• Defenestration of DEHNR: John Morris comments on DWR and the agency in general

    One of my hopes for this blog was that it might evolve into a discussion, even debate, over the history of environmental law and policy in North Carolina. Some of the people who were principally involved in shaping that history over the last forty to fifty years are still around, but have rarely shared their views publicly on what worked and what did not work.

    One such person is John Morris. John headed the N.C. Division of Water Resources for many years. He worked his way up to that position in other jobs that gave him a view of State environmental policy, and he has remained an engaged observer in the few years since his retirement in the mid 2000s. So I was delighted that John emailed to share what he called a “comment” on my entry about the rise and fall of DEHNR from a “big tent” agency to its much smaller and more tightly focused role today.

    John’s comments are important and in-depth enough to deserve their own entry, and so what follows after the break is his response in its entirety.

    1/14/2016

    Richard,

    ….

    I appreciate the item on your blog about the many forms the department has taken over the years. My favorite was what I think of as the classic DENR, without most of the health programs (never a good fit) and with all the natural resources programs like parks, soil and water and forestry. It was fun to have the company of the zoo and the aquariums too, although I can’t make a strong case for this combination.

    I regret the dismantling of what I thought was a stimulating and mutually reinforcing combination of environmental regulation and natural resources management.

    You invited comments and I want to make one. Your reference to the (former) Division of Water Resources as claiming to be non regulatory and reluctant to use state power over water use is not correct. We had a number of regulatory responsibilities in DWR and sought additional ones when we thought they were needed. To explain our activities to assure NC’s future water supply to the public, we used three categories: monitoring, planning, and regulation, stressing that the three types of activities should be coordinated with each other and focused on the future water supply goal.

    Monitoring included gathering date on water availability from the USGS stream gage network, half funded by us, and our own network of about 500 monitoring wells. Keeping the needed funds in our budget to keep these monitoring networks going was a constant battle. Data on water use came from local water supply plans and from water use reporting. We finally got legislation to require annual reporting by significant water users, a big advance over reporting every five years as before.

    Planning included the local water supply plans, which became more and more useful as we learned by experience not to try to make them too complicated. I would also include here the basin hydrologic models, the essential foundation for good water planning. These models actually grew out of our responsibility to regulate interbasin transfers, in this case a very contentious battle over use of Jordan Lake. The model we developed for this decision evolved into the program to have models for all basins. We were in the lead in the US at one point in having these very detailed models in place for almost all our basins. It was a huge advance to have models that all water users could run on their own computers, and to have all parties in a process relying on one transparent and tested model, rather than having competing black box models constructed by opposing parties just for one decision. We were fortunate to have Tom Fransen and other talented people to lead the modeling effort.

    Our major regulatory responsibilities were instream flow, interbasin transfer, and water use regulation in capacity use areas. Allocating water from Jordan Lake has some things in common with regulation, but I won’t include that.

    We saw instream flow as a key element in good water management, but lacked a comprehensive statute for this purpose. We worked instead to accomplish quite a bit using a variety of state and federal statutes.

    John Wray was a pioneer in recognizing the importance of protecting instream flows for aquatic habitat. He saw to it that Steve Reed and Jim Mead got training from the USFWS and other organizations to build up expertise. We started with the wetted perimeter method, which was the state of the art for a time, then learned the more sophisticated IFIM method. Jim Mead became particularly skillful in the quantitative analysis of the benefit curve relating the amount of instream flow to habitat improvement, key information for negotiation.

    But how to enforce instream flows? Charles Gardner worked with us to develop an administrative rule under the Dam Safety Act to require instream flows for aquatic habitat. Charles referred the instream flow analysis to us, then included the requirement in the permits he issued. We used this authority to require flows at the new Hillsborough reservoir, for example. We also used this approach when permits were reissued for dam renovation or when the lack of an instream flow was causing a problem that came to our attention.

    The state and federal EA and EIS processes could also be used to require instream flows. At one time the clearinghouse system was strong and efficient enough to require instream flows on quite a range of projects that affected stream flow, such as run of river withdrawals with no dam involved. We participated and made flow recommendations on all projects that affected stream flow.

    FERC authority over hydropower was another opportunity. We had many difficult battles with small hydro operators, who had a cowboy attitude and wanted to run their refurbished projects to extract every possible dollar from the river. We did succeed in getting many of these projects to put in the necessary water level sensors and automatic controls to avoid shutting off the flow of a river by making recommendations to FERC. The operators complained mightily to Ernie Carl about our intervention, and he was was sympathetic. We pressed ahead despite Ernie’s grumbling, resulting in a series of bad performance reviews for me.

    The biggest opportunities were in the relicensing of major projects under FERC. When the major relicensing efforts on the Roanoke, Catawba, and Yadkin came along, Steve and Jim were at the hight of their capabilities and were very effective as the leaders of the state agencies participating in these major regulatory updates. Better instream flows were some of the most important accomplishments in relicensing.

    Regulating interbasin transfers was another early regulatory challenge. I agree with the views you have expressed that it does not make sense to consider IBTs as a subject apart. The effect of an IBT is the same as that of a consumptive water use. But the politics of this issue assures that special status in the regulatory scheme. Going back to the early 90s, we had several statutes on IBT that were inconsistent with each other and hard to interpret-a real mess. I had a good experience working with the General Assembly in 1993 to do away with the problematic sections and produce a new statute that was workable. So we had several IBT certificates under this statute that were controversial, but got resolved after a lot of stakeholder interaction and being challenged under the APA in some cases.

    Our most demanding regulatory exercise was the central coastal plain ground water issue, which you are familiar with. During one of the many departmental reviews of the organization of water programs, we sought the transfer of the responsibility for the Water Use Act to us from DEQ, thinking that it was a better fit with our water supply role. Nat Wilson provided excellent leadership on this one, which took four years to get in place. But ground water levels are recovering and the water users are accepting the permit program, so it was worth the time and effort. Bill, I remember that you took us over to explain this to Governor Hunt when we had the final rule ready to go to the EMC. Requiring water users to cut their withdrawals substantially was a big hump to get over. I remember that this was late in the afternoon and Governor Hunt looked like he had already had a demanding day. But he listened to us carefully, understood what was at stake, gave us some good advice, and sent us on with his support. I am sure that if this had come up under some other governors we would have never gotten the go ahead. Leo Green on the EMC also gave us some strong support.

    Before too long, I believe that major water users in our developed basins will begin to want more protection of their water use in the form of a permit system. The Water Use Act can be successful for surface water regulation also. It has the strength of allowing a custom designed permitting system to be worked out to fit a basin’s needs. NC is so diverse that it will continue to be different to develop a statewide water use permitting program, unless it is something without real teeth, which would be of no use anyway.

    Best regards,

    John

    Richard Whisnant joined the School of Government (then the Institute of Government) in 1998. Prior to that, he was general counsel with the NC Department of Environment, Health & Natural Resources. He had previously practiced environmental law with Robinson, Bradshaw & Hinson, in Charlotte, North Carolina, and was a clerk for the Hon. Sam J. Ervin III on the US Court of Appeals for the Fourth Circuit. Whisnant earned a BA from the University of North Carolina at Chapel Hill and an MPP and JD from Harvard University.

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