NC0021407_Correspondence_20000330

NPDES DOCUMENT SCANNING COVER SHEET
NPDES Permit:
NC0021407
Highlands WWTP
Document Type:
Permit Issuance
Wasteload Allocation
Authorization to Construct (AtC)
Permit Modification
Complete File - Historical
Engineering Alternatives (EAA)
Correspondence
Instream Assessment (67b)
Speculative Limits
Environmental Assessment (EA)
Document Date:
March 30, 2000
This document is printed on reuse paper - ignore any
content on the reszerse side

MI(:HAEL F E:\SLEY
ATFOHNEY GGENt:H.11.
State of North Carolina
I )euiirtruent Of .lustier
I'. (). 130X (i29
It;\I_EI(ili
276(2-0(i:))
March 30, 2000
Reply to: Elizabeth J. Weese
Environmental Division
Phone: [phone]
Fax: [phone]
Dr. Philip K. McKnelly, Director
Division of Parks and Recreation
North Carolina Department of
Environment and Natural Resources
1615 Mail Service Center
Raleigh, North Carolina 27699-1615
Re: Application of provisions contained in the North Carolina Natural and Scenic
Rivers Act, N.C.Gen. Stat. §113A-30 et seq.
Dear Dr. McKnelly:
This letter is in response to your memorandum dated January 14, 2000, in which you
raised several questions concerning the application of provisions contained in the North Carolina
Natural and Scenic Rivers Act, N.C.Gen. Stat. §113A-30 et seq. (NSRA). A 7.5 mile section of
the Cullasaja River is being considered for designation as a component of the North Carolina
Natural and Scenic Rivers System (the System), and you have asked the following questions: (1)
would N.C. Gen. Stat. §113A-44 limit or prohibit the expansion of the Town of Highland's
wastewater or water treatment plants; and (2) when would a project be prohibited on a designated
segment, but allowed above such a segment. We have responded below to each of the questions
raised in your memorandum. 1
INTRODUCTORY ANALYSIS
The General Assembly passed the Natural and Scenic Rivers Act because it recognized
that "certain rivers in North Carolina possess outstanding natural, scenic, educational, geological,
recreational, historic, fish and wildlife, scientific and cultural values which are of present and
future benefit to the people." N.C. Gen. Stat. §113A-31. The Act's policy goals include: (1)
achieving a balance between the conduct of man and the preservation of the natural beauty along
'Thisovd acco c>ith the
is an advisory letter; it has not been reviewed and �
_
procedures for issuing an Attorney General's Opinion.
Uv;a: LR GUI LITY
SECTION

Dr. Philip K. McKnelly
Page 2
the many rivers of the State; and, (2) preserving the natural and scenic conditions in some of the
State's valuable rivers by maintaining them in a free -flowing state and to protect their water
quality and adjacent lands by retaining these natural and scenic conditions. G.S. § 113A-31. The
Department of Environment and Natural Resources (DENR) was delegated the authority to
administer and control the natural and scenic rivers system. G.S. §113A-36.
The North Carolina Natural and Scenic Rivers Act (NSRA) is modeled after the Wild and
Scenic Rivers Act (WSRA) enacted by Congress in 1968. 16 U.S.C. § 1271 et seq. Both Acts
seek to preserve selected rivers for the benefit and enjoyment of future generations. In addition
to identifying rivers which are part of each system, both Acts establish procedures for including
additional rivers and give guidance on management of designated rivers. 16 U.S.C. §§ 1274-
1284; N.C. Gen. Stat. §§ 113A-34 to -35.2, 113A-38. Both Acts provide protection for the
systems by precluding departments and agencies [of the United States or the State] from assisting
"by loan, grant, license, permit (in State Act only), or otherwise in the construction of any water
resources project" that would have a direct and adverse effect on any river that is designated as a
component of the systems. 16 U.S.C. § 127$; N.C. Gen. Stat. §113A-44. The federal Act
explicitly directs the Secretary charged with administering the Act to make the determination as
to whether a project will have a direct and adverse effect. 11. at §1278.
The Department of the Interior, which includes the National Park Service (NPS),
administers the federal WSRA. In determining whether a proposed water resources project will
adversely affect the values for which a river was established as part of the wild and scenic rivers
system, the agency looks at why a river was included. See e.g, Sierra Club North Star Chapter.
& Voyageurs Region Nat'l Park Ass'n v. Pena, 1 F. Supp. 2d 971 (1998). If, based on the
analysis, the proposed project will adversely effect these qualities, the project will not be
allowed. The NSRA contemplates a similar analysis.
QUESTIONS
1. Would N.C. Gen. Stat. §113A-44 limit or prohibit the expansion of either the
Town's wastewater or water treatment plants?
The answer to this question depends on two determinations to be made by DENR: (1)
whether the Town's plants constitute water resource projects within the meaning of the NSRA,
and, if so, (2) whether their expansion would have a "direct and adverse impact" on the section of
the Cullasaja River if it is included in the System.

Dr. Philip K. McKnelly
Page 3
T•h e Act does not define either "project works" or "water resources project." While
DENR has no
t determined that a wastewater treatment plant or a water treatment plant would fit
eithe
r of these categories, under G.S. § 1.1 3A-44 the Secretary of DENR is authorized tomake
es
th
is determination. G.S. § 113A-44 does list the "project works"which the State tural and
Commission may not permit on rivers or segments of rivers which are part of the atura and
Scenic Rivers System. These prohibited projects include dams, water conduits, reservoirs
rules
powerhouse transmission lines, which are banned outright by the statute. Administrativem components of
adopted to implement the Act also specifically bar future dam construction within b p ne and
System designated as natural or scenic rivers. 15A N.C.A.C. 12F §§ (�( is to
the }
G.S. §143-213(17) defines "treatment works". As one of the goals of the NSRAnot be
(c)(1)
water qualityvalues, including treatment works within the listed categories would
protect
an unreasonable construction of the statute by DENR, in my opinion.
Assuming
this section of the Cullasaja is included in the System as a "scenic river", and
assuming plants the are projects covered by the NSRA, then the DENR analysis would involve
the projects' effect on those values and qualities associated with a component so classified. If a
P
roject is determined to create a direct and adverse impact on the segment, then "no department
otherwise in [its]
it, or
construction. N.C. Gen. Stat. § 113A-44. Among or agency of the State may. assist by loans the statutory grant, license, perm requirements for inclusion in the
classification. N.C. Gen. Stat. § 113A-35(3).
system is a minimum "Class C" water quality „water in my opinion, it is reasonable
However, because the segment in question is a "Class B
for DENR to conc
lude that any discharge from a covered project which would impair the "Class
" classification would constitute a "direct and adverse impact" on this segment. Conversely a
B class
wn
discharge
which would not degrade the "Class B" classification would not. For the thatf
s the practical effect of a determination of "direct and adverse impact"wouldmean
Highlands,
necessary for expansion could not be issued. However, it should be noted that recently
permits n ary
DENR's Division of Water Quality advised the Town that its wastewater treatmentplant
operation would not be regulatorily impacted by the proposed NSRA designation.
2. When a project roject be prohibited on a segment designated part of the
System, but allowed above such a segment?
a ' that G.S. 113A-44 specifically does "not preclude the licensing of or
I recognize §
below or above a designated component. However, given the
assistance to a developmentopinion that a covered project
General Assembly's purpose in enacting the NSRA, it is be developed above a
prohibited on a designated river or segment of the System could only ld be no direct and adverse impact
component of the system if it could be shown that there woAu which contains almost identical
downstream. This conclusion is buttressed by the WSRA,

Dr. Philip K. McKnelly
Page 4.
language, but includes the caveat that such development must "not invade the area or
unreasonably diminish the scenic, recreational, and fish and wildlife values" present in the area.
16 U.S.C. 1278(a).
I trust that this letter is responsive to your request. If you have further questions
regarding this issue. please do not hesitate to contact me.
Sincerely,
:E-otiLit., Ki 41°' C8--
Elizabeth J. Weese
Assistant Attorney General
cc: Tommy Stevens
/39337