Unprecedented North Carolina Waiver of Water Quality Protections Challenged

On behalf of American Rivers, the Southern Environmental Law Center challenged the North Carolina Department of the Environment and Natural Resources’ unprecedented waiver of its responsibility to uphold water quality protections that allows an unneeded reservoir with powerful political supporters to move forward. In violation of the law, the agency gave the waiver for the John Cline Reservoir in Cleveland County, N.C., without any public notice or hearing in response to an incomplete application by the county and without required coordination with federal agencies.

“In an unprecedented move following political pressure, DENR abdicated its responsibility to uphold water quality protections for the people of North Carolina,” said DJ Gerken, senior attorney at the Southern Environmental Law Center. “DENR waived its review of an incomplete application for an unneeded reservoir with no public notice. The county’s own consultants for the project found that, even in the worst drought conditions, its water needs could be met with existing supplies and less harm to water quality.”

Studies commissioned by the county repeatedly identified multiple, practical alternatives to meet projected needs with less harm to the environment and taxpayer expense, including an offer by the Town of Forest City, N.C., to supply water if needed.

In response, State Representative Michael Hager threatened the Forest City city council in March 2013 with legislation to prohibit nearby water districts from selling water to Cleveland County. Representative Hager reported receiving income in excess of $5000 from a real estate investment venture, John Cline Res. LLC, that is poised to profit from lakefront real estate development if the reservoir is constructed. The company purchased property along the future lakefront of the reservoir.

Appointed by Speaker of the House Tom Tillis to the state commission that oversees state water quality permits and certifications, Clyde “Butch” Smith, General Manager of Cleveland County Water–the applicant–lobbied legislators and legislative staff on behalf of the project, assuring them that “As you can see we are working hard to get the reservoir. David I have been appointed to the N.C. Environmental Management Commission.”

In an August 2012 email to a legislative staffer, Mr. Smith stated, “[w]e feel like this election in November [2012] N.C. is going Republican and if that’s the case we will get the 401 permit.”

The proposed John Cline Reservoir would flood approximately 24 miles of North Carolina’s First Broad River, streams, wetlands, and 1,200 acres of forest and agricultural land.

“If this dam is built it will mean losing more than twenty miles of the river and tributary streams – by far too high a price to pay for a reservoir that simply isn’t needed.” said Gerrit Jöbsis, southeast regional director for American Rivers. “By punting this decision, the Department of the Environment and Natural Resources has shirked its duty to the citizens of North Carolina to protect the First Broad, its recreational uses and rich ecosystem.”

The Southern Environmental Law Center filed an administrative appeal of DENR’s waiver with the state Office of Administrative Hearings.