HomeMy WebLinkAboutHearing_officers_report_-_FINALEnvironmental Management Commission
NC Division of Water Resources
‐1 ‐Hearing Officers’ Report
Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
Charlotte Mecklenburg Utilities’ Request for Modification of
Interbasin Transfer Certificate
HEARING OFFICERS REPORT
Environmental Management Commission
North Carolina
Department of the Environment and Natural Resources
April, 2013
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Environmental Management Commission
NC Division of Water Resources
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Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
TABLE OF CONTENTS
Hearing Officers’ Recommendations .................................................................................................................... 3
Findings of Fact
1. The necessity, reasonableness, and beneficial effects of the transfer ............................................ 3
2. Detrimental effects on the source river basin .................................................................................. 4
a. The cumulative effect on the source major river basin of any water transfer or consumptive
water use ................................................................................................................................... 4
3. Detrimental effects on the receiving basin ...................................................................................... 4
4. Reasonable alternatives to the proposed transfer .......................................................................... 5
5. Use of impounded storage ............................................................................................................... 6
6. Purposes and water storage allocations in a US Army Corps of Engineers
multipurpose reservoir ..................................................................................................................... 6
7. Any other facts or circumstances necessary to carry out the law ................................................... 6
Interbasin Transfer Certificate .............................................................................................................................. 7
Summary of Comments received by Division of Water Resources on EA/FONSI ................................................. 8
Oral Comments Received at March 4, 2013 Public Hearing ................................................................................. 9
Appendix B: Text of Public Comments Received ................................................................................................ B1
Appendix C: Notice of Public Hearings ............................................................................................................... C1
Appendix D: 2001 Interbasin Transfer Certificate and Regulations ................................................................... D1
Appendix E: Environmental Assessment/FONSI ......................................................................................... E1
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Environmental Management Commission
NC Division of Water Resources
‐3 ‐Hearing Officers’ Report
Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
HEARING OFFICERS’ RECOMMENDATIONS
On March 4, 2013 the Environmental Management Commission held a public hearing to receive comments on the
Charlotte Mecklenburg Utilities’ (CMU) request to eliminate Condition 3 from its Interbasin Transfer (IBT)
Certificate. Condition 3 excludes the Goose Creek Watershed in Mecklenburg County from the IBT service area
due to potential impacts from future growth in the basin on the Carolina heelsplitter, a federally‐listed endangered
species. Condition 3 states:
The Goose Creek subbasin in Mecklenburg County is removed from the area to be served by the IBT. A
moratorium on the installation of new interbasin transfer water lines (water lines crossing the ridgeline)
into Goose Creek subbasin is in effect until the impacts of additional urban growth on the endangered
species are fully evaluated. This moratorium will not impact Charlotte Mecklenburg Utility’s ability to fully
utilize existing water lines. The Division of Water Resources shall have the authority to grant exemptions
for reasons of public health and safety for dwellings existing on or before March 14, 2002.
CMU developed an Environmental Assessment (EA) to meet the requirements of the condition, which received a
Finding of No Significant Impact (FONSI) from the Division of Water Resources after being reviewed through the
State Environmental Review Clearinghouse.
77 people attended the hearing, with 10 choosing to speak. After the hearing, the public comment period was left
open until March 31, 2013. During that time, 24 individuals submitted written comments, some of whom had also
given oral comments at the hearing.
According to G.S. 143‐215.22I(g), the EMC shall issue a transfer Certificate only if the benefits of the proposed
transfer outweigh the detriments of the proposed transfer, and the detriments have been or will be mitigated to a
reasonable degree. The EMC may grant a Petition in whole or in part, or deny it, and may require mitigation
measures to minimize detrimental effects. In making this determination, the EMC is required to specifically
consider:
1. The necessity, reasonableness, and beneficial effects of the amount of transfer
2. Detrimental effects on the source river basin
a. The cumulative effect on the source major river basin of any water transfer or consumptive water use
3. Detrimental effects on the receiving basin
4. Reasonable alternatives to the proposed transfer
5. Use of impounded storage
6. Purposes and water storage allocations in a US Army Corps of Engineers multipurpose reservoir
7. Any other facts or circumstances necessary to carry out the law.
Having reviewed and considered the comments received during the public review process, the EA/FONSI, and the
requirements set forth in the North Carolina General Statutes, the Hearing Officers make the following findings of
fact.
The Hearing Officers Find:
1) Necessity, Reasonableness, and Beneficial Uses of the Amount of Water Proposed to be Transferred and its
Proposed Uses.
CMU holds an interbasin transfer certificate authorizing the transfer of 33 million gallons per day from the
Catawba River Basin to the Rocky River Basin. The modification request would not permit an increase to
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Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
the authorized maximum‐day transfer amount, nor would it allow transfer to a receiving basin not already
authorized by the certificate. Rather, the modification would allow CMU to provide additional potable
water service to customers in the Goose Creek watershed within the Town of Mint Hill.
CMU currently operates existing water lines within the Goose Creek Watershed. CMU is able to provide
this water service due to its grandfathered capacity to transfer, however other than isolated connections
for reasons of public health and safety, no additional connections have been allowed since the certificate
was issued. The existing water lines have capacity above their current use and CMU is currently
transferring approximately 57% of the amount authorized in its certificate. CMU has estimated that the
2030 projected water demand in the entire Goose Creek watershed could be as much as 3.9 MGD,
however this demand would be met by a combination of surface and ground water providers, as well as
private wells.
The elimination of Condition 3 would allow CMU to fully utilize existing infrastructure, provide future
service throughout its service area, and benefit existing Goose Creek residents by providing a safe and
reliable water supply to those customers needing surface water.
Based on the record, the hearing officers find that the amount of water necessary for CMU to provide
service to the Goose Creek watershed is reasonable in that the existing certificate provides sufficient
capacity to meet projected needs in the Goose Creek watershed. Removal of Condition 3 would also allow
CMU to fully utilize existing infrastructure and provide a reliable water supply alternative to both existing
and future customers within the Goose Creek watershed.
2) Present and Reasonably Foreseeable Future Detrimental Effects on The Source River Basin
The hearing officers find that removal of Condition 3 does not impact the Catawba River Basin due to the
fact that the modification does not change the amount of water that CMU is authorized to transfer.
2a) Cumulative Effect on the Source Major River Basin
The hearing officers find that removal of Condition 3 does not impact the Catawba River Basin due to the
fact that the modification does not change the amount of water that CMU is authorized to transfer.
3) Detrimental Effect on the Receiving River Basin
In 2008 the EMC adopted the NC Department of Environment and Natural Resources Site Specific Water
Quality Management Plan for the Goose Creek Watershed 15A NCAC 2B .0600‐.0609 (SSMP).
As stated in 15A NCAC 02B .0601, “The purpose of the actions required by this site‐specific management
strategy is for the maintenance and recovery of the water quality conditions required to sustain and
recover the federally endangered Carolina heelsplitter (Lasmigona decorata) species. Management of the
streamside zones to stabilize streambanks and prevent sedimentation are critical measures to restore
water quality to sustain and enable recovery of the federally endangered Carolina heelsplitter.”
The Town of Mint Hill addressed the action items listed in the SSMP through its 2010 Post‐Construction
Ordinance (PCO). Some of the mitigation and protection measures specifically required by the PCO and
currently being implemented by the Town of Mint Hill include:
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Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
I. The control of storm water for projects disturbing 1 acre or more of land
Requires Storm Water Management Permit for new development activities that disturb 1
acre or more and result in increased impervious area.
Controls and treats difference in runoff from pre‐ to post‐development conditions for 1‐year,
24‐hour storm.
Removes 85% of total suspended solids.
Exceeds runoff volume requirement of EMC rule by requiring that storm water treatment
systems be installed to control the volume leaving the project site at post‐development for
the 1‐year, 24‐hour storm.
Town of Mint Hill accepts maintenance and operational responsibility so as to preserve and
continue a BMP’s design functions.
II. The control of wastewater discharges and toxicity for streams supporting the Carolina
heelsplitter
No new NPDES wastewater discharges or expansions to existing discharges
No new onsite sanitary sewage systems within riparian buffers
No activity that would result in direct or indirect discharge is allowed if it causes toxicity to
Carolina heelsplitter
When possible, action shall be taken to reduce ammonia to achieve 0.5 mg/L or less of total
ammonia.
III. The establishment and maintenance of riparian buffers
Exceeds EMC requirement by requiring buffers on all intermittent and perennial streams as
well as ponds, lakes, and reservoirs based on NC DWQ’s Identification Methods for the
Origins of Intermittent and Perennial Streams.
Requires undisturbed riparian buffers within 200 feet of waterbodies within the 100‐year
floodplain and 100 feet of waterbodies not within the 100‐yr floodplain.
Direct discharges of runoff to streams are not allowed.
IV. Other requirements
Sewer lines and associated structures must be a minimum of 50 feet from jurisdictional
wetlands associated with the floodplain.
Undisturbed Open Space is required for new development.
The Division of Water Resources determined that the analysis of the potential environmental impacts set
forth in the EA and mitigative measures set forth in the PCO support a Finding of No Significant Impact.
This decision was based upon the requirements of 15A NCAC 2B .0600‐.0609, information in the attached
EA, and review by governmental agencies.
Based on the record, the hearing officers find that the actions required by the NCDENR Site Specific
Management Strategy 15A NCAC 2B .0600‐.0609 will mitigate any impacts due to additional growth in the
Goose Creek Watershed such that removal of condition 3 will not have a detrimental impact on the Rocky
River Basin.
4) Reasonable Alternatives to The Proposed Transfer
The only alternative pertaining to this modification request is a “no action alternative”. Under a “no
action alternative”, CMU would not provide potable water to the Goose Creek watershed and customers
not already being served by CMU customers would solely rely on groundwater. Existing Goose Creek
residents have expressed concerns about the reliability and safety of deteriorating groundwater quality in
the area. These customers would continue to be faced with limited and expensive options. CMU would
continue to request case‐by‐case exemptions from DWR to connect customers for reasons of public
health and safety, creating a scattered and fractured customer base within in the Goose Creek watershed.
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Based on the record, the hearing officers find that the removal of Condition 3 from the /BT certificate is the
preferred alternative.
5) Applicant's Use of impoundment Storage Capacity
This criterion is not applicable.
6} Water Storage Allocations
This criterion is not applicable.
7) Other Facts or Circumstances Necessary
Condition 3 of CMU's IBT Certificate states that the moratorium on new interbasin transfer water lines is
in effect until the impacts of additional urban growth on the endangered species are fully evaluated. At
the time the certificate was issued, it was assumed that this evaluation would be addressed in an
environmental study developed for a new wastewater plant under consideration by Union, Cabarrus, and
Mecklenburg Counties. However the wastewater treatment plant effort was abandoned. Since then,
however, the effects of urban growth and watershed protection needs within Goose Creek have been
studied and addressed through both local and state level initiatives, most specifically NC Department of
Environment and Natural Resources Site Specific Water Quality Management Plan for the Goose Creek
Watershed 15A NCAC 2B .0600-.0609 and the Town of Mint Hill's 2010 Post-Construction Ordinance
(PCO).
Based on the record, the hearing officers find that Charlotte Mecklenburg Utilities has met the Certificate
requirement to evaluate the impact of urban growth on the Carolina heelsplitter.
Recommendation:
Based upon the Findings of Fact stated above, the hearing officers determine that (1) the benefits of the proposed
modification outweigh the detriments of the proposed modification, and (2) the detriments of the proposed
modification will be mitigated to a reasonable degree. The hearing officers also find that CMU has met the IBT
certificate requirement to evaluate the impact of urban growth on the Carolina heelsplitter. Therefore, the
hearing officers recommend that the Commission grant the Charlotte Mecklenburg Utilities request to remove
Condition 3 from the IBT certificate.
Environmental Management Commission
Environmental Management Commission
NC Division of Water Resources
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I:sfibt
Darryl Moss, Hearing Officer
Environmental Management Commission
Ll~J~;:
Clyde Ejmith, Jr., Hearing Officer
Environmental Management Commission
Hearing Officers' Report
Charlotte Mecklenburg Utilities Request far
Modification of lnterbasin Transfer Certificate
Environmental Management Commission
NC Division of Water Resources
‐7 ‐Hearing Officers’ Report
Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
ENVIRONMENTAL MANAGEMENT COMMISSION
Modification of Certificate Authorizing the Charlotte Mecklenburg Utilities to Transfer Water
From the Catawba River Basin to the Rocky River Basin Under The Provisions of G.S. 143‐
215.22I
Based on the hearing record and the recommendation of the hearing officers, the Commission, on May 9, 2013 by
duly made motions concludes that by a preponderance of the evidence based upon the Findings of Fact stated in
the hearing officers report that (1) the benefits of the modification outweigh the detriments of the modification,
and (2) the detriments of the modification will be mitigated to a reasonable degree. Therefore, and by duly made
motions, the Commission grants the Charlotte Mecklenburg Utilities request to remove Condition 3 from its March
2002 Interbasin Transfer Certificate. This modification does not affect the permitted transfer amount of 33 million
gallons per day (MGD) on a maximum day basis, from the Catawba River Basin to the Rocky River Basin. The
remaining conditions of the original certificate remain unchanged and are as follows:
1) Mecklenburg County is required to summarize progress in the implementation of watershed management
approaches of the Surface Water Improvement and Management Program (SWIM) on an annual basis.
The Division of Water Resources shall have the authority to approve modifications and need for continued
reporting as necessary.
2) Mecklenburg County and the City of Charlotte are required to continue the stakeholder process to
investigate water quantity control from single‐family development and water quality control for all
development until completed. To accomplish this end, the stakeholder group should consider evaluating
the feasibility of single‐family detention and recommending ordinance revisions based on technical,
political, long‐term maintenance, cost, and benefits relating to the proposed ordinance changes.
3) If the EA is found at a later date to be incorrect or new information becomes available such that the
environmental impacts associated with this transfer are substantially different from those projected
impacts that formed the basis for the Finding of Fact and this certificate, the Commission may reopen the
certificate to adjust the existing conditions or require new conditions to ensure that the detriments
continue to be mitigated to a reasonable degree.
4) The certificate holder is required to develop a compliance and monitoring plan for reporting maximum
daily transfer amounts, compliance with certificate conditions, progress on mitigation measures, and
drought management activities. The Division of Water Resources shall have the authority to approve
modifications to the compliance and monitoring plan and drought management plan as necessary.
This certificate is effective immediately. This is the ________ day of ________. 2013.
______________________________________________
Stephen T. Smith, Chairman
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Environmental Management Commission
NC Division of Water Resources
‐8 ‐Hearing Officers’ Report
Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
APPENDIX A
SUMMARY OF AGENCY COMMENTS RECEIVED BY DWR ON THE EA/FONSI
On January 18, 2013, DENR provided comments on CMU’s draft Environmental Assessment during the
internal agency review. The National Heritage Program (NHP), NC Wildlife Resources Commission
(WRC), Division of Water Quality (DWQ), and US Fish and Wildlife Service provided comments
expressing concern that the DENR Site Specific Water Quality Management Plan (SSMP) for the Goose
Creek Watershed (15A NCAC 2B .0600‐.0609), and therefore the Town of Mint Hill’s Post Construction
Ordinance (PCO) which implements the requirements of the SSMP, does not go far enough to protect
the Carolina heelsplitter. Specifically, the agencies recommend the following additional controls:
Increase riparian buffers to protect 200 feet on all perennial streams and 100 feet on
intermittent streams (NHP, WRC, USFWS).
Minimize variances allowed from the buffer protection regulations, especially those allowing
utility lines within the buffer and utility crossings over streams (NHP, WRC, USFWS).
Widen the undisturbed buffer width from forestry activities and ensure that developers cannot
use forestry exemption to clear riparian vegetation before establishing development sites (NHP,
WRC, USFWS).
Increase storm water requirements to apply to developments exceeding a 6% built upon area
(NHP, WRC).
No new fill or development within the 100‐year floodplain (WRC).
The requirements for the PCO should apply to any new clearing/ ground disturbance activity
regardless of the size or type of disturbance (USFWS).
These additional mitigation measures were also provided to DENR and the EMC in 2008 during the
comment period on the SSMP. The stated purpose of the SSMP is for the maintenance and recovery of
the water quality conditions required to sustain and recover the Carolina heelsplitter. Based on the
facts that 1) the EMC considered the proposed additional measures during the development of its SSMP
and 2) the Town of Mint Hill is currently implementing measures at least as stringent as required by the
SSMP, the Division of Water Resources determined that the analysis of environmental impacts set forth
in the EA and mitigative measures set forth in the PCO support a Finding of No Significant Impact for the
action of removing Condition 3 from the interbasin transfer certificate.
The Draft Environmental Assessment and FONSI were sent to the State Environmental Review
Clearinghouse for public comment from March 3‐April 4, 2013. No comments were received.
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Environmental Management Commission
NC Division of Water Resources
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Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
APPENDIX B
SUMMARY OF MARCH 4, 2013 PUBLIC HEARING
On March 4, 2013 the Environmental Management Commission held a public hearing to receive
comments on the Charlotte Mecklenburg Utilities Department’s (CMU) draft Environmental Assessment
(EA).
77 people attended the hearing, with 10 choosing to speak. Nearly all of the of attendees (and all of the
speakers) were residents of a subdivision called Ashe Plantation that is currently receiving ground water
from Aqua North Carolina, Inc. (Aqua). After the hearing, the public comment period was left open until
March 31st. During that time, 24 individuals submitted written comments, some of whom had also given
oral comments at the hearing. All of the comments received during the comment period (both orally at
the hearing and in writing through March 31) were in favor of CMU’s request to have Condition 3
removed from the IBT certificate.
A common concern expressed during the hearing was that the quality of water being produced from
area ground water wells is declining. Some residents who have been using ground water for 25 years or
more gave statements indicating that water quality for their homes is deteriorating. Many have had to
replace wells that have run dry. The ground water system providing water to Ashe Plantation has been
operated by several different companies over the years. Residents believe that each of those companies
has made efforts to address the water quality problems but the wells are no longer usable. Currently,
water quality has degraded to the point that residents are routinely asked to flush muddy water from
the system. Nearly all of the commenters stated that they do not drink or cook with tap‐water.
Commenters also stated that water costs are extremely expensive. Water bills range from $100‐$250
per month and many residents also purchase bottled water for drinking and cooking. Water‐related
appliances such as dishwashers, refrigerators, washing machines and hot water heaters must be
frequently replaced, adding to the financial burden.
Residents acknowledge the importance of environmental protection, but feel that adequate mitigation
measures have been implemented and Mint Hill has demonstrated its commitment to protecting the
heelsplitter.
The following oral comments were provided during the hearing.
1. Peter Larsen, Goose Creek resident (also provided written comments)
In favor of lifting moratorium
Believes that the moratorium has caused lowering of water tables due to the fact
that more wells have been constructed for golf courses and residences. Residents
who constructed wells 25 + years ago did not drill very deeply so homes that were
constructed prior to that time will soon be faced with the burden of drilling deeper
wells when the existing wells run dry. Mr. Larsen had a well that dried up.
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Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
There has never been a heelsplitter mussel found in Mecklenburg County. There
have been some found in Union County and South Carolina.
Believes that there have been other water lines crossing the ridgeline (CMUD placed
in 2005).
Heelsplitter is susceptible to chemicals, pollution and sediment. Feels Duke Power
has a larger impact with their various activities.
2. Brian Welch, Mint Hill Town Manager (also provided written comments)
PCO was developed in collaboration with town of Mint Hill, Mecklenburg County
Storm water Services, and NCDENR.
Buffers affect over 900 acres of land within the Goose Creek subbasin and are the
largest buffers in the State.
Town’s adoption of PCO clearly demonstrates its willingness to protect the
heelsplitter.
Requests that the EMC recognize their sincere efforts to meet condition 3 and
remove the moratorium.
3. Elsa Simaan, Ashe Plantation Resident
Been suffering financial hardship due to poor water service.
Although Aqua has tried to mitigate sediments in the water, their efforts have been
to no avail.
Believes that she would not have purchased home in 2008 if she had known they
would not have clean water for use to drink, brush teeth, or cook with.
Pays $105/month water bill plus $45/month for bottled drinking and cooking water.
Water stains appliances and bath tubs and she wonders whether or not there is a
health impact
Feels the citizens are entitled to clean water.
4. Larry Shaheen, represents Representative Bill Brawley and Senator Jeff Tarte
Representatives Brawley and Tarte urge the EMC to grant the change to the IBT
certificate.
Realizes that Aqua has worked hard to rectify the water quality issues, however the
two wells in use are insufficient to provide appropriate water quality for the needs
of the community.
This is an important issue to the Town of Mint Hill. Representative Brawley and
Senator Tarte have stressed the importance of this issue with DENR.
5. Charlie Burdict, Mint Hill resident.
Spent 2 years on Goose Creek Watershed plan
Asks EMC to eliminate condition 3
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Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
6. Kenny Draffen, resident of Mint Hill
Believes that his subdivision was originally permitted to receive CMUD water in
2001, however that was changed when the moratorium was issued.
Other developments around his area have been able to receive CMUD water.
Mint Hill has the most stringent stormwater ordinances of anywhere in the State
and it is unclear what effect limiting potable water has on the heeslplitter.
7. Laurie Comazzi, resident of Ashe Plantation
Did not realize that water cost and quality would be what they are.
Developments located a few hundred feet from Ashe plantation have been able to
receive CMUD water and it is unclear why they have not also been able to receive
water from the utility.
No fire hydrants in Ashe Plantation
Is concerned about water quality and spends a lot of money purchasing filters,
water softeners, and bottled water.
Does not drink water or feed water to her dogs because she is concerned about
health impacts.
Water is extremely expensive
Replaced numerous appliances, water heaters, HVAC humidifiers, coffee pots,
refrigerator filters (blown within a month versus 6 months).
Aqua’s wells are aging so there is nothing that can be done to fix them. One well is
polluted and another is not working correctly.
8. Peter Smith, resident of Ashe Plantation
Resident of Ashe plantation for 14 years. Water quality has not always been this
bad‐ it is deteriorating.
The quality of water is scary.
Community members worry about effects on their health and that of their children.
Even though the price of the water is extremely high, the main concern of residents
is for their health.
9. Lisa Wilson, resident of Ashe Plantation
Water is murky, brown, and tan with sediments. Submitted pictures from her bath
tub taken one week before hearing.
Family buys filters and bottled water for cooking and drinking.
Water bill is over $100 per month. This is too expensive considering the poor water
quality.
Water is frequently turned off in Ashe Plantation and when it is tuned back on it is
extremely dark, so much that you can’t see through it.
$25‐$50 for bottled water and filters
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Environmental Management Commission
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Charlotte Mecklenburg Utilities Request for
Modification of Interbasin Transfer Certificate
Feels we should be good stewards of our natural resources however she believes
that receiving CMUD water and protecting the heelsplitter are not mutually
exclusive.
Is concerned about effect on economy of the area
10. Mildonna Britt
Echoes concerns of the other speakers
Feels like this issue has been studied and it is time to move on.
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