20051457 Ver 1_Article regarding Reservoir Permitting in Today's Charlotte Observer.msg_20130821

Strickland, Bev
From: Hutson, Benne C. [BHutson @mcguirewoods.com]
Sent: Wednesday, August 21, 2013 11:24 AM
To: Reeder, Tom (tom.reeder @ncdenr.gov)
Subject: Article regarding Reservoir Permitting in Today's Charlotte Observer
Tom
The following article was on the front page of the local section in today*s Charlotte Observer. Please call me to discuss
when you have a chance.
Benne
Benne C. Hutson
McGuireWoods LLP
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State gives reservoir project an unprecedented pass
By Bruce Henderson
bhenderson @charlotteobserver.com
By Bruce Henderson The Charlotte Observer
Posted: Tuesday, Aug. 20, 2013
Modified: Wednesday, Aug. 21, 2013
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DIEDRA LAIRD - dlaird @charlotteobserver.comRon McCallum at the Delight Road bridge over the First Broad River, one
of three bridges on the river that would be taken out by the proposed new reservoir in Cleveland County.
Store I - N.C. Division of Water Resources director Tom ReederStore I
The state agency charged with protecting North Carolinas waters let plans for a controversial water - supply reservoir
west of Charlotte advance with no scrutiny.
Cleveland County Water, which serves rural residents, had labored since 2000 to win approval for the impoundment.
Environmental rules make reservoirs hard to build because they drown streams, wetlands and rare species.
In an unprecedented move, the N.C. Division of Water Quality made the path easier. The division simply waived a state
permit that says the project wont hurt water quality.
The decision last month came after Republican -led legislators ordered regulators to collaborate with communities in
building reservoirs.
Federal authorities disagree on the Cleveland County reservoirs impact.
The U.S. Army Corps of Engineers, which also has to sign off on the reservoir, says it would cover 1,500 acres of forest
and farmland, destroying 24 miles of streams, six acres of wetlands and a federally threatened plant community.
The Environmental Protection Agency has also urged the county to look for alternatives.
Federal authorities cant approve projects that may hurt water quality, from freeway construction to hydroelectric
dams, until the state does. That gives North Carolina a veto to stop environmental damage or allow it with special
conditions.

Cleveland County applied in May for the state water - quality certificate. Sixty days later * the time allotted to act on
such applications * the Division of Water Quality waived the requirement for the permit.
With that, Cleveland County Water had its state approval without the public notice, hearings or environmental studies
that are spelled out in environmental rules.
*1 think this government does not want to give the citizens a voice, and any opportunity to cut out public comment is a
welcome opportunity,* said Ron McCollum, a longtime opponent who lives near the reservoir site.
McCollum, a social worker and educator, argues that other alternatives would meet the district *s water needs. The
reservoir would flood historic farms in northern Cleveland County that are part of its cultural heritage, he says.
Federal opposition
The reservoir faces more imposing opposition from federal regulators. The Corps says Cleveland County could instead
buy water from other systems * as nearby Forest City has offered * or expand its current intake.
The likelihood that the Corps would deny approval drove the decision to forgo the state certificate, said N.C. Division of
Water Resources director Tom Reeder, who signed the waiver. The division now includes water - quality staff.
*The state of North Carolina looked at all this and said there *s really no value added to us getting involved in this
whole thing,* Reeder said. *Cleveland County would have had to spend more money that would not go to any good
purpose.*
The water district says it has already spent $1.7 million so far on the reservoir. *1 didn *t want to put any more burden
on Cleveland County,* Reeder said.
As for opponents like McCollum, he said, *the Corps has their back.*
The decision is in stark contrast to that of aluminum maker Alcoa, which tried for years to win a water - quality certificate
for its hydroelectric project on the Yadkin River east of Charlotte.
Just as Alcoa expected state approval early this month, Gov. Pat McCrory *s administration filed a suit claiming
ownership of the Yadkin riverbed, blocking the certification.
*This (Cleveland County) project, which serves no purpose and the water district can *t even afford, is a troubling
example of the direction political influence is taking in Raleigh,* said attorney D.J. Gerken of the Southern
Environmental Law Center, which is following the case.
Regulations targeted
Republicans who won majorities in the state legislature in 2010 say environmental regulations are job - killers. The
Division of Water Quality, which policed pollution, became a special target.
Legislators this year dissolved the division, rolling water - quality staff into the Division of Water Resources. The combined
divisions are expected to lose 15 percent of their staff.
Lawmakers in 2011 ordered the N.C. Department of Environment and Natural Resources, which includes the division, to
cooperate with communities in applying for federal permits for reservoirs.
The law says nothing about state regulators bypassing their own environmental reviews. Although it ultimately did not
apply to Cleveland County, the water district cited the new law in asking state regulators to expedite the certification.
*You *ve got a new administration * and this administration is in favor of building reservoirs,* said Clyde *Butch*
Smith, the district *s manager.
*We *re tickled to death.*
Smith, who also serves on the state Environmental Management Commission, said the district has been desperate for
new water sources since a 2002 drought dried up the First Broad River, which supplies it, so badly that *catfish were
getting sunburned.* The reservoir would dam the First Broad.
Emails to state officials show Cleveland County believed the reservoir would also increase recreation and economic
development.
Application lacking
Reeder said politics played no part in his decision to waive the certificate. He said he doesn *t know whether the state
would have granted the certificate.
A water - quality official in DENR *s Mooresville office wrote in May that the district *s application didn *t have enough
detail to act on.
*1 would assume, at minimum, the project should be placed on hold until the proper work has been completed and
application with complete information submitted,* wrote the official, Alan Johnson. Johnson referred the Observer to
the department *s public information officer.
Fil

State water - quality officials had warned in 2005 that the reservoir could degrade downstream habitat, wash sediment
downstream and increase algae - producing nutrients.
*First and foremost, the state has abrogated its responsibility to ensure that water - quality standards are met in the 20-
plus miles of streams in that watershed. That is the whole function and purpose of this program,* said Gerken of the
Southern Environmental Law Center.
*Had they followed their usual procedures, the people in Cleveland County who use those streams and live where the
lake is supposed to go would have had an opportunity to express their opinions.*
Uncertain future
The Corps of Engineers now stands between Cleveland County and its reservoir. The agency, which is charged with
protecting federally protected streams and wetlands, says it is unlikely to decide the reservoir is the least
environmentally damaging option.
*We believe at the Corps that the (water) board needs to be aware of all the obstacles that are out there in respect to
their preferred alternative,* said project manager Jennifer Frye of the Corps* Wilmington regulatory division.
The Corps will finish a draft environmental- impact statement * a study of alternatives to the reservoir * before
rendering a tentative decision.
In a common practice, Cleveland County had hired a contractor to help on the study. When the water district filed its
state application, it included the contractor *s conclusion that the reservoir was one of only two practical alternatives.
The Corps last month banned the contractor from working on the federal environmental study, saying its objectivity had
been tainted.
Frye said she *d never heard of the state waiving a water - quality certificate in her 15 years in North Carolina. But the
waiver won *t affect the Corps, she added, because the federal study will independently evaluate water - quality
impacts.
Smith said he believes the Corps is *trying to scare us and run us off.*
He said the water district *s 57,000 customers will ultimately be allowed to vote on whether to build the reservoir,
which he estimates will cost $80 million to $100 million.
And if the Corps denies a permit, he said, the district *s board will decide whether to appeal the decision in court.
Read more here: http:/ /www.charlotteobserver.com / 2013 /08/20 /4250919 /state - gives - reservoir-
p roject. htm I #story) i n k =cpy