Category Archives: Water

Discussion of water pollution, water supply and the law of water rights

Groundwater Standards for PFAS — Public Health and Regulatory Relief

July 11, 2024. Yesterday, the Environmental Management Commission’s Groundwater and Waste Management Committee voted to recommend against moving forward with groundwater standards for five of eight per and poly-fluorinated substances (PFAS)  included in a Department of Environmental Quality (DEQ) rulemaking proposal. It  may be an unprecedented decision to reject health-based standards that would also provide regulatory relief to business and protect property values.

DEQ has proposed two sets of PFAS rules for EMC adoption.  One rule package proposes groundwater standards for eight  per and poly-fluorinated substances (PFAS)  prevalent in the state — PFOS, PFOA, GenX, PFBS, PFNA, PFHxS, PFBA, and PFHxA. The second rule package proposes parallel surface water standards for the same substances.  Both sets of rules establish health-based standards for ingestion of the substances in drinking water. The surface water standards also take fish consumption into consideration since PFAS can bioaccumulate in fish tissue. Scientific research has documented that these substances are toxic; accumulate in the human body;  and persist in the environment for long periods of time. Some have been identified as a likely cancer risk in humans.

Surface water standards would largely be enforced through discharge limits on industrial and municipal wastewater systems identified as potentially significant PFAS sources. The groundwater standards would be used as to set remediation goals for cleanup of PFAS contamination in groundwater; limit permitted releases of PFAS to groundwater;  and as the health threshold for providing alternative water supplies to the owners of contaminated wells.

The two sets of rules have moved slowly through the EMC committee process. Yesterday, the EMC’s Groundwater and Waste Management Committee debated whether to recommend that the full EMC send the entire groundwater rule package of eight PFAS standards out to public notice as the next step in rule-making. The committee declined to do that and instead voted to recommend that the EMC move forward with only three of the eight standards — those for PFOA, PFOS and GenX.  The committee recommendation would have the paradoxical result of rejecting health-based standards for the other five substances even though the new standards would actually reduce regulatory burden on business and potentially benefit private property owners who have detectable levels of  PFAS in their groundwater.

Background on N.C. groundwater standards.  First some background on how N.C. groundwater standards work. The EMC has adopted specific health-based groundwater standards for a number of contaminants. In the absence of a specific standard for a contaminant,  EMC rules provide that the groundwater standard will be the  “practical quantification limit” (PQL) for the contaminant. In lay language, the PQL means the level of the contaminant that can be detected using existing technology.

Today, PFAS detected in groundwater is regulated based on the detection limit for each substance;  the EMC has not adopted  a specific health-based groundwater standard for any PFAS.  Release of PFAS to groundwater above the detection limit without a permit is a violation of the groundwater rules and the detection limit serves as the goal for remediation of PFAS- contaminated groundwater.  The rules proposed by DEQ would establish health-based groundwater standards for the eight PFAS substances listed above. If adopted by the EMC, those health-based standards would replace use of the detection limit as the enforceable groundwater standard for purposes of remediation, permitting, and public health response.

Comparison of the proposed health-based standards to detection limits. DEQ  has calculated numerical health-based standards for each of the eight PFAS substances based on toxicity and/or increased cancer risk associated with ingesting the substance in drinking water. For two of the substances  — PFOS and PFOA — DEQ proposed a health-based standard that is  lower than the current detection limit. As a result, the detection limit for PFOS and PFOA would continue to be the enforceable groundwater standard since it isn’t  possible to enforce a standard below detectable levels. (The  health-based standards for PFOS and PFOA  could  become enforceable in the future if  technology advances to detect lower levels of those substances.)

For the other six PFAS substances, the proposed health-based standard would be higher than the detection limit for each substance — in some instances, significantly higher.   Adoption of those standards would  protect public health,  but  actually result in a less stringent regulatory standard than using the detection limit.  That would  benefit  a business  required to remediate contamination by one of those PFAS substances  in groundwater because the ultimate groundwater cleanup goal would be relaxed by comparison to a goal based on the detection limit.

Using the  proposed health-based standard for those substances could also benefit the owners of private wells with  PFAS levels above the detection limit but below the proposed health-based standard. Those well owners would be reassured that the level of  PFAS in their well does not pose a health risk that requires an alternative water supply.  It would also  remove a cloud over their property that could affect its value since PFAS in the groundwater would no longer exceed the  state regulatory standard.

Committee action. The majority in committee today voted to recommend that the full EMC move forward with health-based standards only for PFOS, PFOA and GenX. It was difficult to discern from the discussion any clear rationale for the recommendation to abandon adoption of health-based standards for the other five PFAS when those standards would have provided greater clarity on health risk; reduced the regulatory burden on business; and protected  property values.

Next steps.  The committee asked DEQ to provide a revised fiscal analysis of the rule package based on adoption of standards for just three of the eight PFAS. The full EMC could then vote (possibly in September) on whether to send the groundwater rule-making package out to public notice. The EMC can accept the committee recommendation or decide to go out to notice  with the larger package of groundwater standards proposed by DEQ. The EMC would make a final decision on adoption of some or all of the proposed groundwater standards after considering comments received in response to the public notice.

Obstructing Environmental Standards

January 26, 2024. In North Carolina, adopting a new state rule involves many steps and multiple levels of review. But the rulemaking process has recently obstructed a water quality standard in ways not intended by  the  N.C. Administrative Procedure Act (APA). As a result,  the rule setting a water quality standard for 1,4 dioxane — a toxic pollutant and likely human carcinogen — cannot go into effect even though there has been no legally supported objection to the rule.

1,4 dioxane. The U.S. Environmental Protection Agency (EPA) has identified 1,4 dioxane (used in solvents and other products) as a toxic pollutant associated with a number of adverse health effects, including liver damage and increased cancer risk. EPA published those findings in a 2020 health risk assessment of 1.4 dioxane  that focused primarily on occupational exposure.  In 2023, EPA released a revised  health risk assessment  of 1,4 dioxane considering risk to the public through exposure in drinking water. The new assessment  concludes that 1,4 dioxane in drinking water  “presents an unreasonable risk to human health”. (The revised assessment was released for public comment in September 2023; it is not clear whether EPA has finalized the assessment since closure of the comment period.)

As early as 2015, drinking water systems using the Cape Fear River system as a water source detected 1,4 dioxane in their drinking water.  Those water systems include the Town of Pittsboro and the City of Fayetteville. Investigation of  1,4 dioxane releases to the river by the  N.C. Department of Environmental Quality (DEQ)  led to upstream municipal wastewater systems.  As documented by DEQ, several cities — including Greensboro, Reidsville and Burlington —  have  periodically released wastewater containing high levels of  1,4 dioxane to the Cape Fear River system (which includes the Haw River).    In most cases, the 1,4 dioxane  could be traced back to a specific industrial facility discharging process water to the municipal sewer system.

As DEQ worked with these communities to address 1,4 dioxane spikes in their wastewater discharges, the N.C. Environment Management Commission (EMC) proposed and adopted a numerical water quality standard for 1,4 dioxane. A water quality standard establishes the safe concentration of a water pollutant in surface waters. DEQ permit writers then use the standard  to set appropriate limits on wastewater discharge permits (National Pollutant Discharge Elimination System or “NPDES” permits)  to maintain a  safe level in the water.  In developing the standard for 1,4 dioxane, the EMC relied on state and federal studies to calculate a safe concentration of 1,4 dioxane in surface water.  The proposed state water quality standard of 0.35 micrograms per liter (or 0.35 parts per billion) aligned with the concentration EPA studies associated with higher cancer risk.

The EMC adopted the water quality standard for  1,4 dioxane standard in March 2022. Two years later, the 1,4 dioxane rule is still not in effect and it is not clear when or if it will be.

What went wrong?  Once a state agency adopts a rule, the N.C. Rules Review Commission (RRC) must review and approve the rule before it can go into effect.  Under the APA, the RRC can only object to a rule on four grounds:

1. The rulemaking agency didn’t have authority under state law to adopt the rule;

2. The rule language isn’t clear;

3. The rule isn’t reasonably necessary to implement state law  or a federal law or rule;

4. The agency failed to comply with APA rulemaking procedures.

In May 2022, the RRC  objected to the EMC’s 1,4 dioxane water quality standard. The RRC objection did not question the EMC’s authority to adopt the rule; the clarity of the standard; or the scientific basis for it. The objection was that the EMC failed to comply with APA rulemaking procedures because — in the opinion of the RRC — the fiscal analysis of the rule was flawed. But the APA does not allow the RRC to object to a rule based on the content of a fiscal analysis; the Office of State Budget and Management (OSBM) has responsibility for certifying the analysis. In fact, RRC staff legal counsel had previously advised the RRC that it did not have the authority to object to a rule based on the content of a fiscal analysis approved by OSBM.

As consistently interpreted and applied in the past (by the Rules Review Commission itself), the EMC complied with APA rulemaking requirements by submitting an OSBM-certified fiscal analysis. After unsuccessful efforts to resolve the RRC objection,  the EMC authorized its legal counsel in September 2022 to challenge the RRC action in court as exceeding the RRC’s authority.  At the time, the  EMC voted by a nearly 2/3 majority to pursue judicial review of the RRC objection.

In January 2024 — after a turnover among EMC appointments —  a new EMC majority appointed by legislative leaders and the Commissioner of Agriculture voted to drop the legal action challenging the RRC objection. Dismissing the lawsuit allows the RRC objection to stand and prevents the 1,4 dioxane standard from going into effect. There is no path around the RRC objection.  Nothing in the APA supports the voiding of an environmental standard in the absence of any legitimate objection to the rule or the rule adoption process.

What next?  Another version of the 1,4 dioxane standard (based on the most recent EPA health risk criteria) has been included in a new package of water quality rules the EMC just began to work on.  EMC Chair J. D. Solomon has indicated an intent to move the 1,4 dioxane standard forward in that process. The problem is that the new rule will go through the same process as the original 1,4 dioxane standard — a process that required nearly two years for EMC adoption; additional months for RRC review;  and resulted in the rule being voided nearly four years after the rulemaking process began based on an RRC objection lacking any basis in the Administrative Procedure Act. It is unlikely that the local governments opposed to the original 1,4 dioxane standard (as reflected in their comments to the Rules Review Commission when the rule was under review)  will be more enthusiastic about the somewhat stricter standard in the new rulemaking package.

Meanwhile, DEQ continues to rely on the backstop of the “narrative” water quality standard in 15A NCAC 2B.0208 to address 1,4 dioxane. That rule  provides specific direction to DEQ permit writers on how to set  a water quality standard for a toxic pollutant that does not yet have a numerical standard in EMC rules.  In recent years, DEQ has relied on the rule to set in-stream pollutant concentrations and then wastewater permit limits for 1,4  dioxane and PFAS chemicals. In another legal twist, however, the City of Asheboro has challenged the enforceability of  15A NCAC 2B.0208 in an appeal of conditions on Asheboro’s renewed  NPDES permit  — including conditions related to 1,4 dioxane. That case is pending in the Office of Administrative Hearings.

Postscript: Yesterday, the Raleigh News and Observer reported that the City of Burlington detected high 1,4 dioxane levels (545 parts per billion) in wastewater samples taken at the South Burlington Wastewater Treatment Plant on January 23, 2024.  As noted above, EPA studies associated  0.35 ppb with a 1/1 million increased cancer risk and EPA has previously advised that 1,4 dioxane levels in drinking water should not exceed 35 ppb which correlates to a 1/10,000 increased cancer risk.

Burlington notified both DEQ and downstream water systems of the recent 1,4 dioxane spike (test results from the day before  had been only 2.4 ppb) and contacted an industrial facility in Burlington suspected to be the source.  The Town of Pittsboro, which has a drinking water intake in the Haw River downstream of the Burlington wastewater discharge,  immediately reduced its Haw River withdrawal and asked Pittsboro water system customers to conserve water until the slug of  1,4 dioxane  contaminated water passes the intake and concentrations  of 1,4 dioxane at the intake drop to safe levels.

Wetlands Protection Update

October 30, 2023.  An earlier post described the interaction of new state limits on wetlands protection and a U.S. Supreme Court decision reducing federal Clean Water Act (CWA) jurisdiction over streams and wetlands. (See State Law: Removing Wetlands from “Waters of the State”.) This post provides an update on federal implementation of the Sackett decision and new information on the impact of the wetlands provision in the N.C. Farm Act (Senate Bill 582/ Session Law 2023-63).

Federal Implementation of the decision in Sackett v. EPA. In  Sackett v. EPA, a plurality of four justices issued an opinion striking down rules adopted jointly by the U.S. EPA and the U.S. Army Corps of Engineers defining Clean Water Act jurisdiction over streams and wetlands. (The other five justices split between several dissenting opinions.)

In Sackett, the court held that “waters of the United States” — which defines the extent of Clean Water Act regulations —  only applies to surface waters useful for interstate commerce (my  shorthand description of the categories of waters listed more specifically below) and tributaries to those waters that are “relatively permanent, standing, or continuously flowing”. To be consistent with the Sackett decision, EPA has amended the CWA jurisdiction rule to limit federal jurisdiction over tributaries and wetlands. The Sackett standard appears to eliminate federal jurisdiction over ephemeral streams that flow only in response to precipitation.  Jurisdiction over  intermittent streams and other seasonal water bodies will likely require field interpretation of the Sackett criteria. Stay tuned for future litigation over those determinations. The restriction on CWA jurisdiction over tributaries has significant water quality implications.  Nationally, an estimated 59% of streams  would be classified as intermittent or ephemeral. The percentage is much higher (89%) in arid western states.  Most of those streams ultimately flow into permanent water bodies.

In Sackett, the U.S. Supreme Court  also interpreted the Clean Water Act  to apply only to wetlands that have a continuous surface connection to water bodies otherwise in federal jurisdiction. Under the decision,  wetlands must be physically  “indistinguishable” from those waters to be covered by federal CWA jurisdiction. (Slip opinion, Sackett v. EPA,  p. 27.)  The new federal rule makes several changes in response to this restriction on federal wetlands jurisdiction:

1. The “significant nexus” standard, which had extended federal jurisdiction to wetlands with a significant water quality relationship to jurisdictional waters  (such as a groundwater connection), has been removed from the rule.  

2. Wetlands located near jurisdictional surface waters, but physically separated by a manmade structure (such as a berm), will no longer be considered jurisdictional based on being “adjacent” to waters of the United States. 

3.  The reference to  ‘‘interstate wetlands’’ as a stand-alone category of jurisdictional wetlands has been removed.

Under the new federal jurisdiction rule  that went into effect on September 12, 2023, the Clean Water Act will apply only to:

      ♦  Waters used or capable of being  used in interstate or foreign commerce

      ♦  Tidal waters

      ♦ The territorial seas

      ♦ Interstate waters

      ♦ Impoundments of waters that are otherwise defined as waters of the United States (such as a reservoir created by damming a flowing river)

      ♦ Tributaries of the waters listed above as long as the tributaries are “relatively permanent, standing or continuously flowing”

      ♦ Wetlands that have a continuous surface connection to  waters that fall into one of the categories above. 

Filling jurisdictional waters or wetlands requires a federal permit under Section 404 of the CWA and  most litigation over the definition of “waters of the United States” has been driven by property owners/developers seeking to fill wetlands for construction.   But “waters of the United States” also  defines the scope of Clean Water Act restrictions on water pollution. It is not entirely clear how the loss of jurisdiction over wetlands and non-permanent tributaries will affect the NPDES permitting program. There is earlier case law holding that discharge of pollutants to a non-jurisdictional stream or to groundwater with a surface water connection requires an NPDES permit if those pollutants will reach jurisdictional waters.

Scope of North Carolina Legislation Limiting Wetlands Protection.

The Sackett decision actually emphasizes language  in the Clean Water Act  that notes “the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution”.  In limiting federal CWA jurisdiction, the court expressly deferred to broader state authority to protect waters and wetlands: “Regulation of land and water use lies at the core of traditional state authority”. (Slip opinion, Sackett v. EPA, p. 23). But just as the Sackett decision restricted federal water pollution authority in deference to the states, the N.C. General Assembly limited  state water quality protections for wetlands to those falling in federal Clean Water Act jurisdiction.

Senate Bill 582 became state law on June 27, 2023 over the Governor’s veto. Confusion over the intended effect of the wetlands provision led me, as Chair of the N.C. Environmental Management Commission, to ask the Department of Environmental Quality (DEQ) to advise the EMC on implications for state water quality rules.  In consultation with the Attorney General’s Office, DEQ confirmed that Session Law 2023-63 entirely eliminates state water quality protections for wetlands that fall outside federal regulatory jurisdiction, including  basin wetlands and bogs that had previously been covered by  a 2015 state wetlands permitting law. The DEQ memorandum  also confirmed that the new law affects enforcement of state water quality standards restricting discharge of pollutants to wetlands.

Session Law 2023-63 does not affect application of state water quality standards to surface waters  such as streams.  Existing state laws requiring permits for discharge of pollutants and placement of fill material will continue to apply to streams and other surface waters  in the state independent of CWA jurisdiction. The new federal jurisdiction rule will magnify the impact of Session Law 2023-63  on state wetlands, however. As noted above,  federal jurisdiction over tributaries will shrink under the Sackett criteria. Consistent with the Sackett decision,  the conforming EPA rule also removes CWA jurisdiction over wetlands adjacent to non-jurisdictional tributaries.  Under Session Law 2023-63,   those wetlands will  also lose state water quality protections.

It is still unclear whether the General Assembly intended Senate Bill 582 to have such wide-ranging impact on state wetlands.  The Sackett decision certainly expanded the impact of  Senate Bill 582 beyond what would have been anticipated when the bill was filed. It is possible that Session Law 2023-63  will be modified as a result, but that seems unlikely to happen before adjournment of the 2023 legislative session.  Other nearby states, including Virginia, have already take steps to ensure that state waters and wetlands that now fall outside Clean Water Act jurisdiction will be protected by state water quality laws.

Pipelines

June 4, 2021. The NC. Senate voted yesterday to disapprove the nomination of Dionne Delli-Gatti as Secretary of the Department of Environmental Quality (DEQ). Republican Senators  continued to tie the disapproval to dissatisfaction with Delli-Gatti’s earlier responses to questions about Cooper administration policy on natural gas in general and the Mountain Valley Pipeline Southgate project in particular.  Senators cited recent disruption of gasoline supplies due to a cyber attack on Colonial Pipeline to highlight the risk to natural gas supplies similarly reliant on a single major pipeline. Senators leading the opposition to confirmation placed the responsibility for addressing the risk  posed by lack of redundancy in pipeline infrastructure on Sec. Delli-Gatti and characterized her answers to questions about natural gas policy as “disqualifying”.

Some background on the natural gas issues  raised by Senators in opposition to Secretary
Delli-Gatti —

DEQ and pipeline approvals.  An energy company makes the initial decision to construct new infrastructure  based on evaluation of demand and economic return. Private sector energy companies haven’t planned new projects around creating redundancy in major energy infrastructure. It also isn’t clear how easy it would be under existing state and federal energy laws to get approval of a project based solely on creating redundancy in the system.  Those approvals now require justification based on additional demand, replacement of existing capacity, and compliance with environmental standards. The approvals also take consumer cost into consideration.

New natural gas pipelines require a certificate of convenience and necessity from the Federal Energy Regulatory Commission (FERC) to  confirm a legitimate energy need for the project. FERC also regulates interstate pipeline projects for transportation safety purposes. As the lead federal agency,  FERC takes responsibility for environmental review of the projects — including preparation of the Environmental Impact Statement (EIS) and coordination with other federal permitting agencies. Pipeline construction often requires a  Clean Water Act Sec. 404 permit (for deposition of fill material in rivers, streams and other waters) from the U.S. Army Corps of Engineers.

DEQ has no role in planning new pipelines or in  FERC decisions about the necessity of a proposed pipeline.  DEQ’s ability to affect energy infrastructure projects largely  comes from its authority to  implement state laws protecting water quality and air quality. Unless other state permits are required, DEQ participates in environmental review of  a pipeline project in two ways: 1. DEQ  agencies comment on the draft federal  EIS;  and 2. the Division of Water Resources may be requested to issue a state water quality certification for the project.  Under Sec. 401 of the Clean Water Act, an  applicant for a Sec. 404 permit must provide  a certification that the entire project as constructed and operated will meet state water quality standards. The state certification is not a permit, but  the Clean Water Act prohibits the Corps of Engineers from issuing a Sec. 404 permit  if the state has denied the  water quality certification. Since pipeline projects often traverse multiple states,  a pipeline project would require similar certifications from each state in the path of the pipeline.

DEQ has reviewed two pipeline projects in recent years; both had been proposed by electric utilities to supply natural gas to power plants.  Duke Energy and Dominion Energy jointly proposed construction of the Atlantic Coast Pipeline (ACP) to transport natural gas from West Virginia into  Virginia and  Eastern North Carolina to supply Dominion and Duke Energy power plants.

Dominion Energy proposed the Mountain Valley Pipeline Southgate project to extend transmission pipeline from the proposed Mountain Valley Mainline in Virginia into Piedmont North Carolina. The Mountain Valley Mainline would be a major new pipeline (not yet constructed)  to  transport natural gas from shale formations in West Virginia and Pennsylvania to Virginia. The MVP Southgate project included 40 miles of pipeline through Rockingham County and  Alamance County, ending southeast of Graham, North Carolina.

Cooper Administration  Actions on the Atlantic Coast Pipeline and the MVP Southgate Project

DEQ’s Division of Water Resources issued a water quality certification for the ACP project on January 26, 2018.  The same day, Governor Cooper announced  a separate agreement between the state, Dominion Energy and Duke Energy to  create a $57.6 million mitigation fund to be used at the Governor’s discretion to mitigate project impacts beyond the scope of those addressed by environmental permits. Under the agreement,  the funds could also be used to assist  Eastern North Carolina industries that could not otherwise afford to tap onto the pipeline. The mitigation fund, which was controversial (and redirected by the General Assembly to benefit schools in the counties affected  by pipeline construction), never came into existence because of the later decision by Duke and Dominion to cancel the ACP project.

On August 11, 2020, DEQ’s Division of Water Resources denied the water quality certification and a Jordan Lake riparian buffer authorization for the MVP Southgate project because of uncertainty about the project’s viability.  Mountain Valley Pipeline LLC had indicated an intent to begin construction of the MVP Southgate project before legal obstacles to the MVP Mainline had been resolved, creating the possibility of water quality impacts in North Carolina without assurance the pipeline would ever operate. The DEQ letter denying the water quality certification noted that:

…several federal permits necessary for the construction of the MVP Mainline project have been suspended or are pending, with some in litigation. In addition, the Federal Energy Regulatory Commission has issued a stop-work order on the currently incomplete MVP Mainline project. The uncertainty of the MVP Mainline project’s completion presents a critical risk to the achievability of the fundamental purpose of MVP Southgate.

Mountain Valley Pipeline LLC appealed denial of the water quality certification. The 4th Circuit Court of Appeals upheld DEQ’s  authority to deny the certification based on uncertainty that the documented water quality impacts of construction would ever be justified by energy benefits. But the court directed the state to provide more explanation of  the decision to deny certification rather than condition certification  on approval of the MVP Mainline project. On April 29, 2021 (two days after Secretary Delli-Gatti’s confirmation hearing), the Division of Water Resources issued a letter further explaining the denial decision as required by the court. 

The April 2021 letter quoted from the original DWR hearing officer’s report on the MVP Southgate project:

In the absence of the MVP Mainline pipeline’s completion in Virginia, the MVP Southgate project has no independent utility. In essence, it would be a pipeline from nowhere to nowhere incapable of carrying any natural gas, and certainly not able to fulfill its basic project purpose, while having no practical alternative. As such, prior to incurring any impacts to North Carolina natural resources, and to ensure that the maximum avoidance and minimization of impacts to North Carolina water and buffer resources occurs, a level of certainty regarding the completion of the MVP Mainline pipeline is required.

Outcomes. The Atlantic Coast Pipeline received necessary state and federal approvals,  but  Duke Energy and Dominion Energy announced the cancellation of the project in July 2020 due to cost increases, project delays, and increased uncertainty about the outcome of legal challenges to federal permits for the project.  The companies pointed particularly to a federal court decision from another state calling  into question the Corps of Engineers’ approach to permitting similar projects under Sec. 404 of the Clean Water Act. 

As noted above, DEQ’s Division of Water Resources provided additional explanation for denying the water quality certification for the MVP Southgate project as required by the 4th Circuit Court of Appeals. Mountain Valley Pipeline LLC can reapply for a water quality certification if/when legal barriers to construction of the Mountain Valley Mainline project have been removed.

Open Questions.  What is the Cooper administration policy on natural gas? Based on DEQ’s actions on the two pipeline projects reviewed since 2017, there is no policy against new natural gas infrastructure. Cooper’s DEQ approved the water quality certification for the Atlantic Coast Pipeline and denied the certification for the Mountain Valley Southgate project based on conditions peculiar to that project. Every indication is that DEQ has evaluated individual projects on their merits under existing state environmental laws and rules.

Two other issues arose in the confirmation debate: 1. The  possible need for redundancy in energy infrastructure to reduce risk of system failure; and 2. The challenges of meeting near-term energy needs during a period of transition from nearly total  dependance  on fossil fuels to greater reliance on renewable energy sources.

Pipeline companies clearly need to reduce risk of service interruption. Creating redundant pipeline infrastructure , however, would be extremely expensive — costs that would be passed on to consumers — and likely unnecessary to reduce most types of  risk. Avoiding loss of pipeline service  due to a cyber attack is best addressed by better cyber security rather than creating more  pipeline infrastructure served by the same unsecured computer system.

There is also a legitimate question about how to meet current energy demand during a transition from fossil fuels to more renewable resources.  That will require a delicate dance of demand, supply and reliability; cooperation between public utilities and state/federal agencies; outreach to communities  concerned about local impacts; and environmental organizations looking toward a different energy future. DEQ approved the Atlantic Coast Pipeline; community resistance and legal challenges by environmental organizations caused Duke Energy and Dominion Energy to abandon the project.

UNC Nutrient Study: It’s Deja Vu All Over Again (Apologies to Yogi Berra)

January 6, 2020. On December 23, 2019, the UNC Policy Collaboratory released a legislatively mandated report on nutrient pollution in Jordan Lake.  The short version: A three year, multi-million dollar study has confirmed the science and policy underlying the 2009 Jordan Lake water quality rules.

Background.  In 2002, the North Carolina Environmental Management Commission (EMC) designated Jordan Lake as having impaired water quality due to excess nutrients  (nitrogen and phosphorus) contributing to algal blooms in the lake. The EMC and  water quality staff  in the Department of Environmental Quality (DEQ) spent seven years developing a nutrient management strategy to address water quality standard violations in Jordan Lake as required by the federal Clean Water Act and by state water quality  laws.   In 2009, the EMC adopted rules to implement the final nutrient management strategy.  Following guidelines in state law, the rules required all major nutrient sources — wastewater treatment plants, agricultural operations,  runoff from new development activity and previously developed areas  — to take steps to reduce nutrient releases to the lake.  The 2009 nutrient management strategy set goals for nitrogen and phosphorus reduction to be met by a combination of wastewater treatment plant upgrades, agricultural best management practices and stormwater controls including riparian buffers along rivers and streams.

Later in 2009,  the legislature adopted the first of.a series of acts revising or delaying implementation of the Jordan Lake nutrient rules in response to complaints from  local governments and  real estate development interests.  Communities in the Haw River watershed, including Burlington and Greensboro,  voiced particularly strong objections to the rules. In 2013,  legislators directed the water quality program to test an unproven in-lake technology to reduce algal growth as a possible substitute for nutrient reduction rules and appropriated $1.35 million to support the pilot project. (See an earlier post about the “Solar Bee” pilot project.)   In 2016, the legislature created the N.C. Policy Collaboratory at UNC-CH  and appropriated $500,000 a year for three years for the Collaboratory to study  and make recommendations concerning Jordan Lake water quality.  In the meantime,  the legislature appropriated $1.3 million in 2017 for another DEQ pilot project to test algaecides and phosphorus-locking technologies to control algal growth. Both  the Solar Bee and algaecide pilot projects failed. The nutrient management rules have continued to be suspended for completion of the UNC study. 

UNC Findings. The overall conclusions of the UNC report support the findings underlying the EMC’s 2009 nutrient management strategy:

♦ An effective nutrient reduction strategy requires measures to reduce both nitrogen and phosphorus releases to the lake.

♦ The sources of nutrient loading to Jordan Lake are nearly evenly divided between point sources (wastewater treatment plant discharges) and non-point sources (runoff from developed areas and agricultural operations). Non-point sources are a slightly greater contributor to nutrient loading.

♦ The Haw River contributes the greatest nutrient load to Jordan Lake, but other factors affecting movement and concentration of nutrients cause sources in the Upper New Hope arm of the lake to have a disproportionate impact on lake water quality. The 2009 EMC rules reflected a similar conclusion and required sources in the  Upper New Hope Arm of Jordan Lake to achieve greater nutrient reductions than sources in the Haw River watershed — a 35% nitrogen reduction versus an 8% reduction by Haw River communities.

♦  Runoff from developed land contains 10 times the concentration of nutrients than undeveloped lands; areas developed before 1980 generate significantly higher nutrient concentrations than those developed later.

♦ Wastewater treatment plant upgrades provide the most cost effective nutrient reduction  (in terms of pounds of nutrients removed per dollar invested). Riparian buffers and conservation of undeveloped lands are among the most cost-effective methods of reducing non-point source nutrient loading.

New lake and watershed models developed as part of the UNC study built on earlier models used by the EMC to develop the 2009 rules. The new modeling provides additional insight into the contribution of wastewater infrastructure to nutrient loading in response to storm events.

The UNC  report also concludes that measures to reduce new nutrient releases to Jordan Lake will show the greatest benefit over the long term because lake sediments have stored nutrients over time and release those nutrients back to the water column.

 UNC Study Recommendations.   First, the gaps. The recommendations don’t directly  address specific requirements of the  2009 Jordan Lake rules although most of the study’s findings support the scientific foundation and basic structure of the rules.  The UNC study reinforces the need to  reduce  both wastewater discharges of nitrogen and phosphorus and non-point source runoff  of nutrients to Jordan Lake. The study documents that non-point sources (runoff from developed areas and agriculture) account for more than 50% of the nutrient loading to Jordan Lake; developed areas contribute much more to nutrient loading than undeveloped areas;  and maintenance of vegetated buffers between developed areas and streams is one of the most cost-effective ways to reduce nutrient loading from non-point sources.

The lead recommendation in the UNC report is largely political; it focuses on how to  fund nutrient reduction strategies.  The legislature directed UNC to look at funding mechanisms in response to the objections of upstream communities in the Jordan Lake watershed  — particularly in the Haw River arm of the lake — to the cost of nutrient reduction measures  benefitting downstream communities. In response, the report identifies a water allocation fee  on local governments that receive drinking water from Jordan Lake as a possible funding mechanism.

Imposing a fee on downstream communities experiencing pollution of their drinking water supply by upstream pollutant sources would likely be controversial. It would also represent a significant policy change. Most state water quality programs impose  pollution reduction costs primarily on  the pollution source.  A number of existing state nutrient reduction programs in other river basins have followed that model. Communities in the Neuse River basin (including Raleigh) have implemented nutrient reduction programs similar to those required in the Jordan Lake rules for more than 20 years.  Those communities have absorbed the costs of pollution reductions to reduce nutrient-enrichment problems downstream in the coastal Neuse River estuaries.

Among the other UNC recommendations:

♦ Build local government support for nutrient management measures by emphasizing the local as well as downstream benefits.

♦ Review the existing state water quality standard for nutrient over-enrichment. DEQ has already asked a science advisory panel to review the current standard which is based on chlorophyl a concentrations. The UNC report recommends continuing the review and considering whether additional water quality parameters should be considered and applied depending on the uses of different sections of Jordan Lake.

♦ Consider relocation of sewer infrastructure to reduce the risk of leaks to streams and implement programs to address failing septic systems. (The 2009  Jordan Lake rules allowed local governments to include programs to address failing septic systems as one tool to meet nutrient reduction targets.)

♦ The recommendations highlight the value of land conservation as a tool for reducing nutrient loading. The recommendations do not mention the study conclusion that riparian buffers represent one of the most cost-effective ways to reduce non-point source nutrient loading.

♦ The report concludes that the relatively small amount of agricultural production  in the Jordan Lake watershed makes the Jordan Lake agricultural trading program ineffective.

The Takeaway.  Ten years and several million dollars later, the UNC report on Jordan Lake supports the decision by the EMC and the Department of Environmental Quality to develop a nutrient management strategy based on reduction targets for all of the major nutrient sources in the watershed — wastewater dischargers, development activity and agriculture. The report also confirms a number of the key scientific principles behind the rules — including  imposition of greater reduction targets on sources in the Upper New Hope arm of Jordan Lake and requiring reductions from both point and non-point sources.

The new lake and watershed models developed under the UNC study  build on those used to develop the 2009 Jordan Lake rules and provide additional  insights on the contributions of sewer infrastructure and septic systems. The study raises questions about the efficacy of the existing agricultural trading program.

Compared to the underlying studies, the executive summary has a decidedly political tilt — emphasizing the potential to reduce costs on upstream pollution sources by assessing a fee on downstream water users and downplaying legislatively unpopular — but cost effective — use of riparian buffers.

Editorial Comment.  The EMC and water quality program staff worked for  seven years to develop a fair and effective nutrient reduction program for Jordan Lake based on science and mediated by input from all of the affected parties. Rule development included several rounds of consultation with those potentially affected by the rules — local governments, developers, farmers, water users.   The UNC report supports the science behind the EMC nutrient strategy and  implicitly emphasizes the importance of implementing the strategy as soon as possible since the benefits  will only be realized over time.

The state has already lost nearly 10 years. The Jordan Lake nutrient strategy can — and should — be regularly reviewed and adapted based on new information. The UNC study suggests some areas for ongoing work. Nothing in the UNC study supports further delay.

One stakeholder is quoted in the report as saying:

It’s important not to look at the experience of Jordan and say, “oh, what this shows is that we can’t approach things with the Clean Water Act lens, we can’t approach things through rules, a nutrient management strategy lens.” That isn’t broken. What’s broken is the political system in the state.

2019 Legislation: Environmental and Energy Laws

December 27, 2019. A  short list of environmental and energy law changes compared to recent years:

Fisheries.   As interest in  shellfish aquaculture has increased, so have concerns about the impact of the rapidly evolving aquaculture industry on water recreation and navigation.  Senate Bill 648   creates a new framework for management of aquaculture operations by allowing the Division of Marine Fisheries (DMF) to designate  “shellfish aquaculture enterprise areas” where water bottom and water column leases can be issued for shellfish aquaculture. Similar to water use zoning, the concept gives DMF the ability to direct shellfish operations toward areas already approved for the purpose instead of  simply responding to a lease application for any location of the applicant’s choosing.

The bill has some weaknesses. It doesn’t provide guidance on siting shellfish aquaculture enterprise areas.  The bill requires notice and a public hearing prior to designation of an aquaculture enterprise area, but relies on the limited notice requirements in existing statutes authorizing individual bottom and water column leases. Those existing public notice provisions in G.S. 113-202 (bottom leases)  and G.S. 113-202.1 (water column leases) only require notice by newspaper publication.  The statutes do not require direct notice to either the local government or to  owners of property along the affected shoreline.

Senate Bill 648 also creates a pilot project for shellfish aquaculture leasing in Pamlico Sound while imposing  moratoria on approval of new open-water shellfish aquaculture leases in  New Hanover County and Bogue Sound. At the same time, the bill makes it possible for DMF to approve operations to grow seed oysters and clams in marinas (which under existing shellfish rules have been closed to any type of shellfish propagation), which may relieve some pressure for new open water aquaculture leases.

Water Quality.  House Bill 812  (Nutrient Offset Amendments) provides more flexibility in projects to mitigate nutrient loading from wastewater dischargers. The amendments allow nutrient offsets for  permitted NPDES discharges to be provided EITHER  in the same hydrologic area (the current requirement) OR  at a location downstream of the discharge, but upstream of the water body subject to regulations to address excess nutrient loading. For stormwater and other nutrient sources, the law continues to require nutrient offsets in the same hydrologic area.

Section 3 of House Bill 206  (Various Transportation Changes)  requires the EMC to exempt a broader range of airport-associated development from the Neuse River riparian buffer rules. The Neuse buffer rules require vegetated buffers along streams in the Neuse River basin as a tool for reducing nutrient runoff  and excess nutrient loading to downstream estuaries. Since airport facilities also have to meet Federal Aviation Administration siting criteria,  current EMC rules exempt certain aviation-related facilities from buffer requirements and allow others to impact the buffer with mitigation.

Under the existing EMC rule,   “airport facilities” allowed to impact the buffer include structures directly related to aviation operations such as runways, terminals, maintenance buildings, administrative buildings, onsite airport parking, navigation markers,  and beacons.  The EMC rules do not exempt satellite facilities such as off-site parking or hotels, rental car facilities and other commercial development. H 206 directs the EMC to revise and broaden the definition of  “airport facility” in the rules to allow the riparian buffer exemption to apply to development of those airport-associated commercial facilities.

On-Site Wastewater.  Regulations on siting and design of on-site wastewater systems (such as septic systems) have both a public health and environmental protection purpose. The rules exist to prevent direct exposure to untreated wastewater and contamination of groundwater and nearby rivers, streams and lakes.  House Bill 268 (Amend On-Site Wastewater Laws) is a somewhat mis-titled bill that actually disapproves more than 40 rules concerning on-site wastewater systems  and reclaimed water systems amended by the Commission for Public Health in 2018. The bill may be one of the broadest exercises of the legislature’s power to disapprove agency rules since the legislature claimed that  authority under the State’s Administrative Procedure Act.

Legislative disapproval means the amended rules cannot go into effect;  prior versions of the rules remain in place in the meantime. The bill creates a task force to report back to the legislature in February 2020 on rules to replace those amended in 2018.  One purpose of the  task force (as set out in the bill ) is to make recommendations “to prevent the implementation of rules and ordinances and enforcement against the use of on-site wastewater treatment and dispersal systems in non-sewered areas of the State”.  

The disapproval bill responded to concerns from homebuilders and realtors that the amended rules will make it more difficult to develop some areas using onsite wastewater systems. In part, the controversy seems to be a continuation of past conflicts over how easy (or hard) it should be to approve innovative onsite wastewater systems for use in areas that are not appropriate for a conventional septic tank system. 

Renewable Energy.  House Bill 329 (Renewable Energy Amendments) makes several relatively minor changes to energy laws.  Section 1 of the bill exempts electric vehicle charging stations from the definition of “public utility” as long as the owner simply resells electricity supplied by a regulated public utility. Otherwise, sale of  electricity by a charging station could lead to  regulation of the facilities by the N.C. Utilities Commission under laws applied to Duke Energy and other electricity providers.

Section 2 requires the Environmental Management Commission (EMC) to establish a new regulatory program “to govern (i) the management of end-of-life photovoltaic modules and energy storage system batteries and (ii) decommissioning of utility-scale solar projects and wind energy facilities” by January 1, 2022.  The bill lists a number of issues for the EMC to consider in developing rules, including whether system components have the characteristics of hazardous waste and preferred methods of end of life management (i.e., reuse, recycling, or disposal as solid waste).

Section 3  amends the law governing how the N.C. Utilities Commission  sets avoided cost rates for an electric utility’s purchase of power from a small power producer. The law, G.S. 62-156,  generally takes into consideration the electric utility’s need for additional capacity and the availability/reliability of energy provided by the small power producer.  The law already provides an alternative mechanism for determining capacity need with respect to energy purchased from swine and poultry operations with waste-to-energy systems by reference to G.S. 62-133.8. The 2019 amendment extends special treatment with respect to capacity need to certain small hydroelectric projects (those with total capacity less than or equal to 5 MW). In effect, the change appears to lock in the renewal of existing power purchase agreements between electric utilities and small hydropower producers that were in effect as of July 27, 2017.

Boards and Commissions.  Senate Bill 381  (Boards and Commissions) amended the appointment statutes for the Clean Water Management Trust Fund Board and for the Parks and Recreation Trust Fund Board to give the Governor a majority of appointments to those boards.  S 381 continues a series of  legislative acts necessary to comply with the 2016 N.C. Supreme Court decision in McCrory v. Berger.  In that decision, the court  held that the Governor must have the power to appoint a majority of the members of any board or commission that exercises executive authority. See an earlier post  for more about the court’s decision.

S 381 also amended the Clean Water Management Trust Fund statutes to expressly give the Fund authority to accept FEMA funds for hazard mitigation and to disperse funds for projects to reduce flood risk.

Vetoed Bills.  For the first time since 2011, the legislature lacked a veto-proof majority in both chambers.  As a result, a  number of bills containing provisions related to environmental protection remain in limbo because the legislature has not yet voted to override Governor Cooper’s veto. The legislature could attempt to override those vetoes in 2020. The content of the vetoed bills will be discussed in a separate post.

Action: 2019 Budget

July 9, 2019. The 2019 legislative session got off to a very slow start. Few bills moved  before the May 9 deadline for substantive bills to pass one chamber of the legislature to stay alive. The pace picked up in the last month as both the House and Senate passed versions of a budget bill (House Bill 966)  and then agreed on a final budget. Governor Cooper immediately vetoed the budget bill for reasons unrelated to environmental provisions. (The Governor’s veto statement  criticized the legislature’s budget priorities; refusal to expand the state’s Medicaid program had been one sticking point.) This blogpost looks at some of the environmental provisions in the budget.

Funding Related to Emerging Contaminants Such as GenX.

♦ Reallocation of state funding appropriated in 2018 to extend water lines in areas with well contamination caused by GenX. In 2018, the legislature allocated $2 million to DEQ’s Division of Water Infrastructure to help local governments extend water lines to properties affected by contamination caused by per‑ and poly‑fluoroalkyl substances (PFAS) including GenX.  Section 12.13 of the  2019 budget bill  reallocates those funds for a number of projects unrelated to PFAS. In February 2019, Chemours entered into a settlement agreement  with DEQ that requires the company to provide a replacement water supply to any person whose well has PFAS contamination above the health advisory level. Under the agreement, the replacement water supply means connection to a public water system unless the well owner declines or DEQ finds it would be prohibitively expensive or unsafe.

♦ Additional funds to address emerging contaminants through water quality permitting. The budget funds five new positions in DEQ to address emerging contaminants. The positions include two new engineers to work on issuance and renewal of Clean Water Act wastewater discharge permits.

State Funding to Eliminate a Conservation Easement and Buy Back Mitigation Credits.   In an unusual (and unprecedented) provision, the legislature earmarked over $800,000 to eliminate a conservation easement on a completed stream restoration project.  The project, restoration of Little Alamance Creek in Burlington, was completed in 2012-2013. The creek had impaired water quality; the restoration project, which included replanting stream bank vegetation, was designed to improve water quality in the creek. The stream restoration project also generated mitigation credits intended to offset the stream impacts of N.C. Department of Transportation (NCDOT)  road construction projects. (Federal and state water quality permits often require the project developer to offset stream or wetland impacts by funding restoration of similar natural resources.)

The City of Burlington donated property for the conservation easement, which runs through a Burlington city park, but later had both aesthetic and public safety concerns about the completed stream restoration.  According to city staff, trees planted along the stream had not overtaken the shrubby undergrowth as expected. City officials were unhappy with the appearance of revegetated stream bank and worried that the vegetation provided cover for criminal activity.

The  budget provision requires DEQ to dissolve the conservation easement on Little Alamance Creek and reimburse funds used to purchase mitigation credits generated by the project. If NCDOT received mitigation credits from the Little Alamance Creek project as expected,  the department will have to buy  mitigation credits from other stream restoration projects to stay in compliance with its road construction permits. In that case, taxpayers will have paid for the mitigation credits twice since there is no possibility of recovering funds already spent on restoration of Little Alamance Creek. If a private developer received any of the credits generated by the project, the state buyback would be used to replace the developer’s credits. The cost is significant; the budget appropriates $837,755.00, but also directs DEQ to draw on other department funds if the actual cost exceeds the amount appropriated.

Removal of the conservation easement may allow the City of Burlington to alter the stream bank vegetation. It isn’t clear whether the city has a specific plan or what impact the changes will have on the stream’s water quality.

Delay Update of  State Water Quality Permits for Large Animal Operations. One of the policy provisions in the budget delays renewal of the water quality permit that covers most large animal operations. DEQ had completed a nearly year-long process to update and reissue the state water quality permits for large animal operations, including swine farms. The general permits set operating conditions for different categories of farms to protect surface water and groundwater from contamination by animal waste. The recently finalized general permits included some new or modified conditions, including a requirement for swine farms to monitor groundwater quality around waste lagoons located in the 100-year floodplain.

The N.C. Farm Bureau filed an appeal to challenge some of the conditions on the new general permits. In Section 12.19, the budget bill prevents DEQ from covering farms under the new general permits until 2020.   In effect, the bill delays enforcement of any new conditions and allows farms to continue to operate under the old permits while the N.C. Farm Bureau pursues its appeal.

During the delay, the budget provision directs DEQ to study whether water quality general permits should be adopted under the rule making procedures in the state’s Administrative Procedures Act. Note: As a practical matter, the process DEQ used to develop and finalize the general permits exceeded the basic public notice and hearing requirements of the APA.

Late 2018 — Bits and Pieces

January 30, 2019.  A fall trip to South Africa, followed closely by the holidays,  made October-December something of a blur.

Leopard: Thornybush Game Preserve (photo G.Whaley)

Leopards, lions, and zebra – oh my!  Also elephants, giraffes, rhinos (of the non-political variety), Cape buffalo,  baboons, uninvited monkeys at lunch, hippos, wildebeests, hyenas, warthogs and an unexpected (to me) penguin colony.

African Penguin: The Cape

 

 

 

Also, a different set of environmental challenges: drought and drinking water supply; rhinoceros poaching; managing heavily vegetated bush and grassland habitat; and protecting the Cape’s extraordinary biodiversity.

 

 

 

Back to  North Carolina developments in late 2018:

Executive Order on Climate Change and Clean Energy: On October 29, 2018, N.C. Governor Roy Cooper issued an executive order on climate change and clean energy. Executive Order 80 supports the 2015 Paris Agreement and sets several goals for the state to meet by 2025:

  1. Reduce state greenhouse gas emissions by 40% from 2005 levels.
  2. Increase the number of zero-emission vehicles in the state to 80,000.
  3. Reduce energy use per square foot in state-owned buildings by 40% from 2002-2003 levels.

The state has already made significant progress toward the first goal as a result of the 2002 Clean Smokestacks Act and 2007 adoption of a renewable energy portfolio standard (REPS) for major energy producers. (For background on the REPS law, see an earlier  post on the first of several unsuccessful attempts to repeal the REPS standard.) Those two pieces of legislation had already begun to reduce the state’s greenhouse gas emissions by transitioning more base power generation from coal to natural gas  (which produces lower levels of greenhouse gas emissions, although not emission-free)  and greatly increased development of solar and wind generation facilities.

The most direct effect of the executive order will be on state government operations. The order provides new guidance to cabinet agencies on vehicle use; energy efficiency in state facilities; and priority for  greenhouse gas reduction/clean energy  in planning and allocation of economic incentives. Some state agencies received very specific direction —  the Department of Transportation to encourage use of zero-emission vehicles and the Department of Commerce  to  use state incentives to recruit and develop clean energy businesses.

Executive Order 80 also  directs all  cabinet agencies to evaluate the impact of their activities on climate change and to

integrate climate adaptation and resiliency planning into their policies, programs and operations (i) to support communities and sectors of the economy that are vulnerable to the effects of climate change and (ii) to enhance the agencies’ ability to protect human life and health, property, natural and built infrastructure, cultural resources and other public and private assets…

Executive Order 80  now gives agencies ranging from  NCDOT  to  DEQ and commissions like the Environmental Management Commission and Coastal Resources Commission clear direction to consider the impacts of climate change in exercising their planning and regulatory authority.

It is too early to know how  agencies will respond to the mandates in Executive Order 80.  The order creates a new N.C. Climate Change Inter-Agency Council chaired by the Secretary of Environmental Quality to coordinate efforts to reduce greenhouse gas emissions, increase clean energy development and improve state government’s energy efficiency. It also requires preparation of a N.C. Climate Risk Assessment and Resiliency Plan by March 1, 2020; that process will be led by DEQ  and involve stakeholder input.

It isn’t difficult to imagine ways state agency decision-making might consider climate change adaption and resiliency. Rising sea levels and more frequent flood events could factor into planning the location of future roads and other public infrastructure as well as design standards for private development.  An executive order cannot conflict with existing statutes or give a state agency authority it does not already have under N.C. law, but it can guide the use of existing authority.

December 2018 Legislative Session (Third Extra Session):   Senate Bill 469  made two changes to state stormwater policies.  Section 26 (a) of the bill amended language in G.S. 143-214.7(b2)  that already allowed development in a  buffer required under stormwater rules as long as stormwater from the entire developed area was collected, treated and discharged in the buffer.  The provision has been amended to:

1. Apply to development in any buffer required under state stormwater rules. Previously, the exception applied only to development in buffers adjacent to shellfish waters, high quality waters, and outstanding resource waters, which are among the most highly protected waters in the state.

2. Require discharge of the collected and treated stormwater through a “segment” of the buffer. The law had originally simply required discharge of the treated stormwater through the buffer.

The more significant change may be in Section 26(b) which amends G.S. 143-214.7(b3). The law already prevented application of state stormwater rules to previously developed properties and limited application of the rules to property being partially or entirely redeveloped:

(b3) Stormwater runoff rules and programs shall not require private property owners to install new or increased stormwater controls for (i) preexisting development or (ii) redevelopment activities that do not remove or decrease existing stormwater controls. When a preexisting development is redeveloped, either in whole or in part, increased stormwater controls shall only be required for the amount of impervious surface being created that exceeds the amount of impervious surface that existed before the redevelopment.

Senate Bill 469 added a new sentence to extend those limitations to local government stormwater ordinances whether those ordinances implement state stormwater standards or have been adopted under other authority. Those “other” sources of authority could include federal Clean Water Act permits issued to local governments for municipal stormwater discharges and local government power under state law to regulate land use.  In the first instance, the new limitation on stormwater controls for redevelopment projects may conflict with the local government’s federal permit. In the second instance, the amended law could frustrate local government efforts to reduce flooding by requiring better stormwater management  as properties are redeveloped.

An example of the second problem: A developer bulldozes an old shopping center built before stormwater rules applied with the intent of redeveloping the property as condominiums.  The amended law prevents the local government from requiring any stormwater controls for the condominium project unless the new development creates more impervious surface (paved or built-on areas) than the shopping center had.  Then, the local government could only require control of stormwater from the additional impervious surface — likely to be a very small percentage of the total new development project.

The limits in G.S. 143-214.7(b3) on applying state stormwater rules to redevelopment projects had effectively shut the door on reducing stormwater pollution from areas developed before the rules existed. Extension of those limitations to local government ordinances under any source of local government authority will also  make it more difficult for cities and towns to reduce future flooding after rain events. That is a public safety as well as a water pollution problem.

One other note on Senate Bill 469.  The bill, titled “An Act to Make Various Technical, Clarifying, and Conforming Changes to the General Statutes and Session Laws”,  included substantive changes like the stormwater amendments in Sec. 26 that could not by any normal definition fall into any of those categories. In the past, the legislature has been careful not to include substantive amendments in a bill designated by title for “technical, clarifying and conforming changes”.  The moral of the story: do not judge a bill by its title.

Today: The  2019 Regular Session of the North Carolina General Assembly convenes.

Hurricane Florence: Deja Vu All Over Again

September 23, 2018.   A serious storm accompanied by flooding has many environmental impacts and most are all too familiar to North Carolina from past storms.  Once the immediate rescue phase has ended, the Department of Environmental Quality (DEQ)  has a larger role in hurricane response than the public may realize. Some of the environmental challenges:

♦  Disabled water treatment and wastewater treatment systems. Large storms can disable environmental infrastructure like water and sewer systems because of lost power, inundation by flood waters or runoff overwhelming the sewage collection system. Any of those impacts can result in release of contaminants, including untreated sewage.

♦  Disposal of storm debris.  Wind damage and flooding creates a huge volume of storm debris: downed trees; construction debris; drywall and flooring removed from flooded homes; sodden carpet; ruined furniture and appliances; animal carcasses; and hazardous materials like paint, solvents, pesticides and other chemicals. Debris from older structures may contain asbestos. DEQ’s Division of Waste Management (DWM) works with local governments to pre-approve new landfills for vegetative waste and non-hazardous construction debris before a storm hits.  But hazardous materials damaged or uncovered by the storm can complicate and slow debris removal because those materials need to be separated for disposal. Improper disposal of hazardous materials can cause groundwater or surface water contamination; burning hazardous materials with other debris may expose nearby residents to dangerous air quality conditions and create a risk of explosion.  Failing to separate and properly dispose of hazardous materials also has a cost;  the Federal Emergency Management Agency (FEMA) will not  reimburse the state for debris collection and disposal that violates federal hazardous waste laws. Unfortunately, storms never sort debris and efforts to clean out flooded homes often create piles of trash that include both hazardous and non-hazardous materials.

♦  Release of contaminants from landfills and dumps (legal and illegal) inundated by floodwaters; spills from above-ground and underground petroleum storage tanks; and releases from other types of chemical storage facilities.  The U.S. Environmental Protection Agency (EPA) emergency response program works with the state DWM and Division of Water Resources (DWR) to  respond to these environmental incidents.

♦ Clearing debris from rivers, streams and drainage ditches.  Large storms also deposit downed trees, limbs, and other debris into streams, rivers and drainage ditches obstructing flows.  Removal of debris from streams and rivers  may require a federal permit under Section 404 of the Clean Water Act. (Any method of removal that would disturb the stream bottom or riverbed requires a permit.) The U.S. Army Corps of Engineers issues the Section 404 permits, but  state water quality and coastal management staff also have a role and frequently help determine whether the permitting requirements apply to a particular stream or drainage feature. DEQ provides a guidance document on stream clearing to help citizens understand how to do the work without violating federal rules.

♦  Animal waste. Updated information on swine waste lagoons (as of noon on September 22, 2018):

Animal Operations – Swine Lagoons

Category Total # Facilities/Lagoons
Structural Damage 5 facilities/5 lagoons
Discharges (Overtopping) 28 facilities/34 lagoons
Inundation, no indicated discharges 7 facilities/9 lagoons
Freeboard 0″ 10 facilities/12 lagoons
Freeboard 0-3″ 25 facilities/35 lagoons

The table above comes from DEQ’s Dashboard. The first category, waste lagoons with structural damage, need repair to stop the release of swine waste through the damaged  lagoon wall. Lagoons that are overtopping (the second category) have been inundated by flood waters and are spilling wastewater mixed with floodwater over the top of the lagoon wall. The other three categories describe swine waste lagoons that are full or nearly full, but not actively releasing wastewater to the environment.

All of these lagoons (and an unknown number of additional lagoons with only slightly more storage capacity) may continue to be a concern for weeks or months beyond the storm. The problem is this:  the entire swine waste management system depends on the ability to regularly spray wastewater from the lagoon onto a crop as fertilizer. Spraying down the lagoon level makes room for storage of new waste coming from the hog houses.  State permits for lagoon and sprayfield systems limit spraying to the amount the receiving crop can use as a nutrient (to avoid contaminating groundwater with excess nitrogen or phosphorus) and prohibit spraying swine waste on already-saturated ground to avoid runoff.  Under those permit conditions, spraying down lagoon levels may not be possible for some period time after the storm has ended because surrounding agricultural lands remain saturated.  In the past, the tension between a need to lower lagoon levels to prevent additional breaches and the environmental impact of spraying wastewater on saturated soil has led to some difficult and controversial policy decisions. Farms have also sometimes needed to remove animals for a period of time because of the lack of waste storage capacity.

Although poultry operations get less media attention than the swine farms, flooding also sweeps poultry waste into floodwaters and creates similar problems for post-storm land application of poultry waste onto agricultural fields.

Coal ash releases. Historically, much of the coal ash produced by coal-burning power plants in N.C. has been disposed of in open ponds that work on the same principle as the swine waste lagoons – solids go to the bottom of the pond and water levels are lowed periodically by pumping from the top layer of water. The difference is that Duke Energy has Clean Water Act permits allowing discharge of water from the top of the coal ash ponds into a nearby river, lake or stream.  Permit conditions  limit the volume to levels that will not cause a violation of water quality standards in the water body receiving the discharge. Hurricane Florence has already caused a significant breach in the dam separating Sutton Lake from the Cape Fear River. The lake receives a wastewater discharge from the Sutton plant’s coal ash pond. DEQ has also documented erosion/wash-out of coal ash from older, now vegetated coal ash basins at the Lee Plant (Goldsboro). DEQ has posted video of the Sutton site and photographs of washover from the Lee ash basin on the Dashboard coal ash page.

Going forward, the question will be what kind of repair/restoration/remediation may be required to address the coal ash releases.

Disposal of dead animals. Disposal of a large number of animal carcasses following a storm has environmental implications, but falls under the responsibility of  the State Veterinarian in the Department of Agriculture and Consumer Services. To date, the Agriculture department has reported over  3 million poultry and more than 5,000 swine killed by Florence and those numbers may rise.  Under state law (G.S. 106-403), dead animals can be buried under three feet of soil or disposed of in any other way approved by the State Veterinarian.  Some of the alternative disposal methods used in the past include composting (particularly of poultry); rendering for use in animal feed; and incineration.  In the past, burial has raised  concern about potential for groundwater contamination since many of the large animal operations affected by flooding are located in southeastern counties with naturally high water tables.   Although G.S. 106-403 requires a burial site to be at least 300 feet from a  “flowing stream or other public body of water”, the law doesn’t expressly take groundwater impacts into consideration.

Dam failures and landslides.  DEQ’s Division of Energy, Mineral and Land Resources responds to dam safety emergencies and oversees repair/reconstruction work under the state’s Dam Safety Act. The same division has a role in responding to landslides. Heavy rains associated with Florence caused several landslides in mountain counties that closed roads, but thankfully did not cause any deaths.

Rebuilding.  Looking beyond storm response and cleanup, rebuilding in coastal areas becomes a significant permitting challenge for state water quality and coastal management agencies.  Once floodwaters recede,  staff in the state Division of Coastal Management (DCM) helps FEMA do initial damage assessments to distinguish repairable buildings from those that have more than 50% structural damage and require reconstruction. Some number of the  heavily damaged/destroyed  structures will  raise  policy issues about whether or  how to allow rebuilding.  Older, “nonconforming”  structures that did not meet current building code, zoning or coastal development rules before the storm may  not be able to meet those standards to rebuild.  Some of the most difficult post-storm reconstruction decisions involve buildings that cannot meet current stream buffer or oceanfront setback requirements.

DCM uses special emergency permits developed in response to past storms to allow routine reconstruction to begin quickly. The emergency permits cover reconstruction of buildings and accessory structures (such as docks) that can be rebuilt in their previous location and within the same footprint.

Update note: The original blogpost has been revised to clarify that the dam between Sutton Lake and the Cape Fear River breached rather than the coal ash pond.

2018 Environmental Legislation Part 2: Environmental Bills

July 28, 2018.  In addition to the environmental policy changes in the budget, several  bills amended environmental laws. Among the more significant changes:

Stormwater. Sec. 14 of House Bill 374  (2018 Regulatory Reform Act) directs the Environmental Management Commission  to study delegated local stormwater programs to identify: 1. local governments that enforce requirements exceeding those in state law, including requirements for inspection and maintenance of stormwater systems; and 2. those that since August 1, 2015 have taken enforcement actions based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit that exceed the requirements in state law.

When a water body chronically violates a water quality standard, the  Clean Water Act requires a limit on discharge of the problem pollutant to eliminate the  water quality violation –  a “total maximum daily load”. The TMDL caps  total releases of the pollutant to the impaired water body. Each wastewater treatment plant or industry that discharges wastewater directly or indirectly to impaired waters receives a permit limit  for the pollutant;  the sum of all the permitted discharges  cannot exceed the cap.  In areas like the Jordan Lake watershed,  stormwater rules have been used as an additional tool for meeting a TMDL for nutrient pollution  by also reducing the release of nutrients in runoff.  The H374 provision refers to this use of stormwater regulation as part of a larger TMDL for nutrient pollution and enforcement of the TMDL  through a federal stormwater discharge permit.

The provision is the most recent  in a series of legislative efforts to limit the scope of local as well as state stormwater requirements. It’s interesting that the  bill specifically targets  local requirements for inspection and maintenance of stormwater systems that may be required to comply with state and federal law. It isn’t clear how local  enforcement actions “based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit” could exceed  requirements in state law since the state develops the TMDLs and issues the NPDES  permits.

Coastal Stormwater. Sec. 16 of House Bill 374 in effect creates a new coastal stormwater exemption for older subdivisions. State coastal stormwater rules require residential subdivision development  near sensitive coastal waters to  control stormwater  to reduce pollutant runoff.  The stormwater management plan often includes limits on the amount of paved or built-on area in the subdivision to provide adequate natural area to absorb runoff. The impervious surface limits appear in the developer’s  stormwater permit for construction of the subdivision.  Once the subdivision has been significantly built out,  the developer typically transfers ownership and control over all common areas — including the stormwater system —  to a homeowners’ association.  To insure stormwater standards continue to be met, coastal stormwater rules require the developer to reflect those impervious surface limits in the development’s restrictive covenants. People who buy or build in the subdivision are bound by the restrictive covenants, which can be enforced by the HOA or the state. There have been a few sympathetic situations in the past where a developer turned a subdivision that was already in violation of its stormwater permit over to the HOA, leaving the HOA to contend with an immediate enforcement action.  But there have also been situations where subdivision residents added impervious surface (expanded parking areas, storage buildings, home additions) in violation of the restrictive covenants after the developer left the picture.

The new provision applies to subdivisions platted 20 or more years ago without regard to when construction in the subdivision actually began. Under H374, a  subdivision with excess impervious surface  will be “deemed to be in compliance” with the impervious surface limits in state stormwater rules if the HOA didn’t receive a notice of  non-compliance at the time responsibility for the system transferred from the developer to the HOA.

The provision may have unintended consequences. First,  it’s not clear how the provision will affect enforcement actions against a developer who violated the stormwater permit during construction since the law “deems” the subdivision to be in compliance. The provision also allows a subdivision to retain impervious surface added long after transfer of ownership from the developer in violation of subdivision restrictive covenants. In these older platted subdivisions, H374 deems all excess impervious surface added before  January 1, 2017 to be in compliance with the stormwater rules.

Swine waste management. The 2018 Farm Act, Senate Bill 711 greatly limits nuisance lawsuits against swine operations. See an earlier post for an in-depth discussion of S711.  The new law only applies to nuisance claims filed after S711 became law, so it does not affect dozens of nuisance claims already filed on behalf of people living near swine farms. Although clearly a response to the swine farm nuisance lawsuits, the new restrictions on nuisance claims apply to any kind of agricultural or forestry operation.