20011729 Ver 1_Court Case Correspondence_20040907

imap://bob. [e-mail]:143/fe...
Subject: Hearing Officers Presentation
From: Boyd Devane <[e-mail]>
Date: Tue, 07 Sep 2004 16:25:49 -0400
To: Acb555 <[e-mail]>, Kevin Martin <[e-mail]>
CC: Bob Zarzecki <[e-mail]>
I prepared a draft Hearing Officers presentation for Thursday's EMC agenda item on the Rocky River
reclassification. Marion has read it and made some suggestions (shown in red) on improving it. She
asked that I send it to you to see if you had any other suggestions for changes. Please let me know of
any suggestions. 733-5083 ext 559.
------- Original Message --------
Subject:FW: revisions/questions on Hrg. Off. statement
Date:Tue, 7 Sep 2004 12:02:21 -0400
From:"Deerhake, Marion E." <medprti.org>
To: <Boyd.devanep
,ncmail.net>
-----Original Message-----
From: Deerhake, Marion E.
Sent: Tuesday, September 07, 2004 11:51 AM
To: '[e-mail]'
Subject: revisions/questions on Hrg. Off. statement
Boyd,
Thank you for drafting this. You've obviously put a lot of thought and time into it.
I'm attaching my revised version. I will not be available this afternoon or tomorrow morning. We can talk again
Wed. when I attend the 3 p.m. GWComm. Meeting.
Please go ahead and send to Anne and Kevin for their approval.
Marion
1 of 1 9/8/2004 1:08 PM
DRAFT
EMC HEARING OFFICER'S PRESENTATION
September 9, 2004
Background
In 2002, the Town of Siler City requested that a portion of the Rocky River
in Chatham County be reclassified to enable them to construct a new dam
about 65 feet downstream from their existing dam. The new dam would be
about 12 feet higher and would allow a substantially larger reservoir to be
created. The larger reservoir would flood the existing reservoir and some
tributary streams and wetlands. Before a dam could be built, a portion of the
Rocky river (technically two segments) would have to be reclassified by this
Commission and a 401 Water Quality Certification would need to be issued
by our Division Director.
Public Comment
A public hearing was held on November 6, 2003, in Siler City.
Commissioner Barnes and Commissioner Martin served with me as hearing
officers for the reclassification consideration. The hearing was actually a
dual-purpose hearing and DWQ staff member Boyd DeVane served as
hearing officer for the 401 Water quality certification considerations.
One hundred fifteen people attended the hearing. Thirty-two individuals
spoke. Seven spoke in favor of the reclassification, and 23 voiced (note
equals 30, not 32) sentiments against the proposed reclassification. Four
hundred twenty six (426) letters were received during the comment period.
Nine letters were received in favor of the proposed reclassification and four
hundred seventeen (417)letters were submitted against the proposed
reclassification. Of the 400+ letters against the proposals, approximately 25
letters were unique, individual letters and the rest were prepared templates
signed by individual citizens.
The proposed reclassification did involve much more controversy than the
staff had originally expected. Compared to historical water supply reservoir
reclassifications handled by this commission, this proposed 162 acre
reservoir expansion would not have seemed to elicit much public interest.
However, the Rocky River in Chatham County has been a subject of much
citizen complaint for the past 20 some years. Most of the complaints have
come from citizens who have property or live along the river downstream of
the Town of Siler City. These citizens have complained for years about
odors and visual signs of pollutant discharge in the river. The Division has
also documented considerable occasions of excessive algae growth in the
segments several miles downstream of Siler City's discharge. it is my
^r•.r. ) tt M it the e` i eY ee of pelf tio„ problems seen 44+ the river- that has
generated the i tense i terest i this reelassi fiem e
First, the Hearing Officers would4ld like to commend the citizens of
Chatham County who have taken such strong interest in the quality of the
River. The many letters received showed that they were very familiar with
the quality issues of the river and the discharge conditions of the Siler City
effluent. One thing that was clear from the comments made at the hearing
and the letters received: they al he'.a there was a strong belief that this
reservoir was going to significantly reduce the flow of the downstream
Rocky River and result in more problems, like they had seen in the past.
, Several letters received contained documented evidence
where, in the past, the town did not seem to place the necessary high priority
on protecting the Rocky River. Pm -nQquestioning their- intent; it just seems
like it hasn't adequate. There are allegations of considerable sewage
overflows and leaks which reached the Rocky River untreated or in a poorly
treated manner. There has been and still exists considerable uncertainty
about mimeo the Town's desire to protect the River. 1 fi:ffist The Hearing
Officers applaud the citizens who took the time to prepare these many letters
strongly voicing their concerns. The numbers of citizens with concerns
convinced me the Hearing Officers that we should not ignore the issues that
are causing their consternation.
I We would suggest that the Town takes another step forward and help
determine what is causing the problems in the river and what can be done to
correct them. As a starter, I we suggest they fund a study, posses
may; to determine what impact their waste discharge is having on the
river and what impacts the flow and the upst-e nonpoint sources upstream
of the WWTP are having on the quality of the river. Any increase in the
town's water usage that results from a larger reservoir- is going to The
increase in nutrient loading to the river that will eeeur when Siler City is
allowed discharge more wastewater4+as and certainly got to be is important.
2
I'm going to go even- review some of the major concerns voiced and provide
what the staff aftd-the hearing officers (with staff advice) believe to be the
proper response.
Other Drinking Water Sources
Many commenters indicated their belief that there are much better solutions
for meeting Siler City's water needs than this proposed plan to build a new
dam.
Most of the comments were that the water was available from the Jordan
Lake allocation that was given to Chatham County by this Commission a
few years ago. DWQ staff evaluated the historical record of the Jordan
allocation, talked with county officials, and worked with the"Division of
Water Resources staff who were involved with the original allocation
given to Chatham County. DWR-They concluded that the County's
2020 demand would exceed the allocation that was provided the county
them and that DWR 4ke-y would not have an additional 2.0 million
gallons of water to supply Siler City's needs. Some suggested that the
EMC could proceed with another round of Jordan Lake allocations and
the County would possibly get sufficient flow to provide the needs of
Siler City. The County pointed out that they had asked for a larger
allocation in the previous round and that the EMC denied that additional
capacity then. Of course, if 44-s-the Commission wishes, we could
initiate this process again. It was pointed out by that
commitments could not be guaranteed to Siler City and that their need
for capacity was imminent. It was also pointed out by that
an interbasin transfer would be needed since the discharge would be into
the Rocky River which is not in. the Cape Fear Basin., Whie
diff,ffent named river- than the Cape Fear-.
(optional comment) It is important to note that for many who objected to
the reclassification, the need for more drinking water was not the point
of contention; several commenters simply disagreed on the best way for
the Town to get additional drinking water. As one of the people at the
hearing stated "I don't believe anyone in this room denies the fact that
there is a water problem in Siler City, we only argue with the solution
that has been found."
Wastewater Treatment Plant
Another very contentious issue for some was that the Siler City
Wastewater Treatment Plant (WWTP) "...has a long history of
3
violations that needs to be addressed before further demands are put on
the plant by a larger reservoir." One statement was received indicating
that the plant was out of compliance over 50% during certain months.
We asked the DWQ staff to look into the statements made on the compliance
of Siler City's plant. The staff reviewed the records of four nearby
municipal wastewater treatment plants, the towns of Dunn, Pittsboro,
Sanford and Fayetteville. The number of months where some permit
violations occurred was compiled for each of the four facilities during the
past four years. The Town of Siler City showed some type of permit
violation in 35% of the months during that period. The other municipalities
showed permit violations occurring in 8%, 15%, 6% and 4% of the months
during that period. Although this analysis was very simplistic, it does seem
to indicate that compliance problems do exist at the Siler City facility.
However, it should be noted that Siler City has very stringent effluent
limitations, more stringent than most of those facilities, and continual
compliance is more of a challenge. Discussions with DWQ regional field
staff provided an opinion that Siler City had significant problems in the past
but that the Town had made considerable improvements in their record. The
records indicate that Siler City has not had a permit violation since last
August except for two whole effluent toxicity (WET) violations in March
and May. Two subsequent monitoring events in May and June indicated
compliance with the WET permit limit. The Town is currently investigating
potential sources of toxicity and has mechanisms in place to identify
toxicants should permit violations occur in the future. Prior to March, there
had been no WET violations since September of 1994.
The Hearing Officers do request that during the upcoming permit
renewal (permit expires 10/31/06), that the DWQ staff give serious
consideration to the compliance issues of the Siler City treatment facility
and evaluate what action should be taken to minimize the impact on
water quality. It is the intent of the Hearing Officers that any
wastewater discharge permit expansions that might be enabled by
development of this enlarged reservoir do not result in any degradation
of the receiving waters of Loves Creek or the Rocky River.
Terrestrial and Aquatic Species
Citizens voiced their concern that expanding the reservoir will adversely
impact both terrestrial and aquatic species in the areas inundated. They
also voiced concern that the proposed reservoir expansion will also
adversely impact water quality by disturbing wetlands.
4
The staff has concluded that expansion of the reservoir and inundation of
additional acres will have an adverse impact on some existing aquatic
populations and wetlands. These issues are important to us and are a critical
component of the 401 Certification that must be issued before the US Army
Corps of Engineers can issue their 404 Permit that is needed to construct the
dam. The Hearing Officers have been informed of many of the conditions
that will be required for 401 Certification approval. We believe that the 401
Certification's conditions to minimize adverse impacts and to mitigate for
impacts that do occur are an appropriate mechanism to address those
concerns and we will entrusts-Mr. Klimek with that responsibility. Of
course, we ask that you consider the issues we've raised and the solutions
we've offered.
Upstream Issues
Another major concern was about how the larger reservoir will exacerbate
existing problems seen in the present reservoir and downstream.
There are some indications that excessive nutrients do adversely impact the
quality of the existing reservoirs. Livestock have been observed adjacent to
the reservoirs and some streams in the watershed. High nutrient values have
been measured upstream in the river. Most believe that the pasture and row
crop activities do contribute nutrients to the reservoirs. However, there is no
evidence that just having a larger reservoir will exacerbate the nutrient
problems in the proposed reservoir or downstream. Nevertheless, the desire
to minimize problems in a new reservoir and downstream has been a focal
point of the reclassification and the 401 Certification. The Town has agreed
to take several steps to minimize future problems. Some of those steps
include:
• The Town modified its ordinances as suggested by the North Carolina
Wildlife Resources Commission. The most important modifications
relating to water quality include:
• They will require a 200-ft buffer along entire reach of Rocky River in
their planning area. They have also extended their ETJ so that it now
controls both sides of the river for a distance totaling approximately
18 miles. Prior to the ETJ expansion, the town had jurisdiction of
only 6 miles along one side of the river.
• In addition, all of the Town's planning area now has a 100-ft buffer
for perennial streams and a 50-ft buffer for intermittent streams to
address secondary impacts of growth.
5
• Cattle will be fenced out from the reservoir boundaries.
Also, all perennial and intermittent streams within 2500 ft of this 18
miles will require a 200-ft buffer. After the 2500 ft, the buffer
requirement is 100 ft for perennial streams and 50 ft for intermittent
streams.
Downstream Issues
Because many citizens have seen undeniable evidence of poor water quality
in areas downstream of the existing reservoir for many years, a major
concern voiced in letters and at the public hearing was the potential for
reductions in downstream flow during dry, summer climatological events or
droughts.
This issue has been a serious concern of the hearing officers and the
Division of Water Quality staff. The investigation of this issue has been the
focus of major expenditures of time and resources by the staffs of the
Division of Water Quality and the Division of Water Resources. Siler City
also funded a hydrology consultant to prepare analyses of various operating
procedure options, such as increasing dam release rates and frequencies. In
order to address these issues of river quality, staff in both Divisions in
coordination with the N.C. Wildlife Resources Commission and U.S. Fish &
Wildlife Service have recommended some changes in the required operating
procedures of the proposed reservoir. The goal of these procedures would
be that the Town would increase the minimum release of water during
normal and low flow conditions and would also be required to provide
"pulse releases" that would better mimic conditions as they might be. without
a reservoir. After months of evaluation of the potential for adverse impacts
on the Rocky River, the Division of Water Quality has concluded that
certain actions must be taken by the Town. The Town will be required to
meet the following conditions:
(Boyd, Please remind. me if the min. release regime is condition of 40.1. cert
or reclass.)
• The minimum release regime for the proposed reservoir will provide
for significantly higher flows than the current minimum release
regime during the drier months of the year. In many cases the flows
will be higher than would have occurred absent any dam on the river.
• Even at full capacity of withdrawal, which is not projected to occur
until well after the year 2025, releases from the new reservoir will
6
exceed those from the current reservoir approximately 70 percent
(Boyd: is this frequency, volume, or volumetric rate?) in the months
of July, August and September. During the worst two-three weeks of
major droughts, flows from the new reservoir will be higher than
those that would have occurred if there were no dams on the River.
• The Town has agreed to re-design the outlet works of the proposed
reservoir to allow releases of up to 20 cubic feet per second (cfs). The
Town will ensure there is a pulse release of 20 cfs for a 12-hour
period every 30 days whenever the aggregate storage remaining in the
two reservoirs is greater than 40 percent. In the early years, the
system will be at this level less than 2 percent of the time and at full
build-out, the reservoir will be in this "stressed" situation, what they
call Tier 3, only 5 percent of the time. During drought years, the
pulse release regime will provide twice as many pulses during the
critical months of July through September as the current reservoir and
25 percent more pulses than would occur if there were no reservoirs.
This is not a panacea. There will still be times when the river flows will
be stressed. However, we believe that the stressed times will be
considerably less if the new reservoir is built and these controls are required.
Rare and Endangered. Species
Another concern frequently voiced by the public involves the protection of
rare or threatened species in the Rocky River Although there are no state or
federally-listed endangered or threatened fish species found in the reservoir
area or immediately downstream of reservoir, there is a critical habit for a
Federally designated species, the Cape Fear Shiner, approximately 15 miles
downstream of the reservoir and populations of the Shiner further down the
river. There are also some muscle species of interest downstream of the
reservoir site that have been noted by the various state and federal wildlife
agencies. Although these agencies have warned against the impacts of urban
development on several species of interest, no wildlife agency has asked that
the reservoir not be built. It is the opinion of the staff that the release
strategy recommended will result in an improvement in the flow conditions
critical to the survival of these species.
RECOMMENDATION
It is the recommendation of the Hearing Officers that the reclassification of
Rocky River, as proposed in the Hearing Officers' Report, be approved by
the Environmental Management Commission. This recommendation is
based on the understanding that the Town of Siler City will take the
mitigative measures specified in the Summary and Recommendations
portion of that Report. We expect that the Division of Water Quality will to
use the 401 certification and any other legal document necessary to assure
that these mitigative measures are taken.
In making this recommendation on reclassification, the Hearing Officers
have considered the requirements of General Statutes and Commission
Rules. The Hearing Officers' recommendation specifically directs the staff
of the Division of Water Quality to give careful consideration to the
potential impact the nutrients in Siler City's wastewater treatment plant
effluent may be having on the water quality problems experienced in the
main channel of the river. At the next NPDES permit renewal for the Siler
City facility (expires 10/31/06), the staff should evaluate the facility's
compliance record and the impact that nutrient discharges are having on the
River's water quality in establishing the conditions of reissuance of the
permit.
In closing, I move that the EMC adopt the reclassification of the Rocky
River been propose published in. today's report of proceedings,
pages S-1 through. S-4.
8