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From: rvicLawhorn, Dan [mailto: Dan, [e-mail]]
Sent: Wednesday, January 12, 20114:56 PM
To: Smith, Robin
Cc: Waldroup, Kenneth; Tant, Thomas H.; 'Berndt, Robert A.'
Subject: Little River Reservoir process
Thank you for your patience as we assembled materials that might better explain our frustrations with
the current means for securing permits for the proposed Little River Reservoir. The suggestions that I
made to the legislature were stimulated by certain fundamental problems we have encountered in the
past two years of effort to move this issue forward.
Foremost among those issues is the lack of any state policy directive on how your agencies should
balance the needs of people and protection of the state's natural resources in the allocation of water
resources. Of course, we acknowledge that important elements of water policy are driven by key
federal laws, including the Endangered Species Act and the Clean Water Act. At the same time, a
statement of state policy can be important in the application of those laws by both the State and
Federal decision makers. Our frustrations have stemmed in part from what seems a clear bias by
State regulators against the project as it will impound a river, and the resultant delays Bind
impediments that we have experienced. From our perspective, that bias is likely a result of a lack of
clear state policy guidance from the General Assembly. We have encountered this bias from the start
of our communications with the agencies. I attach two documents that help illustrate that bias.
First, I attach a document that Ian McMillian filed in response to our scoping notice [Impoundment
Summary], While it was submitted as an attachment to scoping comments, it was not obvious if this
was filed as a DENR/DWQ comment or instead as a comment by Mr. McMillan in his individual
capacity. The document was not on department letterhead and it did not show his position with the
agency within the document. We are also concerned that the Impoundment Study document is not 7*
peer-reviewed or published document, so we are concerned about its scientific veracity and balance.
The same general philosophical approach is reflected in the second attachment. That document is on
DENR letterhead and was filed by Mr, McMillan in his official capacity. I particularly direct your
attention to the last page of the comments where Mr. McMillan summarizes the DWQ position in
opposition to the project. [Mitigation comments by DWQ]
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Another prominent example of agency delay and additional study demands is illustrated in the case of
the Water Quality Modeling Plan. The DWQ was included as a part of the TAG group and process
from the outset of the study in 2008. Pete Caldwell was the DWQ's designated representative and
was provided all information given to the TAG. The draft Water Quality Modeling Plan was circulated
on July 8, 2009 and modifications were made in response to comments by Pete Caldwell. On March
1, 2010, the Revised Plan was distributed and no comments were received in response. Then, in
June, 2010, Kathy Stecker became involved in the discussion on behalf of DWQ for the first time and
the process had to undergo a virtual restart. Ms. Stecker's position was that DWQ had not been
included in the consultation, and that Pete Caldwell was not advising DWQ of developments, In a
10-23-2009 memo, the City's consultants responded to comments by Pete Caldwell and others from
DWQ on the study plan for the Little River Water Quality Modeling, Even now, we are uncertain as to
the scope of this element of the Study. [WQ Modeling Plan of Study Development Timeline June 14
rev]

T,,�e-scope and nature of the Little River Instrearn Flow study is also perplexing to me given the recent
completion by DWR of the Neuse River Hydrologic Model, This was held out to be an example of the
modeling which could be used for many of the issues to be considered by the ongoing effort to
ascertain the ecological flow needs, Given the insistence of DWR staff to expand the scope of the
City's study to include the entire Little River system despite slight impacts on flow downstream of
Buffalo Creek, significant questions arise as to the value of the information and its utility in the water
allocation/use decision process. If this level of redundancy is needed for each such project, it seerns
we are accomplishing little or nothing by the hydrologic modeling process that DENR has held out to
N* a means to avoid such stumbling blocks for this type project.
The Draft Environmental Impact Statement preparation depends in significant part on completion of
negotiations about the Instream Flow Study and mitigation for the project. The latter will be driven by
the USEPA/USACE Interagency Review Team process under the April, 2008 joint rules of those
agencies. I attach as a fifth item our current projected timetable for completion of the EIS process and
project completion. The project itself will also be driven by the financial capacity of the City and the
urgency of its water, needs at the time. Due in large measure to DENR demands in the current
process and the expanded timeline for the Instrearn Flow Study, all the dates were moved forward by
at least 2 years,
The collective process and associated delays engendered by the voluntary and cooperative process
causes me to conclude that the State needs to be required to make its decisions earlier and more
comprehensively than is now the case, Otherwise, we have effectively adopted a no growth policy for
the Piedmont and DENR should ask the legislature to ratify that policy instead of DENR implementing
it in the manner shown above.
Dan McLaivhorn
Assod,ate, City Attorney
PO Box 590 Raleigh, N�- 27602
(919) 8,31-6560 [ofifice [phone] [fax]
Emad dan.rriclawl)orr �[2j�Mhnc.,,gov