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A legal reminder to DEQ: Drafts are public record, even when they're unfavorable to SolarBees

A big hat tip to The News & Observer this morning for a story the Case of the Disappearing DEQ Report about SolarBees. 

The short version: DEQ posted online a report critical of the effectiveness of SolarBee project by the mandated April 1 deadline, but then the document was mysteriously removed from the department's website. It was a draft, the N&O quoted DEQ spokesperson Stephanie Hawco as saying, and shouldn't have been posted as a work-in-progress.

Yet even draft documents are public record, says media attorney Hugh Stevens, who is also the pro bono lawyer for the N.C. Newsroom Cooperative, of which BCR is a member. He posted on Facebook that "DEQ's claim that the report can be withdrawn and withheld because it was a work in progress doesn't hold water. The North Carolina Supreme Court ruled more than 20 years ago that drafts of public records are themselves public records."

Here's the case law: News & Observer Pub. Co. v. Poole, 330 N.C. 465, 483-484 (1992).

(Coincidentally, at the end of the month, the DEQ is canceling contracts with nine lawyers and support staff within the Attorney General's office who advise the agency on legal matters. DEQ says AG Roy Cooper is politicizing the cases and refusing to represent the interests of the environment.)

A bit of background: Half of the city of Durham lies within the Jordan Lake watershed — and the lake itself extends into southern part of the county. Durham is subject to Jordan Lake rules which dictate the management of nutrient runoffs, buffers, etc. The sensitivity of the lake, parts of which have long been on the federal impairment list, is part of the reason why many Durhamites opposed the 751 South project. The lake provides drinking water to 300,000 people in the Triangle, primarily in southern Wake and northern Chatham counties, but also RTP.

SolarBees, essentially giant egg beaters, were placed in Jordan Lake a year ago to ostensibly prevent algae from growing by stirring the water. An abundance of algae usually means there are too many nutrients in the lake — nitrogen and phosphorus, often the result of runoff from development activities and farming. 

Environmental experts and scientists have long been skeptical about the effectiveness of SolarBees, saying on a body of water the size of Jordan, they would be inferior to curbing the source of the upstream pollution. However, complying with those regulations would be expensive, particularly for developers. Nonetheless, in 2013, the General Assembly voted to appropriate $2 million for SolarBees instead.  [It's on page 195 of the document.] The SolarBees were deployed in 2014. And no, according to the vanishing draft report, they're not improving the water quality. 

DEQ provided no timetable for when the "final" report will be finished.




Will Wilson

Do you have a copy of the pulled, draft report?

Will Wilson

It's in the N&O article. Last paragraph of the conclusions:

"Furthermore, nutrient sources from watersheds should continue to be addressed. All potential in situ
and lakeside approaches have only been proven feasible in relatively small natural lakes. In some cases,
applying in situ measures to reservoirs in North Carolina will only address symptoms created by
watershed scale issues. The scale to which these options would need to be expanded to can lead to
extremely expensive projects when applied to entire reservoirs. These options are all long term
scenarios that require multiple treatments or continuous operation and provide unproven results in
flowing systems."

Off message, clearly.

Will Wilson

Also way off message, the executive summary of the draft buffers report:

"Scientific literature demonstrates that riparian buffers perform many functions that protect
water quality. The buffer rules were adopted specifically to address pollutant loading from
developed areas as part of larger management strategies that also require reductions from
municipal and industrial dischargers and agriculture. Simply removing the existing riparian
buffer requirements would shift the burden of additional nutrient reductions to those other
sources, such as farmers, local governments, etc., which would be much more costly than
maintaining existing riparian buffers.
The Commission recommends allowing the rulemaking process already underway on the
riparian buffer protection rules to continue. The Commission believes this rulemaking process
is the best way to evaluate and incorporate amendments to the rule that will provide
regulatory relief for parcels of land platted prior to the effective date of the applicable buffer
rule without unduly shifting the burden of additional nutrient reductions to other sources, such
as farmers, local governments, etc., which would be much more costly than maintaining
existing riparian buffers."

That "nonsense" is gone from the final report, which argues for miniscule 30 ft buffers.


this seems like a missed opportunity for entrepreneurial synergies! miniaturized (smart tech!) solarbees for home toilets. obviously the PR and elites are ready to go, IPO time.

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