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.