December 14, 2023. Having regained a veto-proof majority in the state legislature, the N.C. General Assembly returned to a very aggressive effort to influence environmental rules in 2023. The annual Appropriations Act (House Bill 259), the N.C. Farm Act of 2023 (Senate Bill 582) and the Regulatory Reform Act of 2023  (House Bill 600) all contained provisions weakening existing environmental protections and in some cases preventing adoption of new standards. This post covers the  most significant legislation affecting state water quality protections:

AQUACULTURE PERMITTING

Replace the existing NPDES General Permit for aquaculture operations. The Clean Water Act requires a National Pollutant Discharge Elimination System (NPDES) permit for any release of waste to surface waters.  North Carolina has developed a number of  NPDES “general permits” to cover wastewater discharges from facilities engaged in similar activities and producing wastewater with similar characteristics. NPDES General Permit  NCG530000 covers wastewater from seafood packing and rinsing; aquaculture operations; and other activities producing similar wastewater. A facility can be covered under the general permit by meeting conditions in that permit; otherwise, the facility can apply for an individual NPDES permit tailored to the operation. 

Section 14 of Senate Bill 582 directs DEQ and the EMC to replace the current general permit (in effect since December 1, 2021) with the previous version of NCG530000. Reverting to the earlier permit will eliminate water quality monitoring requirements for nitrogen and phosphorus that were added to the permit in 2021.  Aside from the environmental implications of eliminating water quality monitoring for nutrients released from aquaculture operations, the provision raises another legal question and policy question: Does the provision violate the N.C. Constitution by allowing the legislature to intervene directly in the issuance of environmental permits?

Under the N.C. Constitution, the legislature adopts the laws under which state agencies operate, but responsibility for implementing those laws rests with executive branch agencies like DEQ.  The issuance of an NPDES permit (whether a general permit or an individual permit) is clearly within the authority and responsibility of the executive branch.  A legislative directive to modify or replace a specific permit appears to cross a significant constitutional line.   Aside from the constitutional  issue, legislative intervention in a permitting action sets a precedent for direct political intervention in permit decisions.  

ANIMAL OPERATIONS

Groundwater compliance boundaries for animal operations.  A little background — North Carolina’s groundwater protection program requires a state permit for the release of  pollutants to groundwater. Permitted waste disposal facilities (such as landfills)  have a groundwater  “compliance boundary” that (for most facilities)  extends 250 feet from the waste disposal area. Inside the compliance boundary,  pollutants in groundwater may exceed groundwater quality standards; beyond the compliance boundary, groundwater must meet all standards. Permits require regular groundwater monitoring inside and outside the compliance boundary to ensure groundwater standards are met.

There have long been concerns that animal waste systems such as swine waste lagoons and spray fields may result in groundwater contamination. But unlike other types of waste disposal facilities,  animal waste systems have not been required to routinely monitor for groundwater impacts.  State permits for animal operations have only required groundwater monitoring under very narrow circumstances.

This session, the legislature amended the animal waste system permitting law, G.S. 143-215.10C,  to  require a groundwater compliance boundary at animal operations:

“[animal operations] shall have a compliance boundary as may be established by rule or   permit for various categories of animal waste management systems and beyond which       groundwater quality standards may not be exceeded.”

The provision also directs the Environmental Management Commission  (EMC) to require investigation and corrective action (such as remediation)  if a facility violates groundwater standards beyond the compliance boundary. (See: House Bill 600, Sec.15). The provision may lead to an interesting rule-making process,  since implementation of a compliance boundary and corrective action require groundwater monitoring and animal operations have strongly resisted monitoring in the past.

 1,4 DIOXANE

Health Risk Assessment and Technology Review. The legislature directed DEQ to do a human health risk assessment of 1,4 dioxane in drinking water based on peer-reviewed studies and report back to the legislature by May 1, 2024. The purpose of the state study is unclear.  In 2020, EPA finalized a human health risk assessment for 1,4 dioxane that concluded  1,4 dioxane has  adverse effects on humans and is a likely human carcinogen.  That risk assessment focused largely on worker exposure, although it also considered public exposure to 1,4 dioxane in consumer products and surface water. In July 2023,  U.S. EPA released a Draft Revised Risk Determination for 1,4 dioxane for public comment. The  revised risk determination  evaluates risk associated with additional pathways for exposure, including  exposure to 1,4 dioxane in drinking water. The revised draft risk assessment finds that 1,4 dioxane in drinking water presents an unreasonable risk to human health.

The state study provision also directs the N.C. Collaboratory at UNC-CH to evaluate technologies commercially available to remove 1,4 dioxane from wastewater effluent at different flow volumes and report its findings on the technical and economic feasibility;  limitations of each treatment technology; and a cost benefit analysis to the legislature by May 1, 2024. (See: House Bill 600, Sec. 9)

STORMWATER.  Continuing a ten-year pattern, the legislature amended  state stormwater law to further limit state and local government stormwater control requirements. Most of the stormwater amendments appear in the 2023 Regulatory Reform Act (House Bill 600):

Treatment of stormwater from impervious areas added as part of a redevelopment project.  G.S. 143-214.7(b3)  already prevented stormwater permitting agencies from requiring new stormwater controls for existing developed areas included in a redevelopment project. But the law expressly allowed permitting agencies to require treatment for stormwater from impervious surface added during redevelopment. That authority remains in the law, but the 2023 amendment  inserts new language allowing the developer to  “elect” to provide stormwater treatment for new impervious area  — seeming to create a conflict within the law. As a result, It isn’t clear whether treatment of stormwater from new impervious area can still be required or is entirely optional. (See: House Bill 600, Sec. 2)

Prohibit stormwater permit conditions related to adjacent property.  Under a new subpart added to  G.S. 143-214.7,  DEQ  cannot require a new permit applicant to take any action with respect to an “unaffiliated adjacent property” or condition issuance of a new permit on action to be taken by an existing permit holder with respect to an unaffiliated adjacent property.  It isn’t clear what real world situation the new provision addresses since the state stormwater program has never required a developer to install stormwater controls on adjacent property. The provision may be intended to prevent DEQ from requiring a new development project to adequately treat stormwater entering the development site from another property, but more background will be needed to understand the provision’s impact. (See: House Bill 600, Sec. 2)

Exempt private streets from post-construction stormwater requirements. The provision directs the  EMC to exclude linear transportation projects that are: 1.  part of a common plan of development;  and 2. not constructed by DOT or a municipality from the calculation of built-on area for purposes of stormwater management. As a practical matter, that means private subdivision streets would not be included in calculation of stormwater runoff from the development and as a result the stormwater system would not be sized or designed to manage the stormwater from those surfaces. (See: House Bill 600, Sec. 4).

Exempt airport construction borrow sites and staging areas from Neuse buffer certification requirements. State stormwater standards already provided special consideration for  airport facilities particularly with respect to mandatory stream buffers. The new provision redefines “airport facilities” to include borrow sites and staging areas for airport-related construction . Under the provision, construction of borrow sites and staging areas within a stream buffer will not require prior approval normally granted through issuance of a certification for the activity under 15A NCAC 2B.0611(b). The provision requires mitigation of the buffer impacts consistent with the Neuse buffer rules, but it is not clear how buffer impacts will be measured and mitigation calculated in the absence of DEQ certification.  (House Bill 600, Sec. 21).

Timelines for review of state stormwater permits. Amends G.S. 143-214.7 to add timelines for DEQ review of stormwater permit applications. DEQ staff must do a completeness review within 10 days of receiving the application. If the application is complete, a 70-day technical review period begins. The provision also sets out specific requirements and timelines for DEQ to request additional information once the technical review begins. The provision directs that permits should be issued for a term not to exceed 8 years. (See: House Bill 259, Sec. 12.12.)

WATER SUPPLY WATERSHEDS

 Water supply watershed redevelopment.  Amends G.S. 143-214.5(d3) to allow redevelopment of nonresidential properties to exceed water supply watershed density limits without providing stormwater treatment for any increased density (as compared to the previous land use). As amended, the law would allow redevelopment at increased density without stormwater treatment based on either the preexisting density or the increase in density. (See: House Bill 600, Sec. 1)

Density exception for two local government jurisdictions. The legislature created a new exception for Iredell County and the Town of Mooresville that would allow up to 20% (instead of 10%) of the water supply watershed outside WS I and the critical areas of WS II, III and IV to be developed at up to 70% impervious area. Creation of an exception to an environmental rule for two named local governments may be inconsistent with a provision in the N.C. Constitution prohibiting “local acts” related to public health.  In any case, the provision creates a special advantage for two named local governments that was not based on any evaluation of the impact on drinking water quality. (See: House Bill 600, Sec. 5)

WASTEWATER DISCHARGE 

Discharge of domestic wastewater to low and no flow streams. Amends G.S. 143-215.1 to add a  new subsection (c8) allowing discharge of domestic wastewater to low or no flow streams. “Domestic wastewater” generally refers to wastewater from plumbing fixtures in residences and other buildings; it includes human waste and wastewater from kitchens, baths and  laundry facilities. “Domestic wastewater” does not include wastewater from industrial processes.  G.S. 143-215.1 (c8)  will allow discharge of domestic wastewater that meets specific water quality standards set out in that subpart of the law. Those standards  are very tight with respect to conventional pollutants (such as fecal bacteria and nitrates), but the law does not address all potential pollutants.  For example, there are no standards for toxic pollutants and the law prohibits state permit writers from imposing additional conditions to address pollutants not addressed in the provision.  (See: House Bill 259,  Sec. 12.9)

WATER QUALITY CERTIFICATION 

Issuance of water quality certifications for dredging and energy projects. Under Section 401 of the Clean Water Act, an applicant for a federal permit must provide a certification from the state that the permitted project will be consistent with state water quality standards. The provision puts new restrictions on state issuance of Section 401 Water Quality Certifications for state-funded maintenance dredging projects  and projects involving distribution or transmission of energy or fuel (including natural gas, diesel, petroleum, or electricity):

• DEQ must determine completeness of the Section 401 application within 30 days.

• A decision to issue or deny the certification must be made within 60 days if no public    hearing is required or within 90 days if there is a hearing.

• Conditions on the Section 401 certification are limited to those necessary to ensure that proposed discharges of pollutants will comply with state water quality requirements

STUDY WATER QUALITY STANDARDS.  

Narrative water quality standard.  Some background — State water quality rules set specific numerical water quality standards for many pollutants. But since new pollutants of concern emerge over time, the rules also include  a “narrative standard” for toxic pollutants that do not yet have a numerical standard in rules. The “narrative standard” provides specific technical guidance to permitting staff on how to calculate a numerical standard for the pollutant.  Most recently, DEQ has used the narrative standard rule, 15A NCAC 2B.0218,  to calculate a water quality standard for 1,4 dioxane which (as noted above) is a likely human carcinogen. The numerical value derived from the rule then becomes the reference point for limiting discharges of the pollutant to surface waters. The narrative standard provides a predictable, scientifically based method for setting a water quality standard for an emerging pollutant until a numerical standard can be incorporated into the rules — a process that can take several years.

A provision in the Regulatory Reform Act of 2023 requires the EMC to study  narrative water quality standards and report to the legislature by June 1, 2024. The study will include review of the methods for setting a water quality standard under the rule; narrative standards adopted by other states;  and U.S. EPA requirements for adoption of narrative standards. The EMC is to report its findings, including any recommendations for legislative action, to the Joint Legislative Commission on Governmental Operations. (House Bill 600, Sec. 8). The study likely responds to legal action by several local governments challenging use and enforcement of the narrative standard to limit discharges of 1,4 dioxane.

DREDGING MORATORIA

Restriction on dredging moratoria. The legislature amended G.S. 113-229 (the State Dredge and Fill Act) to add a new subsection limiting the ability of state agencies to suspend authorization for dredging in state waters to protect aquatic resources. Dredging moratoria are often seasonal, corresponding to fish spawning activity.  The new provision limits dredging moratoria unless the restriction on dredging activity is required under the Clean Water Act, Endangered Species Act, or other applicable federal law. (House Bill 600, Sec. 10.5)

DEQ’s  Division of Coastal Management issues the permits required under the State Dredge and Fill Act, but the permits also involve review by other environmental and natural resource agencies  including the state water quality program. Most dredging moratoria enforced in N.C. have been adopted under state law authority to protect fisheries habitat and particularly primary nursery areas. It is not clear whether all of the existing  state moratoria on dredging are required by federal laws and rules.

This is another instance of the General Assembly deciding that North Carolina has no need or interest in protecting state natural resources apart from meeting requirements of federal law.

Wetlands

Limit state water quality protection of wetlands. A provision in Senate Bill 582 directs the EMC to define “wetlands” for purposes of state water quality regulations to include only wetlands within the federal permitting jurisdiction of U.S. EPA and the U.S. Army Corps of Engineers under the Clean Water Act. The effect of the provision is to limit all state water quality protections to wetlands with a surface connection to rivers, lakes and streams that are “waters of the U.S.”  The definition change affects state rules that set water quality standards limiting discharge of pollutants to wetlands as well as rules permitting placement of fill material in wetlands.

Limiting state wetlands protection to wetlands in federal Clean Water Act jurisdiction will exclude wetlands that have a groundwater rather than surface connection to  water bodies. It may also exclude wetlands separated from surface waters by a manmade structure and those with a seasonal rather than consistent surface connections. The full extent of the impact on state wetlands will depend on interpretation of the recent U.S. Supreme Court decision in Sackett v. U.S. EPA which significantly restricted federal wetlands jurisdiction. The N.C. Attorney General’s Office has advised the EMC and DEQ that the new state law provision has the effect of voiding state legislation enacted in 2015 that authorized state permitting requirements for basin wetlands and bogs. (See: Senate Bill 582, Sec. 15). Much more detail on the state wetlands provision can be found in earlier posts here and here.