Interbasin transfer

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Laws and rules


 


Legislative developments

In the wake of a huge controversy over a proposed dual interbasin transfer of water from the Catawba and Yadkin-Pee Dee river basins to the Rocky River (Yadkin) basin, at the request of the Cities of Concord and Kannapolis, S.L. 2007-518 (H. 820) rewrote the process and standards for interbasin transfer certificates. The revised process for interbasin transfer certificates begins with a notice of intent to file a petition, followed within ninety days by two public meetings upstream and downstream of the proposed diversion in the source basin and one downstream in the receiving basin. The notice and public meetings are to be expressly designed to generate comment on the scope of the environmental documents to be prepared regarding the transfer. Notice of the meetings must be given very broadly, including to all counties downstream, whether in North Carolina or an adjacent state and to all upstream and downstream holders of wastewater discharge permits (the bill does not expressly limit this to adjacent states, but it does direct the Division of Water Resources (in consultation with the Environmental Review Commission) to prepare a new map that better accounts for reasonable downstream/out of state notice). The bill requires a full environmental impact statement for every proposed interbasin transfer from one major river basin to another. A public hearing is required on the draft environmental impact statement, and authority is given to challenge the adequacy of the environmental impact statement in a contested case on the ultimate decision whether or not to grant a certificate. The bill sets out a much more explicit and lengthy set of things that must be shown in a petition for an interbasin transfer. It provides for a mediation process between the petitioner and any interested parties in the transfer. The new process requires a draft determination on the petition for a transfer within 90 days after the environmental document is complete or the application is filed, whichever is later, and then more public hearings on the draft determination within 60 days of the draft determination. The bill then specifies nine factors to be considered in making a final determination on the petition, with a burden of proof on the petitioner and in light of a declared policy that “the reasonably foreseeable future water needs of a public water system with its service area located primarily in the receiving river basin are subordinate to the reasonably foreseeable future water needs of a public water system with its service area located primarily in the source river basin.” If the transfer is allowed, the bill specifies seven required conditions, including limitations on resale, mandatory water conservation measures, a drought management plan and reopeners to reduce the permitted transfer if new sources are found in the receiving basin or the applicant’s projected water needs decline. The new process allows the Secretary of DENR to authorize emergency transfers for up to six months, with one extension of six months, without having to file the notices, hold the hearings or make the findings required of a non-emergency transfer. There is a delayed effective date, until January 2011, for transfers to supplement ground water supplies limited by the Central Coastal Plain Capacity Use Area.


The process outlined

The interbasin transfer certificate process was, on its face, a very simple process before the amendments in 2007. The diagram below diagrams the process before S.L. 2007-518. Reality is never as simple as such diagrams make it appear, however, and the IBT process was no exception. Several of the things statutority required by S.L. 2007-518 had already come to be de facto parts of the permit process. To give some perspective on the costs involved in a contested ibt certificate even before the 2007 changes, the Cities of Concord and Kannapolis spent somewhere in the range of $10-20 million just on the permitting costs (legal, engineering and other consulting fees and costs) to receive their 20 mgd certificate--which, as of early 2008, was still being challenged in an administrative appeal and in the United States Supreme Court.

IBT process pre-2007
IBT process pre-2007

The revised process (as of 2008) is shown in another diagram, below, with key changes in red).

IBT process after 2007 changes
IBT process after 2007 changes

The Concord-Kannapolis dispute

NC's largest and most controversial interbasin transfer request in history began its journey into the public domain in May of 2005, when the NC Department of Environment and Natural Resources-Division of Water Resources issued a public notice seeking comment on the Concord-Kannapolis Interbasin Transfer. The notice said:


"Cities of Concord and Kannapolis Proposed Interbasin Transfer
The North Carolina Environmental Management Commission will hold two public hearings to receive comments on a petition for an interbasin transfer from the Catawba River and Yadkin River Sub-Basins to the Rocky River Sub-Basin. The Cities of Concord and Kannapolis are requesting an interbasin transfer (IBT) certificate from the North Carolina Environmental Management Commission for a total transfer of 48 million gallons per day (MGD) on a maximum day basis. The maximum day IBT under the proposal would be up to 38 MGD from the Catawba River Sub-Basin and up to 10 MGD from the Yadkin River Sub-Basin.

Under the proposal, the applicants would meet short-term water supply demand increases using interconnections with Charlotte (Catawba), Salisbury (Yadkin), and Albemarle (Yadkin). Long-term demands would be met by developing a raw water supply from Lake Norman (Catawba) to supplement flows to Lake Howell and Kannapolis Lake. IBT occurs because of consumptive use in and discharge to the Rocky River Sub-Basin via the Water and Sewer Authority of Cabarrus County’s Rocky River Regional Wastewater Treatment Plant. The IBT certificate is being requested to meet a projected cumulative water demand shortfall of 24 MGD (average day demand) in 2035.

Notice of these hearings is given in accordance with N.C. General Statute 143-215.22I(d). The first public hearing will start at 5:00 PM on June 22, 2005 on the Third Floor of McKnight Auditorium on the campus of the University of North Carolina at Charlotte, Charlotte, NC. The second hearing will begin at 5:00 PM on June 23, 2005 in the Albemarle City Hall Annex, Albemarle, NC. In addition, Division of Water Resources (DWR) staff will be available to answer questions from 4:00 – 5:00 PM at the hearing locations. The public may inspect the staff’s recommendation report, the interbasin transfer petition, and the draft Environmental Impact Statement (EIS) supporting the petition during normal business hours at the offices of DWR, 512 N. Salisbury Street, Room 1106, Archdale Building, Raleigh. These documents may also be viewed at the DWR web site:
http://www.ncwater.org/Permits_and_Registration/Interbasin_Transfer/Status/Concord/:"

NC-AWWA's summary

The following summary comes from the N.C. Chapter of the American Waterworks Association, which produced a white paper on interbasin transfers on Dec. 19, 2006. The paper was authored by Barry Gullet, PE, of the Charlotte-Mecklenburg Utilities, then chair of the NC-AWWA,

Interbasin transfer (IBT) refers to the withdrawal of water from one river basin and discharging it into a different river basin. Interbasin transfer is currently regulated under N.C. General Statutes, including G.S. 143-215.22I.
Approximately 96 water systems serving more than 150 municipalities and communities in North Carolina currently utilize IBT’s to provide drinking water and wastewater service to their citizens. These transfers commonly occur when a community’s public water system withdraws water from a reservoir, river, or stream and then discharges treated wastewater into a different river basin or subbasin. Water systems that were making IBT’s prior to 1993 generally have grandfathered IBT rights and are not required to petition for a new IBT Certificate unless certain threshold changes are made.
IBT’s are used by water systems due to geographic, jurisdictional, environmental, and economic factors including:
  • Lack of a clean water source that has adequate volume to meet community needs within the subbasin;
  • Service area boundaries that extend across multiple river basins as is common in regional or county-wide utilities;
  • Communities with corporate boundaries that extend across multiple river basins;
  • Utility system regionalization where water can be provided more affordably by making IBT’s instead of constructing new water intakes and/or wastewater treatment plants; and,
  • Potential environmental impacts of returning treated wastewater to the source basin.
North Carolina’s regulation of IBT’s is based on legislation developed and ratified in the late 1980’s and early 1990’s. Since the current legislation was ratified, there have been three IBT Certificates issued by the EMC:
  • Cary / Apex / Morrisville / Wake County – 24 million gallons per day (mgd) IBT from Haw River to Neuse River
  • Charlotte-Mecklenburg Utilities – 33 mgd IBT from Catawba River to Rocky River
  • Piedmont Triad – 30.5 mgd transfer from Deep River to Haw and Yadkin Rivers

As of December 2006, N.C. Division of Water Resources reports there are at least three additional IBT requests under consideration:

  • Union County – 18 mgd from Catawba to Rocky River
  • Concord / Kannapolis – total of 48 mgd from Catawba and Yadkin to Rocky River (pending Hearing Officer’s report recommends 10 mgd from each basin)
  • Kerr Lake Regional Water System – undetermined IBT amount from Roanoke River to Tar River and Fishing Creek basins
There are many water systems in North Carolina that depend on IBT’s and have done so for many years. Only those systems that are experiencing significant customer growth, expansion of their service area (through regionalization or consolidation), or other changes in IBT status are required to obtain IBT certifications. The issuance of an IBT Certificate establishes the maximum daily water transfer amount of IBT the recipient is authorized to make. Generally, the certificates are based on a 20 to 30 year planning period so that the actual daily IBT amount gradually increases over the planning period up to the authorized amount. Water systems generally only transfer the actual amount of water used by their customers who are located in the receiving basin.
Potential Effects of Interbasin Transfers
Interbasin transfers may or may not have significant impacts on the source basin and/or the receiving basin. Each situation must be carefully considered and evaluated by professionals using sound, scientific tools and principles to determine if there are impacts and if those impacts are significant. Potential issues that should be considered include:
  • Environmental impacts  

  o Water quality changes (positive or negative) and changes in the ability of the water body to assimilate pollution from storm water runoff and treatment plant discharges
  o Fish and wildlife habitat changes

  • Impacts to human uses
   o Changes in the ability of source or receiving basin to supply water to established and future users
   o Economic and operational impacts on power generation (hydro generation and thermal cooling)
   o Changes in the ability of the source or receiving basin to support recreational uses
   o Aesthetic changes
   o Changes (positive or negative) to the ability of a region to attract or sustain economic development
Regulatory Issues
In the event legislative changes are made in the regulation of IBT’s, the NC AWWAWEA suggests that the following issues should be publicly discussed and carefully considered.
  • IBT regulations based on river sub-basins limit access to water supply sources for some municipalities and communities. State statutes divide N.C. into 18 major river basins that are subsequently divided into 38 sub-basins. Transfer of water between any of the 38 sub-basins potentially constitutes a regulated IBT, even when the two sub-basins are within the same major river basin. Many of the sub-basins are small streams that are not suitable as a source of water supply nor as a receiving stream for wastewater treatment discharges. The effect is that many municipalities and citizens who live in these sub-basins have no access to significant water supply sources without obtaining an IBT Certificate from the EMC.
  • There does not seem to be a common, clear understanding of water uses that constitute IBT. According to N.C. Statutes, water that is consumed (via industrial processes, evaporation, incorporation into products, or human consumption), used for irrigation, or discharged into septic systems is considered to be an interbasin transfer if these uses take place outside of the source basin. This in effect causes these uses to be regulated in the receiving basin but unregulated in the source basin. For example, a soft-drink bottling plant located on one side of a street (inside the source basin) is free to bottle and distribute water without regulation. The same facility located across the street (in a different drainage basin) may be prevented from operating because the water they use would be considered IBT. The public perception of IBT seems to involve water that is discharged from wastewater treatment plants into surface waters, not water that is otherwise consumed in the receiving basin.
  • Accurate determination of daily IBT amounts is very difficult and can result in erroneous reporting of IBT amounts and related impacts. The Statutes define IBT in terms of the maximum amount of water transferred in a single day. Many water systems with IBT’s have a complex system of pipes whereby the transfer takes place (Charlotte, for example, has about 200 water mains that cross from one basin to another). It is impractical and undesirable for many reasons to install meters on each of these pipes to directly measure IBT. Utilities don’t have a mechanism in place to directly measure daily water usage. Customer’s water meters are generally read on a monthly basis. Use of surrogate IBT measurements (such as wastewater treatment plant discharges) requires many assumptions and questionable estimations to calculate an estimated IBT amount. The currently prescribed IBT methods and measures can result in inaccurate reporting of actual IBT amounts which can skew (either way) the calculated positive or negative impacts the IBT may have.
  • The regulation of IBT on the basis the single highest day each year is often inconsistent with determining the potential impacts. When IBT’s take place from a river that is impounded (as are many in North Carolina), the amount of water that is taken out on any single day typically has no significant impact on reservoir levels nor the environment because of the storage effects of the reservoir. The total annual or seasonal volume of water withdrawn from a reservoir system is of more significance and would suggest than annual average day may be a more meaningful IBT measure that could be used. Annual average day values can also be determined by water systems more readily and more accurately than can the single highest day each year.
  • Determination of grandfathered IBT amounts is difficult and imprecise which in turn makes it difficult to determine when an IBT Certificate is required. Grandfathered IBT amounts can be determined by several methods as provided for in the statutes. Application of these methods requires the utility to determine capacities or interbasin transfers that existed in 1993. This information is often simply not available which can lead to inconsistent estimation of grandfathered IBT amounts and inconsistent determination of when a new IBT Certificate is needed or required.
  • The process for obtaining an IBT Certificate from the EMC is complex, doesn’t provide for public input at appropriate times, and may benefit from streamlining. Each of the three IBT Certificates that have been issued in N.C. has taken the petitioner several years to obtain. The opportunity for public input and discussion generally comes after the petitioner has done substantial amounts of work but before there is a recommendation for consideration by the EMC. The process can result in emotional public responses instead of environmental and resource management discussions.
  • Potential revocation of IBT Certificates can undermine sound planning, financing, and development of water systems. Recent discussion of rule changes has included provisions for periodic review or re-issuance of IBT Certificates. Planning periods for water intakes and public water systems are typically 25 to 50 years. Infrastructure is often financed through the issuance of bonds with 20 – 25 year terms. Many N.C. cities are operating water systems that have been in place for nearly 100 years. Subjecting these systems to frequent reviews with an uncertain outcome could undermine beneficial long-term planning and financing for water systems instead of encouraging development of long-term resource management plans.
  • Current IBT regulations discourage regional or basin-wide water supply plans in N.C.Currently, individual public water suppliers are required to prepare periodic individual water supply plans for submittal to N.C. Division of Water Resources. A regional plan that could consider the environmental and economic benefits of physical consolidation or separation of water systems, alternative water sources, water demand management, drought management methods, wastewater discharge and power generation water uses could ensure the best balance of uses of a limited resource. The burden of complexity, cost, risk, and time required to obtain an IBT Certificate and other environmental authorizations that would allow implementation of regional water plans is very heavy.
  • Water resource planning should consider water losses from a river basin from all uses, not just from IBT’s. IBT’s are a concern in some cases because of the removal of water from a particular river basin. There are other ways that substantial volumes of water are lost from a river basin including agricultural use, industrial use, evaporation due to power generation or other uses. The water losses from these uses are sometimes much greater than from IBT’s. Requirements to increase the volume of water released through dams can also reduce the amount of water stored in reservoirs and can reduce the reliability of water supply sources.


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