Will Hendrick - Southern Environmental Law Center ATTACHMENT

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919- 929 -9421
CHAPEL HILL, NC 27516 -2356
April 4, 2014
VIA US MAIL AND E -MAIL
Mr. Justin Bashaw
USACE, Wilmington District
69 Darlington Avenue
Wilmington, NC 28403 -1343
[e-mail]
Re: Environmental Assessment for Jordan Lake SolarBee Project
Dear Mr. Bashaw:
On behalf of the North Carolina Conservation Network, the Southern Environmental Law
Center ( "SELC ") offers the following comments on the above - referenced Environmental
Assessment ("EA") prepared by the U.S. Army Corps of Engineers ( "USACE ") and the North
Carolina Department of Environment and Natural Resources ( "NCDENR "). In brief, we believe
the EA fails to meet the requirements of the National Environmental Policy Act ( "NEPA "), and
the record of which the EA is a part could not justify a decision by the USACE to grant a
property interest or permit tethering of mixers in Jordan Lake.
I. Background: Nutrient Pollution and Jordan Lake
For more than three decades, the State of North Carolina has been aware of the danger
presented by nutrient loading in B. Everett Jordan Lake ( "Jordan Lake "). In 1983, only a year
after Jordan Lake reached normal pool level, all waters in the Haw River watershed, including
Jordan Lake, were classified as nutrient sensitive waters ( "NSW ").1 By issuing this
classification, the State recognized the need for a nutrient management strategy to protect or
restore the designated uses of Jordan Lake.2
The State's initial response was to place limits on point sources. In light of the NSW
classification, North Carolina's Environmental Management Commission ( "EMC ") imposed
phosphorus limits on wastewater dischargers in the watershed.3 When these limits proved
' This classification is given to waters that are "experiencing or are subject to excessive growths of microscopic or
macroscopic vegetation." 15A N.C. Admin. Code 0213.0223. For purposes of this classification, the term
"nutrients" means "phosphorous or nitrogen or any other chemical parameter or combination of parameters which
the commission determines to be contributing to excessive growths of microscopic or macroscopic vegetation." Id.
2 15A N.C. Admin. Code 0213.0223.
3 NCDENR, Division of Water Quality, B. Everett Jordan Reservoir, North Carolina Phase I Total Maximum Daily
Load 2 (Sept. 2007). Wastewater treatment facilities permitted to discharge more than .005 MGD were required to
limit the total phosphorus (TP) in their effluent to 2.0 mgl /L. Id. In addition, "[d]ue to special concerns about the
Upper New Hope Arm of the reservoir, NPDES permitted wastewater facilities received TIP limits of 0.5 mg /L
during the months from April to October." Id.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC

Mr. Justin Bashaw
April 4, 2014
Page 2
insufficient to combat nutrient pollution, the North Carolina General Assembly enacted the
Clean Water Responsibility Act of 1997 ( "CWRA "), which imposed limits on the discharge of
total phosphorus (TP) and total nitrogen (TN) into nutrient sensitive waters, including Jordan
Lake.4 Initially, dischargers were given as many as five years to comply with this new limit;5
however, the compliance deadline was extended by subsequent legislation.6 In order to qualify
for the compliance extension, permittees were required to develop a reservoir model to estimate
the need for nutrient reduction in Jordan Lake. While this planning process was valuable, it did
not place additional limits on point sources.
Unsurprisingly, nutrient pollution continued unabated in Jordan Lake and the surrounding
waters. Beginning in 2000, portions of the Jordan Lake watershed were included on the list of
impaired waters prepared by North Carolina pursuant to Section 303(d) of the Clean Water Act.7
By 2002, portions of the lake itself, including the New Hope Arm, were listed as impaired for
chlorophyll a, an indicator of nutrient pollution.$ In 2006, additional segments of the lake,
including the Haw River Arm and Morgan Creek Arm, were added to the 303(d) list due to
chlorophyll a impairment.9 As of 2007, NCDENR had "identified all management areas of
Jordan Reservoir in the Cape Fear River Basin as impaired by chlorophyll a. "10
Facing a growing problem, and required by federal law to take action,11 North Carolina
undertook to craft a more robust response to nutrient pollution in Jordan Lake. Beginning in
2003, NCDENR conducted an 18 -month stakeholder process to seek consensus from the
regulated community and other interested parties regarding how to address nutrient pollution in
the lake. In 2005, NCDENR held public meetings and solicited public comments. Based on this
input, and on additional input during stakeholder meetings held in 2006, NCDENR drafted a
Total Maximum Daily Load ( "TMDL ") for Jordan Lake to address the chlorophyll a impairment,
and submitted it to the U.S. Environmental Protection Agency. It also drafted nutrient
management rules which were published in the North Carolina Register for public comment on
June 15, 2007, and are known as the Jordan Lake Rules. 12
4 1997 N.C. Sess. Laws 1997 -458 (Aug. 27, 1997). The Act required newly permitted facilities, and any existing
facilities authorized to discharge 0.5 MGD or more, to limit TN to 5.5 mg /L and limit TP to 2.0 mg /L. Id. § 6.1.
5 The compliance deadline was established by the EMC and linked to the date for permit renewal. Id. § 6.1. Since
NPDES permits are issued for five -year periods, the legislature required full compliance no later than 1 January
2003.
6 1998 N.C. Sess. Laws 1998 -212 § 14.9H(c) (Oct. 30, 1998). Notably, these limitations only applied to dischargers
(i.e. point sources), so many sources of nutrient pollution remained unregulated.
7 NCDENR, North Carolina's 2000 § 303(d) List (Oct. 2, 2000) (listing Robeson Creek as impaired for chlorophyll
a).
8 NCDENR, North Carolina Water Quality Assessment and Impaired Waters List (Feb. 2003) (listing New Hope
River Arm of Jordan Lake as impaired for chlorophyll a).
9 NCDENR, North Carolina 303(d) List -2006 (June 19, 2007).
to NCDENR, Division of Water Quality, B. Everett Jordan Reservoir, North Carolina Phase I Total Maximum Daily
Load 4 (Sept. 2007).
11 33 U.S.C. § 1313(d)(1)(C) (requiring states to develop a total maximum daily load to limit the presence of the
pollutant or pollutants that cause the impairment of a water body).
12 21 N.C. Register 2258 (June 15, 2007).
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Mr. Justin Bashaw
April 4, 2014
Page 3
Five days later, the U.S. Environmental Protection Agency approved the Jordan Lake
TMDL. 13 Notably, federal approval of the TMDL was contingent on "reasonable assurance"
that nutrient reductions required by the TMDL would achieve water quality goals in Jordan
Lake. The EPA cited the establishment of rules regarding "nutrient management, runoff from
agricultural operations, stormwater controls for both existing and new development, and the
protection and maintenance of riparian buffers" as critical assurances that the TMDL would be
effective. 14 Although such rules existed in draft form, the EPA required them to be
"implemented as expeditiously as practicable." 15 Nevertheless, North Carolina spent almost two
additional years crafting the necessary regulations.
Following a 90 -day comment period on the draft rules, the EMC spent an additional eight
months revising the rules. In June 2008, the rules were submitted to the North Carolina Rules
Review Commission, and a host of technical revisions were incorporated. In 2009, the rules
received State legislative review, resulting in the enactment of bills establishing the Jordan Lake
Nutrient Management Strategy ( "Jordan Lake Rules"). 16
The Jordan Lake Rules were broad in scope, and addressed various sources of nutrient
pollution. The wastewater discharge rule set annual wasteload allocations for existing
wastewater dischargers to limit nutrient pollution by these point sources. 17 A separate rule
required fertilizer applicators to obtain training or follow a nutrient management plan. 18 Another
rule required additional protections for riparian buffers. 19 Importantly, several rules required
stormwater controls to combat nutrient runoff from new and existing development. 20 All told,
the Jordan Lake Rules were the product of years of study, debate, and compromise, and they
represented a comprehensive strategy to reduce nutrient pollution in Jordan Lake.
Unfortunately, before the majority of the Jordan Lake Rules went into effect, 21 efforts
were already under way to delay their implementation. Legislation, introduced by representatives
of upstream communities and adopted over considerable objection from the environmental
community, delayed implementation of the wastewater discharge rule, the stormwater rule for
new development, the stormwater rule for existing development, and the stormwater rule
pertaining to state and federal facilities.22 Consequently, most of the rules designed to clean up
Jordan Lake have yet to take effect and the major sources of nutrients entering Jordan Lake
remain unchecked.
13 NCDENR, Division of Water Quality, B. Everett Jordan Reservoir, North Carolina Phase I Total Maximum Daily
Load 54 (Sept. 2007).
14 Id.
15 Id.
16 2009 N.C. Sess Laws 2009 -216 (June 30, 2009); 2009 N.C. Sess. Laws 2009 -484 (Aug. 26, 2009).
17 15A N.C. Admin. Code 02B.0270.
" 15A N.C. Admin. Code 02B.0272.
19 15A N.C. Admin. Code 02B.0267.
20 15A N.C. Admin. Code 02B.0265; 15A N.C. Admin. Code 02B.0266; 15A N.C. Admin. Code 02B.0271.
21 Only the agriculture rule, fertilizer application rule, and riparian buffer rule have been implemented.
22 2013 N.C. Sess. Laws 2013 -395 (Aug. 23, 2013).

Mr. Justin Bashaw
April 4, 2014
Page 4
The predictable result is that nutrient pollution is still a serious problem in Jordan Lake.
Yet, rather than allow carefully crafted regulations to take effect, North Carolina has chosen to
eschew proven, legal techniques for nutrient reduction in favor of wishful experimentation. The
State proposes to float an armada of solar - powered circulators in portions of Jordan Lake with
the hope that these devices will reduce the amount of chlorophyll a — but not nutrients — in those
parts of the reservoir.
Since Jordan Lake is owned by the federal government and operated by the U.S. Army
Corps of Engineers, North Carolina's experiment requires federal action. According to the EA,
the federal action in question is "the granting of a USACE real estate license to the [N.C.
Division of Water Resources] for placement of circulators within the Morgan Creek and Haw
River Arms of Jordan Lake. ,23 Arguably, this statement fails to capture the full extent of federal
action required to authorize the project, particularly since the State plans to construct anchors on
the lake bed to which the circulators will be tethered. Regardless, as explained below, federal
law requires the USACE, before granting the license, to consider the environmental effect of
authorizing the State to conduct its experiment on federal property.
II. NEPA and the Function of an Environmental Assessment
The National Environmental Policy Act24 embodies a broad commitment to protecting
and promoting environmental quality. 25 NEPA implements this commitment by focusing
government and public attention on the environmental effects of a proposed federal action. 26
This careful evaluation of agency action prior to its commencement "is intended to help public
officials make decisions that are based on understanding of environmental consequences, and
take actions that protect, restore, and enhance the environment. "27
Where a proposed action is not categorically excluded from NEPA review, 28 the agency
must determine whether the action will significantly affect the quality of the human
environment. 29 If so, the agency must prepare a detailed Environmental Impact Statement (EIS);
otherwise, the agency must make a Finding of No Significant Impact (FONSI) .30 To determine
which environmental document to draft, the agency may first be required to prepare an
Environmental Assessment (EA) .31 "An EA is a brief document which provides sufficient
23 EA at 2.
24 42 U.S.C. § 4321 et seq.
25 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
26 Id.; see also Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,191 (4th Cir. 2009) (stating that, to
comply with NEPA, "federal agencies must take a `hard look' at the potential environmental
consequences of their actions" (citation omitted)).
27 40 C.F.R. § 1500.1(c).
28 See 40 C.F.R. § 1508.4 (defining "categorical exclusion "); see also 33 C.F.R. § 230.9. None of the relevant
agencies contends that the proposed action under consideration is categorically excluded from the NEPA process.
29 42 U.S.C. § 4332.
30 40 C.F.R. § 1508.13
31 See 40 C.F.R. § 1501.4 (stating that an EA shall be prepared if the proposed action is neither one which normally
requires an EIS nor the subject of a categorical exclusion).
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Mr. Justin Bashaw
April 4, 2014
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information to the district commander on potential environmental effects of the proposed action
and, if appropriate, its alternatives, for determining whether to prepare an EIS or a FONSI. "32
To ensure that sufficient information is provided to the district commander, NEPA
prescribes the contents of an EA. Specifically, an EA must include a brief discussion of the
purpose of the proposed action, the needs that will be met by the proposed action, alternatives to
the proposed action, and the environmental impacts of the proposal and its alternatives. 33 The EA
should evaluate the proposed action's "ecological ... , aesthetic, historic, cultural, economic,
social, [and] health [effects], whether direct, indirect, or cumulative." 34 Direct effects are those
that are "caused by the action and occur at the same time and place. "35 Indirect effects are
those "caused by the [agency] action and ... later in time or farther removed in distance, but ...
still reasonably foreseeable. ,36 Cumulative effects are environmental impacts that "result[] from
the incremental impact of the action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency (Federal or non - Federal) or person
undertakes such other actions. "37 Notably, "[c]umulative impacts can result from individually
minor but collectively significant actions taking place over a period of time. ,38
Public participation and transparency are crucial aspects of the NEPA process .39 By
requiring agencies to publicize the environmental impacts of its actions, NEPA "ensures that the
public and government agencies will be able to analyze and comment on the action's
environmental implications. "40 Public comment is particularly useful where, as here, the
environmental assessment is woefully inadequate.
III. Flawed from the Start: The EA's Problematic Statement of Purpose
As part of any EA, NEPA requires the agency to state the purpose and need for its
proposed action. 41 "The purpose and need statement ... defines the goals of the project to allow
for the review of an appropriate range of alternatives. "42 The statement of purpose in the EA
32 33 C.F.R. § 230.10(a); 40 C.F.R. § 1502.13; see also 40 C.F.R. § 1508.9 ( "An EA should provide "sufficient
evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no
significant impact. ").
33 33 C.F.R. §230.10(b).
3440 C.F.R. §§ 1508.8; 1508.25(c).
3s Id. § 1508.8(a).
36 Id. § 1508.8(b).
31 Id. § 1508.7.
38 Id.
39 See 40 C.F.R. § 1500.2(d) (requiring agencies to "[e]ncourage and facilitate public involvement in decisions
which affect the quality of the human environment "); Id. § 1506.6(a) (requiring agencies to "[m]ake diligent efforts
to involve the public in preparing and implementing their NEPA procedures "); Id. § 1506.6(d) (requiring agencies to
"[s]olicit information from the public ").
40 Nat'l Audubon Soc. v. Dep't of the Navy, 422 F.3d 174, 184 (4th Cir. 2005).
41 See 40 C.F.R. § 1502.13; Nat. Res. Def. Council v. U.S. Forest Serv., 634 F. Supp. 2d. 1045, 1058 -60 (E.D. Cal.
2007) (evaluating agency's statement of purpose and need in an EA).
41 Stop the Pipeline v. White, 233 F. Supp. 2d 957, 971 (S.D. Ohio 2002) (citing Citizens Against Burlington v.
Busey IV, 938 F.2d 190, 195 -96 (D.C. Cir. 1991)).
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Mr. Justin Bashaw
April 4, 2014
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under review is deeply flawed, and its problems are apparent before the agency's substantive
analysis even begins.
To the agency's credit, the EA appropriately recognizes the need to improve water
quality in Jordan Lake. Indeed, it is undebatable that, "[d]ue to Jordan Lake's impact on the
economy, recreation, and public water supply, it is imperative that water quality in Jordan Lake
achieve, at a minimum, state standards for monitored parameters. "43 Moreover, the EA correctly
states that "[t]he biggest water quality concern in Jordan Lake is nutrient loading; specifically
relating to nitrogen and phosphorus. "44 In short, to improve water quality in Jordan Lake, and
preserve its designated uses, there is a need to reduce nutrient loading. As outlined above, this
need has been recognized since at least 1983.
Yet the EA contains no clear, unambiguous statement of the need for the project beyond
these two general statements:
• "There is a need for water quality within the Jordan lake watershed to meet or
exceed State water quality standards in order to provide safe drinking water
and reduce costs associated with treating water for consumption."
• "From a recreational standpoint water quality needs to be maintained to protect
human health and protect aquatic species."
The EA should, instead, have a clear statement of need tailored to the specific water quality issue
to be addressed by the project — for instance, a specific statement of the need to address
chlorophyll a impairment and reduce nutrient over - enrichment. An appropriate and specific
statement of need would provide guidance for the development of an appropriate statement of
project purpose.
However, the reduction of nutrient loading is neither the stated goal nor the anticipated
outcome of the proposed project, allowing the EA to instead include an inappropriate statement
of purpose. According to the EA, the project purpose is to "demonstrate if deployment of in -lake
long- distance circulators can reduce chlorophyll a concentrations in Jordan Lake without
negatively impacting water quality or other Jordan Lake resources. "45 This statement of purpose
is problematic for two primary reasons.
First, the statement of purpose represents a fundamental misunderstanding of the
environmental review contemplated by NEPA. As written, the purpose of the project is
essentially to see if action enabled by a federal agency can be taken "without negatively
impacting" the environment. But this is precisely what the Environmental Assessment itself is
43 EA at 10. Indeed, given that North Carolina has unlawfully delayed the federally mandated review of its water
quality standards, see 33 U.S.C. § 1313(c)(1), arguably there is a need for the waters of Jordan Lake to exceed the
outdated standards currently in place under state law.
44 EA at 10.
4s Id.
2

Mr. Justin Bashaw
April 4, 2014
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supposed to assess. Indeed, if the purpose of the project were to determine whether deploying
in -lake circulators could be done without negatively impacting the environment, the purpose
could (and should) be satisfied by the analysis conducted pursuant to NEPA. Of course, this
would preclude the need to conduct the experiment in the first instance.
It appears that the true purpose of the project is to determine whether the deployment of
in -lake circulators will result in sufficient chlorophyll a reductions to allow North Carolina to
further delay implementation of the Jordan Lake Rules. Regardless, the State's failure to
articulate a coherent project purpose has placed public commenters in the unfair position of
having to deduce the real goal of the project. This severely undermines the ability of the public
to provide the necessary input to inform the district commander's decision regarding whether to
take a closer look at the environmental impact of the project.
The second problem with the statement of purpose in the EA is that it is not tailored to
address any specific, appropriate need identified by the EA, and it makes no attempt to establish
the need for the State's proposed experiment. The EA does not explain why it is necessary to
address only an effect, rather than the root cause of, nutrient loading.46 Stated differently, the
EA does not explain why it is necessary to combat nutrient loading through "in- lake"
technology, rather than by taking additional steps to limit the addition of nutrients to the lake
before they can contribute to eutrophication.47 Particularly given the existence of the Jordan
Lake Rules, which were designed to stop nutrient pollution at the source, the EA fails to establish
the need for a project that, even if successful, would only partially respond to a single effect of
nutrient pollution.48 Indeed, the EA envisions the experiment as a supplement to the
implemented portions of the Jordan Lake Rules; no attempt is made to explain why the
experiment is necessary when the full implementation of the Rules would use proven techniques
and prevent the problem.
An agency is not permitted "to contrive a purpose so slender as to define competing
`reasonable alternatives' out of consideration .,,49 However, this is precisely the effect of the
purpose and need statement included in the EA under consideration. By asserting a purpose to
46 Rather than limit nutrient loading, the proposed action, as described in the EA is merely designed to "help ease
the effects of elevated nutrients in Jordan Lake." EA at 36.
47 In a similar context, federal guidance directly rejects this approach. When the Corps evaluates permitting
decisions, it is required to consider whether "appropriate and practicable steps have been taken which will minimize
potential adverse impacts." 40 C.F.R. § 230.10(d). In other words, the federal government should encourage the
avoidance of environmental harm where possible. As conceded in the EA, there are adverse effects of the proposed
action. Because those effects could be avoided through actions that are not water - dependent, such as the
implementation of regulations designed to achieve the reductions in chlorophyll a that the proposed action hopes to
demonstrate, NEPA articulates a preference for this less harmful alternative.
48 While the project is focused on water quality concerns associated with the TMDL, it fails to consider effects of
nutrient loading beyond eutrophication. For instance, excess ammonia, a form of nitrogen, in a water body is toxic to
fish and may render water unsafe for human consumption. U.S. Geological Service, Fact Sheet 218 -96, Nutrients in
the Nation's Waters: Identifying Problems and Progress (Oct. 1996), available at http : / /pubs.usgs.gov /fs /fs2l8 -96/.
49 Simmons v. U.S. Army Corps of Eng'rs, 120 F.3d 664, 666 (7th Cir. 1997); see also Citizens Against Burlington,
Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991)( "[A]n agency may not define the objectives of its action in terms
so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency's
power would accomplish the goals of the agency's action. ").
7

Mr. Justin Bashaw
April 4, 2014
Page 8
assess the effectiveness of in -lake technology, and failing to define a need that would be
addressed by that purpose, the agency avoids careful consideration of other ways to prevent
nutrient loading in Jordan Lake.
IV. Ignoring Less Harmful Alternatives
The EA's exclusive focus on circulation technology severely limits its utility. Again,
perhaps by design, the EA is drafted to avoid consideration of the alternative crafted through
years of stakeholder input, i.e., full implementation of the Jordan Lake Rules.50 Moreover, the
EA does not even evaluate in -lake alternatives to circulators that might also combat the effects of
nutrient loading. Notably, at a recent meeting of the Legislative Research Commission's Study
Committee on Jordan Lake, Tom Reeder, Director of NCDENR's Division of Water Resources,
discussed "other options for managing nutrients in Jordan Lake" and mentioned at least six
alternatives to in -lake circulation. 51 Yet, the EA's stated project purpose limits the alternatives
under consideration to "in -lake long -term circulator[]" technologies. Consequently, rather than
evaluate alternatives to in -lake circulation, the EA merely considers forms of in -lake circulation
technology offered by three vendors. The primary distinction between these alternatives is
simply their power source.52 Surely NEPA's requirement for the consideration of alternatives
cannot be satisfied where the agency merely examines alternative power supplies to support the
machinery contemplated for use during the proposed project.
Additionally, if, as the EA states, the purpose of the project is simply to test the
effectiveness of in -lake circulation devices, the USACE should consider less harmful ways to
conduct the test. Yet, the EA makes no attempt whatsoever to justify the large number of
circulators that would be deployed. Notably, when justifying the selection of the proposed action
over differently powered alternatives, the agency itself observes that the deployment of fewer
circulators would reduce the cost, maintenance requirements, and environmental impacts of the
project .53 However, the EA does not explain why it is necessary to deploy 36 circulators to
determine if circulation technology is actually effective. Since all 36 circulators will be
purchased from the same company, it is reasonable to assume that they their functionality will be
identical. Nothing in the EA explains why the placement of fewer circulators would be
inadequate to meet the project goals.54 Particularly given that the EA identifies adverse impacts,
50 This oversight is particularly egregious given that the EA concedes that the reason that "water quality in Jordan
Lake has yet to meet State water quality standards as expected" is "due to partial implementation of the[Jordan Lake
Rules]." EA at 36 (emphasis added).
51 See Legislative Research Commission, Study Committee on Jordan Lake, Agenda (Mar. 19, 2014), available at
http://www.ncleg.net/documentsites/conimittees/BCCI-6612/3%20-
%20March% 2019,% 202014 /3 %2019 %202014 %2OFina1 %20A eg nda.pdf. Inexcusably, the EA does not address a
single one of these non - circulation alternatives.
52 The three devices evaluated differ slightly in size and circulation capacity, but the primary distinction is that one
is "solar powered," one is "electrically powered," and one is wind powered." EA at 12 -14.
53 EA at 17 ( "The deployment of fewer circulators would reduce the overall cost of the project because there would
be fewer units to lease or purchase, install, and maintain. Fewer circulators in the project areas would also reduce the
demonstration project's visual and recreational impacts. ").
54 Arguably the decision to deploy 36 circulators was arbitrary given the dearth of explanation as to why that is the
minimum —or maximum— number necessary to achieve the project purpose.

Mr. Justin Bashaw
April 4, 2014
Page 9
the agency should have addressed whether the deployment of fewer circulators would limit these
impacts.
V. Comparative Environmental Benefit of "No Action ": Avoiding Delay
The EA attempts to justify the proposed action in part by rejecting the "no action"
alternative. At first glance, given the need to reduce nutrient pollution in Jordan Lake, it seems
clear that something must be done. However, the agency fails to recognize the fundamental flaw
of the proposed project: it will do nothing to combat nutrient loading in Jordan Lake.
The agency disingenuously asserts that the proposed action is necessary because it is
unclear how long it will take for the partially implemented nutrient management strategy, which
the EA concedes will have gradual positive effects of water quality, 55 to fix the problem. This
ignores the requirement under both the Jordan Lake TMDL, the Jordan Lake Rules, and/or the
Clean Water Act that the State implement measures for "control of both point and nonpoint
sources of pollution, ,56 rather than purely reactive measures designed to minimize the effect of
uncontrolled sources of pollution. In other words, if the State's experiment is not permitted,
additional measures will be required.
In the absence of the proposed action, North Carolina will need to implement the
remainder of the Jordan Lake Rules, thus speeding the reduction of nutrient loads in the lake. In
contrast, the proposed action is, according to State officials, designed to avoid full
implementation of the rules. 57 Indeed, because the proposed action does not limit the addition of
nutrients to Jordan Lake, the experiment will actually allow the nutrient loading problem in the
lake to increase.
VI. Inaccurately Stating the Impacts of the Chosen Action
NEPA regulations require environmental assessments to discuss "the environmental
impacts of the proposed action and alternatives." 40 C.F.R. § 1508.9(b). These effects include
"ecological .... aesthetic, historic, cultural, economic, social, [and] health [effects], whether
direct, indirect, or cumulative." Id. § 1508.8. The EA's limited analysis fails to discuss these
impacts adequately.
Effects on Water Quality
Although the demonstration project is supposedly intended to evaluate the effectiveness
of solar - powered, in -lake, long- distance circulators, the EA provides drastically insufficient
55 EA at 11 -12.
56 33 U.S.C. § 1251(a)(7).
57 For instance, during a presentation to the Study Committee on Jordan Lake, part of the North Carolina General
Assembly's Legislative Research Commission, the Director of the NCDENR's Division of Water Resources
expressed a hope that SolarBee may allow the state to shift part of the lake to "maintenance mode" to avoid further
implementation of the Jordan Lake Rules. Tom Reeder, Director, NCDENR Division of Water Resources, Remarks
to the Study Committee on Jordan Lake (Mar. 19, 2014).
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Mr. Justin Bashaw
April 4, 2014
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information to reach the conclusion that "the proposed action is expected to help accelerate
reaching water quality goals. "58
To begin, the EA provides scant explanation of how the circulators work, other than the
passing mention that "[w]ater is drawn up through the intake hose, passed through the impeller,
and discharged radially on the water's surface at a non - turbulent velocity. ,59 Notwithstanding,
the EA states, without support, that "[t]he circulators are expected to address the effects" of
nutrient loading "by suppressing phytoplankton activity. ,60 However, nothing in the document
explains how mixing polluted water and discharging it back into the lake impacts phytoplankton
activity. 61 Moreover, the EA fails to explain what happens to the nutrients after they are
discharged back into the lake. Since the project does nothing to address the addition of nutrients
to the lake, and the EA does not explain what the project does with existing nutrients, it strains
credulity to conclude that problems caused by nutrients will be fixed.62
Also notably absent from the EA are any data proving the effectiveness of circulation
technology. First, the EA fails to mention, much less provide any detail regarding, the results of
solar - powered circulator deployment in other water bodies. More importantly, the EA provides
no evidence to support the conclusion that circulators will effectively reduce levels of
chlorophyll a in a reservoir as large as Jordan Lake or in areas with flow rates as rapid as those in
parts of the project area. Furthermore, while acknowledging that circulator effectiveness will
require ongoing maintenance ,63 the EA merely assumes that there will be funding and personnel
necessary to undertake the required upkeep.
Rather than evaluating actual evidence, the EA simply notes that "[a]ccording to the
State, implementation of circulators ... is expected to improve water quality by enhancing
nutrient management strategies in place, "64 without explaining how, in what way, by what
mechanism, and to what degree, any specific "nutrient management strategy" will be affected by
the circulators or any impairment will be addressed. However, agencies have a "duty under
[the] NEPA to exercise a degree of skepticism in dealing with self - serving statements from a
prime beneficiary of the project. "65 Instead of questioning the State's murky, unsupported
"EA at 38.
s9 EA at 12.
60 EA at 17.
61 Indeed, the EA generally fails to explain the effect of the circulation technology. For instance, the agency
completely ignored requests by the North Carolina Wildlife Resources Commission for additional information
regarding the effect of circulators on temperature and dissolved oxygen in the lake.
62 According to the North Carolina Wildlife Resources Commission, the circulators "will not reduce or eliminate
nutrients discharged to the lake. For long -term improvement of water quality and aquatic habitat in Jordan Lake
nutrient loads in the lake also must be addressed." EA at 75.
63 The EA states that the circulators would need to be inspected and maintained "at least weekly." EA at 13.
64 EA at 38.
65 Simmons v. U.S. Array Corps ofEng'rs, 120 F.3d 664, 669 (7th Cir.1997) (quoting Citizens Against Burlington,
938 F.2d at 209 (Buckley, J., dissenting in part)) (internal quotation marks omitted).
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Mr. Justin Bashaw
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assertion, the EA adopts it without further analysis. 66 The agency cannot reasonably conclude
that the circulators will improve water quality by relying solely on an unproven assertion by the
very entity seeking permission to place the circulators in the lake.
Effects on Recreation
The EA makes similarly conclusory statements about the project's effect on the
recreational use of Jordan Lake. Of particular concern is the agency's inadequate consideration
of the impact of the 36 circulators on boating and fishing in the lake.
The EA recognizes that "boaters are the most likely members of the public to come in
contact with the circulators "67 and that circulators "may pose a navigational safety hazard to
boaters. "68 Yet, the EA provides scant data to support this statement and provide a baseline to
measure effects on recreation. For instance, the EA provides little to no baseline data on such
parameters as (1) the types of watercraft that are typically used on Jordan Lake, (2) the frequency
with which people engage in other types of recreation on the Lake such as swimming,
windsurfing, waterskiing, fishing, etc., (3) the amount of boating and other types of recreation
engaged in throughout the year, and (4) the proximity of the circulators to portions of the Lake
where these activities can and do take place.
The EA then posits that distributing educational materials and posting signage near the
circulators will cause these risks to be "greatly reduced. ,69 However, the agency provides no
data to identify the level of navigational risk, much less how signs and pamphlets will greatly
reduce that risk.
First, the EA makes no efforts to assess the level of navigational risk posed by anchoring
circulators throughout the project area. It fails to assess the likelihood of a boating accident
caused by the placement of circulators in navigable waters frequently used for boating. Nor does
it consider how many, or how often, boats will be in the project area over the course of the
project period; the speed at which boats travel in Jordan Lake; the distance from which
66 The EA does not consider evidence of the ineffectiveness of SolarBee circulators in large lake. This oversight
calls into question the State's assertion. For instance, when SolarBee circulators were deployed in Conesus Lake,
New York, lake managers ultimately concluded that it did not improve water quality. See EcoLogic LLC & Dr.
Isidro Bosch, Conesus Lake SolarBee Pilot Test 24 (Oct. 2007) ( "The mixing effects of SolarBee units do not appear
able to overcome the natural variability seen in this large lake. Ultimately, improved water quality in Conesus Lake
will result from reduced input and cycling of nutrients, reduced sediment loading from the watershed, and reduced
bacterial inputs. ").
67 EA at 19.
66 EA at 59. Similarly, the N.C. Wildlife Resources Commission expressed concern that "the aerators may be a
navigational hazard that could create boating safety issues." EA at 74.
69 EA at 60.
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circulators will be visible to boaters; the maneuverability of watercraft; or the expected result of
a collision at high speed . 70
Still, without actually identifying the level of risk imposed by the proposed action, the
EA asserts that the risk will be minimized. It assumes that boating accidents will be limited by
signage that prohibits anchoring near the circulator. However, it also assumes that all boaters
will comply with this prohibition, and fails to acknowledge or consider the possibility, and
consequences, of noncompliance. This is a particularly cavalier assumption, given that operator
inattention is perennially a leading cause of boating accidents. 71 Similarly, the risk of nighttime
collisions is a particular concern, yet the EA makes only the conclusory statement that
"[c]irculators would be properly marked to alert boaters of their location during all types of light
conditions (day and night)." 72 Yet, the EA contains no detail regarding the planned markings or
any support for the proposition that they will be effective at night. The EA also lacks any
indication of how the anchoring prohibition will be enforced, for instance, by whom, with what
frequency, etc. "Measures designed to render minimal a particular action's impact upon the
environment, whether proposed in mitigation or assumed to already exist, are more readily
deemed efficacious ... `when they are likely to be policed. ,,73
Effects on Aquatic Life
The free use of unsupported conclusions continues when the EA dismisses concerns
about the effects of the proposed project on aquatic life, stating that "the proposed action would
not have an adverse impact on fish in the project area. "74 Again, the EA contains no baseline
information about the resident populations of fish and other organisms such as size ranges,
population numbers, and locations of available habitat, from which to measure predicted effects
of the proposed project.
In addition, as the EA notes, the North Carolina Wildlife Resources Commission
( "WRC ") recommended that "intake structures have passive screens with openings not to exceed
one centimeter and with a maximum intake velocity of 0.5 feet /sec to minimize impingement
and/or entrainment of fish. ,75 The agency rejected this call for a screen to keep fish from
entering the circulators, opining that a screen would reduce the efficiency of the circulators and
70 The EA merely states that because the circulators are not "rigidly mounted, the units would move with minimal
effort should they be accidentally struck by a boat," EA at 59, without considering what might happen to the boater.
The EA does not address the risk or results of collision with the circulators, notwithstanding their mobility.
71 "Operator inattention" was the leading cause of non -fatal boating accidents in 2012; it was the second leading
cause of fatal boating accidents during the same year. N.C. Wildlife Resources Commission, 2012 North Carolina
Annual Boating Accident Report (May 2013), available at
hqp: / /www.ncwildlife.org / Portals /0 /Boating,/ documents /boatina accidentl2.pdf. Indeed, operator inattention was
the number one cause of non -fatal recreational accidents from 1990 to 2006 as well as in 2007, 2008, 2010, 2011,
and 2012.
72 EA at 58.
73 Friends ofBackBay v. U.S. Army Corps of Eng'rs, 681 F.3d 581, 589 (4th Cir. 2012) (quoting Nat'l Audubon
Soc'y v. Hoffman, 132 F.3d 7,17 (2d. Cir. 1997).
74 EA at 49.
75 EA at 74.
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increase maintenance requirements. 76 Even if circulator efficiency could justify endangering
fish, which it does not, the EA failed to support its statement that "[s]maller fish would be able to
pass through the intake and impeller and be discharged from the top with very little danger of
being harmed. ,77 Since the EA fails entirely to explain the inner - workings of the circulators, a
conclusory statement that fish could pass through the machine unharmed is inadequate to assess
the risks posed by the project to aquatic life.
Another potential risk to aquatic life that was not evaluated in the EA is that posed by the
potential promotion of invasive species such as hydrilla. Hydrilla "crowds out beneficial native
vegetation" and can "eliminate fish habitat, cause stunting, and reduce the number of harvestable
fish" in infested water bodies. 78 This noxious aquatic weed, which has spread throughout North
Carolina in recent years, reproduces in large part through fragmentation. 79 Yet, the EA does not
assess the risk of spreading this invasive species by increasing fragmentation, and therefore
reproduction, of the weed through the circulation process. The agency should more thoroughly
consider such collateral negative impacts of the project.
VII. Additional Legal Concerns
Finally, it bears mention that the EA fails to assess the entirety of the federal action
inherent in the State's experiment or the possibility that the proposed action will violate the
Clean Water Act.
First, the EA does not explain why the proposed action, which contemplates tethering
mixers to anchors on the bottom of the lake, will not require a permit pursuant to Section 10 of
the Rivers and Harbors Act of 189980 and/or Section 404 of the Clean Water Act .81
The Rivers and Harbors Act prohibits the unauthorized obstruction or alteration of
navigable waters of the United States, such as Jordan Lake, without a permit from the USACE.82
Prohibited obstruction includes the construction of any structure in or over any navigable
waters. 83 Similarly, the project may implicate Section 404 of the Clean Water Act, which
requires a permit prior to the "discharge of dredged or fill material into the navigable waters of
the United States. "84 Because the EA does not explain the process involved in the construction
of the anchoring mechanism used to tether the circulators, it is unclear whether the full scope of
environmental review is satisfied by considering only the grant of a property license. The
76 EA at 48.
77 EA at 48.
78 North Carolina Agricultural Extension Service, Hydrilla: A Rapidly Spreading Aquatic Weed in North Carolina
1 -2 (May 1992).
79 Id. at 4.
80 33 U.S.C. § 401 et seq.
81 33 U.S.C. § 1344.
82 33 U.S.C. § 403.
83 Id.
84 33 U.S.C. § 1344.
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proposed action may also require a water quality certification under section 401 of the Clean
Water Act as an activity requiring a federal license or permit that will result in a "discharge" into
navigable waters. 85
Second, the proposal and the EA fail to contemplate the potential violation of portions of
the Clean Water Act unrelated to the permitting programs. Federal guidance prohibits the use of
waters of the United States for in- stream pollution treatment. 86 According to the EPA, "to
specifically allow waters of the U.S. to serve as treatment systems to remove pollutants and
pollution would be inconsistent with the goals of the Clean Water Act. "87 Moreover, insofar as
"biological materials" such as algae are removed from the lake and then, after circulation, added
back into the water, arguably a discharge permit would be required for each of the circulators. 88
By choosing to focus only on the federal action of licensing the placement of circulators,
without considering the related federal actions such as implicitly permitting the construction of
structures in Jordan Lake, or allowing discharge of pollutants into the lake, the EA fails to
consider fully the environmental impact of the proposed action.
VIII. CONCLUSION
The EA uses an improperly narrow statement of purpose and need in an attempt to
subvert NEPA and narrow the consideration of impacts and alternatives. NEPA cannot be so
easily disregarded. Accordingly, the agencies should revise the current EA to consider a full
range of alternatives and their impacts over a reasonable time frame. Only then can the agencies
properly determine if a full EIS must be prepared.
Sincerely,
Julia F. Youngman
Senior Attorney
" 33 U.S.C. § 1341; see also S.D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U.S. 370 (2006)
(discussing broad scope of term "discharge "); PUD No. I of Jefferson County v. Washington Department of
Ecology, 511 U.S. 700, 708 -09, 711 (1994) (same).
86 U.S. Environmental Protection Agency, Region 4 Guidelines for Reconciling Storm Water Management and
Water Quality and Resource Protection Issues (Nov. 14, 2011). Federal regulations also prohibit states from
making waste treatment a designated use of waters of the United States. 40 C.F.R. § 131.10(a).
87 Id. at 3.
" 33 U.S.C. § 131l(a); see also 33 U.S.C. § 1362(12)(A).
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