NC DENR Abandons Sweetheart Deal for Unneeded Dam

Yielding to a challenge from the Southern Environmental Law Center on behalf of American Rivers, the North Carolina Department of Environment and Natural Resources has quietly reversed its unprecedented decision to waive environmental review for a boondoggle dam project.

“This proposed impoundment on the First Broad River is a real estate scheme disguised as a water supply project,” said DJ Gerken, the Southern Environmental Law Center attorney who represented American Rivers in challenging the DENR’s waiver. “Although there are less harmful and much cheaper alternatives to meet Cleveland County’s water supply needs, the proposal for an unneeded dam has been on the fast track in recent years.”

The impoundment was proposed by the Cleveland County Water District to dam over 20 miles of the First Broad River and its tributaries. With less damaging alternatives available, the project could not have survived review under North Carolina state law, a condition for obtaining a federal permit but waived by DENR.  State review would also have allowed for public participation by citizens who would be impacted by the proposed reservoir.

Last summer, the DENR sent CCW a letter declaring that state review had been “waived,” cutting off any public scrutiny.  North Carolina has never before waived its clean water laws for a dam project.

“Waiving the state’s responsibility to protect clean water for all the citizens of North Carolina to allow the construction of an unnecessary and harmful dam would have been terrible for the First Broad River and the people who live, fish, and boat on the river. It also would have set a bad precedent for other rivers across the state,” said Peter Raabe, North Carolina conservation director at American Rivers.

DENR asserted that its waiver decision could not be challenged by the public, but American Rivers, represented by the Southern Environmental Law Center, contested the decision in the Office of Administrative Hearings, arguing that the state could not give the project a green light without first determining whether state standards would be met.  DJ Gerken, the attorney handling the case, explains, “The law doesn’t allow Cleveland County Water District to dam the First Broad when it has cheaper, smarter options to provide water to its customers.”

The legal challenge ended abruptly after the judge ruled that the state’s decision was, in fact, challengeable in court.  In response, DWR sent two successive letters undoing the waiver and effectively ending the case.

DWR informed the project proponents on January 23 that their application is on hold and the application is again pending before DWR, but Gerken notes that, “because of the state’s history of trying to shortcut review for this project, American Rivers and the Southern Environmental Law Center will be watching.”