HomeMy WebLinkAboutConservation Council of North Carolina, et al. v. Robert Froehkle, et al. - Plaintiff's Findings of Fact and Conclusions of Law
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DURHAM DIVISION
No. C-1.84-D-71
CONSERVATION COUNCIL OF NORTH
CAROLINA, et al.,
Plaintiffs,
v. PLAINTIFFS' PROPOSED FINDINGS
ROBERT F. FROEHLKE, ETC., OF FACT AND CONCLUSIONS OF
et al., LAW
Defendants.
FINDINGS OF FACT
I. WATER QUALITY
A. Eutrophic Conditions
ESTIMATES
1. Impoundment of the project would create a 14,300 acre
lake. The Haw River would provide 80% of the flow, but the
Haw River arm of the lake would provide only 15% of the storage
volume. [Volume II Supplemental Studies, p. 19].
2. For study of its trophic condition, the proposed lake
can be divided into four segments:
Segment I -- All of the Haw Arm and the New Hope Arm
below the natural constriction.
Segment II The New Hope Arm between the natural
constriction and U.S. Highway 64 bridge.
Segment III -- New Hope Arm between U.S. highway 64
bridge and State Road 1008 bridge.
Segment IV -- New Hope Arm upstream of State Road 1008
bridge.
[Jackson, Tr. 520; Volume II Supplemental Studies, p. 23].
3. The trophic state of a lake is characteristic of its
capacity for algae growth( reflecting input of plant nutrients.
[Weiss, Tr. 660).
4. The proposed B. Everett Jordan Lake is unusual because
it would be built right below sewage treatment plants and re-
ceiving streams for washout from urban areas. These conditions
1
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
will cause more water quality problems than ordinarily would
be the case. A free flowing stream can assimilate waste
better through natural purification process than an impoundment
can. [Young, Tr. 148-49, 151-52).
5. There would be a 306 day residence time for water
entering the upper end of Segment IV before discharging from
the lower end of Segment II. [Young, Tr. 216-17; Volume 1
Summary Report, p. 54].
5A. The Triangle J Council of Governments goals for
phosphorus levels in the Upper Cape Fear River Basin are:
100 micrograms per liter of phosphorus in reservoirs
500 micrograms per liter of phosphorus in streams
flowing into reservoirs
1000 micrograms per liter of phosphorus in streams
not flowing into reservoirs
[Rimer, Tr. 327-29].
6. The Triangle J goal for phosphorus in the reservoir
is exceeded by the Corps of Engineers projections for phosphorus.
The projection for B. Everett Jordan Lake as a whole is 298
micrograms per liter of phosphorus; and for the various segments
of the lake, Segment I 499 micrograms per liter of phosphorus,
Segment II 173 micrograms per liter of phosphorus, Segment III
353 micrograms per liter of phosphorus, and Segment IV 673 micro
grams per liter of phosphorus. [O'Nelia, Tr. 248-51; Volume I
Summary Report, p. 51, 54)..
7. The Corps of Engineers' consultant Dr. Weiss expressed
a more conservative maximum standard of phosphorus content for
streams entering lakes of 50 micrograms per liter. [Weiss,
Water Quality Characteristics of the Mew hope and Lower Haw Rivers,
p. 57) .
8. The Triangle J goal for phosphorus in streams flowing
into reservoirs and Dr. Weiss' more conservative standard for
this same criterion, are exceeded by the phosphorus content found
by the Corps of Engineers, which is a mean of 2400 micrograms per
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
2
liter in the streams flowing into Segment IV, and 480 micrograms
per liter of the streams flowing into Segment I. [Volume II
Supplemental Studies, pp. 38, 53).
9. Background levels of phosphorus in apparently unpolluted
creeks draining into the basin of the proposed lake exceed the
50 microgram per liter maximum proposed by Weiss. [Weiss, Tr.
774].
10. An acceptable standard for nitrogen and phosphorus in
effluents discharged to streams entering lakes is 1,000 to 2,000
micrograms per liter. [Young, Tr. 186).
11. Existing effluents from Durham and Chapel Hill are
generally about ten times higher than the standard of 1,000 to
2,000 micrograms per liter of nitrogen and phosphorus. If the
activated sludge processing system becomes operable at the Durham
Farrington Road Plant, the nutrient levels still would exceed
the standard; phosphorus being at a concentration of 6900 micro-
grams per liter and nitrogen at a concentration of 12,000 micro-
grams per liter. [Young, Tr. 190-91; Volume I Summary Report,
p. 103).
12. A lake is hypereutrophic if it contains more than 20
micrograms per liter of chlorophyll a. [Volume II Supplemental
Studies, p. 15]. The generally accepted maximum level of chlorophyll
a for an impoundment is 20 to 50 micrograms per liter [McGhee, Tr.
79; see also, O'Melia, Tr. 274). A concentration of 100 micrograms
per liter of chlorophyll a will give the water a green color; a
concentration of 200 micrograms per liter of chlorophyll a will
cause the water to have a very green color; and a concentration
of 300 micrograms per liter of chlorophyll a will cause the water
to be in a pea soup green condition. [Brezonik, Tr. 975-76].
13. The projected levels of chlorophyll a for the B. Everett
Jordan Lake are:
Segment IV -- 1,000 micrograms per liter
3
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
Segment III 600 micrograms per liter
Segment II -- 200 micrograms per liter
[McGhee, Tr. 85].
14. There are no treatment facilities designed for removal
of nitrogen and phosphorus upstream of the proposed impoundment
at the present time. [McGhee, Tr. 76].
15. It is estimated that 47.2% of the phosphorus and 54.8%
of the nitrogen entering the reservior come from non-point
sources, that is sources other. than municipal and industrial
sewage discharge points. [Young, Tr. 174].
16. The eutrophication of Segment IV of the reservoir will
be enhanced by recycling of nutrients from dead algae settling
to the bottom of the lake into rooted aquatic plants or macro-
phytes, and from dead macrophytes back into algae, because
much of that part of the lake is shallow enough to support
macrophyte'growth. [Weiss, Tr. 728-32].
17. It is anticipated that phosphorus, which otherwise
would be unavailable to plant growth on the lake bottom, will
recirculate from the bottom and become usable by algae, as a
result of the bottom water being devoid of oxygen on account of
the eutrophic conditions. [Volume II Supplemental Studies,
pp. 13-14, 15-16, 26].
18. Algae blooms in the lake will probably be of two to
four weeks duration, either possibly twice during the summer,
or possibly all summer long. [O'Melia, Tr. 233].
19. Segment I of the proposed lake would be a rich body
of water, which can support aquatic plants in shallow areas
and algal blooms and duck weed in its back waters. [Volume II
Supplemental Studies, p. 39].
20. Segments II and III would support an excessive growth
of algae and aquatic weeds, and would resemble Segment IV in
their shallower areas. [Volume II, Supplemental Studies, p.
59, 60, 63]. Segments II and III should stratify, losing oxygen
4
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
in their bottom waters. [O'Melia, Tr. 271].
21. Segment IV of the proposed lake would be highly
eutrophic, characterized by excessive algal bloom and growth
of weeds. [Volume II Supplemental Studies, p. 55]. Oxygen
concentrations at night in portions of Segment IV will go to
zero. [O'Mel.ia, Tr. 270].
22. Segment IV would have the biological performance
characteristics of a tertiary sewage treatment pond. [Weiss,
Tr. 688, 778-79].
23. The stagnant and shallow nature of the, impoundment
with the heavy organic content of the water, especially in
Segment,IV, would be highly conducive to mosquito breeding.
[Romney, Tr. 23].
24. If vegetation growth would inhibit the normal growth
of predacious fish and other aquatic associates that feed on
mosquitoes, there would be a mosquito pest problem in the area
of the impoundment. This problem would be extensive enough to
affect visitors adversely, and to invade neighboring parts of
the Chapel Hill urban area. [Romney, Tr. 24,-26, 49-50].
COMPARISONS
25. By applying a standard conversion formula to the
figures.provided by the Corps of Engineers for lakes in the
Southeastern United States, the following are determined to be
the quantities of phosphorus in solution in several of these
lakes:
Kerr Lake 47 micrograms per liter
Nutbush Arm of Kerr Lake 28 micrograms per liter
Lake Hickory 39 micrograms per liter
High Rock Lake 101 micrograms per liter
Lake James 48 micrograms per liter
Lake Norman 15 micrograms per liter
B. Everett Jordan Lake
(As a whole) 298 micrograms per liter
Segment I, B. Everett
Jordan Lake 499 micrograms per liter
Segment II, B. Everett
Jordan Lake 173 micrograms per liter
Segment III, B. Everett
Jordan Lake 353 micrograms per liter
5
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
Segment IV, B. Everett
Jordan Lake 673 micrograms per liter
[O'Melia, Tr. 248-51, Volume I Summary Report, p. 51, 54].
26. B. Everett Jordan Lake would be the most eutrophic of
all lakes in the Southeast reported by the Corps of Engineers.
[O'Melia, Tr. 253, 271; Volume I Summary Report, p. 56].
27. There are degrees of eutrophication. Water quality
is not bad simply because a lake is eutrophic, and most lakes
in the Southeastern United States are eutrophic. However, B.
Everett Jordan Lake will be highly eutrophic and have extremely
poor water quality. [Rimer, Tr. 363-64].
28. The Larsen-Mercier Model, designed to display the
relative trophic conditions of lakes, had to be especially
extended from its original maximum reading of 1,000 micrograms
per liter of phosphorus to ten times that figure, or 10,000
micrograms per liter of phosphorus, in order to allow the depiction
of the B. Everett Jordan Lake. The phosphorus content of the B.
Everett Jordan Lake places it in such a highly eutrophic condition,
that it exceeded any value contemplated by the designers of the
Larsen-Mercier Model. [O'Melia, Tr. 254; Correale, Tr. 928].
29. High Rock Lake is one of the most heavily polluted lakes
in existence in North Carolina. Its bad condition has caused
general public concern and a lot of citizen complaints. [Weiss,
Tr. 742-43; Doby, Tr. 902.-03].
30. The Corps of Engineers erroneously labeled Kerr. Lake
as a whole as eutrophic and the Nutbush Arm of Kerr Lake as
highly eutrophic, in Volume I Summary Report, p. 56. Additional
data and recomputations show Kerr Lake as a whole to be oligotro--
phic, and Nutbush Arm to be a border line between mesotrophic
and eutrophic. The erroneous impression about the classification
of Nutbush Arm was in part created by the failure of the Corps
of Engineers to extend upward in its proper course the dividing
line between eutrophic and mesotrophic on the Larsen-Mercier scale.
6
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
[Volume I Summary Report, p. 56; McGhee, Tr. 87-89, 92; Weiss,
Tr. 762; Correale, Tr. 928; O'Melia, Tr. 252].
31. The Corps of Engineers improperly relied on the
assumption that the B. Everett Jordan Lake would function much
the same as the Nutbush Arm of Kerr Lake above and below State
Road 1308. Since no two lakes or reservoirs are directly com-
parable with similar qualities of inflowing water and comparable
peculiarities of local ecology, extrapolation from one example
to another is always fraught with some degree of hazard. [Weiss,
Water Quality Characteristics of the New Fope and Lower Haw Rivers,
p. 57).
32. Segment IV of the proposed B. Everett Jordan Lake differs
from the Nutbush Arm above State Road 1308-in several respects.
It has a mean depth of 5.1 meters as opposed to 2.1 meters in
Segment IV, and the Nutbush Arm has a much lower flow and a
smaller surface area and volume. [Volume II Supplemental Studies,
p. 52-53]. The difference in depth between Segment IV and the
Nutbush Arm is highly significant in that it favors macrophyte
growth in Segment IV that could not occur in the Nutbush Arm.
[O'Melia, Tr. 254-55; Correale, Tr. 939-40]. The Nutbush Arth's
configuration is different from that of Segment IV, in that it
has a freer connection with the rest of Kerr reservoir, and the
rest of the reservoir doesn't have nearly as high a phosphorus
load as the entire B. Everett Jordan Lake; Segments II, III and
IV are severely isolated and don't exchange as well as the Nut-
bush Arm. [O'Melia, Tr. 255). The Nutbush Arm above State Road
1308 is about 1355 acres in size or about three or four percent
of the entire Kerr Lake [Weiss, Tr. 716--717], whereas Segment IV
consists of about 3,000 acres and amounts to 20% of the total
impoundment. [Correale, Tr. 940; Volume II Supplemental Studies,
p. 19) .
33. No soil analyses have been done in the proposed B. Everett
7
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
Jordan Lake area to try to confirm the possibility that phosphorus
removal by adsorption may be at a comparable level to that which
occurs in the Nutbush Arm. [Weiss, Tr. 719-21; Correale, Tr.
943). Clay soils with high iron and aluminum contents are common
in Piedmont North Carolina [Stukie, Geology of North Carolina),
yet none of the other reservoirs in this region, such as High
Rock Lake, Lake James or Lake Norman, have the uniquely high
capacity for adsorbing phosphorus that was measured at the Nut-
bush Arm of Kerr Lake. [Volume I Summary Report, p. 51, 54).
34. There is no basis in fact for the statement in Volume
I Summary Report, p. 59, that "Segments II and III are expected
to support growth algae populations somewhat lower than are
measured in Nutbush Creek above State Road.1308," because the
B. Everett Jordan Lake together or by segment has phophorus loads
five or more times higher than the Nutbush Arm. [O'Melia, Tr.
256).
FUTURE
35. The Section 303 (Federal Water Pollution Control Act
of 1972) Basin Plan for water quality management of the Cape
Fear River basin contains no limit on phosphorus and nitrogen
discharges. [McGhee, Tr. 75-76].
36. It would take at least five years to get advanced
waste treatment for nitrogen and phosphorus removal into opera-
tion. No orders have been placed, and no contracts have been
let to date for such facilities. [McGhee, Tr. 99].
37. Advanced waste treatment facilities could be expected
to achieve a 90% reduction of nitrogen and phosphorus. [McGhee,
Tr. 100; Rimer, Tr. 311).
38. To remove phosphorus from sources upstream of the
proposed B. Everett Jordan Lake, a capital outlay for treatment
works would cost about $40.00 per person; or a total capital
outlay of $4.0 million for Durham, $1.6 million for Chapel Hill,
8
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
and $400,000.00 for Durham County. To remove nitrogen from
sources upstream of the proposed B. Everett Jordan Lake, a
capital outlay for treatment works would costs about $64.00
per person; or a total capital outlay of $6.4 million for
Durham, $2.2 million for Chapel Hill, and $640,000.00 for Durham
County. [Young, Tr. 141-142, 145-146, 166-167).
39. Operating costs annually for phosphorus removal from
sewage treatment facilities of Durham and Chapel Hill are:
Durham Chapel Hill
Presently $134-$189,000.00 $82-$115,000.00
Year 2000 $217-$306,000.00 $170-239,000.00
[Bolan, Tr. 401-03, 405).
40. Because of the large contributions of phosphorus from
non-point sources, a 90% removal of phosphorus from point sources,
would result only in a 35% to 40% total phosphorus removal.
[Brezonik, Tr. 967-69].
41. The elimination of point source phosphorus loading will
not alter the conclusions about the trophic state of the proposed
B. Everett Jordan Lake. [Volume II Supplemental Studies, p. 45,
52, 56, 60, 63].
42. Technology does not exist for removal of nutrients from
non-point sources. Non-point source removal would be extremely
expensive. For example, a structure designed to trap urban run-
off on one creek which drains in excess of 30% of the Durham City
land area would cost $1.2 million to construct and $130,000.00 to
$150,000.00 annually to operate; this would achieve a 40% to 50%
removal of solids; but it would generate 4,000 dump truck loads
per year of solids for disposal. [Rimer, Tr. 311-15].
43. There is no centralized storm sewer collection system
in any city or town upstream of the impoundment. The storm water
run-off is simply channelized into streambeds. This presents a
dilemma for nutrient removal. [Rimer, Tr. 315-16).
9
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
44. Agricultural run-off is also a significant non-
point source contribution of nutrients. Only about 30% to
40% of the farms in the basin above the dam use pollution
control techniques recommended by the Soil Conservation Service,
such as berms and retention ponds. [Rimer, Tr. 316, 319-20].
45. For non-point source nutrient removal in the basin
above the dam, planning is incomplete, no processes have
reached the design stage or have been funded, and there are
no effective or proposed legal requirements. It will be many,
many years before construction can take place. (Rimer, Tr. .320-
21] .
45A. Even if nitrogen and phosphorus could be 100% removed
from point sources and 50% removed from non-point sources,
Segment IV of the proposed lake would still have a concentration
of 350 micrograms per liter of chlorophyll a. [McGhee, Tr. 96-
971.
46. Projections to the year 2000 show a 40% increase of
nutrient loading in the basin draining into the proposed impound-
ment. Hence, there will be a likely production of proportionately
as much more cell material in the lake. [Volume I Summary Report,
p. 105; Young, Tr. 176,. 204). The Corps of Engineers is wrong
in regarding this increase as being insignificant, or only a
slight increase. [Volume I Summary Report, p. 107; Young, Tr.
175].
47. One should expect typical secondary development of
recreational uses near the lake if the impoundment is created.
This would have an extremely adverse effect on water quality
by generating additional nutrient loading. [Young, Tr. 181--83]
48. The impact of future increased nutrient loads on water
quality conditions is displayed on the Vollenweider Model. How-
ever, if the arithemetic rather than thedouble logarithmic plot
had been used on this model, the spreads between current condi-
tions and probable future conditions would have been much more
10
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
dramatically illustrated. On the Vollenweider Model, the
eutrophic state for the year 2000 would be separated by a
distance of 67% above that of 1980, rather than appearing as
only about a 1/20th increase in vertical distance. [Volume
I Summary Report, p. 109; Young, Tr. 178-79].
B. Heavy Metals
STANDARDS
49. The Environmental Protection Agency proposed national
primary Interim Drinking Water Standards, criteria for raw
water supplies, are:
Mercury 2 micrograms per liter
Cadmium 10 micrograms per liter
Chromium 50 micrograms per liter
Lead 50 micrograms per liter
[Volume II Supplemental Studies, p. 17].
50. The drinking water standards set by the Environmental
Protection Agency are the result of decades of study. These
standards take into account health effects, technical feasibility
of removal, and costs. They are not arbitrary limits. [O'Melia,
Tr. 268-69].
51. It is likely that the final EPA drinking water standards
will be as strigent as the interim drinking water standards.
[O'Melia, Tr. 262].
52. The Corps of Engineers' witness Goldwater expressed
the opinion that the drinking water standard for mercury of 2
micrograms per liter is too high, and that a lower standard
should be imposed.
52A. The Food and Drug Administration guidelines require
that fish for human consumption contain no more than .5 micrograms
per gram of mercury. [Volume II Supplemental Studies, p. 18].
[Goldwater., Tr. 598).
53. The Corps of Engineers will accept the Federal Drug
Administration guidelines on mercury in fish, even though the
District Engineer questions the validity of the guidelines.
[Johnstone, Tr. 1009].
11
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
MEASUREMENTS: WATER
54. The EPA standards for lead, mercury, chromium,
and cadmium were all exceeded at the Segment I monitoring
stations during the 1974-75 period. [Volume II Supplemental
Studies, p. 46].
55. In Segment I, 48 out of 179 samples showed exceedences
of mercury in 1974-75. [Volume II Supplemental Studies, p. 46-47].
56. In Segment IV, 38 out of 96 samples showed exceedences
of mercury in 1974-75. [Volume II Supplemental Studies, p. 57].
57. In Segment III, exceedences of mercury were also
registered in 1974-75. [Volume II Supplemental Studies, p. 61].
58; In Segment II, cadmium was once measured at 110 micro-
grams per liter. 'Mercury exceeded the standard in two out of
twelve samples during the 1974-75 period in this segment. [Volume
II .Supplemental Studies, p. 64].
59. The average concentration of mercury observed was 5
micrograms per liter, which is two and one-half times in excess
of the Environmental Protection Agency interim drinking water
standard, and the standard was exceeded in 20% of the samples.
[O'Melia, Tr. 235-36, 275; Notice of Decision to Impound, p. 11,
n. 12; Volume I Summary Report, p. 8].
60. There is no scientific support for the opinion that
heavy metals will be diluted once the impoundment is created,
since the concentration in the lake will be the same as the
concentration of the waters flowing into it. [O'Melia, Tr. 237-
40; Notice of Decision to Impound, p. 10]. It is possible, to
the contrary, that concentrations of heavy metals in the lake
will exceed those of the streams flowing into the lake, because
(a) mercury taken out of the water by adsorption to particulates
could recirculate into solution when the lake bottom conditions
become anoxic as they are expected to be, and (b) by the process
of methylation mercury in the bottom of the lake could be transformed
12
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
into methyl mercury and released into the water in its most
toxic form. [O'Melia, Tr. 240-43).
MEASUREMENTS: FISH
61. About 45% Of the samples of fish exceeded the Federal
Drug Administration guidelines level on mercury content, and,
another 25% of the samples were equal to the guidelines level.
[Volume I Summary Report, p. 77; Jackson, Tr. 566-68).
62. In Segment IV, two out of six fish samples exceeded
the guidelines level of .5 micrograms per gram. These measured
.66 micrograms per gram and 1.76 micrograms per gram. [Volume
II Supplemental Studies, p. 57; Jackson, Tr. 555-56).
63. In Segment II, three out of five fish samples exceeded
the guidelines level of .5 micrograms per gram. These measured
.82 micrograms per gram, .71 micrograms per gram and 1.95 micro-
grams per gram. [Volume II Supplemental Studies, p. 65; Jackson,
Tr. 555].
64. In Segment I, four out of ten fish samples exceeded
the guidelines level. [Volume II Supplemental Studies, p. 47].
65. The Corps of Engineers' analysis techniques were
found to have not been detecting all of the mercury in fish
flesh, so it appears that a greater number of fish exceeded
the FDA guidelines level, and that the exceedences were at
a higher level, than were reported. [Jackson, Tr. 518].
66. According to the Hydrocomp Report commissioned by the
Corps of Engineers, no part of the B. Everett Jordan Lake would
be satisfactory for fishing by reason of mercury concentrations
in excess of the FDA guidelines level. This finding has
not been rejected by the Corps of Engineers. [Volume II Supple-
mental Studies, Figure 9; Jackson, Tr. 541-42].
67. Samples taken from. the Corps of Engineers' other pro-
jects in the area, Kerr Lake and Philpott Reservoir, did not
reveal exceedences of the .5 microgram per gram FDA guidelines
level. [Jackson, Tr. 565).
13
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
68. After receiving the unfavorable report from fiydrocomp
Corporation, representatives of the Corps of Engineers met with
the North Carolina Department of Natural and Economic Resources,
and obtained a letter from that agency in which the opinion was
expressed that the .5 microgram per gram guidelines level of
mercury in fish is too conservative. [Jackson, Tr. 560-61, 619-
21]. The State of North Carolina essentially took the position
that because a lot of samples had exceeded the FDA guidelines
level, the enforcement of the standard would create a problem,
in other words, the enforcement of the standard, not the mercury
level in the fish for human consumption, would create the problem,
and therefore it should be determined that the standard is too
conservative. [Volume I Summary Report,4p. 518]. The Department
of Natural and Economic Resources' position was a primary basis
for the Corps of Engineers' decision that the FDA guidelines
should be given little consideration. [Notice of Decision to
Irnpound, p. 12-13]. However, the Corps of Engineers does con-
cede that the FDA guidelines are authoritative, and that the
Corps of Engineers does not possess, and the Department of
Natural and Economic Resources has not exercised, any rule makin
authority on this subject. [Jackson, Tr. 560].
69. Experience has been that fishermen seeking gamefish
intend to eat them, and do not just catch them for sport.
[Jackson, Tr. 566).
70. Experience in other lakes has shown that posting the
lakes to warn of excessive mercury concentrations does not
decrease the incidence of fishing. [Jackson, Tr. 527, 529-30].
Thus, the District Engineers' proposal to post the lake with
reference to mercury in fish, if necessary, is not expected to
be effective.[Notice of Decision to Impound, p. 13].
14
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
MEASUREMENTS: BENTHIC MACROINVERTIBRATES
71. The study of bottom living animals, macroinvertibrates,
produces data reflecting long-term water quality conditions of
a body of water, as opposed to samples of water which reflect
only conditions at time of sampling. [Jackson, Tr. 512].
72. Bottom living animals were found to have as much as
73.2 micrograms per gram of mercury, or about 150 times the
.5 micrograms per gram standard for fish. [Volume II Supplemental
Studies, p. 47; Jackson, Tr. 645-46].
73. The five microgram per gram level was exceeded substan-
tially in bottom living animals studied in Segment I, the mean
concentrations varying from 3 to 10.4 micrograms per gram. In
Segment IV, the mean varied from 4.0 to 5.7 micrograms per gram.
In Segments III and II, the means were 15.8 micrograms per gram.
[Volume II Supplemental Studies, p. 47, 57, 61, 65].
C. Coliform Bacteria
74. The presence of conform bacteria is indicative of
human fecal pollution. If too many conforms are present, con-
ventional waste treatment doesn't remove them, and the probability
of transmitting pathogenic organisms in drinking water increases.
[Volume II Supplemental Studies, p. 2].
75. Data taken by the Corps of Engineers over the years on
coliform bacteria shows a progressively deteriorating condition
of the water of the streams entering the project area. [Jackson,
Tr. 538-40].
76. The predicted coliformm bacteria levels in the B. Everett
Jordan Lake are conservative, because of the factors (a) bacterial
decay constants are probably lower than those employed, and (b)
rates of bacterial die-off frequently decrease with time.
[Volume II Supplemental Studies, p. 32].
77. In Segment IV of the proposed lake, the richness of
organic matter and low dissolved oxygen levels will permit in-
creased survival of conform bacteria and even after-growth of
15
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
these organisms. [Volume II Supplemental Studies, p. 51].
78. The specific relationship of coliform levels to
fishing, body contact recreation, and water supply are discussed
in paragraphs 83-85, 87-92 and 97-98 hereof.
II. FISHING
A. Anoxic Conditions
79. Chlorophyll a concentrations are an index for fish
survival. Increases of chlorophyll a indicate that algae are
depleting the oxygen supply, which is necessary for fish
survival. [McGhee, Tr. 86].
80. Fish kills will occur in an impoundment, where con-
centrations of 100 to 200 micrograms per liter of chlorophyll a
are present. [McGhee, Tr. 81].
81. The projected levels of chlorophyll a for the B.
Everett Jordan Lake are 1,000 micrograms per liter in Segment
IV, 600 micrograms per liter in Segment III and 200 micrograms
per liter in Segment II, so it must be concluded that fish kills
will occur in the impoundment. [McGhee, Tr. 85].
82. As a body of water becomes more highly eutrophic, fish-
ing changes from sports species, such as bass, to rough fish,
such as catfish and carp. [Weiss, Tr. 668]. Thus, in the areas
of the reservior where fish can survive, it must be expected that
in many instances these will be rough fish and not gamefish.
B. Coliform Limits
83. For fish propagation purposes, the North Carolina Board
of Water and Air Resources regulations require that mean fecal
coliform counts must not exceed 1,000 bacteria per 100 milliliters,
based on at least five samples. [Volume II Supplemental Studies,
p. 11].
84. The coliform limits for fishing will be exceeded down-
stream to within about two miles from the dam in Segment I during
the winter and in a smaller area of Segment I during the summer.
16
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
[Volume II Supplemental Studies, p. 37, Figure 9).
85. The fecal coliform limits for fishing will be exceeded
in about one-third of Segment IV. [Volume II Supplemental
Studies,-p. 51, Figure 9].
C. Heavy Metals
86. This subject is discussed in paragraphs 61-70 hereof.
III. BODY CONTACT RECREATION
A. coliform Limits
87. The North Carolina Board of Water and Air Resources
regulations require that for body contact recreation purposes,
waters have a monthly mean fecal coliform count based on five
samples during the May to September period not exceeding 200
per 100 milliliters, and during the remainder of the year not
exceeding 1,000 per 100 milliliters. [Volume II.Supplemental
Studies, p. 7].
88. Richard Jackson, Chief of Corps of Engineers Wilmington
District Environmental Resources Branch, testified in 1970 that
primary contact recreation in the proposed B. Everett Jordan
reservior would be precluded by pollution, except possibly in a
few coves, and that no project benefits were assigned to primary
contact recreation. [Jackson, Tr. 536].
89. The data taken by the Corps of Engineers over the years
on coliform bacteria shows a progressively deteriorating condition
of the water in streams entering the project area. [Jackson, Tr.
538-40].
90. It is doubtful that the upper quarter of Segment I can
be classified as suitable for bathing. [Volume II Supplemental
Studies, p. 37].
91. In Segment IV fecal coliform counts will probably exceed
allowable limits, so that body contact sports will be limited.
[Volume II Supplemental Studies, p. 51].
92. Swimming in the White Oak Creek backwater in Segment
17
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
III would probably not be desirable because of coiiform conditions.
[Volume II Supplemental Studies, p. 58].
B. Physical Limitations and Aesthetics
93. In Segment IV of the proposed impoundment, nuisance
blooms of algae and aquatic weeds may well interfere with both
boating and bathing. [Volume II Supplemental Studies, p. 56].
94. In Segments II and III and the upper one-third of
Segment I, algae and aquatic weeds may cause nuisance conditions
reducing the acceptability of the water for contact recreation
use. [Volume II Supplemental Studies, Figure 7].
95. Because Segments II, III and IV will contain chlorophyll.
a concentrations in excess of 300 micrograms per liter, a pea soup
green condition of the water is expected, which would likely deter
recreational use. [Paragraph 12 hereof].
18
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
IV. WATER SUPPLY
A. Heavy Metals
96. This discussion is contained in paragraphs 54-60 hereof.
B. Coliform Limits
97. The North Carolina Board of Water and Air Resources regulations
for waters to be used as treated raw water supply impose a maximum
limit of a monthly average total coliform not to exceed 5,000 per
100 milliliters. [Vol. II. Supplemental Studies, p. 6].
98. More than one third of segment I of the proposed impoundment
would not be satisfactory for raw water supply because of excessive
coliform counts. [Jackson, Tr. 467-650; Vol. II, Supplemental Studies,
p. 36, fig. 5].
C. Taste and Odor Problems
99. In segments IV, III, and II of the proposed impoundment, the
decay of algae and production of odors by microorganisms would cause
taste and odor problems for water supply. This would have the effect
of increasing treatment costs also. [Vol. II, Supplemental Studies,
p. 60; O'Melia, Tr. 266-67].
D. Physical Limitations
100. Segment IV of the proposed impoundment is too shallow to be
used for water supply purposes. [Jackson, Tr. 650].
E. Need
101. Durham has no plans for the future to draw water from the
B. Everett Jordan Lake, and will be able to satisfy all of its water
supply needs from the Eno River. [Roland, Tr. 422-428].
102. The Orange Water and Sewer Authority, which will supply water.
to Chapel Hill and environs, has no plans to draw water from the
B. Everett Jordan Lake. The Cane Creek Reservoir, currently being
developed by the Authority, will take care of Chapel Hill's water
supply needs into the Twenty-first Century. [Epting, Tr. 431, 436,
438-39].
103. Raleigh's water supply will come from an impoundment on
the Neuse River, and until that is completed use will be made of
an interim dun on Beaver Creek. [Doby, Tr. 882-83].
19
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
104. On the first day of the trial, a request was passed by the
Wake County Commissioners for water supply from the B. Everett Jordan
Lake. [Doby, Tr. 867-68]. Supplying Raleigh or Wake County from
the B. Everett Jordan Lake would be an inter-basin transfer to the
Neuse Basin, requiring enabling legislation, unless all of the muni-
cipal sewage systems affected were redesigned to pipe sewage back
into the Cape Fear watershed instead of into the Neuse. [Doby,
Tr. 891.-95].
105. From this review of the water supply plans of Durham, Chapel
Hill, and. Raleigh, and the feasibility of water supply to Wake County,
it must be concluded that the proposed B. Everett Jordan Lake is not
a likely substantial water supply source.
V. LOW FLOW AUGMENTATION
106. Fayetteville currently has a capacity for taking 12 million
gallons per day from the Cape Fear River, and 5 million gallons out
of a creek, for water supply purposes. Current water usage of Fayette-
ville is 16 million gallons per day, and an annual growth in recent.
years has been at the rate of 1 million gallons per day. [Stowe,
Tr. 836].
107. At the 11 year monthly average low flow, the Cape Fear carries
75 million gallons per day at Fayetteville, and this can provide
25 million gallons per day to the city. [Stowe, Tr. 838,-852-53].
108. Fayetteville has not looked into impounding smaller rivers
and creeks in the vicinity as alternate sources of high quality raw
water supply, and it has simply been assumed that the Cape Fear River
would be relied upon for water supply purposes. [Stowe, Tr. 853-65].
109. Fayetteville did not enact a resolution requesting an allo-
cation of water from the B. Everett Jordan Lake until the trial of this
case was in progress. [Stowe, Tr. 840-41, 850].
110. It is concluded that Fayetteville does not haire a substantial
need for releases from the proposed B. Everett Jordan Lake to increase
its water supply during period of low flow, since there is sufficient
water in the river to meet present and near future needs of the city,
as well as other rivers and streams being available to the city as source:
of water supply.
20
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
111. Another purpose claimed by Fayetteville for low flow augmen-
tation is to dilute pollution from upstream in order to improve the
quality of the water. [Stowe, Tr. 847-48].
VI. OPERATION OF THE DRY DAM
A. Flood Control
112. The designed flood control purpose for the B. Everett Jordan
project is accomplished by operating it as a dry dam. [Notice of
Decision to Impound, p. 20].
B. Forest and Other Vegetation
113. If the project is operated as a dry dam, some changes in
species will occur in the areas subject to periodic flooding. Water
tolerant types will survive in this environment, as long as the
vegetation is not covered by water for more than two to four weeks during
the growing season. Such trees as the black gum and the cypress will
thrive. Qualitatively, there would be no decline in vegetation in
the areas subject to flooding. [Noggle, Tr. 374-77].
114. The Corps of Engineers erroneously projected that all streams
other than the Haw River would become completely closed by water-
tolerant coppice and other aquatic plants. No profusion of plant
growth has been noted in these areas. [Vol. I, Environmental Impact
Statement, p. 35; Gillis, Tr. 482].
115. The area affected by periodic flooding with the project operated
as a dry dam is a band only 30 to 40 feet or so in width. This must
be compared to a band of 24 feet, the difference between the conser-
vation pool at elevation 216 and the flood pool at elevation 240,
if the permanent lake were created. The band affected by flooding
around the permanent lake would be much longer than that around the
river, banks in dry dam operation, so that a much greater acreage
would be affected by periodic flooding in the event a permanent lake
were created. [Noggle, Tr. 380].
21
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
116. Less impounded water would have been accumulated during
the last two years of dry dam operations, if the outlet works had
been cleared of debris by the Corps of Engineers as frequently as
practicable. [Johnstone, Tr. 1C31-32, 1040-41].
117. The project area operated as a dry dam would have a diverse
plant life. Such green space would have great recreational and aesthetic
value in the urban complex where it is located. [Noggle, Tr. 382-83).
C. Game and Other Wildlife
118. Game populations in the project area operated as a dry dam
include rabbit, quail, grey squirrel, mourning dove, woodcock, wood
duck, raccoon, turkey, fox, opossum, and muskrat. The woodcock
population there is the best in the State of North Carolina. Turkeys
are commonvnly in certain locales in this state, and the project
area is excellent turkey habitat. [Gillis, Tr. 470-72].
119. The 31,000 acres of project lands leased by the North Carolina
Wildlife Resources Commission for wildlife management purposes, while
the project has been operated as a dry dam, supplied between 1800 and
2000 man days, per year of hunting and trapping, as well as 1500 to
2000 man days per year of river and pond fishing. The hunting is likely
to increase three or fourfold. [Gillis, Tr. 467-69].
120. The wildlife habitat in the project area is of a very high
quality, and has been improving under North Carolina Wildlife Commission
management. Such habitat is definitely on the decrease in central
North Carolina because of construction and other development activi-
ties. In the immediate vicinity of the project area, some natural
habitat has been lost to urban development, and some to clean farming
(the current tendency to eliminate growth in hedges and ditch banks).
[Gillis, Tr. 473-74, 481-82].
121. It is not logical to conclude that wildlife would be threatened
by death from flooding with the project operated as a dry dam. [Noggle,
Tr. 378] .
22
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
122. The Corps of Engineers has designed wildlife subimpoundments
for waterfoul (wood ducks, paddle ducks, mallards and black ducks),
including some operated as "green tree reservoirs," which would have the
trees left standing and would not be flooded except during the growing
season. It would be appropriate to create these subiwpoundments with-
out the construction of a permanent reservoir, if the project were
operated as a dry dam. [Gillis, Tr. 476].
123. Creation of the permanent impoundment would eliminate the
terrestrial habitat, and would decrease the wildlife population.
[Gillis, Tr. 477-79] .
124. The Corps of Engineers concurs that there is a greater need
for a place to hunt, than for a place to water ski and fish, in the
project area, from-a,wildlife resources standpoint. [Volume I, Summary
Report, p. 152].
125. Over 150 species of birds have been identified in the project
area. Of particular importance are a large hawk population and summer
concentrations of egrets and shorebirds. [Vo1.,I, Summary Report,
p. 378].
E. Recreation
126. The project area is known and frequently used by bird-
watchers throughout North Carolina. [Vol. I, Summary Report, p. 378].
127. There is some excellent white water canoeing on Haw River in
the project area, which is classified as "experienced" water. [Vol. I,
Summary Report, p. 378].
128. Old farm roads and abandoned railroads provide miles of ready-
made hiking trails in the project area, which are in use by day hikers
and overnight backpackers. [Vol. I. Summary Report, p. 378].
129. Other recreational uses for which the area is appropriate
operated as a dry dam, include horseback riding, picnicking, camping,
sightseeing and motor touring. [Noggle, Tr. 383; Gillis, Tr. 472].
23
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
VII. IRREVERSIBLE EFFECTS OF FILLING
130.. If the reservoir were filled and than emptied because of
adverse water quality conditions, it would be difficult and slow
to re-establish vegetation. It woule take 35 to 40 years to get
the area reforested, andmany years beyond that to achieve a good
re-establishment of forest cover. [Noggle, Tr. 384-85; Rimer, Tr.
332].
24
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
CONCLUSIONS OF LAW
1. This is a substantive review ease under the
National Environmental Policy Act (NEPA) 42 U.S.C. sec.
4331 et seq. Conservation Council of North Carolina v.
Froehlke, 473 F.2d 664 (4th Cir. 1973).
2. The standard of review in this case is whether
defendants' decision is arbitrary and capricious; and
whether the defendants reached their decision after a full
good faith consideration of environmental factcrs, and
whether the actual balance of costs and benefits struck by
the agency was clearly arbitrary or clearly gave insuffi-
cient weight to environmental factors. Conservation Council
of North Carolina v. Froehlke, 473 F.2d 664 (4th Cir. 1973).
3. A decision is arbitrary if it is not based on the
relevant factors. Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402 (1971).
4. Defendants' decision to impound is arbitrary because
they have based their decision on irrelevant factors, namely
wildlife subimpoundments, low flow augmentation for pollution
dilution, short-term water supply, and fishing. Citizens to
Preserve Overton Park v. Volpe, 401 U.S.402 (1.971).
5. Defendants' decision to impound is arbitrary since
they failed to consider many relevant factors, namely, the
increased urbanization resulting from the development of the
National Environmental Health Research Center, the recreational
opportunities that will be provided by the reservoir or the
Neuse River, and the many benefits that would be realized by
deferring impoundment. Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402 (1971).
25
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
6. A decision is arbitrary if conclusions are not
supported by evidence. Rankin v. Coleman, 394 F.Supp. 647
(E.D.N.C. 1975).
7. Defendants' decision to impound is arbitrary since
defendants fail to support many conclusions with any evidence,
namely, the conclusion that impoundment will ameliorate the ex-
cessive heavy metal inflows by dilution, the conclusion that
mercury levels in the proposed impoundment will not resultin
mercury consumption in excess of the allowable limit, the con-
clusion that Segment IV would have water quality comparable to
Nutbush Arm of Kerr Lake, and the conclusion that there exists
an adequate pre-impoundment water quality data base. Rankin v.
Coleman, 394 F.Supp. 647 (E.D.N.C. 1975).
8. A decision violates the substantive standard of review
under NEPA if an agency failed to give full good faith
consideration to environmental factors. Conservation Council
of North Carolina v. Froehlke, 473 F.2d 664 (4th Cir. 1973).
9. Defendants' decision to impound violates the substan-
tive standard of NEPA since defendants' failed to give full
good faith consideration to environmental factors. Conservation Council
of North Carolina v. Froehlke, 473 F.2d 664 (4th Cir. 1973).
10. A decision violates the substantive standards of NEPA
if the agency gives clearly insufficient weight to environmental
factors. Conservation Council of North Carolina v. Froehlke,
473 F.2d 664 (4th Cir. 1973).
11. Defendants' decision to impound violates the substantive
standard of NEPA since defendants gave clearly insufficient weight
to environmental factors, namely, the objective to provide
esthetically pleasing surroundings, the objective of non-degradation
of the environment, and the objective of assuring safe and healthful
Smith, Patterson, Rollin, Curtis & James
26
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
surroundings. NEPA subsections 101(b) (2) and (3);
Conservation Council of North Carolina v. Froehlke, 473
F.2d 664 (4th Cir. 1973); Reserve Mining Co. v. Environmental
Protection Agency, 514 F.2d 492 (8th Cir. 1975).
12. Under the substantive standards of NEPA, an agency
must mitigate avoidable adverse environmental effects.
Environmental Defense Fund, Inc:, v. Froehlke, 473 F.2d 346
(8th Cir. 1972).
13. Defendants' decision to impound violates the substantive
standards of NEPA since they failed to mitigate advoidable adverse
environmental by not deferring impoundment until inflow quality
significantly improved. Environmental Defense Fund, Inc., v.
Froehlke, 473 F.2d 346 (8th Cir. 1972).
Respectfully submitted,
Attorneys for Plaintiffs
Norman B. Smith
Smith, Patterson, Follin, Curtis & James
704 Southeastern Building
Greensboro, North Carolina 27401
Telephone: 919-274-2992
Thomas J. Schoenbaum
Smith, Patterson, Follin, Curtis & James
704 Southeastern Building
Greensboro, North Carolina 27401
Telephone: 919-274-2992
27
Smith, Patterson, Follin, Curtis & James
ATTORNEYS AND COUNSELLORS AT LAW
I, NORMAN B. SMITH attorney for
Plaintiffs in the above-entitled action, do
hereby certify that I have served a copy of the foregoing
PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS
OF LAW on oppesing counsel of
record at the last address known to me, by placing said
document in an envelope with first-class postage affixed,
and by depositing said envelope in the United States post
office in Greensboro, North Carolina, this 1 day of
March, 1977, said envelope being addressed
as follows:
United States Attorney Mr. Robert L. Gunn
for the Middle District of North Carolina P. O. Box 888
United States Post Office and Courthouse Building Pittsboro, N.C. 27312
West Market Street
Greensboro, North Carolina 27401
Assistant District Counsel Attorney
for Defendant
Wilmington District
United States Amy Corps of Engineers
P. O. Box 1890
Wilmington, North Carolina 28401
Mr. Rudolph G. Singleton, Jr.
Attorney for All Defendants-Intervenors
Nance, Collier, Singleton, Kirkman & Herndon
Suite 300, First Union National Bank Building
Fayetteville, North Carolina 28302
Mr. James C. Fox
Attorney for all Defendants-Intervenors
Muchison, Fox & Newton
16 North 5th Street
Wilmington, North Carolina 28401
Mr. George McDermott
Attorney for Defendant Sanford Construction
Company
McDermott & Parks
P. O. Box 637
Sanford, North Carolina
Mr. Claude V. Jones
Attorney for Plaintiff-Intervenor
City. of Durham
1110 Central Carolina Bank Building
111 Corcoran Street
Durham, North Carolina. 27701
Mr. Emery B. Denny, Jr.
Attorney for Plaintiff-Intervenor Town of Chapel Hill
P. O. Box 962
Chapel Hill, North Carolina 275)4
Attorney for Plaintiffs
Norman B. Smith
Smith,Patterson,Follin,Curtis & James
704 Southeastern Building
Greensboro, North Carolina 27401
Telephone: 919-274-2992