez~tit to an application filed July 10, 1997 to construct the proposed
Randleman reservoir.
The applicativa along with other environmental protection provisions outlined in this
document provides adequate assurance that the discharge of fill material into the waters of Dc~p
River and the ~roposed development will not result in a violation of applicable Water Qualiry
Standards and discharge guidelines. Therefore, the State of North Carolina certifies that this
activiry will n ~ violate the applicable portions of Sections 301, 302, 303, 30b, 307 of pL 92-500
and PL 95-2I7~if conduece,i in accordance with the ~pplicaczon and conditions hereinafter
forth_ set
This app~q~a1 is only valid.for the purpose and desi~rr that yon submitted in your
application, as descr4bed is the.Pub "c -
i b Noac~, If you change your project, you must notify us
and send us a n w anplicadon for a new ceruficarion. If the property ~ sold, the new owner must
be given a copy~of the Certification and approval letter and is thereby responsible for tom IvinQ
with all conditi ns. For this approval to be valid, you must follow the conditions listed beIvw. In
addition, you m ~ t get any ocher federal, state or local permiu before you go attend with your
project iaelndin~(but not Iimittd ~o those required by) Sediment and Erosion control, Non-
discbarge and ~Kater Supply watershed regulations.
I
' ConditioA(S) of Certification...
1• Elpprop}iate salin?mac anti erosive control practices which equal or exceed those
outlined in the most recent version of t~vo manuals. Either the "North Carolina
Sedime>it and Erosion ConaoI Planning and Design Manual" or the "Noah Carolina
Smrace ~Mming ~iaatral" (available from the Division of Land Resources is the D1~YR
Regiona~ or G'aaal.Ot~ices): The conprol practices shall be utilized to provent
excxd~i c;.s of the appropriate tnrbidiry water quality ~~.d (50 NTLTs in all fresh
w~ and,rivers aoc.desigaated as trout waters; 25 NTUs in till Ialces and
reservo' .and all saltwater classes; and IO NTUs iA trout waters);
z. All sediment and erosion cotttxol measures
removed;~d the natural ~ pad in wetlands or water shall be
8~ restored after chc Division of Lead Resources or
delegated local agency )~ released the project;
3. Should waste or borrow sites be located in wetlands or streams. comneASatory
~rigatio Rn'Il be requited since it is a direct impact from road coruuvctiou activities;
4• ~ any charges are made to ISA NCAC ?B. 024$, .OZ49, .0250 and .0251 adopted by
~° Envrrozlmeatal Maaagetzient Committer on November I2, 1998, that arc aoc equal
or more p#otxtive t6aa tie nsles, ~~ ~ Certification is voided and new 401
Cerdricatilon with public notice is required.
S. Cormpensa~ory mitigation shall be done to assnrG
riparian w~tlands iA the watet'sbed of the proposed reservoi'r~Sites shonId include thost
3

WRTER & LRND SECTION Fax ~ 919-716-6766 Aug 10 ' 99 1139 P. 01
S~ ~~~
MICH.IEL F. EASLEY
GrrEN L
o4I~~ ~~
Tn:
.swr~~ `:~ V ~\
~ .r 4
~~
Stare of North Carolina
Department of.lustlce
P. p. BOX 629
a,
I'
'.
Boyd DeVane
(fax # [phone])
John Dorney
(fax # [phone])
R~~i~
2~~2a~t~
TR4NSNIISSION
ENNRONMENfAI DIVISION
!919111666
fir 191911165166
'r1
~~
DAND~~ORN~VWO~KPRODUCT
O~N~V ~I~N~PRI~~~~~~
R~~
~C ~ RD PUASUAN'f ~OG,St 13Z•1,1
N ~ PI~BLICR 0
i
~ ,
Coleen Sullins pate: August lo, 1999
(fax # programmed)

~acan r. Nivg .............~
Boyd DeVane
(fax # [phone])
John Dorney
(fax # [phone])
Dan Mcl.awhom
(fax # programmed)
From: Kathryn Jones Cooper Pages: 26, including this cover sheet.
Subject: beep River Citizens' CnaliNon, et aL, v.
NDENR, PreHearing Statements and
Document Constituting Agency Action
COMMENTS:
Attached are copies of the Petitioners' PreHearing Statement and Respondent's PreHearing
Statement and Document Constituting Agency Action filed yesterday in the above-referenced
consolidated contested cases. In addition, I have attached a news article just sent to me by Linda
Miles.
I have talked to opposing e;ounsel and we have agreed that DI~TiR can file responses to
Petitioners' First Set of Interrogatories and Second Request for Production of Documents by
August 27, 1999. I also told him that I would either be filing the motion to dismiss by Friday
8/13/99 or on Tuesday, 8/17/99, after John gets back. I'll be working ore that motion and
supporting memorandum of law today and tomorrow and will hopefully get a draft to you by the
end of the day on Wednesday, 8/11/99: I will be in class on Thursday and Friday 8/l2 and 13, so
Tuesday may be the best day to file it :so we're not all rushed.
Lastly, Greensboro and the PTRWA have both said they plan to intervene.
g~~
l; first, petitioner coanimd tLat the decision to issue the a01 Certification violated the
North Carolina En' ix+onmegtel Policy Act (hereafter "NCEPA"), N.C.G.S. 113A, ct seq., because

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CO`+~~`IRECEIPT ~F DC~CU~~(S) IF iYL~,.RKL~ HERS:
COlYL+1'~Ei~S: --
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~~* WATER & LAND SECTION Fax ~ 919-716-6766 May 11 ' 99 13 06 P. 01

+~ WRTER & LRND SECTION Fax~919-716-6766 May 11 '99 13:07
,.
M1~~1111
avvue cru
nclnunturw~~rlvn ulsnnlnay
b1AY ~ i 70 AI-1 19Y7
STATE OF NOk~'CH CAROLINA
P. 02
1N "Cf1E OFFICE OF
pDltrtlivtS'1~A'1'IV~ fIEARiNOS
COUNTY OT R~lNO(~LP~I 99 EH[t 0360
peCp Riven Citizens Costlltlory and
AtXterioan Cenae Assuoiatiorn, Ina,
Petitioner,
Ul<tDEIt k'OR p~I~IE~I.RING
v. S'~Ax~NIF.IVT~
fir. ~, pep~~ent of !/nvironmentat & Natutdl
R040urCO~
rn order to permit the prompt preparntian of this case for, hearinng,
IT I5 IdE'REI3Y CRT~EItt~D, pursuant to a6 NCAC 3.0004. that each party ~11o with
the Of21ce of Administrative Haarlt-ps and`setve upon the other parties a PxeheaYln$
Statement containing your present pooitlon with regard to the ifollawing:
i. The issues to be rssolwd, Astd the sttttutva, ruie9, and tcaal pr~c~las~t iitivolved;
~, A; brief sfettement Qf thn facts and reasons supporting the ps-~Y'a pQ83tic~n on each
issue indieputa;
3. A list of proposed witntsseo;
4, iNluther you wish to pursue dis~oovery, if so, the ier~gth of time requir~cci if
different ffOm the time Set itt file SchCduiing Order;
5. Requested iocation of hearing; if diFtbrent from the iocatlon set in the Rchmduling
Order;
6, Estimated length o~'heartng;
7. If you do trot have an attorney, your Noma and bttsirtess addressee and telephone
numbers;
8, 'i'he date by which you wilt b0 ready to have n haarinE in this case if different
ftiorn the date set in the SChedulloB Older;
9. Other specie! considerations.
Phis Preheating Statement rnttat be tiled anti served within ~Q,~oxs of the date aP
this ORDER.
This the 4th day of May, 1999.
Robert Rooaevei Reilly r.
Administrativc Law dudgct
woes
b 'd 0L 168 68Bj'z~'se

~ IJATER & LRND SECT ION Fax ~ 919-716-6766 May 11 ' 99 13 07 P. 03
fll,Ylr
OMNtfl! l)N
AIyAgNttclltA'rIVV. H8~U11N~96
Mnr~~ ~u+Atil 190v
N. C. Department of Estvlrcanmentnl Sc NAtural
peep Itivei' Citizens Coalition, and
Amezican Canoe Aesaaiation, Ina. ;
Petitloner, ~
v.
IN TS•i~ OFFICE Oi;
STATC Op NOR'I"H CAROLINA ApMINISTRATIV~ MF.ARINCIS
~,
CAtINTY OF RANLIALI'lI ~9 EHR0560
~~
SCHEAULIIY~i O1~DER
Resout'Ces ~ ~ ~
IteapontSonG
The uaderslaned has eelAblistsd the following Sahedta<lii~g tw?rdcr. Thts scheduling
Qrdec may be it«er amended in the diacnfton of tho Adpnttdatre-dve Law dudgo, based apon
lt~formatiott provided In the mdided Schedullri~ Q~derents. ~'ha pAtttoa wSlf ba notified of
~y cbauges by way of an A
1, Ttae h~rin$ FOf this ContCBtGd cee~ will be In High Point, North ~Irdiina, far
the week beginning pu~uat Z3. 1999. At least 1 S days prier tt, the hearing the
~drnlnlstrAtive Law judge will mall to the partits a more specific notico o~'the
dato, dmo and locatlou of the hehtin8•
a• Discovery shall be aompltted on or belbtc ~uaust 4y,.~2~,
IT IS 50 c?RDp,REA,
This the 4th day of 1vlay} 1999.
Robert Roosave Rei11y J'r.
Admi+tietrativeZaw Judge
aoa~
,..
£'•d 6T 160 66bS'li'S0

. ~1ATER & LRND SECTION Fax ~ 919-716-6766 May 11 ' 99 13 07 P. 04
v~ti6u
ov~l((..,s OM
At1Mlnuc~ItA'rtvx nr„~iNn1i~
Miy pi 1 d0 AM 1459
S'CA'LE OF NOR~`M CA[tOLtNA IN THE OFFICE OF
ADMIN[STRAT!'VT; kIEAR[NC~9
99 BHR 0560
GoUNTY OF ttANDOLPH
peep Rivor CidxCns Cot-litioa, ansi
.Amertesirrf Canoe Assoaietioa~ ino~
Petttion~er,
NATICE OF CONTESTED CASE
ANU ASSIGNMENT
N. C. laepartme~nt of grtviranmontal & Natural )
itesouzc.s ~+. ~ ~
Ra~oi?dent_
1~IpTIC>; IS HgREAY GIVEN that~~. petition for a contested case hearing pursttanr td
ca.s, i 5aB-23~e} was filed in and sceepttd 6y the OfflcC of Administrative Hearit>gs on
May 03, 1899, In acoardatace with ti.5.1 SOB•Z3(a) end 26 NCAC 3.0003,
ktobcrt Roosevelt Retliy lr., Adrnlnisultttve 1,aw Jttdgc, has been asetgaod to preside iq this
ease. Tf~e edtninistrativG law judgo may be contacted by mail ttt F.O. L7rawer 27447,
Raleigh, N.O.276! 1-7447, or ~ telophone at (919) 733.264.
Tho Respondertt s!-all submit, within c s, a copy of the document cor~titutirs$
agency acdoa, whioh caused the plir-g of the Petition.
A copy of any da~ument or c-ther plasditxg tiled with the OfE'x ~f a £oActministrative
f leatin~9 mutt also bti sent to the othCr pa~- at the circa v fl<lin~. ,1,G1l~htg
r
t btf
Nd'TE; Yau m4y receive an Order for Preheating Statements to which you must
respond within ~Q,¢gy,~,
This the att~ day of Mey,199g,
d>riiar~ Matta, l1 [
CktiCf pdrrtinistrutiva [.aw Judie
. ~.r , 11J.,,.... _
Klm I•lausen
ChiCf Hearlrl~s Clerk
pOiDrawer 27447
Ral!'eighNC 2761 [-74a7
(919) 733~092G
woa3
~ ,d 55 68 666i'?j"50

~JATER & LRND SECTION Fax~919-716-6766
~r~rpN3~+'*
bn this d~1te mailed to:
lvitush Smith
Cwu~ingham pedmond Petexean & .
9m1t1~ T.LE~
PO Aax 1x68
$outhem Plucs, NC 2$38$
ATTORNEY Fblt P~I'1TIONER
SevCeta~Y Wayne McDevitt
N. C. Doparimettt of Snvironn~ont and
Natural Re~oucGcs
Attn: Daniel F. Mc~,awhorn
512 Nortb Salisb~uy' Street
izateigh, NC 2761 i
It~;SY~bND6NT
This the Ath day oflvlay,1g99.
May 11 ' 99 13 08 P. 05
K1m ~]RUSen
ChiEFHearlDgs Clerk
Ofl~ce of Administative Weavings
PO pcawer 2744"!
Cialei~h NG 2%bi I-?447
[phone]
S
•M
,.
aoa~
S 'd 0Z :60 d6G~"tiT'30

•Q5i03i99 13:16 PTR~JA -~ 919 715 5637
COUt~PY Of (U SAIPDCLi'a
(~Leep River C~~ens Coaitra~d l
Amarferaa Canoe l~soeS,ation. Ync. ~
f~ name i PEt1TIOt~iER. )
' ~ )
s!f.C. De artme~c of }
~i
N0.215
'Y$ l~J1ilII~1CrS
in;',
n~
. ~Y.
cottri:xTEU ~.~Slr Hr•.ARItVt;
(The Byte aewiaY or bond abo~u vdtiah ~-ou ~ cattplaieett~ )
t herel~ tsk to a ~naaead ~r~ !warily as proridod far by Nosh Grulio~ Osrreral Saarta 41 S08-t~ b ~~
f~a!~ A•rs taw tthov-~ng how ycu beliere you have bees httrttted b~ tAe Slal~e aya>V~ ~ boanE)
See attached aheeC9
~~ ~ 1 III .~~
{~ tr10R ~ -tt Atxd~d. itseh oddtro~nl pagcL}
t~) 8~uae of arse 1'sweq, the Stint ~~~ a board hoe: (eftaek a1 lean ene each ,aoiymn)
$ deprived mo of p~operry ~ ettt~tedatit its mrhentp er jurnd'inie»:
__ordaod erle W pe. a Ptte a dull 0~7 ~ .~.. t~ erroaeottst~:
-, ~ ethcrv-ise taebstannalh pr~judi.•a! m-~ riyhpG A Hi) filled W sar ptt~Cr prr,redun;
~-erme- arhtt~rtl~ a ~ptir~d~: ar
~,_Iatkd w wti z, mtwrrd b~ taw a Hite.
ts? Datr.
(7) P4ent ~~oeu fuU a
(~ P'rtat ~bta nemme
6) Your phone nutttber. ~ 91f) 1 ~„5~~0800 ~.~,
(9i Ytsa siBttetttrr
Yore a~ ~;1 a adevw a COpY aE thin Patidae ep tee StraQ aw~er a- hood eratrro0 on IfrIC (a) a' Utis Ibettt. You sfiaut4
a{fetl>let tlMe ttpugey Qr board m dk~ettrtiae dto sumo of dte person d be taee+nei.
C>:RTtFtCA't'S QE SERVI~Z:
t ecraC7r that Chia Ptdden has bran served an the 3tue sgettey ar board reused blow br de{+ositinE t exrps d'u with the Llnioed
~~'. 1~nt Serv6ee .pith w~iwaett aRi+ad t]R by de(i.airrS it to tiro rrartod marry trr boari~
(Iti) Daa~,el hclawhoca (li) N.C. De axtment of F~vir. 6 fiat. Res.
~~~ m~ ~~ tSirteyemerab~iClRledwl Z~611-76~y
lt~ aa~srp~a boil L (~+! psp cede) Q ~ ~ ji"ti
~ '~;
(131 Thee dte„1~ of 149q .,~
{I;~ ~ Mai ~ A
• ~~trur itelirttllCt :. ~ _./_..
lhhcu vqu httre campltte0 thta Forth. you MtltiT mare ar definer the t3Rlt~lNAt. nNl7 UNI; t;tlPY to the Officr ~a'
Adpretdtuao~e Hcan~s. P.O. Drrwrr ±7a.1~. Rat~ysh. NC 3741 I.7+17.
t-Od(~tb)

05i03i99 13:16 PTRWA i 919 715 5637 N0.215
I hereby ask for a coatssted case heeding as provided for by North Carolina General
Statute 1 S0B-23 because Respondent has granted„ on air about March 11, 1999, a Water Quality
Certification (attached) w the Piedmont Triad Rcgidnal Water Authority (hereafter "Piedmont")
under Section 401 of the Federal Water PolIutioa Control Act and t4c North Carolina Division
of Water Quality Regulations in 15A NCAC 2H, Section ,0500 for conb'tructing the proposed
Randleman Reservoir which will impact 121 acres of wetlands in CiuiIford and Randolph
Counties. Petitioners are, the Aeep River Citizen's Coalition and the American Canoe
Association, Inc.
1. Petitioner Deep River Citizen's Coalition was formed on May 11, 2 980, by a group of farmers
and landowners in the area of the proposed Randleman Reservoir. The group was formed out of
Concerts for the water quality in thQ area The address of the Deep River Citizen's Coalition is
1539 Commonwealth Road, Randleman, North Carolina 27317-7146.
2, Petitioner .American Canoe Association, Inc. is snot-for-p~ro$t corporation organised tmcier
the laws of the State of New York, with its principal place of business in Springfield, Virginia.
ACA is a membership organization with approximately 35,000 members netioAwide and over
1,00U members in North Carolina ACA is dedicated to the preservation end protection of
America's naht:al areas, focusing primarily on rivers, screams, lakes, coastal waterways and their
surrounding environments. ACA's address is 7432 Alban Station Boulevard, Suite t3-232,
Springfield, Virginia 22150.
3. Petitioners bril~g this Petition on their own behalf and on behalf of their members. Many of
ttse members of the organizations live in close proximity to the proposed Randleman Reservoir,
same members have had their property condemned to build the reservoir, and n>say members
w~11 g~ thew drinking water lrom the reservoir when it is complete. These mambere; will be
directly and adversely affected by reduction of property vetoes, the loss of wildlife habitat, the
degradation of water quality in the Deep Diver anti downstream waterways, the reduction in the
quality of their drinking water, and other impacts fiom construction of the reservoir.
4. Io issuing the certificate, respondent exceeded its jurisdiction and $utharity, Failed to follow
proper procedures, acted arbitrarily and capriciously, and failed to act as required by law and
rule. specifically, respondent:
a. issued the certi5cation prior to the State Clearing House Record ofDecision or
Finding of No Significant Impact in accordance with N'CAC I SA:01O.0402 even though the
North Caroli~ Division of Water Quality had stated that this was needed before the project
could proceed;
b. failed to hold a requested public hearing on the ecation even though theca
was significa~ut ptibiic interest is the matter and even though the >:7eep River Citizen's Coalition
bad requested such a hearing; .
c. failed to investigate properly the e$ect that this project will have on the water
quality of the Deep River sad downstream waterways and the full impa~ of the itlterbasin

~5i03i99 13:16 PTRWA -~ 919 715 5637 N0.21b
transfer to the impaired waters of the Haw River (Jordan bake);
i d. issued the certification befpre the resolution of the Seaboard Chemical /High
Point Landfill site remedistion; and
e, failed otherwise to comply with relevant statutes and rules.
S • Other facts sad issues may arise during the contested case hearing that will fiutrier support the
allegations made by petitioners above.
WF1FItEFQRE, petitioners beep River Citizen's Coalition and the American Canoe Association,
In+c., pray that a contested case hearing be graut+ed and that the certificate be revoked.
This is the'~~th day of April, 1999.
~z,..... A. $L~..~
CAROLYN sMiTx PRAVLIK
BRUCE J. TERRIS
DEMIAN A. SCHANE
Te::is, Pravlik & Millian, LLP
1121 12th Street, N.W.
Washington, D.C. 20005
(aaa) sae-2too
~ ~~ . .
MARSH SMTTFI, N.C. Bar No. 16828
Cunniaph~am, Dedmoad, Petersen & Smith, LLP
22S North Bennett Street
Southern Pines N.C. 28388
[phone]
Attorneys far Petitioners
Apri12$,1999
ATTACHMENT - ,Approval of 401 Water Quality Certification

.05i03i99 13:16 PTRb.JA 3 919 715 5637 NL.21r
CE>Z'TIFICATfi 4F SERVICE

IA additioa to serving a copy of this Petition oa ReQpoadent as certified on tha cover page of this
petition, I he'ebY certify that a copy was served oA Jolui Kime, piedmont Triad Water Authority,
Wilmington Building, SiYite 1217, 2216 West Meadowview Road, Greensboro, N.C, 2fi407, by
deposit is the United States Mail, postage prepaid,
This is the nth day of April, 1999.
MARSH SMITH

J
IJATER & LRND SECTION Fax=919-716-6756 Jun 4 '99 1545 P, 41
A~ •
/~ /
~`~~.
Stag Qf North Carolina
MiCHAA.I. F. F:ASLEti• Ue~artmont ~~f JlJ_silce
ATTURNHY CL~,IVEFUV. ~ P. C.). BOX k'?3;a
HALE[CiH
27eoa•Oa2~

F~~ '~'~AN~MIS~I~~1'
ENVIRONMENTAL DIVf510N
is [ s~ ~ i e-esoo
F1UC; (D 1 ta) 7 18766
A,'t'TORNEY-CLIENT PRIVILEGED DOCUMENT'
AND ATTORNEY WORK PRODUCT
NOT A PUBEYC 'RECORD FiIR~UANT TO N.C. GEN. STAT.

~~!i
"~M
/w'...
~..
_:.~
~~
i`n1
~.
~,.
"._-~
to
Ta; ~, Date: Jwne A, ] 999
John Dorn
Fax #: [phone] Pages: 5, including this cover sheet,
rrom: Kathryn Jones CoopeF:
COMMENTS: OAH Orders Consolidating Deep River Citizens Ct~alitibn, +ut al., ~, N.C.
DENR cases and extending time to file PreHcaring Statements td AUg[~St
9, 1999.
wp 33(t9~-1

IJRTER & LRND SECTION Fax~919-716-6766
r -
STATE OF NORTH CAROLINA
,~1lN ~
Jun 4 ' 99 15 ~ 05 P. 02
IN THE ~FF1C~, Of
~Z 58 ~~ ?MINISTRATIVE HEARINGS
p~:EP Ri'V'1/R CITIZENS COALITION, F~iC~af )
Petitioner, ~iMnNts~~~+.,a7~ r !~rr,~~~r~$
)
v )
' )
NORTH CAROLINA DEPART1vIENT OF }
ENVIRONMENT AN]_7 NATURAI.• RF.SQi,TRCES )
Respondent. ~ )
COUNTY OP IZP,NDOLPI-I
99 ]/bR 0560
DEEP RIVCR CITIZENS C'QALITION )
Petitioner,; )
}
v. )
' )
NORTI•I CAROLINA DEPARTMENT OF )
ENVIRONMENT AND'NATURAL RESOURCES )
Respondent: )
COUNTY OF RANDOLPII
99 EHR 0613
ORDER FOR CONSOLIDATION
The undersigned Chief Administrative )/aw .lodge of the Office of Adminis#rative
bearings finds that the above-captioned c;~ases involve common questions of law and fact.
In order to reduce costs and to avoid delay, these cases should be consolidated for hearing
pursuant to N.C. Gen. Stat. § 150B-26_
ACCORDINGLY, THEREFORE, IT IS I~EREBY ORDERED that the above-
captioned cases be cgn~Qlad~tecl for hearing in thc; Offioe of Administrative Hearings.
This the `~~day of 3une, 1999.
~~t~ ~ ~ 'h~~~
Jul' Mann, III
'ef Administrative Law Judge
i:_.

WATER & LAND SECTI~! Fax~919-716-6766 Jun 4 '99 1545 P. 43

_~~_
n copy ofthe foregoing was mailed t4:
Demian A Schane
Terns Pravlik & lYiilliazx
121 12'x' Street, NW
Washington 17C 20005-4632
Att4x~,ey 1;'Q.c Petitioner ~ ;
Marsh Smith
Cunningham, Dedmond,. Petersen
& Smitla
PO Box 1468
Sputhern Pines NC 2$388
Attorney far Petitioner
l~athryn ]ones Cooper
Special beputy Attorney General
NC Department of .Custice , .
PQ 13ox 629
Raleigh NC 27602-0629
Attorney fox Respondent
This the ~~day~ of June, 1499.
__..._~.
Uf a of dministrative earings
P.U.Drawer 27447
Raleigh, N_ C. 276 1 1-7447
919/7332698
Fax: [phone]

WRTER & LRND SECTION Fax~919-716-6766 Jun 4 '99 1545 P. 04
,
IN T1IE OFFICE Ok' AI~ivIlNiSTRATIVE HEARINGS
STATE OF NO'RT'H ~1111R L~,II~ApLPH COi iNTY
T?F.EP kjVER CITIZENS COALITiO1~I, u~n~., )
' ~iCE a~ )
Petitioners, ;~~f+Ittl191xr~i~lr `~~R~+~~
v. )
Case No_ 991;HR 0560
NORTH CAROLINA DEPAR'TMEI~IT Off' )
ENVIRUNMEN~' AND NATtTRAE RESOURCES, )
' )
ke$Pgndent, )
-)
.. •- }
DEE,I' RIVER COALITION, INC,, - )
Petitioner, ?
v. )
Case No, ~~9 EFJR 0613
NORTH CAKOLTNA pEp~'I'IvIENT Ur° )
ENVIRONMENT ANn NATURAL RFSQLIRCI;S, )
Respondent;. )
ORDER
Upon ecrosiilcration of the parties' Joint Motion for an Extension oi'Time to file
Prehearing Statements, it i5 this. t ~+~ay of , 1999; UKY7ERED that the
parties' prellearing statements are due on August 9, 1999.
.AD NISTi2ATIVE LA JUD ~E
v13~ ~ ~. 'I~~~~
1.= . __ .

WATER & LRND SECTIQN Fax~919-716-5766
A copy of the forgoing was mailed to
llemiaz~ A, Schane
Terris Pxavlik & Millian
l 121 12`h Street, NW
Washington DC 20005-4632 ,
Attorney for T~etitioner
Marsh Smith
Cunningham, Dedmond, Petersen
& Smith
PO Box 1468
Southern Pines NC 28388
Attorney for Petitioner
Cathryn Jones Cooper
Special Deputy Attorney General
NC Department of Justice
PO Box 629
Raleigh NC 27602-0529
Attorney 'for Respondent
This the o ~~ay of June, 1999.
Jun 4 ' 99 15 ~ 45 P. 45
,~
1
~~ ~
O ce of dministrativ earings
PO Drawer 27447
Raleigh NC 27b 11-7447
919/733-2698
FAX#: 9] 9/733-3407

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
May 28, 1999
IN REPLY REFER TO
Regulatory Division
Action ID: 199102669
Mr. Heinz Mueller
U.S. Environmental Protection Agency
Region 4
61 Forsyth Street
Atlanta, Georgia 30303-3104
Dear Mr. Mueller:
Quality (NCDWQ) address the pnmary water quality issues that had been raised in comments on
the Draft Environmental Impact Statement (Draft EIS) for the proposed Randleman Lake. This
information was necessary to develop the Final EIS for the proposed project. The water quality
issues had been raised in comments from the North Carolina Divisions of Water Quality and
Waste Management, the North Carolina Wildlife Resources commission (NCWRC), and the
U.S. Environmental Protection Agency (EPA).
.~~. .
~?°!
t. ,;, ,
V
~,-~~
By letter dated November 14, 1997, we requested the North Carolina Division of V~>,~""°~-=-~
--._... _
The NCDWQ responded to our request on January 25, 1999 by submitting a document that
responded to the primary water quality issues raised by the EPA, the NCWRC, and other
agencies and citizens. A copy of the State's document was forwarded to you on February 12,
1999 with a verbal request for you to evaluate it to determine whether EPA's comments on the
Draft EIS had been adequately addressed.
We understand that EPA has now completed its review and, accordingly, we are requesting
that you provide us your comments regarding the State's submittal and whether the issues you
had raised have been adequately addressed.
~f~~j~f;~~~~;~,
,~
r ~+ ir~.~
/`, ~<~'
.:~
~.;~,~
~J~ ~,hnJ~
~~,
;.9 <¢~~
~~~~~~
c~ ~~.~~~ - ~~~q ~ y
~`~ ~ ~ ~~ 2 ~~~~~
~U~ ~~~~~0 ~~~~
_..~ .QF r:(0~

2
If you have questions, please contact Mr. David Franklin at telephone [phone].
Sincerely,
G. Wayne Wright
Chief, Regulatory Division
Copy Furnished:
Mr. Kerr Stevens
N.~' Division of Water Quality
~6st Office Box 27687
Raleigh, North Carolina 27611
Mr. Boyd DeVane
N•.C. Division of Water Quality
Post Office Box 27687
Raleigh, North Carolina 27611
Mr. John F. Kime, Executive Director
Piedmont Triad Regional Water Authority
Koger Center, Wilmington Building, Suite 201
2216 West Meadowview Road
Greensboro, North Carolina 27407-3480
Ms. Melba McGee
N.C. Department of Environment
and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611
Mr. Don Cordell
Hazen and Sawyer
4011 WestChase Blvd.
Raleigh, North Carolina 27607
r

~,_
~ I.~!ATEP. ~' Lr .y .._~T?L'A! Fax:9'1°-r'16-665 Mau 11 °ag 13:00
1~t:CuAE:. c_ ~'.~S:.~Y
S*ate of vortn C~~.rot~na .
Depa-tmenc of.lustic~
~. rJ. SOX 6z9
R~LC:G^I
'~75Gr•O~'.~.' 9
PI~one:
Fix:
P. 01
~oy
~~•Ja~~~

(919] 716-"076"0
CON rIL'ENTIAL
S'.;EJE~T TO ATTORNEY-CLTE`tT F~,;yi.L.~6'e"",'~,~ i,
"`~ ] ~. l
y,_ 1 ~
(~1
COLEEN SULLINS, TOMMY STEVENS '~i` t.
Ta:
~Oti~:
D:~T ~.
KATHRYN COOPER
~tT~-:trt.~"E~Cs ?~Cr.S (L`iCLT~~riC- TR.~`~'S`>'ffTi~L 5~~~-,
C 0~~ 1~ ~. C'~''T'":' O ~' L~ 4C~C~? +~'.ti7(S) ~' ~L~.~.~t~.~ ~~.:
CC7yLY~~ ~a:
r~^ ="Ua( ~d~Dr;miry / ,-~:r'rr-ar,v~.lc;imr. ~~~k~T~:
~~

.,.
I~!PT_F ~~ L!~N'0 OFCTTCN Fax:91~-71~-6766 N'au 11 'cQ 13:00 P. 02
rU,ett
t!F't~tC1S OY
nnnntrtsrxnrrvx ur,,vt~r~cs
Fte, q1 930 AAI 1Y99
5'i'~r), OF I~C~RTH CARQIriNA ADMINI TRA7 VE lEARINGS
t;,'C7L!VYY OF itANDOGPI-{ 99 ~PIk 456{3
- .~,~
Doep River Citizens Conlitiot~, and )
Arnericat~ Canoe Association, Inc, )
netitscner, )
NOTICE OF Cd1,ITEST;~A CASE
v. ) dND ASSIGNMENT
G.S. lSOB-2~, 33(b}(4}
h?. C.;. Dep>artrne:;t of I:avir4nmental & rlaturttl )
Reso! trees ti ; )
;Responc~et~t. )
NOTICE 15 >'-:~REBY G,I'VEN that; a petltlon Pot a contested case he~u•ing pursuant to
C•,~~, iSOB-23(a) was #lled In and accepted by the Oft`',ce of Administrative ~iearings cn
41~y o3, I99~, Iti acrardataae with t;}.5.1 SOB-23 (a) artd 2b NCAC 3.0003,
Robe': Rooaevclt Kcitly Jr., Administrative Law Judge, hAS teen asslgtZed to preside ita this
CA38. Tre admini;strat;vciaw judgo tray be coxitACted ?~y mail ttt F.O. IJzawer 27447,
Rtxie!g;~, ti.~. 261 i-7447, or by telephone at (9I9) 733-259$.
"'he Respardent shall submit, wit'.zin ;iQ. ciAVS_, a copy of the docut*men~ ~onstitLting
agency action, whicK caused the flfing of the Petition.
A copy of any Co~ument or other pleading filed wl~h the pfF'ica vfEldminlstratlve
I i'earinQs must a?so be sent to the other party at the tithe of FcltnS. If tt pa,~fiv chan~;.s his
QL'~er ma~li, 2 ~d s or ~£the ade~re~s ~s•„i~cart~eot t is O£r~~e of A~uZ' is~}•~,~ve I3eaz~n~
tr~t;~~o3ifled t~ ne~v or corr~Gt ~dxe~s.
i\'OT~; You may receive an Order for Preheating Statements to which you musk
rea~ond ~vithir 3a ~'~t s,
'?;lis tre 4th day of May, 1999,
Julian Mann, III
,Chief Admirtistrt-tive l,aw Judge
I~i.^.1 Hausen
Chief Heatin~s Clerk
PO Drawer 27447
Ralafgh NC 2761 I-7~~47
[phone]
6It60 5661 'tT'S9 WOt1~
t 'd

r l~!P,TER w L~Nr S=CTT_^N Fax~91G-715-675 Mau 11 '99 1:01 P. 03
i1l,F,i1
oNa'lc:r, car
,1 D~I1 N l8'I' IU1' I7 v r: I [ M.ARJ14pS
Dlny~ea Aaf,~~~l Ifyf
S'CA7`C Ul* tiORTH CAROLiNf1 dN TFYE QFFICE 0~'
ApMINISTRATIVl:1•IEARINGS
COUIr'TY OP R~1,'.V'DOG.PPI 99 FHR456Q
,, .
Deed River Citizens Coalition, and )
American Canoe Association, It~c. } .
Petitioner, )
v, ) - ~CFYEI?ULIIV~ 41tigY;R
V. C, Depa;'tt;~ent of ~nvirormantal & Natural )
Resources : ~ ~ ~ ) ,~~
Respandettt, )
The uncersigned has estaGlisl~ed the following Scheduling Order, This Scheduling
prde* :nay oe 11!er amended in the disorltian of the Administrative I~aw Judge, based upotl
information prcvzded in tEta pflrties' Prehe~ring Statements. Tk'ie parties will be notified of
any changes by way of dn. ,Amended Scheduling Order,
;, The henrirg For this coot-sted oasa wi?1 ba in High Point, North Carolina, fax
tk:e week be8inning August 23, 1999. At least IS days prior to the hearing tklo
Adnunistra:ive ]raw lodge will .mail to the parties a more specific notice of the
date, time and Ioeptian of the hearing.
2. Dieeovery shall be completed on or before A~1~ust d9, i9N9.
IT IS SO QItDERED.
This the 4th day of May, 1499,
may, ~~~W..~.•
Robert Roose~•el Reilly Jt-. '
,~.dmini~trative Law Judge
woa~
E 'd b'.~59 6ti6T'IS'SO

I~!FTFR ~ L^"tip : rC?=C`ti' Fax :919- ~ 16-6 ~ 65 Niau 1 ~ ' 99 13 : 01 P. ~~
yt-.k,O
owrtcFai~
npM~N~n'l'P.n•rtvY tVY,AItLtiOtl
~Iny u+ ; aP AEI 1"')^
S'I'~,TE OI~ 1QRTH CAROLINA ADIvl.~1ST~Ap V]a ~ 1vARINGS
COUNTY OP It~~~QOLPF~i 99 irHR 0560
Dccp river Citizens CoIIlitlon, attd )
Attlerioan Cnr_oc Association, Inc, )
Pe*.itioner, )
O~tDE~t 1r OR'PRI~>EIEAR7NG
v. > STA'TEME;~'~'3
'~', C. Depa~men: of Envlronrnental & Natural }
Resattrces • ' )
Responden+ )
Tn order to permit ;he prompt prcpnrstion of this case for hearing,
IT ZS h~:~EBY OlZDEREI~, p'.:."suttnt to 2C NCAC 3 ,0004, that each party file with
the Office aFAcministrAtive Hearings and',serve upon the other parties ~ preheating
a:ater:tent co:itaininq your present position with regard to the f4114witag:
I. The issues to be resole@d, and the atrttutes, rules, and legal precedent involved,
2. A bref'stAtement of the facts and reasons supporting the party's position on eacl>,
issue :n di~puty;
3. A l:at o.°pzvposedwitnessea; •
~#. Vv~;e±her you wish to pursuo discovery, [f so, the length of timC required i~
di>r'e-erat tern the tirne set in the,;~cheduiing Qrder;
S. Requested location of heating; if tiiFFerent from the location set in the Scheduling
order;
b, Estimated length o~hearing;
7. Zf yoN do not have an attorney, roar home and business addresses and telephone
x:t:rnb~rs;
3. The date by which you will be ready to have .s hearing in this case if differelnt
from the date set in the Scheduling Order;
9. Qther special considarauong.
This Preheari~g Statercaont mast be f1Iad anc! served within 30 days of the date of
this QRDBR.
This the dth day of May, 1999,
Robert~Rcosevelt F~eitly x,~
AdministttttivC Law Judge
0L~fi0 6565'SI'S© WD21d
b 'a

l~!PTER ~. L~htiD ~_CTTChti =a:~:~?19-; 1h-6~6F h"au 1~ '~`? 1?~01 P. 05
*»*ana*M,~«
On this date mailed to:
~ttu's:l Smlth
Cunningham pedrnond Petersen &
3m;th LLB
PO hex 1468
Sa~ithcrtx Pinos, `JC 28388
AT'iUR~IEY ~'OK °f/TITIOI~IER
SeGretAty Wayne McDevitt
'~, C, Department of Environrrxent and
V~ilu"d~ R~$4L1[C`+S
A.".t<n: DFtnie; F, ~tcLat>Inorn
5;? ~'o;',~: Sn!sbury Street
Raleigh, N~ 275r 1
R~SPd?~'D1rN i
This t>xe 411 day of May, 1949.
ICim ~FIttusen
Chief Hearings Clerk
Qfl'ice of ~ldministatlve I-Iearin~s
PO I~rawCr 27447
,Raleigh NC 276 1 1-7447
(9 t 9} 733-0926

S .d P~~6o d66Z'TZ'ze
_ ..
1JOH~

t~,~a~nl- F. ~ke~u s1 n ~99
1~ r .k ,iw/a82G1~

~'etitiom ina~ drawn
By Tatase iCiltfas
ysatfP 1'lIS=~[
' A petiUBn could ~iefay the con-
•sinc~dfos of lkaailenart I,Hke.
7iu• docx~ureill. Stkd with lha stain,
()~iCC Of !{I!•
n mitistrat~ae
Hearln~s.
otudlat-gt; al tFdlet ~~ p,er~i ie-
saed fur the planned rese~crolr.
' ~t-keuing lg sdeet}ute for Atsdus~to
e~va1'sate the petitiua aid coia>Id delay .
tonsiaucliam of the ire drinlting
water source, grd;iclt Pitdaianl Tried
j~ieptl L~1{!i A,Itleority 17Wefn111Cf5
bad toyed lfk aia~i this iblll.- . -
t7n i5eb©lf of IAe American t~t^e
R[sociaiian tied R+eeg River Cilium
CanllGo*, tVae7tinS~ D_C.a~aeed ^t-
lorn¢ys Illed a pelHiv^ NSey 3. so-
~diag to enessislaa~Rrl~o vrurhs tvstb
a p~ing judge asst the case: .
Tfte dowt^en# el^ims €1te N.~ De-
parirntitl of Lnvlrvnnrerd.and P¢aturai
Resources did oaf fotla.v [le correct
pfvCMure wYcn isst~ ;scale water
~., r
A state htaring
regerdlnq a water quaflty
ptxmit far the fulu~4
DandGeman AeservvN wilt
De held the week of auQ•
23 in High Point_
- The plsw~ned 3,Ofl0-aCte
nandleman il~aeryoir will-
suppig wear to
Crce~~rpp. liWh Poir(t,
ard,dute, Jamestown, .
Randkimarr and fiarrdotpA
ro.,.~y_. '. ,
qualisy p¢~1 is blard~ tl~t ^~s the
y~y~ a~Qwnty tsr iiaod t4l acres of
vnilaade to Gviki RanJb~.sr-at1 Eirser-~
unit .
ETC Bit 1Giktf£6#C!d U. pUnliC ltealtb,'~
said dlan lforlos of.the coaiiliart, a
B~uP of f:,rrnecs and tardarroers in
ltrP area ot'ifie lake velar ~+'i?Q aonteday
a~ It as a wales seixce.
. • ~ .
II lt'
,.~~e ,~^~ about clean wafer"
5pccillccw~cer^s staked in the pc•
titian k~cl4de falktre io hold a pulllle
]re^rlr.i dctipih: yj~»i(ira^i v++bfae in- ..
1.ere~st un:h ~ It~ecoalNian'S regaeat, , '
AS v1C11 AS Iailta'e 10 3tAlliy 1111) impRCts ..
,~' inlert~sin Crxttsftr !o lttp~rcd
walcr9 of the llav! Ri~~er.
Tl~epetitianslabes the u~aket ~alit!r
-p'ernuf wee issaedbcibnearesalation
with 5ea1?oard Chemlcal.8nd.lhe tllgh
Yoin1. Leaadiil] s+k_x+as ~•
. --(~~tx.tlkio~ also at}e~ee lire permit
tivae issturd bCfore a slat ~iadr~ng
liwrseaetard of ITectakaa,
of !Vo Si~,rsifMarti [myact was Qiv,ri,
li~+u81r ~ IY.G. Division of >RaARx
~~P stntea ltus eras needed t,efore
pn~jed. coup proceed.. _ • ~ -
Ba31i DeVarxe, supernsnc ut the
L3aasiltatio~ aa<J starx>~rdr unit of
the Diti'ision of ~4aler Q Ja~1J, s~xt l~
~~ere Ong iorGr lire,spooCc ~•nrrcerns
"We doA't lbiiic ire dici anythu+t;
cr+w`s~e the re~ubtic~txS." Del7ane said.
"tie tflea& +ve:e is cis{[ oaup once,
rye Have dwc-e s~snetF~ing xrang, tre`g;
ceri~nly adroit tRat." ..
~ Aitarsacy Dc~tian Sctrone sold if the;
~heaTing process does not yield reb~cr-;
capon to its elieuls` cur~certs, th~-
:hey c~orrb P4 a!-peol Ea ano+rti>rr:
wall fa it-,e U.S. Artny Carps of En•;
glosses gtrmit psoctss [tr tie oau•;
piste. - . ~ •
`!]he Corps ¢~nst ~e wart band-:
letzaa Labe pt^c~s t+vinp~V tdlkt federal
grc^litp cegteirementt- fact of Brat'
l isxtudeF a fitjeral environ•;
mental ~rap^c1 slateaa~:
"il ~_trot a Baru $eal, wad the do-;
C1sioR lla3 4~ ~QR[~ nca~C,'. BB«I..14~p _
Tu¢ahaw. a bialogtst with the U.5.
Annr fps of gngipe¢rs.,"Therewce:
still otter clearao~es needaf_from:
The-tVafer ,1~~ihority'r:Cbsita7eR,,
A[avkl Koonce; and execxlrae dfieC:'
_ tor, John lfisne. mere :,oi. tvailrab
concnent Monday aitEernncm. ~-r;r_l~~'~
J
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~~

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IiATEP, ~ L~,~~ S`CT?~_~~' Fax :91~- ~ 1h-6 ~ 65 P"ay 11 °-~0~~1 1.5 :02 P. 0~
~~/~l/Q`3 Lr~: ~'7 ~ i Rwn ~ ,~~~ , . .. ~ ~ I^~G- ti . _~~ ~G~~ ~ ~ ~ `~~ ~ lam{
1 ~r.~,+
~ieariaag
to ~rev~ew
v ...
' Comintwdlrorttbrute Bt
r t!atfon, Whltoent avid. it "will hove
to ~ aubstactlate' w~lsy it did that"
Any dspertttra Prom tb• Jadge'a
,rscomrttendatio>1 Could GteatC
¢¢''pPuud8 !or a 18548t1it 1n flats ar
jgdergl idurt. Vvluaaant raid. "A lo[
at people maintain that a (tzial)
judge wW put a Sot of ~ weight on
tpdat ttie administrative judge
says," be said.
., ~, lewyFr Por the two opDUaitivn
gsouRs teat saying whether hie cli-
.eats plea to sue to amp the daai, but
he ¢graad ait#- 4tr'hicoaett obout the
heu~itt~~'a itnpottn~e.
The admlNstradve tta8r:ng "as
taher+e yCti make your rec.Ard.
Triete ptey nR side efFecte or conse-
quences which wonid maltA it: aa8•
ter to bt'u+g a Future suit ~tdar ttie
c(atlaasl ~virorsmettt~l Prataotyon
Ac! ar Clean WIIter Act.' sgid
Ddarsb &tnith, Local Cd~l forbq~tis
oPPositlOa R~"auPe-
a~ tb~ intftitian ltcR 18 tD have
a aotitgated hgannB tD see wtteth.er
(tfs~ divisiatt3 foiNowad its oxci
rtilaA," $Aiith said. "TherE'g noC
some Maaniavelltea tateat tv S+rt tip
same fittta'e suit."
Tits oppositina gsvlips allegt the
d~iir~aluerrat~awhe sit ia~dtlte
permit ats lYlsrch ?.1:
. 'rAa divlsioa is~oued the pertait
before the Army Corps of Eagi•
tit'ess eotapiRted a rebtart, 4a the
., ~
9t3tE= ~St~3trV~ 13W ~~ Wl~ Ctlri'
sides' in At~~tlsr ~ pectic~n ~le~ by t~pgonenu of
Raudlemazt Daisy. ,
Ax AI~t WA'r1~
off Wmtr
HIG~i POINT - Aa Au¢use he.9rin8 in Pe~art
cattld lay the ~vtmd~rors far a :`.~uue ~~gg
t9 Ft~ad7eul~ D3Lt7, a pClStical ic=`•eatisi says.
js rha meals of Az:g. ~'. ~ ire adraiaia:s°itdva
judge will hem' aryl a~ a wCterjl~t`1
9ermiL issut:tt #cr 123sr dam ~' tba otnte Dtvi~cn of
W~laz' Qttniity. Tvva sups, t~ I?~ap Rivas C,yti!a4Aa
Caaiirion sad tlse anier'.ran C.ittiae Assoc9ation, have
chttilengat! the pez^riL
The dam nad the ; e~-vvirs ail ciwam saw ia-
tttaded eo be a ~w soturr' of cater ter Gs+eeoibo~,
which has espetienced watret sl.lr"a~es in t'eceaC
}'o4rar eJid ~~' t'~'o~"~+S :t'ibC ~Z~~iks.
The A baring 'Affil not decce ~s da~t'9 late.
but it rm:ld establ;3n gravar'a for a i'¢ture lawsuit
against the dsai. The ;edge eouid upheld t~ divSaiea's
gettshit or artsead iG F.tther tv3F~ hi9 dctasit~ is a
• ra~mmeadatibti to the divi~oa, ~~ could follow fi,
$meud it or iguai° ~ :''•r ;~d,~r'a role iy ttat.
even clldtt~i, his der.~.ea 1s aarbillctu>ar. sago Richard
Vq'hi.~iatt, a pTal`es~' at ~t::ns~t;ltw of t30vt:sztmett
at LlNC-C1~etP~: HIIl i~u is familiar ~. the adminis•
trAbv~heai~; Dt'6c98S. -
"}ie has a real impot~atiole la framing the way the
cAUC w1u lvv4c itl tLe i`v.Ll.tre," Ef~1,lv,~nC said. Tho
admitti'aativt heariszg "a-eatee a rez:ird, a series of
deGisans tk~nt a Jatex oaurt wt~. look at."
:f the diri510a depa.-ts ruin tst judge's rl~catnmCn• _
p+fGSe Sit DA~9~ Pie
dent's apvirootttetstal impecL
~'nte div~.sion retuced ~ bald a
public heating on the Deft
~ The dirl~un "F~ i° H•acto
~~ prope:)Y" thz
water aualltY,
a '~ diVielOa issued the poctnit
txibrV a study aF patluaon at ttw
iQ['~}g~ ~~ ~ ~ 1atL
cottiplpted.
~ fifth allegation' raeatorbu a ~ra
„catchall" try lawy
arottpe, Ch8r8e9 that the division
"lai'$d othar~ to potnply vrzth
retavent atbtutea sad lculos:'
ba f~lday~ a g~eetnaa farvon
division defended tine b~~airs
R~utac, the divisiott't p
dit'acter, slid the divieiatt tiid not
havC to waft tar the ,Army Corps
~ ,~ • -.,.~ M• ,
r ~pra~~ou~lY isvasd~ Oad
the dasn'a effect on aster qut3isty,
hs said.' blla headns
Amt ~~ ~ iw
was held ac the tvtttergt>sbt9 psr•
trait. there hod bCt'n "?RlDagive
pnDlic Input" dskritt2 TtPariEYS~ 0A
earlies issues, he: said. whloh
Ra~dlemaa P:eaesvoi;,
would be created by Site dim.
bosdor of Gu~fald anan F2tldolpb
counties, tt i9 seal as the gpswer
for chtanic wtter sharteges in ~
~gian. ltertt~larly t<uu ~rrennstraty,
'Z$e LWC aPPd-altion 8~ ~dY~ to
df.Gbt'rnt salvtio.n. Tba3'
irwrrad a~ ti ld{n~ ttx ~a e
}}oth tho Dcep ~'~' C,d: ous Coy
alltlon atld th0 Nriericia .Caaob
Assccia>'on bava sold local gev~rn'
meat Defora '
• Ia 39li~, Site aaalidoa dropped a
two-9elr lew9ttit ever sa ~srlier
• RAAtilCClltA tl9tri pRtYtiit. The Cdttoe
oOAOCtbtion hen Wt?p Iawyults
~iuC averhdiar~argea frota their
wwaga t:nattaeat ptmt7, btttthit 7a
tba oaiy time it hag t:hnllatlged Cta
ptopared xaatlletaan Datt1.
The ddtlfitti.4tr3ticve hearing Lr not
a~tp~vvLOit t4 dolay tno dmo'e prvg-
trea, The waist authnrityta waidng
for a titrdgt, aud•Fffl yermit &vra
tbt Army Corps of Engineers. That
petmlt is ltu3 last onv nestled bt-
fore COt~.ttz'tt,TZOn Oast bean. but it
Se sot txpected before the August
hedrirtg_

CUNNINGHAM, DEDMOND, PETERSEN & SMITH, L.L.P
ATTORNEYS AND COUNSELORS AT LAW
225 NORTH BENNETT STREET
SOUTHERN PINES, NORTH CAROLINA 28387
BRUCE T. CUNNINGHAM, JR
RICHARD E. DEDMOND
ANN C. PETERSEN [phone]
MARSH SMITH
May 12, 1999
Preston Howard, Director '
Division of Water Quality
NC Department of Environment and Natural Resource,
512 N. Salisbury St.
Raleigh, NC 27604 ~ ". , e..~
Dan McLawhorn, Esq.
NCDENR
P O Box 27687
Raleigh, NC 27611-7687
John Kime
Piedmont Triad Water Authority
Wilmington Building, Suite 1217
2216 West Meadowiew Road
Greensboro. NC ^_7407
~~ ~ ~
~~~'
L ~ ~~
~~
V ^ '^ h
/p~~ JUV' MAILING ADDRESS
(r P. O. BOX 1468
SOUTHERN PINES, NC 28388
FAX NO. [phone]
~~~~ ~ ,
~~;~'
~~ +~ 99
Mph ~ -1 19
OF ~P~~RpF PpE
p1 D`R~p-~pRS
;:,F ~r;?
<~.
~ ~ ~ 6 h~QY 1 7 1999 ,;
RE: Contested Case Hearing
The Deep River Coalition, Inc. v. NC Department of Environment & Natural
Resources (Randleman Dam project)
Dear Sirs:
By copy of this letter, you are hereby served the Petition For Contested Case Hearing in
the above matter. Please contact my office if you have further questions. Thank you.
Sincerely,
CUNNINGHAM, DEDti10ND, PETERSEN & SI~fITH, L.L.P.

Marsh Smith
MS/sr
cc: Demian Schane, Esq.
\~
~O
1,

NORTH CAROLINA
RANDOLPH COUNTY
The Deep River Coalition, Inc.,
PETITIONER,
v.
N.C. Department of Environment &
Natural Resources,
RESPONDENT.
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
FILE NUMBER:
PETITION FOR CONTESTED
CASE HEARING
Petitioner hereby asks for a contested case hearing as provided for by North Carolina
General Statute 150B-23 because Respondent has granted, on or about March 11, 1999, a Water
Quality Certification to the Piedmont Triad Regional Water Authority (hereafter "Piedmont")
under Section 401 of the Federal Water Pollution Control Act and the North Carolina Division of
Water Quality Regulations in 15A NCAC 2H, Section .0500 for constructing the proposed
Randleman Reservoir which will impact 121 acres of wetlands in Guilford and Randolph
counties. Petitioner is the Deep River Coalition, Inc.
Petitioner, The Deep River Coalition, Inc., is a 1\orth Carolina non-profit corporation formed
on December 16, 1996 by a group of farmers, residents and landowners in the area below the
proposed Randleman Reservoir on the Deep River. The group was formed out of concern for
the water quality in the area.
2. The address of the Deep River Coalition is PO Box 514, Southern Pines, North Carolina
28387.
Petitioner brings this Petition on its own behalf and on behalf of its members. Many of the
members of the organization live in close proximity to the Deep River, and many members
get their drinking water from the Deep River. These members will be directly and adversely
affected by reduction of property values, the loss of wildlife habitat, the degradation of water
quality in the Deep River, the reduction in the quality of their drinking water, and other
impacts from construction of the reservoir.
4. In issuing the certificate, respondent exceeded its jurisdiction and authority, failed to follow
proper procedures, acted arbitrarily and capriciously, and failed to act as required by law and
rule. Specifically, respondent:
issued the certification prior to the State Clearing House Record of Decision or
Finding of No Significant Impact in accordance with NCAC 15A: O1C.0402 even

though the North Carolina Division of Water Quality had stated that this was needed
before the project could proceed.
b. failed to hold a requested public hearing on the certification even though there was
significant public interest in the matter and even though the Deep River Citizen's
Coalition had requested such a hearing
c. failed to investigate properly the effect that this project will have on the water quality
of the Deep River and downstream waterways and the full impacts of the interbasin
transfer to the impaired water of the Haw River (Jordan Lake);
d. issued the certification before the resolution of the Seaboard Chemical/High Point
Landfill site remediation; and
e. failed otherwise to comply with relevant statutes and rules.
5. Other facts and issues may arise during the contested case hearing that will further support
the allegations made by petitioners above.
6. Because of these facts Respondent has substantially impaired the rights of petitioner and its
members, exceeded its authority or jurisdiction, acted erroneously, failed to use proper
procedure, acted arbitrarily and capriciously, and failed to act as required by law or rule.
WHEREFORE, petitioner, The Deep River Coalition, Inc_, prays that a contested case hearing be
granted and that the certificate be revoked.
This the day of 1`1ay 1999,
?4.y.
CUNNINGHAw1 DEDMOND PETERSEN & SMITH, LLP
Attorney for Petitioner ~O
B Y: ~ ' / ~fJ
MARSH SMITH, N.C. Bar No. 16828
PO Box 1468
Southern Pines, NC 28388
[phone]

CERTIFICATE OF SERVICE
I hereby certify that a copy of this Petition was served on Preston Howard, Director, Division of
Water Quality, NC Department of Environment and Natural Resources, 512 N. Salisbury St.,
Raleigh, NC 27604, Dan McLawhorn, Esq., NCDENR, PO Box 27687, Raleigh, NC 27611-
7687, and John Kime, Piedmont Triad Water Authority, Wilmington Building, Suite 1217, 2216
West Meadowview Road, Greensboro, N.C. 27407, by deposit in the United States Mail, postage
prepaid.
This the ~/ day of May, 1999.
Marsh Smith
Cc:
Demian Schane, Esq.