Category Archives: Nutrient Pollution

Reforming Riparian Buffers Out of Existence

May 7, 2015.  Yesterday, the N.C. House approved House Bill 760 (Regulatory Reform Act of 2015) after adopting several amendments. House Bill 760 has  attracted a lot of media attention because of  the renewable energy provisions.  Less attention has been paid to part of the bill that will significantly weaken use of riparian buffers to reduce water pollution.

An earlier post  described the original riparian buffer provisions in House Bill 760. By amendment,  the House changed the provision on measurement of riparian buffers adjacent to coastal wetlands.  The new language requires the buffer to be measured from the normal water level, recognizing that some coastal wetlands regularly flood on the tides. The bill continues to have confusing language on  local government authority  to adopt riparian buffer ordinances outside of the river basins and watersheds covered by state buffer rules. Amendments  improved those provisions a bit,  but I am not sure even the amended bill  allows for all of the circumstances in which a local government may need to adopt a buffer ordinance to meet state and federal environmental standards.

But in what may be the most under-discussed section  of House Bill 760, the bill  still creates an exceptionally broad exemption from riparian buffer rules that apply in the state’s nutrient impaired river basins and watersheds. None of the amendments  to House Bill 760 narrowed the scope of the  buffer exemption.  In  areas covered by state nutrient sensitive waters (NSW)  buffer rules, the bill exempts all tracts of land platted before the buffer rules went into effect — even if the property could be developed for its intended purpose in compliance with the buffer requirement. (There are already exemptions and variances that cover previously platted lots that cannot be developed in full compliance with the buffer requirement.) The only condition on the exemption:

Other than the applicable buffer rule, the use of the tract complies with either of the following:

a. The rules and other laws regulating and applicable to that tract on the effective date for the applicable buffer rule set out in subsection (a) of this section.

b.The current rules, if the application of those rules to the tract was initiated after the effective date for the applicable buffer rule by the unit of local government with jurisdiction over the tract and not at the request of the property owner.

The conditions  don’t narrow the exemption  much — if at all.  Enforcing (a)  requires someone in the present to  determine whether use of the property complies with laws and rules in effect as much as 15 years ago.  And (b) appears to be the “Get Out of Jail Free” card that allows a property owner to claim the exemption based on meeting all current local ordinances other than the buffer rule. Unless  I am missing something, the property owner can just opt out of the riparian buffer requirement as long as a development project meets other current standards.

The exemption applies whether the riparian buffer rules are enforced by the state or by a local government with  delegated authority to enforce the  buffer requirements.  The exemption also seems to apply to both undeveloped properties and to properties already developed and currently in compliance with the buffer requirements.  If so, owners of developed properties would be free to clear vegetation and create new encroachments in the buffer. (Failure of the bill to distinguish between developed and undeveloped properties in applying the exemption criteria may have led to some unintended consequences —  although the exemption language is so aggressively broad,  I am not sure that is the case.)

The buffer  rules are  part of  broader  water quality restoration plans designed to meet  federal Clean Water Act requirements. The Clean Water Act requires the state  to adopt a Total Maximum Daily Load (TMDL) —  a cap —  for any pollutant causing impaired water quality. A number of state  water bodies, including the Neuse River estuary, Falls Lake and Jordan Reservoir,   have had impaired water quality due to excess nitrogen and phosphorus.   For those river basins and watersheds, the nutrient management rules provide the underpinning  for  TMDLs that set nitrogen and phosphorus reduction targets.

North Carolina ‘s longstanding  policy has been to share the burden of pollution reduction among all of the major nutrient sources so the rules include tighter controls on wastewater dischargers; measures to reduce the amount of nitrogen and phosphorus leaving agricultural lands; and stormwater controls and riparian buffer requirements to reduce nutrient runoff from developed areas.  Each set of nutrient management rules reflects a long negotiation  involving  all of the  interests  affected — local governments, agriculture, landowners, real estate developers, environmental organizations — to balance the pollution reduction burden.

The House Bill 760 buffer exemption has the potential to upset the balance of the nutrient management plans and jeopardize the state’s ability to meet nutrient reduction targets in the TMDLs.  Understanding the impact of the exemption will require the answers to a number of questions yet to be asked or answered in the legislative debate:

1.  How many properties in each nutrient sensitive  river basin or watershed potentially qualify for the exemption and what percentage of riparian area  could be affected?

2.  How much nutrient reduction has the Division of Water Resources credited to protection of the riparian buffers in the approved TMDLs?

3.   Would the exemption affect the state’s ability to meet nutrient reduction goals for these impaired water bodies?

4.  Would the state have to ask for more nutrient reductions from other sources (such as wastewater treatment plants and agricultural operations) to make up the difference?

The bill now goes to the Senate, which has more often been the starting point for legislation to  limit use of stormwater controls and riparian buffers to restore water quality in impaired waters.

2015 Environmental Bills — Part II

April 17, 2015. A continuation of the previous post. Not a complete list, but hopefully  most of the significant bills.

Amend Environmental Laws.  In the category of you just can’t have too many — there are actually three “Amend Environmental Laws” bills this session (so far).  As noted in the previous post, House Bill 157 (Amend Environmental Laws) has already been enacted into law and House Bill 593 (Amend Environmental Laws-2)  amends  laws allowing reimbursement for third-party damage claims as a result of leaking petroleum storage tanks. I missed House Bill 576 (Amend Environmental Laws-1); at the moment, the bill  amends  solid waste laws to allow  the white goods tax (currently used by local governments to manage discarded refrigerators and other large appliances) to also be used for programs to manage discarded electronic devices.    Amend Environmental Laws-1 may also pick up additional provisions as it moves through committee.

Contaminated Sites. House Bill 748 (Establish Contamination Source Removal/Disposal Bd) creates a new full-time  (salaried) board to take over DENR’s responsibility for cleanup of contamination at pre-1983 landfills and other contaminated sites. The “pre-1983 landfills” are unlined waste disposal  sites — in some cases,   simply  dumps –that stopped operating before 1983 to avoid having to comply with federal standards for waste disposal facilities.  Many have groundwater contamination.  A 2007  state law  gave DENR responsibility for assessing and remediating the sites. Many of the landfills had been operated by local governments, so the 2007 legislation freed local governments of the potential environmental liability in return for a state solid waste disposal tax to fund cleanup.  House Bill 748  expresses concern about the slow pace of remediation.  It will be interesting to get more of the back story on the bill.  The concern may be as much about unspent funds earmarked for the cleanup as it is about unremediated contamination;  a  pot of money always attracts attention.  Reality is that contaminated sites require a  lot of assessment work before actual cleanup can begin.  Most  state-funded remediation programs have had a slow start up before making significant outlays for remediation.

Also,  a note that  House Bill 639 (Risk-based Remediation Amends) proposes the same amendments to remediation laws that appear in the Senate regulatory reform bill. You can find a description of those provisions in an earlier post.

Fracking. House Bill 773 would strengthen  requirements for public disclosure of chemicals used in hydraulic fracturing fluid.

Riparian Buffers. House Bill 760 is the  House regulatory reform bill.  The environmental provisions include significant changes to state laws allowing use of riparian buffers to protect water quality. It isn’t clear exactly how broad the bill’s restrictions on local government buffer ordinances are intended to be.  The bill amends a law written to allow  state delegation of riparian buffer programs under the nutrient sensitive waters (NSW) rules to local government, but  some of the bill language could be interpreted to prohibit local adoption of riparian buffer ordinances for any other purpose:

Units of local government may impose restrictions upon the use of riparian areas as defined in 15A NCAC 02B.0202 only within river basins where riparian buffers are required by the State.

Local riparian buffer ordinances  are sometimes adopted in response to other  state/federal water quality mandates  — such as Phase II stormwater permit conditions, water supply watershed regulations and endangered species management plans. So a local buffer ordinance may be needed to meet a water quality standard or  permit condition, but  not specifically required under state rules applicable to the entire river basin.  Assuming  the bill did not intend to prohibit use of riparian buffer ordinances to meet  other state and federal water quality mandates, it would be helpful to make that clear.

In  areas covered by the NSW buffer rules, the bill exempts residential lots platted before the buffer rules went into effect — even if the property could be developed for its intended purpose in compliance with the buffer requirement. (There are already exemptions and variances that cover previously platted lots that cannot be developed in full compliance with the buffer requirement.)  The buffer  rules are  part of  broader  water quality strategies designed to meet  federal Clean Water Act requirements. The Clean Water Act requires the state  to adopt a Total Maximum Daily Load (TMDL) –in effect, a cap —  for any pollutant causing impaired water quality. A number of state  water bodies, including the Neuse River and Falls Lake,  have impaired water quality due to excess nutrients  — particularly nitrogen and phosphorus.   The nutrient management rules provide the regulatory  underpinning  for  TMDLs that set nitrogen and phosphorus reduction targets for  those  rivers and lakes.    The rules include  riparian buffer requirements as a critical  tool in reducing the amount of nitrogen and phosphorus that runs off the land into surface waters. One question may be whether such a broad exemption from the buffer rules will allow the state to meet the federally-approved TMDLs.

The bill would also require that riparian buffers on shorelines bordered by coastal wetlands or marshland be measured from the waterward edge of the wetland. The term “coastal wetland” includes both wetlands that regularly flood on the tides and wetlands that flood on wind tides and seasonal high tides.  Under the provision, the “buffer” would often consist of wetlands with a frequent, direct  connection to coastal waters;  in some cases,  the buffer would effectively be in the water. The change would seem to defeat the purpose of having a buffer to allow polluted runoff to infiltrate through the soil rather than go directly into the water.

Stormwater. On the face of it,  House Bill 141 (Stormwater/Flood control) authorizes cities to use existing stormwater management programs to address flood risk by purchasing properties at high risk of flooding, elevating existing structures, and retrofitting  structures to reduce flood risk. The bill seems  intended to allow  cities in more populated counties to expand the purpose of existing stormwater programs to include flood management as well as water quality protection.  (The bill would limit the new authority to cities in a county with a population of 910,000 or greater and at least one city with a population of 500,000 or greater.)  One possible pitfall  — the bill could be interpreted as limiting the authority of other North Carolina towns and cities  to take similar actions through flood hazard mitigation projects.  For example, the small coastal town of Belhaven  has done a major flood hazard mitigation project  to elevate structures in areas repeatedly flooded due to hurricanes.   House Bill 141 may need to be clarified to avoid undermining cities and towns’  existing authority  to reduce flood hazards.

Regulatory Reform and the Environment II: Targeting Environmental Rules

November 21, 2013.   In North Carolina,  “regulatory reform” has had a strong focus on environmental rules for  nearly twenty years. An earlier post sketched a very broad history of regulatory reform in N.C. starting with the creation of the Rules Review Commission in 1986. But from 1977 into the early 1980s,  the General Assembly  actually had an Administrative Rules Review Committee made up of legislators. The committee tracked the number of rules adopted by state agencies and reviewed rules for statutory authority. I was able to find committee reports from 1979-1983. (After that, the online  trail went cold.)  The reports list all of the rules the committee objected to for lack of statutory authority and how those objections were resolved. Environmental rules didn’t  receive  much   attention from the committee; some of the most common objections concerned rules assessing fees not authorized by law; state agencies creating criminal penalties by rule;  and professional licensing  boards overstepping their authority.

Environmental rules may have had a lower profile simply because of  the times. Congress  had just adopted the major federal environmental protection laws  in the early to mid-1970s —  the Clean Air Act  in 1970, the Clean Water Act  in 1972, the  Safe Drinking Water Act in 1974 and the Resource Conservation and Recovery Act (regulating hazardous waste)  in 1976.  In the 1970s and early 1980s,  state environmental agencies were  adopting rules  needed to run delegated permitting programs under those federal laws: water quality  and air quality standards; drinking water regulations;  hazardous waste permitting rules;  and regulations for petroleum underground storage tanks. Environmental rulemaking may not have been without controversy, but  there was also significant support for environmental programs and for the most part  the General Assembly seemed to let the  regulatory agencies  handle the controversies.

That started to change as water quality rules in particular began to have a greater impact on development activity. The first generation of  environmental permitting rules largely affected local government and  industry.  In the water quality program, local government wastewater treatment plants  and industries directly discharging wastewater to a stream  needed a Clean Water Act permit.    A developer only needed an environmental permit if the project involved filling wetlands or a segment of stream.  As  the state  began to grapple with the impact of development activity on  coastal resources and water quality in the late 1980s, environmental  permitting came to have a much greater effect on developers and private property owners.

By 1984, the state’s Coastal Resources Commission had adopted the first standards for development on the state’s ocean and inlet beaches. Those rules included oceanfront setbacks and restrictions on use of seawalls and jetties to protect oceanfront structures from erosion.  In the late 1980s, the state’s water quality program  began  work on  rules to address high bacteria levels in coastal shellfish waters.  Those  rules included the first state stormwater management requirements for new development projects.  Since then, a  series of water quality initiatives have used stormwater  standards, density limits and  riparian buffers to reduce the impact of polluted runoff from developed areas. A combination of density limits, buffers and stormwater controls became part of the basic water supply watershed program designed to prevent pollution of drinking water supplies. Those same tools became part of the comprehensive water quality strategies to reduce nutrient over-enrichment in the Tar-Pamlico River, Neuse River,  Falls Lake and Jordan Lake.  In the nutrient  strategies,  development standards represented one part of a much larger set of pollution reduction measures  that also  included  tighter controls on wastewater discharges and  best management practices to limit agricultural runoff.

Legislative  Disapproval of  Environmental Rules.  Legislative action on regulatory issues can  take other forms, but tracking disapproval bills gives a fair indication of where legislative attention has been  focused. For the first few years after the General Assembly amended the Administrative Procedure Act to allow for legislative disapproval of rules, virtually all of the disapproval bills concerned environmental rules.  The first disapproval bills introduced in the General Assembly (in 1998) targeted the Neuse River stream buffer rules and the Tar-Pamlico nutrient  rules (which also included buffer and stormwater requirements).   Based on a  search of the General Assembly bill database, legislators introduced bills to disapprove at least 41 state agency rules between 1998 and 2012.   Sixteen of the disapproval  bills  targeted environmental protection rules;  in some cases, a single bill  covered multiple rules. Another four bills proposed to disapprove Wildlife Resource Commission regulations. All of the other regulatory programs in state government (public health, worker safety, building code, occupational licensing boards, food safety, insurance regulation, etc.)  accounted for just another 16 disapproval bills during the same period. (See Legislative Disapproval Bills for a complete  list of the disapproval bills that I  found.)

Of the 16  bills to disapprove environmental  rules, ten concerned water quality rules.  The list  includes the Neuse River  buffer rules, the Tar-Pamlico River nutrient rules, coastal stormwater rules, rules classifying streams as trout waters or Outstanding Resource Waters,  water quality standards for municipal storm sewer systems,  and the Falls Lake and Jordan Lake nutrient management strategies. That list of water quality rules includes  the most debated (and negotiated) environmental rules adopted in the last 15 years, addressing some of the state’s most complicated water quality  problems. One common thread  is that all of those regulations  use development standards as one tool to address a water quality problem. The other common (and related) factor is that all encountered opposition from realtors,  developers, and owners of waterfront property.

Amending the APA to make environmental rulemaking more difficult. There has also been an effort to make environmental rulemaking more difficult by putting limits or requirements on environmental rules that don’t apply to other kinds of regulations. In 2005, the General Assembly  amended G.S. 150B-21.4 ( fiscal notes on rules) to require a special fiscal analysis of environmental rules — and only environmental rules — affecting state highway projects. The change responded in part to expansion of   stormwater  requirements,  which affected state highway projects as well as conventional building projects.

In 2009, several House and Senate bills proposed to put a moratorium on  rulemaking by the state’s Environmental Management Commission (the citizen commission  that adopts air quality and water quality rules).  House Bill 1335 actually passed the House and received a favorable report from a Senate committee before being pulled off the Senate floor without a vote.  But the 2011 Regulatory Reform Act, Session Law 2011-398, picked up the effort to restrain environmental rulemaking  and put new  limits on environmental rules that do not apply to other state rules.   G.S. 150B-19.3 prevents a state environmental agency from adopting a rule that is more stringent than a corresponding  federal environmental rule except in very limited circumstances.  As a practical matter,  the new law  will  be much more difficult to apply than legislators may have expected. Many federal environmental rules  provide  a framework for regulation rather than comprehensive standards and permitting procedures, making the “more stringent than” comparison difficult to impossible — although it should provide fertile ground for argument.  More about the policy implications of handcuffing state environmental regulations to federal rules in  a future  post.

The focus on environmental regulations continued in the  2013 Regulatory Reform Act, Session Law 2013-413.  The  most recent  legislation requires review of existing rules every ten years causes rules to automatically expire if the review does not occur. Although the review requirement  applies  to all state regulatory programs, the legislation specifically directs the  Rules Review Commission to schedule existing state water quality and wetland rules for the first round of review in 2014. The legislation also puts a one-year moratorium  on adoption of local government ordinances that address environmental issues  covered  by state and federal environmental rules. During that year,  the legislature’s Environmental Review Commission will study local government authority to adopt environmental ordinances. Like the 2011 limitation on state environmental rules, the moratorium on local ordinances almost certainly has some unintended consequences. More about that in a future  post as well.

Why has regulatory reform come to focus so heavily on water quality rules?   In one way, water quality rules seem  to be an odd focus for so much regulatory reform activity since federal requirements drive so many of the rules.  But while  federal law requires the state to  reduce  pollution causing impaired water quality  (like the nutrient problems in the Tar Pamlico River, Neuse River, Falls Lake and Jordan Lake), federal rules do not dictate the remedy.  The legislative disapproval bills have targeted the remedy —  a comprehensive strategy that reduces direct discharges of the pollutant (from wastewater treatment plants and industrial dischargers) and indirect runoff from agriculture and developed areas.

In these instances, things happening under the banner of “regulatory reform” are not so much about eliminating unnecessary and burdensome regulations. It is really about how the state will  solve complicated environmental problems and whether  the burden of pollution reduction will be shared by all of the sources contributing to the problem.  Since  2013  legislation also delayed further implementation of the Jordan Lake rules to  convene a  legislative study committee on Jordan Lake water quality (see Session Law 2013-395), the current General Assembly will have  a chance to  struggle with  those questions.

Legislative Wrap-up I: Water Quality

July 30, 2013:  A summary of legislative action on water quality-

Budget-  The final budget directs the Department of Environment and Natural Resources (DENR) to combine programs in the Division of Water Quality (DWQ)  and the Division of Water Resources DWR) and reduces the budget for the reorganized programs by $2 million.  The $2 million cut amounts to a 12.4% reduction to the combined programs. The budget also make two specific  program cuts  that reduce appropriations for water resource and water quality programs by another $735,257.  Total reductions may go even  higher than $2.7 million if water resource/water quality  programs also share in the  2% department-wide reduction required by  the final budget.   Although both the Division of Water Resources and the Division of Water Quality deal with water, the two have very different responsibilities and little overlap in functions; it  will be  difficult for  the reorganized programs to absorb another 12.4 % cut  without hurting program delivery.

Division of Water Quality (DWQ) has responsibility for preventing and reducing water pollution in the state’s rivers, lake, streams and groundwater supplies.  By delegation of authority from the U.S. Environmental Protection Agency, DWQ  issues federal Clean Water Act permits to wastewater and stormwater  dischargers. DWQ also issues state water quality permits for animal waste management systems, injection wells, and for land application of waste.

Division of Water Resources monitors water supply – the amount of water in rivers, lakes, streams and aquifers rather than its quality. DWR has responsibility for state and local water supply planning; drought monitoring and drought response; and approval of  water transfers from one river basin to another (for example, taking water from an intake on the Neuse River to provide drinking water to a city  in the Cape Fear River basin).  The Public Water Supply section in DWR enforces the federal Safe Drinking Water Act, which regulates drinking water systems to ensure that the water coming out of the tap is safe to drink.

Both divisions have river basin planning programs –  DWR water supply plans  use data on water use to model for future water supply  and DWQ  water quality plans track data on pollutant levels,  identify sources of  pollution and provide a foundation for addressing water  quality  problems.  The two types of planning complement each other, but neither can take the place of the other.  It will be important to continue to have strong water quality and water supply planning programs if the state is to have a scientific and technical basis for good water policy decisions.

The budget will test DENR’s  ability to continue to deliver good science, timely permit reviews, compliance assistance, and enforcement with fewer resources. The department will also have to keep an eye on the effect of reduced state appropriations on  federal grants supporting programs in the two divisions. The state receives a significant amount of  federal grant money to support activities required under the delegated Clean Water Act and Safe Drinking Water Act programs.  Those grants require a certain level of state “match” money — which is often provided in the form of state-funded positions in those programs.

Jordan Lake –  Legislation delays further implementation of the Jordan Lake Nutrient Strategy for three years  (Senate Bill 515).  The General Assembly had already delayed  the original Jordan Lake compliance dates for reducing  the amount of  nitrogen and phosphorus in wastewater discharges (until 2016) and for implementing new development stormwater programs (until 2014). The practical effect of the bill will be to  push those dates out three more years.  A number of local governments in the Jordan Lake watershed have already started implementing  local stormwater ordinances and can continue with those programs. The purpose of the delay is to allow the state to “[explore]  other measures and technologies to improve the water quality of the Lake”.  A related budget provision  earmarks   $1.35 million from the 2013-2014 appropriation for the Clean Water Management Trust Fund  for a pilot project to test the use of technology to improve water quality in Jordan Lake.   The budget provision describes the technology to be tested very specifically in three pages of bill text and seems  to direct funds to a particular product.  Both in committee and on the floor of the House, legislators identified the technology as SolarBee— a technology used to aerate water tanks and raw water reservoirs.  The bill exempts the pilot project from normal state contract procedures, which means DENR will not be required to advertise for bids.

Prospects for the success of the pilot project are already in doubt. A  prominent North Carolina scientist, Professor Emeritus Kenneth H. Reckhow of Duke University, has said that aeration technologies are not effective in large water bodies like Jordan Lake.  Even if the  technology can improve in-lake conditions, the U.S. Environmental Protection Agency  has put the state on notice that  in-lake treatment cannot substitute for pollution reductions required under the Clean Water Act (7_10_2013 Letter to Rick Glazier re B Everett Jordan Reservoir TMDL-1).  If EPA holds to that position, the technology  will fail its primary purpose — which is to relieve upstream communities in the Jordan Lake watershed  of the need to  invest in wastewater treatment plant upgrades and stormwater controls on new development.

Groundwater (and possibly coal ash) – Section 46  of  House Bill 74 (Regulatory Reform Act)  seems to narrow DENR’s ability to address groundwater contamination caused by a permitted waste disposal site.  When the state issues a  permit for land application of  waste or for  waste disposal in a landfill, the permit sets a groundwater compliance boundary. Some degree of groundwater contamination will be allowed inside the compliance boundary,   but the permit holder cannot cause groundwater  standards to be violated outside the compliance boundary.   The new language in House Bill 74  continues to allow the Environmental Management Commission (EMC) to set compliance boundaries by rule and by permit, but creates  a presumption that the compliance boundary will be the property line. (By comparison, landfill permits have  generally set the groundwater compliance boundary at 250 feet from the actual waste disposal area.)

The bill then goes on to limit the circumstances in which  DENR can require  “cleanup, recovery, containment, or other response” to groundwater contamination inside the compliance boundary. Before requiring any action inside the compliance boundary, DENR would have to show that the groundwater contamination: 1. has already caused a violation of water quality standards in nearby surface waters or can reasonably be predicted to cause a water quality standard violation; 2. presents an imminent threat to the environment or to public health and safety; or 3.causes a violation of groundwater standards in bedrock (which seems to mean contamination of deep groundwater).

The presumption that the property line will be the compliance boundary  will likely create pressure on the EMC to allow much larger compliance boundaries  than in the past. Expansion of the compliance boundary carries with it the possibility of  larger areas of groundwater contamination. The new law also makes it more difficult for  DENR   to require  a permit holder to take action inside the compliance boundary –even to contain or reduce the flow of contaminated groundwater off site.   DENR could only require steps to contain contaminated groundwater by showing that the groundwater contamination had caused –or will cause — a specific water quality violation or an imminent threat to health, safety or the environment. The fact that the contamination has moved beyond the compliance boundary (and perhaps already migrated off  the property and toward a river or lake) will not be enough. The clear risk will be that  acting only  after a problem already exists will create a larger and more expensive problem to remedy in the future.

The provision appears to be linked to an ongoing controversy and threatened litigation over groundwater contamination and seeps from ponds where coal-fired power plants have disposed of coal ash. The Catawba Riverkeeper has filed a notice of intent to sue under the Clean Water Act over contamination from two coal ash disposal sites — a  Duke Energy  coal ash pond associated with the Riverbend Steam Station and a Progress Energy coal ash pond in Asheville. The Duke Energy coal ash pond is located on the banks of Mountain Island Lake and near a water intake for the City of Charlotte.  Monitoring around the coal ash pond has detected contaminants in groundwater that exceed groundwater standards, but the Division of Water Quality has not yet decided whether corrective action will be necessary. The Riverkeeper’s complaint claims that contaminants from the coal ash are reaching the lake in seepage from the impoundment and through a groundwater connection to the lake. The House Bill 74 language means that groundwater violations alone –even beyond the compliance boundary — would not necessarily require  steps  to  contain  an ongoing flow of contaminated groundwater to the lake.  DENR would first have to show that the groundwater contamination is causing or will cause an actual water quality standard violation in the lake or  an imminent threat to health, safety or the environment.

Regulatory Reform – More on regulatory reform in a later post, but House Bill 74 includes a requirement that agencies review and readopt existing rules of “substantive public interest”   every ten years.  The bill defines “substantive public interest” so broadly that it will  cover  every environmental rule of any real substance. The state’s Rules Review Commission will set the initial schedule for review of rules, but the bill directs the commission to schedule surface water and wetland standards for review in the first round of rule review.

Miscellaneous – This post only covers the most significant water quality legislative. House Bill 74 contains a number of other minor changes, including technical amendments to the laws on permitting animal waste management systems and an exemption from riparian buffer requirements for agricultural ponds.

Failed Water Quality Legislation – One major change did not happen. The N.C. Homebuilders Association had pushed legislation to eliminate state water quality permitting requirements for wetlands that do not fall under federal Clean Water Act permitting jurisdiction. An earlier post provides some background on the difference between federal and state wetlands jurisdiction.  The language first appeared in a Senate farm bill (Senate Bill 638), but was dropped from the bill once it reached the House. The Senate agreed to the change — possibly because farmers already have broad exemptions from wetland permitting requirements. During the last few days of the legislative session, the exemption language popped up again  in a Senate committee substitute for House Bill 938. The House sent the bill to committee and never took it up for a concurrence vote. The bill will still be eligible for consideration next year when the General Assembly reconvenes in May.

Jordan Lake and EPA Action to Reduce Nutrient Pollution

July 18, 2013:  As things now stand, Senate Bill 515 (Jordan Lake Water Quality Act)  will either repeal the state’s water quality rules  for Jordan Lake (Senate version) or delay implementation of the rules for another three years to investigate technologies that may reduce water quality  problems  caused by nutrient pollution (House version). With the bill still under consideration, some background on how issues of nutrient pollution are playing out nationally and where N.C. stands.

The Clean Water Act requires the state to  reduce  pollutants that cause water quality violations in a lake or stream by adopting a Total Maximum Daily Load (TMDL) for the pollutants causing the problem. In September of 2007, EPA approved the state’s Jordan Lake nutrient strategy as the TMDL for the lake. The nutrient strategy identifies the  amount  of  nitrogen and phosphorus  that  can be absorbed by the lake  without violating water quality standards and then allocates  nitrogen and phosphorus  reductions among all of the major  sources contributing nutrients to the lake to reach the target level. Sources include wastewater treatment plants, large industrial facilities that discharge wastewater, stormwater from developed areas, and agricultural activities. The part of the Jordan Lake strategy setting the maximum  level of nitrogen and phosphorus consistent with meeting water quality standards  represents the heart of the TMDL required under the federal Clean Water Act.   An earlier post  links to  a July 10, 2013 letter from EPA’s Acting Administrator for Region 4, Stan Meiburg,  saying  that EPA does not believe that  either delay or repeal of the Jordan Lake rules relieves the state of the obligation to achieve the pollution reductions called for in the  approved TMDL.

If a state fails to act on a TMDL, EPA has the ability to impose a federal TMDL.  The Jordan Lake rules share the burden of reducing nutrient  loading to the lake more broadly than EPA  could do under a federal TMDL, which would have to be focused on  federally permitted wastewater discharges.  The result would be an  increased burden on local governments and industries that discharge wastewater because the pollution reductions would no longer be shared by stormwater and agricultural sources that do not require federal permits. EPA also  accepted the  state’s timeline  for  implementing  pollution reduction measures for Jordan Lake. The original Jordan Lake rules allowed between four  years and nearly ten years  for implementation of different parts of the nutrient reduction strategy;  those timelines have already been  extended several  years by earlier legislation. A federal TMDL would likely have a shorter implementation time.

Apart from the Jordan Lake TMDL, North Carolina finds itself on the wrong side of EPA’s national policy on  permitting  nutrient discharges to all lakes and streams. EPA’s longstanding position has been that states need numerical in-stream or in-lake standards for nutrients. That would involve setting a nitrogen and phosphorus standard for each water body in the state and using those  standards to  set  permit  limits  for wastewater discharges.  The N.C.  Division of Water Quality (DWQ)  has resisted the push for numerical nitrogen and phosphorus standards. N.C.’s water quality program has supported use of  the existing  chlorophyll-a standard as a better indicator of  nutrient impairment and one less likely to  put an unnecessary burden on wastewater treatment plants and industrial dischargers.

So while  a number of states have adopted numerical nutrient standards, North Carolina has not.  (Note: DWQ and the Environmental Management Commission are due to report to EPA soon on the state’s progress on  nutrient standards.) EPA has not yet forced the issue here, but EPA has directly intervened in several other states to either press for state adoption of nutrient standards or to actually impose federal nutrient standards. In Florida, EPA  adopted federal nutrient rules for some Florida waters in 2010 and proposed additional rules in 2012.  A November 2012 EPA  document provides a history of EPA actions on nutrient standards in Florida. (Florida has since adopted state nutrient standards that EPA has approved.) EPA has also pushed several midwestern states to adopt numerical nutrient standards. Just last month, EPA ordered the state of Minnesota to  tighten nutrient limits on wastewater discharge permits  or risk having EPA take over the water quality permitting program.  See an article in Governing magazine  for an overview of the EPA action in Minnesota.

In deciding how to ease the financial and regulatory burden of  the  Jordan Lake rules, the state needs to be  mindful of  Clean Water Act requirements and  EPA’s possible response. So far, EPA has  allowed North Carolina  a great deal of flexibility  to address  nutrient pollution and has not pressed the issue of numerical nutrient standards.  It is likely that EPA  has  given some deference to the state’s good faith efforts to  develop  solutions  – like the Jordan Lake nutrient strategy — tailored to the state’s  needs. But nationally, EPA has also shown a willingness to intervene directly to enforce the Clean Water Act in the face of state inaction on nutrient problems.

There  are ways  to ease the burden of nutrient reduction on upstream communities without completely walking away from the need to reduce  nutrient pollution. One  idea (which actually came up in  development of the Falls Lake and Jordan Lake rules)  is creation of  a  cost-sharing plan so downstream communities that benefit from upstream pollution controls would  help offset the cost. There may also be modifications to the Jordan Lake rules that could ease the burden on upstream local governments without abandoning the goal of reducing nutrient pollution.  Putting state energy into improving the Jordan Lake rules and exploring innovative financing of pollution controls  would be consistent with the Clean Water Act and less likely to provoke direct EPA action. If  N.C. completely steps back from the commitment to reduce nutrient loading to Jordan Lake,  the state may lose  the ability to create a solution that  meets the state’s interests.

Delaying the Jordan Lake Rules

July 11, 2013: The House Environment Committee  took up a proposed committee substitute for Senate Bill 515 (Jordan Lake Water Quality Act).  An earlier  post  (written as the bill made its way through the Senate)  provides some background on the Jordan Lake rules. The Senate bill  proposed to repeal the rules and  study alternative solutions to the lake’s  water quality problems. At the time, Senate  bill sponsors suggested that a technological solution to the Jordan lake nutrient pollution could make additional  investment in upstream pollution controls unnecessary.

Instead of repealing the rules, the  bill approved by the House Environment Committee today delays further implementation of the Jordan Lake rules until July 1 2016.  It  allows DENR and local governments in the Jordan Lake watershed to continue with programs  already underway, but otherwise extends compliance deadlines  by another three years — affecting the timelines for upgrading wastewater treatment plants and  development of local stormwater  programs.  Discussion in committee  made it clear that legislators still hope for a technological solution  to  substitute for  the upstream pollution  reductions required under the Jordan Lake rules.   Senator Rick Gunn told House members that separate legislation would create a legislative study and provide $2 million in funding for a pilot project to test technology  and “best practices” to improve water quality in Jordan Lake.  In response to a question, Senator Gunn indicated that the funding would come out of the existing appropriation for the Clean Water Management Trust Fund. (The actual appropriation to Clean Water Management Trust Fund is still in question since differences between the House and Senate budget bills have not been resolved.)

Although the bill itself does not identify a particular technology,  one committee member mentioned  Solar Bee — a technology used to aerate water tanks and lakes. Since the new bill draft  does not include language actually describing the study or the pilot project, it is not clear how broadly the legislature will look for technological solutions to Jordan Lake’s pollution problems.

The vote to approve the bill in committee was surprisingly close and at least two Republican members spoke against the bill.  Some  of the opposition focused on  the proposal to take  $2 million from the already diminished Clean Water Management Trust Fund budget to pay for the pilot project. There was also  concern that the pilot project may direct state money to a single technology.

Although less radical than the Senate version, the House bill still sets up an unnecessary choice between  reducing pollution coming from sources upstream of Jordan Lake or using technology to improve conditions in the lake. However effective a technology may be, it is unlikely to  offset  increasing levels of  nitrogen and phosphorus flowing downstream into the lake. The only certain thing about the  bill is that it  will allow  three more years of development in the upper watershed without comprehensive stormwater controls and three more years without tighter nitrogen and phosphorus limits on  wastewater discharges.  The three year delay in implementing the rules does not maintain the status quo — it allows nitrogen and phosphorus loading to Jordan Lake to  increase. In the end,  delay may  also  increase the cost of addressing the water quality problem.

In the meantime, the U.S. Environmental Protection Agency has responded to a question from Rep. Rick Glazier about the impact of Senate Bill 515 on the state’s delegated Clean Water Act program. A July 10, 2013 letter from  EPA’s Acting  Administrator in Region 4, Stan Meiburg,  makes two important points:

1.  In more blunt language than you will often find in an EPA letter,  Meiburg  expressly  says that federal law does not allow use of treatment technology as a substitute for actually reducing the pollutants being discharged to Jordan Lake. When  a water body   cannot meet a  water quality standard, the  Clean Water Act requires the state to limit  discharges of the pollutant causing the  problem  to levels that will  eliminate the  violation.  In Clean Water Act terms, the  state must set  a “total maximum daily load” (TMDL) for the pollutant. The TMDL  acts as  a cap; each individual wastewater treatment plant or industrial discharger  feeding into the impaired water body  has  a permit limit  for the TMDL pollutant and  the sum of all the permitted discharges  cannot exceed the cap.

2.  Since the state’s Jordan Lake nutrient strategy is the federally approved TMDL for Jordan Lake, Meiburg makes it clear that EPA  expects the state to continue implementing the nitrogen and phosphorus reductions in the nutrient strategy whatever happens legislatively. That means EPA will hold the state to the total level of nitrogen and phosphorus reductions called for in the Jordan Lake rules.  If EPA finds that the state has failed to  carry out  some part of the strategy  — such as stormwater controls on new development —  EPA will expect the state to offset the loss of those nitrogen and phosphorus reductions by increasing the reductions from other nutrient sources.

The full text of the letter:  7_10_2013 Letter to Rick Glazier re B Everett Jordan Reservoir TMDL-1

House Environment was the only committee referral for  Senate Bill 515, so the new version of the bill will next go to the House floor. If approved, the bill will have to go back to the Senate for concurrence in the changes made by the House.

Cross-Over Continued: Repeal of Jordan Lake Water Quality Rules

May 15, 2013:    Yesterday, the  Senate Agriculture and Environment Committee approved a new version of  Senate Bill 515 (the  ironically named Jordan Lake Water Quality Act)  to  repeal state  rules adopted to address  water quality  problems in Jordan Lake. The problems come from excess nutrients (nitrogen and phosphorus) that  can cause algal blooms affecting the smell and taste of the water. (Smell and taste are important to Triangle communities taking water from the lake for drinking water supply.) In hot summer conditions, algal blooms  also contribute to fish kills.  Reducing nutrient pollution can be a real environmental policy challenge because of the number of different  nutrient  sources —  wastewater discharges, stormwater runoff from developed areas, agricultural activities — and the need to ask upstream communities to spend money  for water quality improvements that do not directly benefit their citizens. The Jordan Lake rules came out of years of work by the state’s  Division of Water Quality to understand  how much nitrogen and phosphorus reaches the lake from different sources and  identify the reductions needed to  improve the lake’s water quality.  Development of the rules involved  nearly two years of meetings with a stakeholder group  that  included local government officials, the N.C. Farm Bureau, wastewater system operators, the N.C. Homebuilders Association, the N.C. Realtors Association and others.  After the Environmental Management Commission adopted final rules for the Jordan Lake watershed in 2008, the General Assembly  modified the rules through session laws adopted in  2009. (See S.L. 2009-216 and  S.L. 2009-484.)  The revised Jordan Lake rules finally went into effect in August of 2009, but the rules allowed several years for local governments in the  watershed to improve wastewater treatment and  create stormwater programs needed to reduce nutrient loading to the lake.

Although most local governments in the Jordan Lake watershed began moving to  meet nutrient reduction targets set in the rules,   local governments in the Haw River arm of the  watershed  (including Greensboro and Burlington) continued to push back. Objections from those  local governments led to legislation in 2010, 2011 and 2012 to extend the time allowed for  upgrading wastewater treatment and creating (or modifying) local stormwater programs.  The current dates for compliance with the wastewater and stormwater requirements of the Jordan Lake rules come from legislation adopted by the General Assembly in 2011 and 2012.   Section 14 of  Session Law 2011-394   extended the  time  for completion of wastewater treatment plant improvements to December 31,  2016.  (The actual completion date could be  as late as  December 31, 2018   if the wastewater system receives state  approval of the  improvement  plan by the end of 2016). In 2012, the General Assembly pushed back the deadline for creation of local stormwater programs in the Jordan Lake watershed to August 10, 2014 at the earliest. The actual date could be later depending on the schedule for renewal of a city’s existing Clean Water Act stormwater permit.  For reasons too convoluted to go into here, identical  provisions  delaying  development  of local  stormwater programs  appeared in Section 9 of  Session Law 2012-200 and Section 11 of  Session Law 2012-201.

The latest repeal effort  again  comes from communities in  Guilford and Alamance counties that want to avoid the cost of  wastewater treatment improvements and stormwater controls needed to reduce the amount of nitrogen and phosphorus reaching Jordan Lake from the Haw River. The primary bill sponsors are Sen. Rick Gunn ( who represents Alamance and Randolph counties) and  Sen.Trudi Wade (Guilford County).  The bill would immediately repeal the entire set of Jordan Lake nutrient management rules and provide no replacement other than a legislative study to develop new rules. One of the reasons offered by Sen. Gunn in committee was the failure of the 2009 Jordan Lake  rules to improve water quality in the lake. There was no mention of the  fact that  the General Assembly had  extended the  compliance  timelines in the rules. Given that many measures required under the Jordan Lake rules may not be in place for another three or more years, the lack of water quality improvement to date should not be a surprise.

The bill aims for a technological solution based on mitigation of pollution at the lake  — and without the need for pollution reductions upstream.  In response to a question in committee, Sen. Gunn could not say whether effective technologies exist or at what cost. It is difficult to imagine technologies so effective that  no upstream nutrient reductions would be needed, although it  may be possible to   shift  the balance between treatment technology at the lake and upstream pollution reductions. If new mitigation and treatment technologies exist, one difficult environmental policy question will remain — who pays for water quality improvement in Jordan Lake?    The Triangle communities that take water from Jordan Lake  and rely on the lake as a recreation area may resist an effort to put the entire cost of upstream pollution on their citizens.

One last wrinkle. The Jordan Lake rules exist in part to meet a federal Clean Water Act requirement. Under federal law, North Carolina’s water quality program must have a plan to reduce the discharge of excess  nutrients  that  hurt water quality  in Jordan Lake. The plan currently approved by the U.S. Environmental Protection Agency (EPA) has  been based on the 2009 Jordan Lake nutrient rules. Those rules share the cost and regulatory burden among all of the sources that contribute to the lake’s  water quality problem — wastewater discharges, stormwater runoff  (both near the lake and upstream), and agricultural activities. Without an alternative plan approved by EPA, the Clean Water Act would force the  nitrogen and phosphorus reductions to come entirely from  sources that require Clean Water Act permits — largely the wastewater treatment plants in the Jordan Lake watershed. That could actually increase reductions required from Greensboro and Burlington wastewater treatment plants, since  sources that fall outside Clean Water Act permitting requirements would not contribute to  overall nutrient reductions.

Senate Bill 515 is on the Senate calendar today.

The Legislative Game of Jenga

Jenga: A game of skill played with a stack of wooden blocks. Each player removes a block from the stack and balances it on top, creating a taller and increasingly unstable  tower  as the game progresses. (Hat tip to the  Wikipedia  entry for a simple explanation.)  As you may have guessed, the goal  is to not be the player who causes the tower to collapse.

Since the  1990s, the state has adopted several very complex sets of  water quality rules in response to  excess nutrients  in the Neuse  River, the Tar-Pamlico River and  the Falls Lake and Jordan Lake reservoirs. Excess nutrients  in the water (such as nitrogen and phosphorus) can  cause algal blooms and — particularly in hot weather — lead to large fish kills. In a reservoir, algal blooms may also  affect drinking water quality and increase water treatment costs.

Section 5 of Senate Bill 612 (Regulatory Reform Act of 2013)   would pull one block out of the   carefully  balanced  tower of  nutrient management rules in  the Neuse River and Tar-Pamlico River basins by  effectively  eliminating  stream buffer requirements.   Stream  buffer rules  have been  part of the Neuse River nutrient management strategy from the beginning.  Every  set of state nutrient  rules since 1997  builds on the foundation of the Neuse strategy and all include stream buffers as a  critical block.  Before pulling a block out of the tower, it  is worth looking back at how the tower was built.

The history of the stream buffer rules begins with development of a nutrient management strategy for the Neuse river basin in the late 1990s.  In 1995,   the  N.C. General Assembly responded to a series of large fish kills in the Neuse River estuary and a toxic algae scare by directing the state’s  Environmental Management Commission (EMC) to adopt rules to reduce nitrogen loading in the Neuse by at least 30% (Session Law 1995-572).   To reach the reduction goal, the EMC  allocated the reduction (in pounds of nitrogen)  among  the  largest  nitrogen sources in the river basin. The allocation was done by source category (wastewater dischargers, agricultural operations and developed areas)  based on the  nitrogen contribution from each type of source.

The final Neuse rules required  large  wastewater  treatment plants  to  reduce  the amount of nitrogen being discharged to rivers and streams;  set up a nutrient trading system to allow  wastewater dischargers to generate and trade credits for additional nitrogen reductions; required farmers to develop best management practices to reduce nutrient runoff from row crop agriculture and  animal operations; and required  maintenance of  vegetated buffers along streams in the river basin.  Just as  tighter wastewater discharge standards and agricultural best management practices reduce nutrient  loading from those sources,  stream buffers  reduce nutrient loading from developed areas by allowing  trees and shrubs  to  absorb nitrogen  in runoff from developed areas. The  EMC then modified  an  earlier  nutrient management strategy  for the Tar-Pamlico River  to add stormwater and stream buffer  requirements  similar to those adopted for the Neuse. By August 1, 2000, stream buffer rules were in effect in both the Neuse and the Tar-Pamlico river basins.

Section 5 of Senate Bill 612 appears to be identical to language supported by the N.C. Homebuilders Association and the N.C. Association of Realtors in 2012.  The proposed exemption is very broad.  It  would exempt   all private property from the buffer rules as long as there was a plat  of the property on record with the Register of Deeds before August 1, 2000.  (The language does not limit the exemption to  residential lots or to lots shown on an approved subdivision plat; it appears that any type of  recorded map  could  qualify a property for the exemption.)  In 2012, concern about this same language led to  compromise legislation.  Session Law 2012-200   extended a stream buffer  exemption that already existed  in the coastal  area to all waterfront lots in the Neuse and Tar-Pamlico river basins.  The exemption (which applies to residential lots platted before August 1, 2000)  allows development activity in the stream buffer if  the lot is too small for construction of a single-family home (and  onsite wastewater system if needed) entirely outside the buffer.

The risk in pulling the buffer rules out of the nutrient management strategy entirely  is that the nitrogen and phosphorus reductions provided by the stream buffers would be lost. Since both rivers have been listed as having  impaired water quality because of excess nutrients,  the  federal  Clean Water Act requires the state to reduce nutrient loading to the rivers.  Loss of the nutrient reductions provided by stream buffers will simply shift more of the burden (and cost) of nutrient reduction to  other sources — local government wastewater treatment plants, industrial wastewater dischargers,  and agricultural operations.

Not to abuse the Jenga metaphor,  but the  General Assembly  has again been asked to  pull a block from  the center of the tower  blindfolded — that is, without being able to see the relationship of one block to the others.  The state’s nutrient management rules are not sacred and untouchable; they were not handed down on stone tablets.  But in developing nutrient management strategies for the Neuse and the Tar-Pamlico river basins,  state environmental programs  began  moving toward something like negotiated  rulemaking — trying to  find the right balance with all of the parties (public and private) at the table. Those other parties also need  a seat at the table before a decision is made to significantly change the rules.

Senate Bill 612 raises two questions. The first:  Can the state solve nutrient problems in the Neuse and Tar-Pamlico rivers without using stream buffers to reduce reduce runoff from developed areas? The second  has implications well beyond the Neuse and Tar-Pamlico rivers: How will the General Assembly  respond to political pressure to change  a rule  in a way that benefits  just one of the many businesses, industries, local governments, and nonprofit organizations who compromised to solve a complicated environmental problem?

The answer to the second question will affect  the state’s ability to   deal with other difficult environmental issues in the future. (Competition for water supply comes to mind.)