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New River Proposed Water Intake Plant    

Is it Necessary? What Would the Effects Be? What Other Options are Available? How Are These Decisions Being Made?

Boone NC is proposing to build a water intake plant on the New River on the Watauga County/Ashe County line near Todd, taking up to 4 + million gallons of water a day from the historic American Heritage River for Boone's burgeoning water needs, replacing it with their treated waste water (including untreated waste pharmaceuticals). Questions have been raised about the environmental, economic, recreational, historic and cultural impact of the proposal. Many in Ashe County, Boone and surrounding areas, including points downstream in VA are opposed to the proposal. Petitions with hundreds of signatures have been gathered. The issue is attracting widespread attention, including reporting by statewide Cable Channel 14 and other media outlets.

Twelve Position Papers raising key facts, issues and arguments about the proposed plant follow: 1. Boone's Water Needs 2. Water Flow and Quantity 3. Pharmaceuticals in Surface Waters 4. Historical and Cultural Aspects 5. Economic Impact on Ashe County 6. Is Boone's Growth Smart? 7. How Transparent Has Boone's Process Been? 8. Alternative Options 9. Other Riparian Owner Rights 10. Public Trust Issues 11. Riparian Damage Due to Decreased Water Levels 12. Hellbender Salamander. An Indicator Species “It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which…possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they…shall be protected for the benefit and enjoyment of present and future generations.” Wild and Scenic Rivers Act (1968) After signing the bill designating the New River a Wild and Scenic River, President Ford declared: “When a decision has to be made between energy production and environmental protection … you must ask what is the will of the people involved … It is clear in this case [that] the people wanted the New River like it is.”

For more information: http://newriverstewards.blogspot.com/

1. Boone's Water Needs The need for a new intake is based in part on the projected near doubling of population by the year 2060 from 15,953 projected in 2010 to 29,555 in 2060, and the number of residences, businesses and other user’s of Boone’s water system doubling over the next 50 years from 11,143 in 2010 to 27,722 in 2060. This is per the Town Manager of Boone, Mr. Greg Young, who states that this is “calculated by W.K. Dickson using methodology approved by N.C. Office of State Budget and Management.” According to Boone’s town web site: “The Town of Boone Water Treatment Facility was originally constructed in 1982 with the capacity to treat 3.0 MGD (million gallons per day). The 2007 maximum daily demand (MDD) average was 2.13 MGD 71% of design capacity and the average daily demand (ADD) was 1.85 MGD, 62% of design capacity. As they near 80% of capacity the town says they are mandated by the state to have new source plans or they will be forced to restrict development and growth. Boone’s permit request is for 4 MGD from the New River, although again according to Mr. Greg Young, “initially we plan to withdraw 1.5 Million gallons per day.” From a purely water needs basis, why the need for a permit for 4 MGD? It would appear that with the 3 MGD current design capacity that 1.5 MGD would meet Boone’s water needs well into the future if not for the doubling of population, especially since as Mr. Young stated in a letter that in 2004 “the town of Boone began an aggressive water conservation program, asking people to voluntarily conserve water.” An additional point raising questions about Boone’s water needs and the need for 4 MGD capacity in the new intake is the fact that in June of 2008, the town of Blowing Rock was granted a $2.2 million grant to inter-connect with Boone’s water system in order to supply Blowing Rock with water in case of emergencies. Questions and Points of Interest Which Need Further Investigation: What has been the results of the aggressive conservation effort by Boone? How much have the conservation efforts reduced the increase of water usage indexed to population growth? Could more aggressive conservation remove the need for a new intake or make other options a better choice? In the statement above by Mr. Young, what are the “other user’s of Boone’s water system: which will contribute to the doubling of all water users in the next 50 years? How will Boone’s inter-connection of its water system to Blowing Rock’s water system impact Boone’s need for water? What plans does Boone have for expansion outside of its existing town limits where it would be required to provide and sell water, for example in the Deep gap area? Why the need for a permit for 4 MGD when even with a doubling of population, if conservation efforts are in place, the need should be for no more that 4-4.5 MGD ( in 50 years )? They have current capacity for 3 MGD of that need. Is this truly about Boone’s water needs or Boone’s desire for growth, a growth at the expense of an historic American Heritage River?

Addendum In the environmental review Process, several key government agencies have questioned the need for such a large additional water intake for Boone. They claim its documented need is not that great and that other water sources are open to Boone: sharing with Appalachian State University (ASU) and Blowing Rock, and implementing a reuse process for water for consumptive purposes. 

The NC Dept. of Environment and Natural Resources (DENR) states in the Nov. 21, 2008 memo (part of the environmental review process):

"The [Boone's] document should discuss the need for a new 4 mgd [millions gallons a day] intake for a total, cumulative withdrawal capacity of 7 mgd in light of an anticipated 2030 average day demand of 2.75 mgd…It should be noted that due to the difficulty of predicting future events, the installation of an over-sized intake in anticipation of future demand does not necessarily guarantee that the use of this future installed withdrawal capacity will be unconditional." They question the rationale for an "over-sized intake in anticipation of future demand": such a large capacity intake is not necessary based on current demand and future demands are conjecture. 

The NC Wildlife Resources Commission memo of Nov. 24, 2008 (part of the environmental review) states:

"Avoidance of a South Fork New River intake should be fully evaluated. Alternative water sharing and coordination with…ASU should be thoroughly evaluated as surplus water may be available closer to Boone. According to an Environmental Assessment for a proposed Blowing Rock to Boone Water System Interconnection…,ASU obtains water from the Watauga River and has a 360 million gallon water reservoir. Boone's highest demand period is indicated to be ASU's lowest demand time. Accordingly, coordinating current water supply capabilities may negate the need to place an intake on the South Fork New River." They are claiming that by coordinating with Blowing Rock and ASU who have other water supplies, Boone may have sufficient water for future needs without tapping the New River. They also state: "The direct reuse and recycling of treated waters for consumptive purposes would be evaluated and implemented to the extent practicable to minimize impacts to the river ecosystem. With a reuse process, only make up water would need to be withdrawn from the river. This process could potentially avoid the need for additional intake facilities."

2. Water Flow and Quantity The Town of Boone has consistently maintained that "The proposed site has sufficient water flow from which to withdraw water and still meet state and environmental requirements." They state: "The Watauga Democrat reported that on Aug. 12, 2008 a monitoring station on the South Fork of the New River recorded a flow of 96 cubic feet per second. That equals 62 million gallons of water a day. The article reported the all-time-lowest recorded flow on Sept. 5, 1925 was 65 cubic feet per second, just over 42 million gallons a day." (http://townofboone.net) This is raises a number of questions:  To cite a local newspaper as the main source for scientific data is unusual. Local newspapers are not scientific authorities.  Why does Boone cite the water flow of one particular day (Aug. 12, 2008)? What is needed is average flows, highs and lows, over periods of time (weeks, months, years). The Department of Environment and Natural Resources (DENR) in their review states that Boone's scoping document should provide the following data: "flow statistics, e.g. 7Q10, median flow, flow frequency curve; and the supporting analysis and description of data used to determine the flow statistics." Why is this data absent?  It appears that there is only one monitoring station on the South Fork of the New River, the US Geological Survey gauge at the Route 16/88 bridge in Jefferson. This station is over 40 miles from the proposed intake site in Brownwood, with several named creeks and countless drainages between the two locations (see map below). The flow at the intake site is in all likelihood substantially different (less) from the flow at the monitoring station where the data is coming from.  What is the water flow at the location of the proposed intake? Clear data of water flow from the actual proposed site at Brownwood is absent and needs to be provided. This would be necessary due diligence for a proposal of this scope and magnitude.  According to DENR: o the "7Q10" statistic (the lowest 7 day period flow over a 10 year period) for the South Fork of the New River is 6.13 millions of gallons a day (mgd). o The "30Q2" statistic (a reading over 30 consecutive days, with a 50% likelihood that this level of flow will recur in any one year) is 13.1 mgd o The average flow is 38.1 mgd. These are substantially below Boone's stated flow claims of 62 and 42 mgd.  In addition, the flow rates at the proposed Brownwood site are, according to some experts, well below (probably around half) the flow rates just stated, taken from the USGS gauge site. If we estimate the Brownwood flow to be half the flow at the site of the USGS gauge, the flows would be: 7Q10: 3.065 mgd 30 Q 2: 6.55 mgd average flow: 19.05 mgd.

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If Boone's plan is to remove 4 + mgd from the Brownwood site, the effect would be dramatic: actually removing more water than is available (based on the 7Q10 statistic), removing close to all the water available (based on the 30 Q 2 statistic), and removing around 20 percent of available water (based on the average flow statistic). These lower readings are much more consistent with actual observed water levels and flow than Boone's stated data. This is the only flow rate data cited on Boone's website. Public requests have been made for more complete documentation but have not been answered. Boone's presentation of the New River flow statistics data is at best confusing and misleading. They need to present their flow data to the public clearly and definitively, based on accurate data from the site of the proposed intake plant, and detail clearly their methodology for obtaining that data. Boone's presentation of data does not inspire confidence. Based on this incomplete, unclear, possibly misleading and inaccurate presentation, how much credibility should be give to their claims about the percentage of treated water which will be returned to the river, as well as many other details of their proposed plans?

3. Municipal wastewater contaminants in surface waters of the United States: relevance to the South Fork New River and proposed new water intake station Synopsis Many household items, cleaning and sterilizing solutions, cosmetics, and drugs contribute to the increasingly complex “soup” of compounds we are all exposed to as modern humans. As our bodies absorb and then eliminate these compounds into the common waste stream, they often elude removal or breakdown and end up being released from sewage plants into streams and rivers in their active forms – in hopes that the mainstream paradigm of “the solution to pollution is dilution” is actually true. Today we have evidence that a new paradigm has been formed – “what you throw away will eventually come back to hit you” or the boomerang paradigm. Recently these compounds are becoming easier to identify and quantify at much lower concentrations by new chemistry techniques and instrumentation. As curious scientists begin to look for these compounds in our surface, ground, and even drinking water – our worst fears have been brought to light: these compounds are there too. Many of these compounds have been shown to have adverse effects on humans and aquatic wildlife. Although scientists have very little information on the long term exposure of humans and the environment to low levels of these compounds (alone or in combination), the possibility of cancer, systemic immune, and reproductive effects are real possibilities. This new area of toxicology is especially important to keep in mind as we plan and build the water infrastructure that will sustain Boone and surrounding communities for decades to come. The Issue The continued exponential growth in human population has created a corresponding increase in the demand for the Earth’s limited supply of freshwater. Thus, protecting the integrity of our water resources is one of the most essential environmental issues of the 21st century. Of current concern are the effects of tons of emerging environmental contaminants (http://toxics.usgs.gov/regional/emc/) which consist of pharmaceuticals, industrial waste products, fire-retardants, and antibiotics that are released into surface and ground waters (Science of the Total Environment, 2008, Vol. 402, pp 192-200) and eventually make their way into drinking water supplies. Pharmaceuticals for human use can enter the environment by excretion following therapeutic use, discharge of treated wastewater from manufacturing facilities, or disposal of unused medicines by the consumer. Patient excretion following therapy is widely considered to be the primary pathway to the environment. A March 2008 report from the Associated Press indicated that many of these compounds were found in drinking water across the United States (http://www.usatoday.com/news/nation/2008-03-10-drugs-tapwater_N.htm). These pharmaceuticals include a wide range of compounds including antidepressants, estrogens, pain killers, anti-seizure, and heart medications just to name a few and they are not removed by current US municipal waste water treatment plant (WWTP) requirements.

Municipal wastewater from WWTPs has been widely-documented to contain compounds which are introduced to aquatic systems and can significantly impact biota. A recent US Geological Survey project (published in 2002 in the journal Environmental Science and Technology, Vol. 36, pp. 1202-1211) provided the first nationwide reconnaissance of the occurrence of pharmaceuticals, hormones, and other organic wastewater contaminants (OWCs) in water resources. They used five newly developed analytical methods to measure concentrations of 95 OWCs in water samples from a network of 139 streams across 30 states during 1999 and 2000. The selection of sampling sites was biased toward streams susceptible to contamination (i.e. downstream of intense urbanization and livestock production). OWCs were prevalent during this study, being found in 80% of the streams sampled. The most frequently detected compounds were coprostanol (fecal steroid), cholesterol (plant and animal steroid), N,N-diethyltoluamide (insect repellant), caffeine (stimulant), triclosan (antimicrobial disinfectant), tri(2-chloroethyl)phosphate (fire retardant), and 4-nonylphenol (nonionic detergent metabolite). Measured concentrations for this study were generally low and rarely exceeded drinking-water guidelines, drinking-water health advisories, or aquatic-life criteria. Many compounds, however, do not have such guidelines established. The detection of multiple OWCs was common for this study, with a median of seven and as many as 38 OWCs being found in a single sample of water. Little is known about the potential interactive effects (such as synergistic or antagonistic toxicity) that may occur from complex mixtures of OWCs in the environment. In addition, results of this study demonstrate the importance of obtaining data on metabolites to fully understand not only the fate and transport of OWCs in the river but also their ultimate overall effect on human health and the environment. The South Fork has an average flow rate of 6.12 million gallons/day; based on the WWTP effluent release flow, effluent comprises no more than 25-40% of the downstream flow. To our knowledge, no extensive testing of pharmaceuticals or other OWCs has ever been conducted in the South Fork of the New River. However, ASU Biology and Chemistry faculty have conducted environmental tests to determine the effects of pharmaceutical estrogens (birth control and estrogen supplements) from the Boone WWTP on male fish populations in the South Fork. The test looks for the presence of female specific egg proteins, called vitellogenins, in the blood of the male fish. The results indicated that 60-66% of male hognose and white suckers immediately below the WWTP effluent are being feminized; tests with rainbow trout have yet to be conducted. Although preliminary tests have shown that pharmaceutical estrogens in the river just below the WWTP are right at levels known to cause feminization (> 0.1 parts per trillion = ng/L), it is unlikely that these levels persist very far downstream due to dilution, adsorption to organic matter, and breakdown by microbes and sunlight. Although the release of some of these compounds from every WWTPs is undeniable, the long distance persistence in the water downstream, and thus their possible adverse effect, is in question. Results of several studies on the persistence of OWCs in rivers have indicated that natural degradation by microbial action and photolysis can result in significant decreases in concentrations of wastewater-derived contaminants in rivers (Environ. Sci. Technol., 2006, Vol.

40, pp 7257–7262). Since the proposed drinking water intake site on the South Fork has not been evaluated for the levels of any of the pharmaceuticals or OWCs released from the Boone WWTP or other sources, we have no data on possible human exposure levels by way of incorporation into future drinking water supplies. If determined, these levels would serve as the basis of human health risk assessment (for better or worse) and provide guidance to appropriate water treatment for adequate removal of these compounds if needed. What we can predict at this point is that low river flow levels in the future combined with increased effluent releases will likely increase the distance the compounds are carried downstream. Given the weight of evidence from the last ten years on the prevalence of OWCs in surface, ground and drinking water, the environmentally sustainable Boone I want to live in owes it to itself to be cautious and forward thinking in its approach to this water intake project. Dr. Shea Tuberty, PhD Biology Department Appalachian State University 828.262.6857 [email protected]

4. Historical and Cultural Aspects  

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In additional to concerns about the environmental and economic impact of Boone's proposed water intake plant on the New River, the river's unique historic and cultural status must be addressed. The New River is not just "another river." It's an American Heritage River, one of only 14 originally so designated by President Clinton in 1997. He signed Executive Order 13061 on its banks, recognizing its national, even world-class, status. The river was previously nationally designated a "Wild and Scenic River." Both designations acknowledge the distinctive, valuable nature of the river and confer on it a protected status. The New River is millions of years old. It is the remaining vestige of the prehistoric Teays River system, the largest river system in the ancient land that eventually became North America. It existed millions of years before the "recent" ice ages. It distinctively flows northward, cutting across the Appalachian Chain. The source of the South Fork of the New River is two miles from Blowing Rock. It flows northward through VA and WV, merging with the Ohio River, the Mississippi and eventually the Gulf of Mexico. Boone's proposed plant would tap this historic treasure very near its source, replacing millions of gallons a day of its natural waters with their treated waste water. This would substantially alter the river for all points downstream for thousands of miles. Just as we confer recognition on valuable historic buildings and landmarks, protecting them from changes in structure or materials, so too the historic New River requires our protection from unnecessary human intervention. We carefully preserve valuable natural historic wonders, such as the Grand Canyon. Families and communities have treasured their river for generations, celebrating it in poems, songs and stories. Large festivals have been held commemorating the New River. In this rural area, people are deeply attached to the land. The land is their wealth. It helps shape their identity. They are emotionally bonded to it. Corrupting the river is an assault on their native homeland. We are the stewards of an ancient treasure. Usurping its integrity for the proposed economic benefit of a 200 year old town is not wise. Even from a purely economic viewpoint, such a plan devalues the region's worth. From a quality of life standpoint, the proposal diminishes one of the most treasured natural assets of the area. From the broadest perspective, the results of such an intervention are devastating. An ancient treasure, millions of years in the making, can be in a short span of time unalterably damaged. According to an Native America custom, in all important decisions, the elders considered the effects for seven generations to come. We do not own the New River. We have inherited it as a blessing from the Earth, from our ancestors. As mindful stewards, we should celebrate our good fortune, preserving and protecting this gift for many future generations.

5. Economic Impact on Ashe County Effects on Tourism, Property and Land Values 

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The New River is the jewel of Ashe County, one of its prime natural resources, enhancing land and property values, tourism and recreation. Replacing up to 4.5 million gallons of water a day with Boone's treated waste water, including untreated waste pharmaceuticals, would have a negative economic impact on Ashe County real estate and local industries. People come to the area to "Canoe the New", to enjoy kayaking, canoeing, swimming, fishing in the river, picnicing on its banks, exploring the river's parks (New River State Park, NC, others in VA and WV). They appreciate the scenic qualities of the river, as well as its distinctive historical and cultural status. Canoeing the natural water of this ancient and beautiful river very near its source is not the same as canoeing Boone's treated waste water. Drought conditions have impacted the New River, which is already displaying such low levels in areas that kayaking and canoeing are restricted. In the Brownwood area, the site of the proposed plant, water levels are so low that kayakers must lift their vessels and wade to where the river is navigable. Taking any additional water from the river, as well as replacing its waters with modified water, including waste pharmaceuticals, would further restrict recreational activities, having a negative economic impact. Many area businesses are based on the New River, such as river outfitters, restaurants, inns and stores on its banks (including those in Todd, e.g. the historic Todd General Store), parks, etc. Replacing large quantities of the New River's "wild and scenic" waters with treated waste water would negatively impact all these area industries. Ashe County has recently been experiencing a large housing boom. People are drawn to the area for first and second homes and to retire. The New River's scenic, recreational, historic and cultural qualities add value. Many new homes have been built to take advantage of the river's assets, including a new upscale development on its banks at Brownwood, the site of the projected intake plant. Many area real estate companies, recognizing the negative impact the proposed plant would have on Ashe County land and property values, are opposed to the plant and have signed petitions opposing it. Boone's proposal would draw water from the New River just as it leaves Watauga County and enters Ashe County. Ashe County would be the first recipient of Boone's treated waste water, which would also affect all points downstream for thousands of miles. There is no upside to the proposal for Ashe County. Boone's projected economic gain would be Ashe County's economic loss. It's a fairness issue. If Boone proceeds with their proposed plan, which would damage Ashe County economically, Ashe County should be compensated by Boone for their loss. Boone claims it chose the Brownwood site on the New River because this was the closest and cheapest source of water for them. However, considering this negative economic impact on Ashe County and subsequent compensation as part of the cost of their plan and not an "externality" may make other options for Boone's water supply more viable.

6. Is Boone’s Growth Smart? 

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Boone has always been a destination for those seeking a break from life “off the mountain.” With the increasing popularity of Appalachian State University and rising global temperatures, this is unlikely to change. The town predicts it will double its population from 15,000 to over 30,000 in the next 50 years, and the university also has growth goals not, as yet, set by the town. The goal of Smart Growth is to answer the question: “What is our carrying capacity in regard to water, ecosystem services, and cost of public infrastructure?” In 2007, after commissioning an audit of local development, Boone created the Unified Development Ordinance that established a rubric for determining whether new growth would fit the character the town wishes to keep in place. This matrix includes categories that define land-use, building design, walkability, and transportation. The new Smart Growth matrix does not include water availability as a category for determining development viability. In fact, the audit only seems to acknowledge the importance of water as storm drainage. This omission gravely underestimates the importance that water has become in determining how much growth Boone can actually support. The Smart Growth audit also notes the importance of “stakeholder collaboration,” ensuring that those who are affected by Boone’s growth play an active role in shaping the future of their community. Citizens have a right to determine the course their communities take. This includes more forceful implementation of “growth threshold standards” designed to both monitor the impact of growth on a community and limit the kinds of growth that citizens do not want. The largest block of community stakeholders listed in the audit are developers. Those outside the town limits, including residents of Watauga and neighboring counties, were not included among the “Smart Growth” audit stakeholders. By ignoring the voices of people who live outside the town limits, it appears decision-makers could insert a water-intake in the county without consequence. By privileging the voices of developers, Boone allows those most vested in such an intake to think only of their profits. The audit notes that “implementing programs and ordinances provide primarily for an automobile-oriented, suburban style of future development, although the Town is making an on-going and concerted effort to change this trend” (Smart Growth Audit, 7). Unfortunately, the town has not made a concerted effort to curb the kind of sprawl that would extend Boone toward Wilkes County on the 421S corridor. Given the existing terrain and current development trends, the town is already beginning to grow south east along this highway. This is the clearest indication that the New River intake is being strategically placed to maximize the ability of the town to eventually reach Deep Gap. With regard to the question: “What is our carrying capacity in regard to water, ecosystem services, and cost of public infrastructure?”, Boone has not made a fair and transparent attempt at informing High Country citizens of their future plans, “smart” or otherwise. High Country citizens deserve to be included in these decisions, not simply bystanders of the whims of economic developers.

7. How Transparent has Boone's Process Been? 

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The Boone Town Council introduced a bond referendum for the proposed water intake plant on the New River less than three months before the general election (Nov. 2008). While there were two opportunities for voters to attend meetings and view the Boone Town Council Powerpoint presentation, those meetings hardly provided enough information for citizens to make clear, well-informed decisions. Residents understand there is a water shortage and Boone needs more water to meet their demands. However little information has been made available about conservation and no information has been made public regarding communications between Appalachian State University, the Town of Boone and the Town of Blowing Rock. Boone Town Council members claim to have had an open and public process. However, most of the “18 different governmental agencies…[who would] review the proposed site, including U.S. Fish and Wildlife and DENR” did not turn in their reports until late November/December 2008, long after the bond referendum had been put to a vote. How could Boone's residents make an informed opinion and vote on the bond issue when the environmental review statements evaluating the proposal were not yet available? The Town of Boone's voters overwhelmingly approved the loan for $25 million to create a better water system for Boone, but this does not grant Boone permission to build on the New River’s South Fork. By condoning Boone's water needs for the future, citizens may have been led to believe South Fork project is a "done deal" when, in fact, the referendum is for a new water supply--somewhere. Appalachian State University certainly has the power to buy property to suit their growth needs. However it is time for Watauga and other High Country residents to hold the university and the Town of Boone accountable for their lack of communication. The public must be fully engaged in decisions affecting their future. The decision-making process must be transparent. Residents, Boone Town Council members, ASU students, staff and faculty need to participate in an open dialogue around how best to share our abundant resources. In addition, Ashe County has had virtually no representation in the decision-making process about the proposed plant up to this point. The voice of Ashe County has not been heard in a decision that directly impacts them. The proposed plant is in Brownwood, on the Watauga County/Ashe County line. Boone would be taking millions of gallons a day from the New River just as it enters Ashe County, replacing it with their treated waste water, including waste pharmaceuticals. This would have a direct environmental and economic impact on Ashe County. The Ashe County Commissioners have, up to this point, not been actively engaged or even informed in this decision-making process. As late as the Summer of 2008, when an option to purchase had already been secured on the land for the proposed site and Environmental Assessments were underway, the Ashe County Commissioners had not even been officially informed by the Boone Town Council about the proposed plant. In addition, State Senator Steve Goss and State Representative Cullie Tarleton, who are supposed to represent the constituents of Ashe as well as Watauga counties, have not

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been supporting Ashe County's interests. Many people in Ashe County--including West Jefferson business owners, real estate agents, environmental groups and others--are strongly opposed to the plant. Petitions with hundreds of signatures in opposition have already been signed. Yet Sen. Goss and Rep. Tarleton helped secure state funding to purchase the property at the site. Rep. Tarleton was appointed Chair of the newly formed Water Resources Committee in the State House, and shepherded House Bill 972 through, paving the legal way for the proposed plant for Boone. The lack of transparency in the decision-making process about the proposed water plant up to this point as well as the lack of representation of key interests that would be affected, including Ashe County residents, casts doubt on the legitimacy of the process. The public forum on June 23, 2009 is the first opportunity for Ashe County's residents' opinions to be heard. It's the first public meeting of Ashe County and Boone governments on this issue and the first time the Ashe County Commissioners have been publicly involved in the project. Though long overdue, it's a step in the right direction.

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8. Alternative Options The Town of Boone has consistently maintained that “26 other options were explored [for the proposed water intake plant on the New River near Todd] including the Yadkin River and Watauga Lake….” However, this vague statement does not specify what the other options are. There has been little public information about what they are or other alternatives might be. Was the Appalachian State University 360 million gallon reservoir considered? According to the N.C Wildlife Resources Commission report from Nov. 24, 2008, “Avoidance of a South Fork New River intake should be fully evaluated. Alternative water sharing and coordinating with Appalachian State University (ASU) should be thoroughly evaluated as surplus water may be available closer to Boone. According to an Environmental Assessment (EA) for a proposed Blowing Rock to Boone Water System Interconnection (OLIA #09-0113), ASU obtains water from the Watauga River and maintains a 360 million gallon water reservoir. Boone’s highest demand period is indicated to be ASU’s lowest demand time. Accordingly, coordinating current water supply capabilities may negate the need to place an intake on the South Fork of the New River.” The Commission's report also notes “Watauga County environmental protection measures are not indicated in the present scope submittal.” Has the option of intensive conservation on the part of local residents been considered? What if every home had rain barrels for watering their gardens and lawns or washing the car? What if every Watauga home was equipped with shower and toilet conservation gadgets? Has anyone considered conservation as part of the $25 million dollars? If there are presently 30,000 homes in Watauga County, every one could be supplied with conservation utilities for less than $5 million. All residents should be informed of all the various options, rather than merely being informed that W.K. Dickson, the company researching the various options, has found "the best one," one which also furthers the company's interests as the future contractor for the proposed project.

9. Other Riparian Owner Rights Boone’s proposed new raw water intake is to be built on land in Watauga County that borders the South Fork of the New River. At this point on the river, it forms the boundary between Ashe and Watauga counties. Shortly below the proposed intake, the river flows into Ashe county which would be most impacted by the water withdrawal. According to N.C. Water Law in an article prepared by Allain C. Andry, IV, Applied Resource Economics and Policy Group Agricultural and Resource Economics, “Riparian Rights are the rights of landowners to use water that is on or adjacent to their property…The guiding principle of riparian rights in North Carolina (and most other eastern states) is “reasonable use.” Owners of property adjacent to a natural body of water have the right to make reasonable use of the water…”Reasonable use” means that each riparian owner can take, use, and discharge surface water so long as that use does not excessively diminish the quality or quantity of the water that flows to other riparian owners. All riparian landowners have equal riparian rights, and no one owner can unreasonably interfere with the reasonable uses of the others. A riparian owner who uses so much water that it impairs the reasonable uses of the other owners or who pollutes the water can be sued by the adversely affected owners for damages and an injunction to stop the infringing.” The proposed new water intake would be the second Boone intake on this river and located at a point where the major impacts would be on citizens of Ashe County and beyond, not Boone. According to Boone’s Town Manager in a letter, “Since almost 99% of the withdrawn water will be returned to the river, water flows should be very close to their current levels.” In that same letter, Mr. Young, in reference to pharmaceutical waste in the discharged wastewater, stated that, “We have publicly expressed our concern about possible effects of pharmaceuticals and our commitment to stay on top of the most recent developments, making every effort to minimize any effects of pharmaceuticals. However, neither the federal nor state government has any standards or regulations at this time regarding levels of pharmaceuticals in water being discharged from a waste water treatment facility.” Questions and Points of Interest That Need Further Investigation: With water levels of the river at near record lows, is returning “almost 99% of the withdrawn water” so that “water flows should be very close to their current level” enough to avoid negatively impacting the riparian rights of all other river property owners as well as the “public use rights” of the water from a quantity standpoint? How will the pharmaceuticals in the treated waste water which is to be discharged back into the river impact the quality of the river water and what impact might this have on the ecology and environmental status of the river? Is this not a potential negative impact on all riparian owners? What does “staying on top of these developments” and “making every effort to minimize any effects of pharmaceuticals” mean? What, if any, specific action plan is in place to ensure this does not become a riparian rights issue in the future based on river quality? What is Boone’s fall back plan should this indeed become a worst case scenario from either a quantity or quality riparian rights standpoint?

10. Submerged Land and Public Trust Issues HB 972: Earlier this year Boone asked State Rep. Cullie Tarleton to introduce this bill granting the Town of Boone “the right to construct and maintain a water intake system in the waters and submerged land of the South Fork of the New River notwithstanding any public trust rights.” According to a letter from the Boone Town Manager, Mr. Greg Young, “Representative Tarleton agreed to introduce HB 972 in order for us to secure permission to lay piping along the riverbed of the New River…With the piping under the river, tubers and boaters would float over without knowing the piping was there.” According to Rep. Tarleton in another letter, “I introduced the bill at the request of the town of Boone. We’re not sure they need legislative permission for their proposed water intake but they wanted to be on the safe side.” Rep. Tarleton has never visited the site of the proposed intake. In follow-up correspondence, Rep. Tarleton advised that this had to do with the interpretation of a 1995 N.C. Supreme Court ruling (No. 74PA94- New Hanover Supreme Court of North Carolina 32 N.C. 287; 464 S.E.2d 674). This ruling deals with a land dispute in sound waters in eastern N.C. but addresses somewhat the issues of who owns submerged lands as well as the State’s public trust rights to those lands. According to an interpretation of N.C. Water law, “under N.C. law, all land under saltwater bodies, lands subject to the ebb and flow of the tide, and land under water that is subject to the influx of saltwater is owned by the state “in trust” for the public. The same rule of State ownership applies to land underlying fresh water bodies that have an outlet to the ocean and would be potentially by historical sea vessels…When the State owns submerged lands, the owner of land adjacent to the water body still has riparian rights of access to and use of the water and bottoms…Submerged lands that do not fall into the above categories, which would include most land under streams, smaller rivers, and lakes can be privately owned.” The 1995 N.C. Supreme Court ruling gave some attention to defining navigable waters, although it still appears to be vague and at issue is whether the South Fork of the New River would meet that criteria and the State owning the submerged land in public trust. However, that public trust seems to be in place so that no land owner can use that body of water or the submerged lands to hinder reasonable public use of the water. This becomes a key issue with Boone’s proposed intake since the property they wish to build on is a stretch of the river that forms the boundary between Ashe and Watauga counties of N.C., as well as the fact that most of the downstream flow to be affected by the river will be in Ashe County. This is especially true with their proposal to lay piping along the riverbed and under the water, especially since the location of the proposed intake and piping is at an area where current river levels are near record lows and in many places less than one foot deep, and in most 2-3 feet. Questions and Points of Interest Which Need Further Investigation: How does Boone propose to lay piping along the riverbed and under the water (in a river at near record lows) in such a way that it will not impact the reasonable public use of the river and thus come in conflict with the public trust issue?

Does the Boone plan involve any disruption of the riverbed in order to lay this piping? If so, what impact studies have been done to see how this alteration of the riverbed would impact the ecological aspects of the river? How does Boone plan to lay this piping in an area of the river where it is a common boundary and not affect the private property rights of the many citizens/property owners who have not signed off on this plan? Why if there is any uncertainty as to the need for legislative permission, would the legislation be proposed and the project would proceed before all of the legal ramifications have been cleared? Is the South Fork of the New River a navigable river and does it meet all the criteria that the submerged land is held in public trust by the state? Where and when was the public discussion of the need for HB 972 and the impact of laying the piping under the river?

11. Riparian Damage Due to Decreased Water Levels  Background information In general, riparian buffer zones can be defined as green zones along streams, rivers, and lakes. These riparian buffer zones have a diverse selection of vegetation that provide numerous benefits to the streams they border, as well as to the selection of wildlife that find shelter in their unique environment. The destruction of these zones has created numerous problems, resulting in the destruction of the immediate stream habitat, as well as destruction of the vitality of area downstream. Positive effects of riparian zones include the prevention of nutrient and sediment pollution, the stabilization of fish habitat, the perpetuation of the microbial food loop and the control of flooding.  Water Flow is the Life blood of New River Any decrease of water flow in the New River is the loss of the life blood of the River. Any cumulative long term significant decline of water flow may unravel the ecological stability of the New River by:  Affecting the root depths of plants and thereby changing the vegetation of the buffering riparian zone o Healthy wetland riparian zones consist of a very diverse variety of plant life.  Trees and shrubs with longer root systems help to stabilize the soil, create water cooling shade and a rich wildlife habitat along the river banks  Unhealthy riparian zones consist of fewer plant species with shallow roots such as grasses and wildflowers.  Healthy vegetation along the riparian zone protects the river from several types of pollution that otherwise could directly affect the aquatic wildlife in the New River, including temperature, pH, sediment and oxygen. o Aquatic wildlife need cool water temperatures to aid them in breathing dissolved oxygen. Cooler water holds more dissolved oxygen than warmer water. If trees and shrubs are lost along the river, the water becomes warmer. o Vegetation with shorter roots cannot adequately hold on to riverbank soil. Grass is not a good riparian plant. Sediment entering the river also works to suffocate aquatic species by covering their gills used in breathing. o Additional soil in the lower level of water contained by the New River would work to change the pH balance of the water making it inhabitable to many aquatic species. We must protect the New River against any additional pressures to its ecological health. A decline in tourism could result when people realize that the fishing is no longer the same, when pristine meadow streams become unable to support the diverse wildlife locals and tourists have come to enjoy. Birding, fishing, canoeing, wildlife viewing, hiking and camping are all at risk. Ashe County claims the New River's Wild and Scenic River and American Heritage River status as "bragging rights". Both could become false advertising if the New River is not protected.  Sources Sited and references Streamway Corridors: The Importance of Riparian Buffer Zones, Jessica Hayes-Conroy http://serendip.brynmawr.edu/biology/b103/f00/web2/hayesconroyj2.html#9#9

12. Hellbender Salamander, an Indicator Species The eastern Hellbender is a unique and special native resident to the southern Appalachians. In NC this completely aquatic, harmless salamander is only found in the New and the Watauga river basins. It is one of the largest salamanders in the world, growing to more than two feet in length. It lives to be up to 30 years of age. Searching for Hellbenders, biologists usually find older adults and not immature hellbenders. At one time, the eastern hellbender lived throughout the Appalachian mountains and across the mid-western United States. Today, however, it exists in small pockets of habitat (including the New River) and is restricted to mountainous areas with little human settlement. (http://www.hellbenders.org/) Why is the Hellbender disappearing? Hellbenders need a specific balance of habitat; cool, fast-flowing, unpolluted streams and rivers with many large rocks and logs for cover and nesting. The Hellbender faces many threats associated with human activity; agricultural practices, housing developments, poor forestry practices and road and dam building. The latest threat to the survival of the Eastern hellbender is the non-regulation and non-filtering of household disposal of pharmaceutical and endocrine disrupting wastes. This threat is gaining recognition by biologists not only across the US but around the world. (See position paper 3.) . The effects of Pharmaceutical and Personal Care Products

on Aquatic Wildlife including the Eastern Hellbender 

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Hellbender populations, along with habitat destruction and changes in water quality, including chemical containing estrogenic properties, may explain the observed lack of recruitment of young animals. Search studies find adult Hellbenders but not young hellbenders.( M. E. Solı, C. C. Liu, P. Nam, D. K. Niyogi, J. M. Bandeff, Y.W. Huang) In North Carolina, it is illegal to kill a Hellbender or any species of Special Concern. If pharmaceutical waste is linked to the disruption and the hindrance of the Hellbender’s natural rate of reproduction, we would ask the municipalities to be held to the same standard as the public and not allowed to endanger the population of the Eastern Hellbender or any of the other species that could be affected. (Listed below; NC Natural Heritage inventory list of all animal species threatened for extinction in Ashe County) The Hellbender's status of Species of Special Concern (both NC State and Federal) does not grant its habitat the same legal protection as if it were designated as a threatened or endangered species. It does, however give it protection from the outright killing of a Hellbender. The designation also puts it on the list of animals that the NC Wildlife Resources Commission and other state agencies are concerned about and therefore are monitoring its population. Its numbers are in a sharp decline across its original habitat range. (http://www.hellbenders.org/) As with other amphibians, biologists use the Hellbender as an Indicator Species. Breathing through its skin, it is sensitive to pollutants and therefore can indicate to the public the health of the New River. The decline of the population is a warning that something is wrong with the health of the New River. Accumulated pressures on the New River including housing developments, improper forestry techniques and loss of aquatic vegetative buffers are steadily increasing. If the population continues to decline, it would likely prompt The NC Wildlife Resources Commission to change its status to threatened or endangered. If that takes place, very tight restrictions to the river would be established. This would affect all citizens of the New River watershed.

North Carolina Natural Heritage Animal Listings and Status. CODE. E=Endangered, T=Threatened, SC=Special Concern, SR= Significantly Rare, EX=Extirpated

Invertebrate Animal Major Group Invertebrate Animal Invertebrate Animal Invertebrate Animal Invertebrate Animal Invertebrate Animal Invertebrate Animal

ASHE COUNTY

Scientific Name

Common Name

State Federal State Status Status Rank

Global Rank

County Status Ashe G5 Current Ashe G3 Current Ashe G3 Current Ashe G3 Current Ashe G1G2Q Current Ashe G3 Historical

Map Habitat

Elliptio dilatata

Spike

SC

None

S1

Lasmigona subviridis

Green Floater

E

FSC

S1

Leptoxis dilatata

Seep Mudalia

T

None

S1

Ophiogomphus howei

Pygmy Snaketail

SR

FSC

S1S2

Pyrgus wyandot

Appalachian CheckeredSR Skipper

FSC

S1

Speyeria idalia

Regal Fritillary

SR

FSC

SH

Invertebrate Stenelmis gammoni Animal

Gammon's Stenelmis Riffle Beetle

SR

FSC

SH

G1G3

Ashe Historical

Link

Invertebrate Tritogonia verrucosa Animal

Pistolgrip

EX

None

SX

G4G5

Ashe Historical

Link

State Federal State Status Status Rank

Global Rank

County Status

Map Habitat

SC

None

S3

G4

Ashe Current

Link

Vertebrate Cryptobranchus alleganiensis Hellbender Animal

SC

FSC

S3

G3G4

Ashe Current

Link

Vertebrate Desmognathus wrighti Animal

Pigmy Salamander

SR

FSC

S3

G3G4

Ashe Historical

Link

Vertebrate Exoglossum maxillingua Animal

Cutlip Minnow

SC

None

S1

G5

Ashe Current

Link

Glyptemys muhlenbergii

Bog Turtle

T

T

S2

Loxia curvirostra pop. 1

Southern Appalachian Red Crossbill

SC

FSC

Necturus maculosus

Common Mudpuppy

SC

None

Neotoma magister

Appalachian Woodrat

SC

FSC

Percina caprodes

Logperch

T

None

Percina oxyrhynchus

Sharpnose Darter

SC

None

Vertebrate Phenacobius teretulus Animal

Kanawha Minnow

SC

FSC

S2

G3G4

Ashe Current

Link

Vertebrate Plethodon welleri Animal

Weller's Salamander

SC

None

S2

G3

Ashe Current

Link

Vertebrate Pooecetes gramineus Animal

Vesper Sparrow

SC

None

S2B,S2N G5

Ashe Current

Link

Vertebrate Sylvilagus obscurus Animal

Appalachian Cottontail

SR

FSC

S3

G4

Ashe Current

Link

Vertebrate Thryomanes bewickii altus Animal Vertebrate Vermivora chrysoptera

Appalachian Bewick's Wren Golden-winged Warbler

E

FSC

SHB

G5T2Q

SC

FSC

S3B

G4

Vertebrate Animal Major Group

Link Link Link Link Link

ASHE COUNTY

Scientific Name

Vertebrate Crotalus horridus Animal

Vertebrate Animal Vertebrate Animal Vertebrate Animal Vertebrate Animal Vertebrate Animal Vertebrate Animal

Link

Common Name Timber Rattlesnake

Ashe Current Ashe S3B,S3N G5TNR Current Ashe S1 G5 Current Ashe S2 G3G4 Current Ashe S1 G5 Current Ashe S1 G4 Current G3

Ashe Historical Ashe -

Link Link Link Link Link Link

Link Link