Legislation recently passed by the General Assembly not only placed stringent regulations on interbasin transfers but provided more spark to an already lively debate on public policy involving water supplies to rapidly developing areas.
Although the result of the debate could be more regulations, those on both sides of the issue think it’s both necessary and healthy.
“The big thing that I’m pushing for, and will continue to push for, is changing the entire public policy in North Carolina on interbasin transfers,” said Rep. Mitch Gillespie, a Republican from McDowell County and vice chairman of the Environmental and Natural Resources Committee. “In my opinion, interbasin transfers need to be a last resort. It does not need to be a first option. It does not need to be done because it’s cheaper or easier.”
“Water is a very emotional issue for a lot of people. So I think it is appropriate that we have a careful look at it so that people will feel comfortable that they’re not being harmed. But I think there has to be certain level of science and objectivity, too,” said Tom Fransen, a river basin section chief for the N.C. Department of Environment and Natural Resources.
“I think with continued growth we’re at a point where we need good public debates to determine what is the correct course of action,” he said. “Years ago, if you’d asked if we need a statewide water-use program, I’d say we didn’t need one. I’m not necessarily convinced we need one yet, but I do think it’s something that needs to be discussed and evaluated by the policymakers to determine whether we need one or not.”
In addition to passing new regulations on interbasin transfers, HB 820, which passed by overwhelming majorities in both the House and the Senate, also directed the Environmental and Natural Resources Committee to further “study issues related to the transfer of water from one river basin to another river basin and the allocation of surface water resources and amend the laws governing the transfer of water from one river basin to another.” That study probably will produce another bill during the 2009 session that will have more regulations.
Interbasin transfers shift water from one river basin to another in order to meet the needs of rapidly developing towns and cities. Environmentalists and many legislators think that the transfers have detrimental effects to the source basin and to communities both downstream and upstream. Such transfers, which involve millions of gallons of water, were already subject to intense environmental and technical review after the Regulation of Surface Water Transfers Act was passed in 1993.
Supporters of HB 820 said the bill will explain the process involved in applying for a transfer more clearly and openly for both sides and allow for more public input. Water conservation and drought management plans are required for transfer requests, and environmental impact statements must address possible economic, recreational, and social damages.
In addition, the new law allows for mediation to help settle disputes over transfers and gives the donor basin primary rights to water considered for transfers. Cities receiving water through a transfer are under closer scrutiny and are required to measure how much they have taken out and report the amount every three months. Water received through a transfer can no longer be resold, either.
A controversial transfer permit by Kannapolis and Concord prompted the legislation, although language that would have affected that request was pulled from the final bill. The N.C. Environmental Management Commission, with technical assistance from the Department of Environment and Natural Resources, approved the request in January after an extensive review process. The decision allowed Kannapolis and Concord to draw significantly less water than the 26 million gallons they had originally requested. The cities will now draw 10 million gallons per day from the Catawba basin, in addition to10 million per day from the Yadkin River basin.
The commission also placed a condition on the certificate making it clear that Kannapolis and Concord have to follow all the water-use restrictions placed on communities in the two source basins during periods of drought.
Still, South Carolina filed an injunction in June to stop the water transfer and asked the U.S. Supreme Court to appoint a special master to create a compact commission for the Catawba River with the power to allocate the river between the states.
In the petition, Attorney General Henry McMaster argued that by “authorizing the transfer of tens of millions of gallons of water on a daily basis from the Catawba River into other rivers, North Carolina’s actions have exacerbated the already fragile state of the Catawba River and reduced further the often limited flow of water into South Carolina.”
Catawba River stakeholders, including McDowell and Burke County, Hickory, and Morganton, opposed the request and also have filed a petition appealing the commission’s decision, which should go before an administrative law judge in the near future.
That petition is in addition to a petition filed by the Southern Environmental Law Center, which wrote, “EMC approved this transfer despite numerous defects in the application process, wide-ranging opposition, and concerns with the quality of the environmental review the cities conducted pursuant to the North Carolina Environmental Policy Act. These defects range from the agency’s failure to notify the state of South Carolina of the proposed transfer, despite the fact that the transfer could exacerbate water shortages and contribute to concerns about water quality degradation in the Catawba system, to the agency’s failure to give the public adequate time to review and comment on a series of revisions to the final environmental impact statement for the project.”
If the judge renders what the stakeholders deem an unsatisfactory decision, it will be appealed in the court system, Gillespie said. “The 10 million gallons a day for Kannapolis and Concord is still not a done deal,” he said.
DENR officials said the agency issued the permit with the certainty that the Catawba basin would not be harmed.
“What I’ve told people in the past is if we honestly thought that the demands placed on the Catawba basin were such that we’ve exceeded its capacity, we would start a capacity use designation that would regulate all withdrawals in that basin,” Fransen said. “Based on the information that I saw on some of the modeling runs we did internally, we did not feel the basin at this point was at that level that would justify a capacity use designation.”
But Gillespie argued that his district would be threatened by a transfer from the Catawba basin because it’s near the top of the basin and “there’s nothing above us to fill us back up.”
While the bill definitely has an immediate affect on transfers, its charge to the environmental and natural resources committee could have an effect in the near future.
One key recommendation of the study will be to recommend types of equipment that should be used to measure the amounts of withdrawals. Another key provision would be making transfers temporary.
“They should not be permanent, although they still are,” Gillespie said. “How long you make them is up for debate. The general feeling is 40 years, then you review it.”
But the major goal will be to come up an option to transfers, namely forcing the state to build more reservoirs.
It’s interesting that Gillespie is siding with environmentalists on the Catawba IBT issue, because he differs with them on the issue of reservoirs. “What the environmentalists don’t realize is the reason why we’re having IBTs is because they’ve worked so hard against dams and reservoirs,” Gillespie said. “They don’t even realize what they’ve done.”
That said, he also thinks DENR plays an important role in stalling more reservoirs.
“It’s DENR’s fault that we’re having IBTs, in my opinion,” Gillespie said. “They make it so strict on municipalities to create reservoirs. Building reservoirs takes so long and costs so much money. They have an anti-reservoir mentality.”
Fransen agrees it’s tough to build more reservoirs in North Carolina. “The ability to build new reservoirs in this current environmental climate is tough,” he said. “There are some really tough environmental hurdles to cross. It’s a very long-term and difficult thing to do.”
With that in mind, Fransen thinks transfers will still be the major method to supply water to growing areas.
“It’s just part of the way water management’s done in North Carolina,” Fransen said. “I’ve listened to a lot of the rhetoric over the last couple of years about interbasin transfer, and if you didn’t understand the situation you would think it’s a runaway problem in North Carolina. Since 1993, when the law we’re working under passed, we’ve only issued three certificates, so it’s not like people are knocking down our doors wanting to do interbasin transfers every day, which is the feeling you get when you listen to the rhetoric. It’s costing people roughly $1 million to go through the process, and doesn’t guarantee that you get the permit. So they have not gone through this process lightly and have looked hard for alternatives. The current bill makes them look that much harder for other alternatives.”
David Moreau, professor of water resources and environmental planning at the University of North Carolina at Chapel Hill who also is chairman of the Environmental Management Commission, has a mixed reaction to HB 820.
Moreau said he questions the notification requirements because the cost of requiring notification could be expensive and could more easily leave permit requests open to lawsuits. But he also described the provision that would open the commission’s final decisions to a public hearing as a “healthy thing.”
Still, he thinks that the commission’s technical and environmental reviews are more than adequate.
“I continue to be amazed at the emotion that surrounds these types of decisions,” Moreau said. “I don’t know that we can do any more detailed analysis than we do. The general presumption is you don’t go taking water from somebody else if you’re going to create a hardship on that donor. But if you’re not going to create a hardship on the donor, and there are no serious environmental effects, then why let that water run downstream and out to the ocean without being used?”
Moreau said transfers are part of “the reality of life in North Carolina these days, (which) is urban demand centers are reaching across basin boundaries.” He supports reservoirs as an option. “We’d build them if we had places for them, but we have very few places left,” he said.
Moreau did say there was one other option, however.
“We could go to a very stringent restriction on water use,” he said. “We’ll see how popular that is.”
Sam A. Hieb is a contributing editor of Carolina Journal.