HomeMy WebLinkAboutAgenda - 03-17-2009 - 7aORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: March 17, 2009
Action Agenda
Item No. -] - Q
SUBJECT: Potential Discussion Points for Jordan Lake Nutrient Management Rules
Pncitinn Statement
DEPARTMENT: ERCD PUBLIC HEARING: (YIN) No
ATTACHMENT(S):
1. June 28, 2007 County Letter to EMC INFORMATION CONTACT:
and OWASA/Town Comments -July
2007 David Stancil, 245-2590
2. Haw River Assembly Letter and Draft Thomas W. Davis, 960-3878
Resolution
3. NCACC Position Statement and
Proposed Legislation Introduced to
Date
4. Chatham County Position Letter
5. Draft Legislative Issues Work Group
Position/Statement
6. 1/27/09 BOCC Meeting Jordan Lake
Rules Powerpoint Handout
PURPOSE: To consider possible discussion points for a position statement and/or resolution
regarding the B. Everett Jordan Reservoir (Jordan Lake) Nutrient Management Rules, in
response to a draft resolution submitted by the Haw River Assembly, a position statement from
the NC Association of County Commissioners (NCACC), and potential legislation introduced in
this session of the NC General Assembly.
BACKGROUND: The Jordan Lake nutrient management rules were approved by the N. C.
Environmental Management Commission (EMC) in late 2008 and are currently awaiting action
by the N.C. General Assembly. In brief, the Upper New Hope Arm or sub-watershed of the lake
(which includes the Rural Buffer, Chapel Hill, Carrboro, southern Durham and northeast
Chatham) will be required to implement a 35% reduction in nitrogen loading and a 5% reduction
in phosphorus loading, while the Haw River Arm, which includes the Mebane area, the
southwestern portion of Orange County (and areas upstream to Greensboro) must reduce
nitrogen loading by 8% and phosphorus by 5%. The rules are proposed to be implemented over
a 10-year period. The basis for the rules is the federal Clean Water Act and the long-anticipated
deterioration of Jordan Lake water due to nutrients.
In June 2007, the County conveyed comments to the EMC supportive of watershed protection
but raising several issues, questions and concerns. OWASA, Chapel Hill and Carrboro also
submitted public hearing comments at that time. These July 2007 public hearing comments are
provided as Attachment 1 to this item. One of the key issues raised by Orange County and by
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other local governments relates to the need for State leadership and commitment for substantial
funding assistance to enact the measures needed to meet the reductions required. The
methods proposed in the rules to address these reductions primarily involve changes to
stormwater control for new development standards, existing development, and reductions by
agriculture. The provision on existing development, which is likely to require substantial
retrofitting of stormwater controls, has raised the most concern among many local governments,
due to the likely cost of retrofitting existing development stormwater measures. Historically,
Orange County has relied on non-structural measures such as infiltration of the first inch of
stormwater and drainage swales in its rural developments, although there are some structural
controls required in certain locations. Towns and cities that rely more heavily on structural
stormwater measures would be likely to be the most affected by the existing development rules,
although rural jurisdictions such as Orange County would be impacted as well. Recently, DWQ
personnel involved with the development of the Jordan Lake rules estimated the cost to
implement the existing development portion of the rules (across the entire watershed) could
cost $26 million dollars per year for 30 years.
Finally, local governments (such as Orange County) which have been proactive and already
produce low nutrient loads may have difficulty meeting a 35% reduction in nitrogen load, and
previous actions to reduce loading implemented prior to 2001 do not count toward the new
reductions. One of provisions of the rules calls for a feasibility study which would yield more
concrete estimates of the costs and measures needed to achieve the reductions. However, this
would not occur until after the rules are implemented, as the proposal currently stands.
The proposed resolution provided at Attachment 2 from the Haw River Assembly asks the
proposed rules be adopted and implemented as written. At the same time a position statement
from the North Carolina Association of County Commissioners (NCACC) proposes to exempt
local governments from the existing development retrofit provisions of this and other nutrient
management rules. Legislation opposing the rules and proposing their disapproval has also
been introduced in the House (HB 3, HB 239, and HB 350) and Senate (SB 166) by legislators
from other counties in the watershed. The NCACC position statement and the proposed bills
are included as Attachment 3.
The Chatham County Board of Commissioners discussed the proposed Jordan Lake rules at a
February 16, 2009 meeting. A letter from the Chatham County Manager is provided at
Attachment 4 summarizing the Chatham County Board's action.
The Legislative Issues Work Group led by Commissioners Foushee and Jacobs has been
meeting during the past month to discuss various legislative issues, including the County's
direction regarding the proposed Jordan Lake rules. The Work Group is still working on the
draft legislative package to present to the full Board, including proposed language on the
Jordan Lake rules. Although the Work Group's statement is still in draft form, it is provided at
Attachment 5 as information.
The Board received a presentation on the status of the rules at a January 27, 2009 work
session, and the Powerpoint presentation from that meeting is provided at Attachment 6. As a
part of that presentation, several potential implications or key topics or points were identified,
including:
• The cost of implementing the proposed rules in terms of retrofitting existing development
is largely unknown until a feasibility study is conducted,
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• With the County's expected low nitrogen loading rate in its jurisdiction, decreasing by a
fixed 35% in the Upper New Hope may be challenging (effectively creating a penalty for
jurisdictions which pursued conservation measures prior to the 2001 baseline year),
• Nutrient trading possibilities look promising and should be pursued with the urban
jurisdictions on conservation and wetlands projects in the Upper New Hope Arm (Rural
Buffer), thus allowing the towns another option for meeting their reduction needs
• The need for State funding assistance to deal with the costs of implementing the rules
has been noted by many local governments, and
• The County has a long history of watershed protection dating to 1981 and notes the
current water quality issues have long been anticipated.
The Board may wish to use these points and the attached positions and materials to develop
the key points of a position statement and/or resolution which could be developed by staff and
brought back for action on April 7.
FINANCIAL IMPACT: There is no impact associated with considering the draft position
statement. The cost of implementing the Jordan Lake nutrient management rules has been
estimated at up to $550 million for all local governments and utility providers in the Jordan Lake
watershed. The estimated cost to Orange County government of these rules is not known since
the first action required under the rules is a feasibility study that would result in more concrete
cost estimates. Since development in the County's jurisdiction has been more rural in nature,
with fewer structural ponds and stormwater devices, it is anticipated the County will be less
impacted financially than its surrounding urban jurisdictions. However there still may be
substantial unknown costs associated with new measures required to achieve the percentage-
based nitrogen reduction, since the County's projected loading rate is already anticipated to be
low and additional reductions may require funding for new conservation activities (or nutrient
trading funding assistance from other jurisdictions). These costs would also be determined
under the feasibility study.
RECOMMENDATION(S): The Manager recommends the Board discuss the implication and
key topics bullets listed -along with previous comments, resolutions and proposed legislation -
and provide staff a list of points for a County position statement or resolution that would be
brought back for action on April 7.
Specifically, possible starting. points for the position statement might be:
1) the previously-stated need for State financial assistance to implement the rules,
2) the "penalty" for jurisdictions with already-low loading rates by apercentage-reduction
method for the entire sub-watershed, and
3) the possibility of conducting feasibility studies (with State-funding) before implementation
of the rules, to better assess the actual costs and measures to each jurisdiction before
permanently adopting the rules.
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•~caR~: ~R. cFraR ~ ORANGE COUNTY BOARD OF COMMISSIONERS
~r.,-.acoe~ vicectwR POST OFFICE BOX 8181
~LERiEP. FoUSIiEs
'~"' 200 SOUTH CAMERON STREET
hLKEN~N
HILLSBOROUGH, NORTH CAROLINA 27278
June 28, 2007
Dr. David H. Moreau, Chair
Environmental Management Commission
1617 Mail Service Center
Raleigh, NC 27699-1617
<<
Re: Comments on the proposed Jordan Reservoir Wafer Supply Nutrient Rules, June
15, 2007
Dear Dr. Moreau:
Thank you for the opportunity to provide comments on the proposed nutrient
management rules for Jordan Lake Reservoir. Orange County appreciates the work to
date by the Environmental Management Commission (EMC) and the North Carolina
Division of Water Quality (NCDWQ) staff to address the goal of reducing nutrients, and
is supportive of this goal. However, we do have some concerns about~the proposed
implementation method of non-point source reductions, especially in the Upper New
Hope Ann of the lake.
As you know, Orange County has a long history promoting proactive measures for
watershed protection. The County implemented watershed protection measures in its
1981 Land Use Plan and associated Zoning Ordinance and Subdivision Regulations,
and also implemented an Erosion Control Ordinance in 1975. Both of these actions were
firsts for counties in North Carolina at that time. In addition, the Erosion Control
ordinance mandates that an land disturbance in University Lake Watershed (later
extended to other watersheds) require a building permit approved by the Erosion Control
Division.
For the last 25 years, and beyond, County policy has consistently focused substantial
emphasis on watershed protection, retying primarily on land use and non-structural
measures to protect water quality. On-site infiltration of the first one-inch of stormwater
runoff, extensive stream buffers that exceed state minimums (measured from the edge
of fhe FEMA mapped floodplain, if present, and not the stream bank), and protection of
riparian buffer lands and floodplains are among some of the many watershed protection
techniques Orange County uses in this and other watersheds in our jurisdiction. The
reason for this long-standing policy is a fundamental belief that addressing water quality
protection at the source by limiting nutrient loading at the outset is preferable to relying
on structural controls after the fact.
www.co.oaANGE.NC.us
PROTECT/NG AND PRE56RV/NG -PEOPLE, R~SODRCES, QUALITY OF L/FE
ORANGE CO(/NTYj NORTH CAROL/NA -YOU CONNTI
(919) 245-2130 • FAX (9fe) 644-0246
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The portions of the Jordan Lake watershed in Orange County reflect this proactive
approach to water quality protection. Within the Upper New Hope Arm of this watershed,
Orange County has instituted far-reaching land use or non-structural controls, as shown
on the attached map.
There are three sub-basins draining to the Upper New Hope Arm in the County's
jurisdiction. The University Lake watershed (part of Morgan Creek) has, since 1989,
included a minimum lot size of five-acres for each new lot, with impervious surfaces
limited to as little as 4% in some cases. These measures were instituted after a
comprehensive watershed technical study and extensive community dialogue. The
Upper New Hope Creek basin, north of Chapel Hill and Carrboro, is part of an area
known as the "Rural Buffer," which has two-acre minimum lot sizes and over 2,000 acres
of protected land. This protected land also includes over 7,000 linear feet of New Hope
Creek in the County's jurisdiction. A small portion of Morgan Creek downstream of
University Lake and south of Chapel Hill also has two-acre lot zoning, and sign cant
protected lands.
Orange County also enforces flood damage prevention regulations, which supplement
stream buffer standards. Both of these prohibit any new structures or septic drain frelds
near surface water bodies.
As an example of the effects of Orange County watershed standards, our staff has used ~
an adaptation of the Upper Neuse Basin Site Evaluation Tool (SET) for a recent
development in the University Lake watershed. On an 80-acre site with a natural
nitrogen-loading rate of 0.66 pounds per acre per year, unrestricted development would
produce an estimated 5.17 pounds per acre per year. Orange County regulations
dropped that estimated nitrogen loading rate to 1.81 pounds per acre per year. Larger lot
sizes required in this watershed appear to be the primary cause.
Orange County is--and has always been -very supportive of attempts to reduce nutrient
loading and protect water quality in Jordan Lake. However, the method of the proposed
implementation for the non-point source rules in the Upper New Hope Arm may not be
practical or equitable for a rural jurisdiction, especially since significant protective
measures have been instituted for many years.
In particular, Orange County would like to offer the following points for the Commission's
consideration:
1. Reductions for existing development are not "performance" based.
a. The proposed reductions for nitrogen and phosphorus are represented as
percentage loading reductions. This "one size frts all" approach does not
acknowledge the very different loading rates and land use patterns between
urban and rural portions of this area; nor does this approach take into
consideration the resultant difficulty in achieving apercentage-based
reduction by jurisdiction.
b. As described above,. Orange County already employs watershed protection
measures that account for relatively low nutrient loading rates. In order to
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achieve the proposed 35% reduction in total nitrogen in the Upper New Hope
Arm, it is conceivable that forested areas may have to be converted to some
sort of structural stormwater control, counter to the County's long-term policy.
With forestry outside of the realm of local government regulation, Orange
County may not be able to enforce any provisions related to forestry.
c. A 35% reduction for rural watersheds with relatively low nutrient loadings will
not be as effective as a 35°!° reduction applied to urban watersheds.
d. While stormwater retrofits may be a logical approach in urban areas where
loading rates are higher, it does not seem practical or equitable to hold rural
areas to the same percentage reduction goal, when protective measures are
already in place.
e. An in-stream nutrient level goal for each sub-watershed of Jordan Lake, and
a corresponding nutrient delivery model to sustain the goal, may be a more
effective method to equitably address reductions.
2. Loading rates by jurisdiction may not be equitable.
a. Because of the location of the monitoring stations further downstream in both
the Morgan Creek and New Hope Creek sub-basins, it is impossible at this
time to accurately project loading rates by jurisdiction and validate what are
very different land use patterns and non-point source loading between
jurisdictions.
b. As such, it is difficult for each jurisdiction to determine whether the costs of
reduction are being equitably borne by the jurisdiction where loading is
occurring. If this type of reduction approach is pursued, further assessment of
the costs of implementing the rules -calibrated as best possible to the
loading coming from each jurisdiction -would be instructive to help ensure
that benefits and costs are equitably shared. A program that provided
reciprocal benefits to jurisdictions with low loading rates but high levels of
protection is essential to meeting equity concerns raised by heightened
regulation. The City of Raleigh's efforts to fund upstream watershed
protection in the Upper Neuse is reflective of a proactive realization of such
an obligation.
3. Non-point source reductions were not calibrated to the Jordan Lake model.
a. It is our understanding that the non-point source reductions called for in the
rules were not calibrated to the specific Jordan Lake model, as was the case
with the point-source loading. The non-point source reduction rates were
instead estimated from other modeling and land use projections.
b. Therefore, it is not as clear whether the proposed rules for non-point sources
will achieve the stated goals, and it may be impossible to know if the
reduction targets will work until substantial time, funding and other resources
are expended on feasibility studies and implementation.
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c. There are also efficiency, cost and feasibility concerns regarding the splitting
of nitrogen reductions for non-point and point sources. Nutrient reductions
from non-point sources are more complicated and costly to obtain.
4. There is very little agriculture in the New Hope Creek basin.
a. While this portion of the County is rural, this will greatly limit the ability to
achieve percentage-based reductions for agriculture.
5. Existing development may have lower loading rates than new development.
a. The rules as proposed may- unintentionally require existing development to
have lower loading rates than new development. Under the proposed rules,
new development will have the option of paying aone-time offset fee in lieu of
reducing nutrient loading on-site. This. potentially means that new
development will have higher actual loading rates.
6. Burden of cost falls on local governments.
a. If the rules are implemented, local government will be asked to shoulder the
brunt of what may approach a $1 billion price tag for the nutrient strategy.
b. Since the water issues in Jordan Lake are not new in terms of real or
expected results, it would be critical to have State funding assistance to help
local govemments address these measures.
c. The cunent state of Jordan Lake water quality is markedly similar to
predictions made over 30 years ago by a variety of experts, and it is as much
a regional and statewide issue as a local issue.
7. Local govemments need added flexibility in meeting requirements.
a. More flexibility for local governments to participate in buy down opportunities
(with EEP) would help local govemments achieve the rules.
b. The proposed rules allow for a trading program. However, more time is
needed for the stakeholders to assess whether a trading program will be
feasible. While trading scenarios with partner jurisdictions appear to have
merit, the current targeted watershed study is not complete.
c. An emphasis on nutrient reduction trading, rather than in-lieu-of payments,
may be more effective. A trading ratio of 2:1 or greater may be needed to
ensure actual in-basin nutrient reduction.
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8. The can-ent planned public comment period is not feasible.
a. The current planned timetable for public comment over the summer months
(June 15-August 15) is not optimal to receive public comment on a subject of
this importance. Many local government boards take a "summer" break.
Because of the potential cost and far reaching ramifications of these rules,
the public comment period should be sufficiently long enough to allow
appropriate response from impacted local governments.
In summary, Orange County would ask the Commission to consider modification of and
alternatives to application of a single nutrient reduction percentage to all jurisdictions in
the Upper New Hope Arm.
Thank you for considering these comments, and we stand ready to help work with the
State and other local governments in an equitable and efficient manner to reduce
nutrient loading in Jordan Lake. Please feel free to contact our staff in the Environment
and Resource Conservation and Planning departments if we may provide additional
information or clarification.
Sinc ely,
oses Carey, Jr.
Chair
Orange County Board o Commissioners
Co ies
Board of Commissioners
Laura Blackmon, County Manager
Rich Gannon, NCDWQ Non-Point Source Planning Unit Supervisor
Sydney Miller, TJCOG Water Resources Program Manager
QWASQ ORANGE WATER & SEWER AUTHORITY
Quality Service Since 1977
July 10, 2007
Dr. David H. Moreau, Chair
North Carolina Environmental Management Commission
1617 Mail Service Center
Raleigh, NC 27699-1617
SUBJECT: COMII~NTS ON PROPOSED WATER SUPPLY NUTRIENT STRATEGY
FOR B. EVERETT JORDAN RESERVOIR
Deaz Dr. Moreau:
The Orange Water and Sewer Authority (OWASA) Board of Directors appreciates the
opportunity to comment on the proposed Jordan Lake Nutrient Strategy and Rules. As you
know, we provide water supply and wastewater services to approximately 80,000 people in the
Carrboro-Chapel Hill community, including the University of North Carolina at Chapel Hill,
and our Mason Farm Wastewater Treatment Plant discharges to Jordan Lake's Upper New Hope
Arm.
One of OWASA's core values is environmental stewardship. We are proud of our proactive
record in source water protection, innovative wastewater treatment, water conservation and
demand management. In late 2008 our new water reclamation system will go into operation
when the University of North Carolina at Chapel Hill begins using more than 500,000 gallons of
highly treated wastewater per day for non-potable heating and cooling purposes on the
University campus. This will increase to neazly two million gallons per day in the future,
significantly reducing demands for OWASA drinking water and also decreasing our wastewater
dischazge to Jordan Lake.
As in the past, OWASA will do our part to protect this valuable regional resource and will
comply with the nutrient reduction requirements that the Environmental Management
Commission (EMC) adopts; but we respectfully offer several significant concerns and
constructive suggestions about the proposed Nutrient Strategy and Rules.
Hish Costs and Uncertain Benefits
The NC Division of Water Quality's (DWQ) carefully documented Fiscal Analysis estimates
that the Nutrient Strategy and proposed Rules will cost more than $900 million to implement.
There is, however, broad scientific and professional consensus that the predicted response of
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PO Boz 366 Printed on Recycled Paper FAX (919) 968-4464
Carrboro, NC 27510-0366 www, owosa, org
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10
Orange Water and Sewer Authority
Jordan Lake Comments to NC Environmental Management Commission
July 10, 2007
Page 2 of S
Jordan Lake to implementation of the Strategy and Rules remains highly uncertain. We urge the
Commission to adopt and implement rules that will accommodate the notable uncertainty that
continues to characterize most expert predictions of the lake's response.
Need for Flexibility and Adautive Managemeat
We urge the Commission to actively apply the principles of adaptive management, as provided
for in Rule .0262, Section (7) to help ensure that Jordan Lake water quality management
decisions aze based on the best and most up to date experience and information. It is essential
that the nutrient reduction goals and implementation schedule be re-visited at regular intervals
of not more than five years in order to fully apply new and additional data, including -water
quality trend analyses from Jordan Lake and its main tributaries, as well as the ongoing practical
experiences of local entities trying to reduce nutrient loads from many different point and
nonpoint sources.
An October 15, 2004 technical memorandum from the Modeling and TMDL Unit of DWQ's
Water Quality Branch reported a statistically significant trend of decreasing total nitrogen
concentrations of 0.17 mg/L per year in New Hope Creek, a principal tributary to the Upper
New Hope Arm of Jordan Lake. The analysis included 13+ years (January 1990 -March 2004)
of ambient water quality data that were statistically adjusted for seasonality and streamflow.
The report did not offer an interpretation or explanation of this significant improvement in water
ual~. Until this and other such existing trends can be identified and understood, it will be
extremely difficult, if not impossible, to evaluate the future effects - if any - of the Jordan Lake
nutrient management strategy and rules. The flexible and thoughtful application of adaptive
management practices will help ensure that well-informed decisions are made with the best
knowledge available.
Inadequate Standards and Criteria for Nutrient-Related Water Ouality Problems
We urge the Commission and DWQ to support and carry out as expeditiously as possible the
North Carolina Nutrient Criteria Implementation Plan, which has been approved by Region IV
of the United States Environmental Protection Agency (LTSEPA). This document provides an
important blueprint for overhauling the State's one-size-fits-all 40 ug/L chlorophyll a water
quality standazd, which is unnecessarily stringent for Jordan Lake's Upper New Hope Arm and
may provide little or no protection of the public water supply and recreational uses of the Lower
New Hope Arm.
OWASA's own University Lake and Cane Creek water supply reservoirs, whose drainage areas
may be the most stringently protected WS-II watersheds in North Carolina, periodically exceed
the chlorophyll g standard during the summer months, but few of our 80,000 drinking water
customers or low-impact recreational users would consider either of these lakes to be
"impaired." With no point source wastewater dischargers, mandatory large-lot (S+ acres)
residential zoning, agricultural operators complying with individual conservation plans, and
11
Orange Water and Sewer Authority
Jordan Lake Comments to NC Environmental Management Commission
July 10, 2007
Page 3 of 5
more than 1,500 acres of land acquired by OWASA in fee simple ownership or permanent
conservation easements, few, if any, additional management options exist for further reducing
nutrient inputs to these reservoirs. With no State or Federal regulatory mandate, we have
essentially established total maximum daily loads (TMDLs} for both lakes and implemented the
most appropriate nutrient management strategies; yet both lakes continue to exhibit periodically
high chlorophyll g concentrations and cyanobacteria episodes. Are these water bodies
"impaired?" We don't believe they are; but we do believe that North Carolina's nutrient criteria
and related water quality standards are in urgent need of substantial revision. DWQ's EPA-
approved Nutrient Criteria Implementation Plan deserves the Commission's full support.
Need for a Jordan Lake Use Attainability Analysis
What if the Nutrient Strategy and proposed Rules are adopted, but they don't work?
Proposed Rules .0265 and .0266 require all local governments in the Jordan Lake watershed to
develop stormwater management programs that will achieve and sustain reduced nutrient loads
from new and existine development. If the feasibility studies required under the Rules
determine that nutrient reduction tazgets for new and existing development aze not attainable
due to technical, economic, or administrative constraints, then the Jordan Lake TMDL will not
be met and the strate¢v will be deemed a failure. Given the likelihood that this will be the
outcome of most, if not all, of the local feasibility studies, we urge the Commission and DWQ
to proceed immediately with a Jordan Lake Use Attainability Analysis, as authorized by the
Clean Water Act for situations where TMDLs cannot be achieved. l:n the meantime, we urge
the Commission to adopt a rational, realistic, and phased approach to implementing the nutrient
reduction requirements.
Point Source Nutrient Reduction
OWASA's Mason Farm Wastewater Treatment Plant has been meeting total phosphorus
removal requirements for nearly 20 years. In 2002 we decided to construct multi-million dollar
deep bed filters that could remove total nitrogen to the current limits of technology as part of our
next facility upgrade -even though OWASA was under no requirement to do so. Those
improvements have been completed, and our treatment plant can now remove total nitrogen to
the proposed target levels - at least until the plant reaches its new capacity of 14.5 million
gallons per day. Additional energy and chemicals needed to achieve the proposed 2016 mass
load limit for TN will cost more than $500,000 per year at our current wastewater flow rates,
and well over $1 million per year in today's dollars when the plant reaches full capacity in the
next 15 to 20 years. Without significant advances in TN removal technology, OWASA will not
be able to achieve the proposed annual mass load limit when average day wastewater flows
exceed 14.5 million gallons per day, and we may need to restrict additional connections to our
wastewater system at that time.
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Orange Water and Sewer Authority
Jordan Lake Comments to NC Environmental Management Commission
July 10, 2007
Page 4 of 5
Wastewater Plant Optimization
We encourage the Commission to clarify the text and intent of proposed Rule .0270 (5)(a), that
requires the operation of existing wastewater plants to be optimized. Much of the wording of
this section is identical to previous State guidance that required wastewater plants to optimize
operations before constructing expensive nutrient reduction facilities. We believe that the Rule
should also define and specify optimization requirements for wastewater plants, such as
OWASA's, that have completed all or most of the capital improvements needed to achieve the
nutrient reduction targets. This specification should provide adequate time to establish the
realistic ranges of treatment plant operating conditions and process configurations needed to
reliably achieve different degrees of nutrient removal. For example, OWASA will require
additional time to fully evaluate the relative cost effectiveness of different carbon sources,. such
as methanol, acetic acid, sugar water, etc., needed to achieve denitrification in our new filter
system. One of our goals is to maximize OWASA's reliance on biological treatment, rather
than chemical addition, to achieve water quality goals. We urge the Commission to adopt rules
with enough flexibility to ensure our customers -that the millions of dollars they have already
invested in capital improvements to our wastewater plant -and the millions of additional dollars
they will spend to operate those new facilities for nutrient removal -will have the greatest
likelihood of achieving measurable downstream water quality benefits.
Nutrient Reduction Trading and Offsets
OWASA supports and applauds the flexibility of proposed Rule .0269 that would allow
wastewater dischargers to enter into compliance groups and to participate in nutrient trading and
offset arrangements with both point and nonpoint source entities, such as municipalities,
universities, and state agencies.
Compliance Date for Point Source TN Redaction
OWASA supports the proposed 2016 compliance date for total nitrogen reduction from point
source dischargers. We do not believe that an earlier date will provide sufficient time and
flexibility for the Commission to apply the adaptive management principles of Rule .0262 (7),
but there may be merit to phasing in or gradually "ramping up" the TN reduction requirements
with 2016 as the target date for full implementation. We note that an early compliance date
would substantially limit the opportunities for wastewater dischargers and other local entities to
earn and trade TN reduction credits through flexible arrangements that may be more cost
effective than independent compliance by each individual entity.
Between now and the eventual point source compliance date, OWASA will continue pursuing
and implementing cost-effective methods to further reduce our wastewater contribution to the
Upper New Hope nutrient load.
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Orange Water and Sewer Authority
Jordan Lake Comments to NC Environmental Management Commission
July 10, 2007
Page 5 of 5
We commend the State's efforts to protect Jordan Lake and we pledge OWASA's willingness to
do our part in this ambitious initiative. Once again, we thank you for the opportunity to
comment.
Sincerely yours,
.~~
Michael A. Clarke, Chairman
Board of Directors
cc: Hon. Moses Carey, Jr., Chair, Orange County Board of Commissioners
Hon. Mazk Chilton, Mayor, Town of Carrboro
Hon. Kevin Foy, Mayor, Town of Chapel Hill
Ms. Laura Blackmon, Orange County Manager
Mr. Roger Stancil, Chapel Hill Town Manager
Mr. Steven Stuart, Carrboro Town Manager '
Ms. Coleen Sullins, Water Quality Section Chief, Division of Water Quality (DWQ)
Mr. Rich Gannon, Chief Water Quality Planning Section, DWQ Planning Section
OWASA Boazd of Directors
Ed Kerwin, OWASA Executive Director
14
,~pW N OF
-' `'i
OtiA p E t N~~~
September 13, 2007
Dr. David H. Moreau, Chair
North Carolina Environmental Management Commission
1617 Mail Service Center
Raleigh, NC 27699-1617
Mr. Rich Gannon
DENR-Division of Water Quality, Planning Section
1617 Mail Service Center
Raleigh, -NC 27699-1617
OFFICE OF THE MANAGER
405 Martin Lathes King, Jr. Blvd
Chapel Hill, NC 275I4-5705
Telephone (919) 968-2743
Fez (919) 969-2063
www.townofchapelh171. org
RE: TOWN OF CHAPEL HILL STAFF COMMENTS ON THE PROPOSED NUTRIENT STRATEGY
RULES FOR THE B. EvERETT JORDANRESERVOIR
Dear Dr. Moreau and Mr. Gannon:
Enclosed are comments from the Town of Chapel Hi11 staff regarding the proposed Nutrient
Management Strategy Rules ("Jordan Rules' for the B. Everett Jordan Reservoir. Our
comments and questions involve elements of the Jordan Rules that require further
clarification/explanation, requirements in the Jordan Rules that are contradictory and/or will
impair the ability of local governments to achieve reasonable compliance, and issues that need
further consideration and study to assure that the most practical and effective approaches are
implemented to reduce nutrient levels and algal blooms in the Reservoir.
We strongly support the over-arching goals of improving the water quality of the B. Everett
Jordan Reservoir and improving the health of the streams flowing to the reservoir. The Town of
Chapel Hill has been a leader among local governments in supporting the goals of water quality
protection as demonstrated through implementation of a number of environmental protection
initiatives over the past quarter century. During this time, the Town Council and staff have
created and refined local development ordinances that reflect current scientific understanding of
environmental processes, the latest engineering practices, and the importance of environmental
quality and protection as emphasized in the Town's Comprehensive Plan. We have involved the
public at all levels of this process, from holding public hearings and receiving public comment,
to soliciting review and comment by Town Boards and Commissions.
We are concerned, however, that the Town's established and continuing pro-active
environmental protection efforts have not been acknowledged in the process of devising methods
for managing water quality in Jordan Reservoir. This is especially evident in the selection of the
baseline(s) proposed for measuring compliance with the rules, since the Town's initiatives prior
to implementation of the rules would receive no credit.
We believe that the control of nutrients solely through the management of stormwaxer runoff and
point source discharges will fail to significantly improve the Reservoir's water quality. We think
15
Dr. David Moreau and Mr. Rich Gannon -Letter
September 13, 2007
Page 2
that a more thorough and multi-faceted assessment of all sources of nitrogen and phosphorus in
the Jordan Reservoir basin needs to be conducted, including not only the Division of Water
Quality but also the Division of Air Quality, the Division of Environmental Health, the Iivision
of Waste Management, and the Division of Land Resources. Since these divisions function
under the Environmental Management Commission and the Department of Environment and
Natural Resources, we believe this presents an excellent opportunity for cooperation between
and among the divisions to consider a number of different perspectives in creating a
comprehensive regional plan to manage nutrients in the watershed draining to the Jordan
Reservoir. This approach would be consistent with the three key aspects of pollution
management strategy -identify the sources, eliminate or reduce the sources as much as possible,
and then establish treatment as close to the sources as possible.
We believe that, although adaptive management. is encouraged as part of the Jordan Rules and
has been shown to encourage more effective and affordable changes in environmental practices,
much more information is necessary and better techniques and options must be made. available
such that local governments and state agencies can better target management tactics to nutrient
sources. We strongly recommend that the State ftuther study and evaluate all possible nutrient
management strategies and solutions; including a comprehensive evaluation of the role of the
Farrington Road {SR 1008) causeway, in the processes of lake circulation, nutrient cycling, and
algal population dynamics.
We are also concerned that the fiscal analysis significantly underestimates the costs for
implementing the prescribed nutrient management measures for both local governments and state
agencies. Given the potential costs,.we consider a thorough evaluation of alternative strategies
and solutions essential to good stewardship of taxpayers' money.
We appreciate this opportunity to comment on the proposed Nutrient Strategy Rules for B.
Everett Jordan Reservoir. We have attached our detailed comments and questions regarding the
proposed rules, and we look forward to the development and implementation of a practical,
effective, comprehensive, regional, multi-source nutrient management strategy that will
ultimately result in a cleaner, healthier B. Everett Jordan Reservoir. Please contact Ms. Sue
Burke, PE at 919-969-7266 if you have questions or require additional inforn~ation. .
oar L. ~tanctt
Town Manager
Attachment: Chapel Hill Town staff comments and questions regarding the proposed Nutrient
Strategy Rules for the B. Everett Jordan Reservoir
cc: Bruce Heflin, Assistant Town Manager
Ralph Karpinos, Town Attorney
George Small, PE, Engineering Director
Sue Burke, PE, Stormwater Management Engineer
Patricia D'Arconte, Stormwater Specialist
16
TOWN OF CHAPEL HILL STAFF COMMENTS AND QUESTIONS REGARDING PROPOSED
JORDAN LAKE NUTRIENT STRATEGY RULES -SUBMITTED SEPTEMBER 13, 2007
45A NCAC 026.0262: WATERSHED NUTRIENT REDUCTION GOALS
1_ Rule .0262(3) states reduction goals are in terms of a percentage reduction in delivered
nutrient loads to the lake. What transport factors were used, if any, to determine how
much of an individual site's nutrient load is delivered to the lake? Does this transport factor
apply to both percentage reductions (as for existing development- see §.0266(3)(a}) and
the unit-area mass loading rates (as for new development -see §.0265(3)(a)(i))?
2. Aerial deposition of nitrogen (from local and distant combustion sources) is a significant
contributor to nitrogen loads in area water bodies. Aerially-deposited nitrogen as a nutrient
source is addressed by the rules in §.0262(8) only as an acknowledged limitation, and
suggests the EMC could undertake separate rule-making in the future to support the
Jordan Rules.
Achieving success in reducing nitrogen loads to Jordan Lake may be highly dependent on
addressing aerial sources. Urban impervious surfaces such as sidewalks and roofs
typically do not produce nitrogen and phosphorus; they do co(lec~ dry particulates that get
washed off during precipitation events.
Addressing local combustion sources such as the heavy traffic in the Triangle and Triad
regions is certainly feasible and has a variety of human health and environmental benefits.
Emissions control has worked very well in the past for controlling lead pollution. Current
methods for emissions control also offer carbon-reduction benefits. Carbon reduction is a
stated goo[ of both the Chapel Hill Town Council and the University of North Carolina, and
will become increasingly adopted by other jurisdictions as our climate shows signs of
change.
!s it more cost-effective to be treating aerially-deposited nitrogen using stormwater
management rather than limiting its creation through combustion sources? Wouldn't it be
cheaper to control nitrogen at the source rather than try to treat it secondarily through
stormwater management?
3. Biosolids application is currently allowed in the Upper New Hope Arm subwatershed.
What is the estimated nutrient contribution from this application? Would it be considered a
fertilizer? Since biosolids application has the potential to be a significant nutrient source, it
needs to be regulated as part of the Jordan Rules, in spite of the fact that it's already
subject to existing regulatory and compliance programs. These existing programs were
not developed with the goal of watershed nutrient management.
4. There are no existing programs to control nutrient loads from onsite wastewater systems
(e.g. septic systems). Land uses with septic systems were considered to contribute a large
amount of nutrients in the Division of Water Quality's reckoning of nutrient allocations by
land use type. It is not clear if local governments have the authority to require regular
inspections and/or maintenance of onsite wastewater systems or must rely on the county
or state environmental health programs to enforce these provisions.
5. The Division of Water Quality held four stakeholder meetings to design an adaptive
management plan for the lake. The results of this plan would revise the lake model to
have more computational "cells" to better model in-lake processes. The plan would also
add new lake monitoring sites, and new watershed monitoring sites on small tributaries in
the Lower New Hope Arm and in the Haw Arm of the lake to better estimate nutrient
delivery loads. No new sites would be added in the Upper New Hope Arm (there are
Page 1 of 9
17
currently three at the °bottom" of the drainage area). Furthermore, the watershed model
which was used to model sources of nutrients in the three respective watersheds was not
to be revised. Currently, the watershed model is of insufficient scale and precision for any
kind of targeted management practices, such as to allow local governments the ability to
trace and correct highly localized sources of nutrients or determine true land use nutrient
loading rates (rather than using published sources, none of which are calibrated far our
soils and geology}. Revising the lake model alone would not contribute the kind of
information needed for adaptive management.
6. One possibility proposed by stakeholders prior to the first publication of the Rules in 2005
was the removal of the Farrington Road (SR 1008) causeway #hat crosses the take. The
,causeway turns the Upper New Hope Arm into a de facto stormwater forebay for the Lower
New Hope Amy. The narrow opening of the causeway limits the flow of water out of the
Upper New Hope Arm, leading to a residence time of over a year. This nearly stagnant
flow leads to increased sedimentation (easily visible from the causeway but also attested
to by people canoeing up the tributaries), increased temperatures, and decreased
dissolved oxygen. These conditions are very favorable for the proliferation of algae.
7. The need to revise the lake model {primarily, the cost to do so) was one of two main
reasons given by DWQ in early stakeholder meetings for not modeling lake processing for
the scenario where the Farrington Road causeway were to be removed and replaced with
a bridge. The other reason given was the supposition that allowing water from the Upper
New Hope Arm to mix with that of the Lower New Hope Arm would necessarily worsen the .
water quality in the Lower New Hope Arm. There are scientific reasons to believe,
however, that were increased mixing allowed the Upper New Hope Arm (no longer strongly
segmented from other areas) would experience improved nutrient processing without a
concomitant reduction in nutrient processing in the Lower New Hope Arm. The very
purpose of a revised lake model would be to truly test the assumption that water quality
would worsen if the causeway were to be removed.
15A NCAC 028.0263: NUTRIENT MANAGEMENT
1. The ten-acre threshold established in §.0263(3)(d) should be deleted. All contracted
nutrient applicators should be subject to these requirements.
2. Please provide a definition for °nutrient management consultants." {§.0263(3)(e))
3. Nutrient management training or completing and implementing a nutrient management
plan is insufficient to modify any behavior tending towards overapplication of fertilizers
(§.0263(4)). A statewide.licensing and certification .program is needed so that persons
hiring an applicator can readily check that the applicator has been properly trained
((§.0263(4}(b}).
15A NCAC 026.0264: AGRICULTURE
In §.0264(7), "sufficient level of farm stewardship" appears to establish a standard for
compliance. Please provide a defrnition for this term.
15A NCAC 026.0265: STORMWATER MANAGEMENT FOR NEW DEVELOPMENT
Page 2 of 9
18
7. Revise §.0265(3)(a)(i) by adding the following underlined language: stormwater BMPs
and/or Offsets are empfoyed such that "Nitrogen and phosphorus loads contributed by the
proposed new development activity shall not exceed certain unit-area mass loading rates,"
"based on BMP efficiencies published by the Division of Water Quality. Requirements for
urban stormwater, both new development and existing development, need to reflect the
use of best management practices to reduce the discharge of pollutants to the maximum
extent practicable. This is consistent with the approach and language in the federal Clean
Water Act (§ 402(p)(3}(B)) and the associated federal regulations addressing urban
stormwater under the National Pollutant Discharge Elimination System (NPDES) program.
2. Similarly, revise the reference to a water quality standard at §.0265(3}(a)ril) by deleting the
following language (st~ilEet#feuglm): "
' A
3. According to Rufe .0265(3)(a)(vi), developers may use an offset option for nutrient loading
contingent on the acceptance of their proposals by the NC Ecosystem Enhancement
Program (§.0240(a}). Both nutrient loading offset payments and riparian mitigation
payments only have the restriction fo be used for projects in the same river basin as the
impact, but not the specific restriction to the same Jordan subwatershed as the impact.
Similarly, the mitigation options of donated real property and restoration/enhancement of
non-forested riparian buffer are required only to be loca#ed "the same distance from the
Jordan Reservoir as the proposed impact, or closer to the Reservoir than the impact..." as
stated in §.0268(4) with no restriction to the same Jordan subwatershed as the impact.
Do local governments have the authority to restrict the use of impact payments or
mitigatiion projectslproperty for developments in their jurisdictions or to require that they be
used/created in the same Jordan subwatershed as the impact? This would be consistent
with §.0269{2)(b}, in which parties seeking to sell excess loading reductions (credits) may
make them available only in the same subwatershed as the impact.
4. Annual reports (from regulated parties} are specified in the rules at §.0265(4)(e) and
§.0266(4)(h), but there are no details in the rules regarding exactly what regulated parties
need to track and what/how to report it. Wilt instructions or guidance on annual reports be
included in the State's model stormwater program and ordinance and/or the "tool"
developed for nutrient reduction calculation?
5. The efficiencies assigned to urban stormwater BMPs for new development and existing
development in the fiscal analysis appear to be lower than those assigned to comparable
agricultural BMPs (e.g., filter strips, buffers). The urban BMP efficiencies need to be
revised upward.
15A NCAC 02B.0266: STORMWATER MANAGEMENT FOR EXISTING DEVELOPMENT
Section .0266(3)(a)(i) should be revised with the following added (underlined) or deleted
(str3lFet#~eag#) language: "In addressing this long-term objective, a local government shall
include estimates of, and plans for offsetting, nutrient loading increases from lands
developed prior to implementation of yew
f these rules.' Implementation may have occurred at anv time
Page 3 of 9
19
before durin4 or after the baseline period and compliance shall be contingent on the
continued implementation and maintenance of such practices.
This language is needed to acknowledge the efforts made by those jurisdictions that have
implemented stormwater and buffer requirements for many years prior to these regulations
arxi it is consistent with language contained in §.0264(7) for agriculture.
The Town has been a local leader in adopting environmental protection practices such as
stream buffers, runoff volume and rate control, total suspended solids in runoff control,
treelforest stand protection, erosion and sedimentation control, and a variety of practices
now known as Low Impact Development which includes cluster development, pedestrian-
and transit-oriented development layout, lot-level stomlwater management, etc. The Town
has been implementing these progressive planning and stormwater management practices
over the past two decades but will only get "credit" for stormwater management installed
from 2002 onwards. Furthermore, since the Town has already required buffers and BMPs
in recent developments, the "easy projects" to increase nutrient removal in existing
developments are already done, leaving the Town with fewer locations and options for
installing BMPs or restoring riparian buffers.
2. Section .0266(3)(a)(i) notes that local governments may seek supplemental funding for
implementation of load-reducing activities through grant sources such as the North.
Carolina Clean Water Management Trust Fund, the North Carolina Clean Water Act
Section 319 Grant Program, or other funding programs far nonpoint sources. What
funding sources is the State identifying or making available for the performance of the
feasibility studies?
As the area under the Town of Chapel Hill's planning jurisdiction is more than 93%
developed (Source: Chapel Hill Data Book, 2007), this requirement has significant fiscal
and practicable impacts for the town.
The Fiscal Analysis states a total cost of $1.7M for conducting the planning studies (Table
RP.3 Annual Planning Costs/Savings, for local government); however, this estimate is too
low and needs to be revised.
3. Rule .0266(3)(a){ii) states that a locally-conducted feasibility study will determine the extent
to which the loading goals may be achieved from existing development. Is this equivalent
to the standard engineering definition of "maximum extent practicable" or an extent
cxarrently technologically feasible?
Does feasibility in this case include some measure of financial cost? Is there a penalty for
a jurisdiction if the feasibility study determines that the loading reduction goals cannot be
met across the entire jurisdiction practicably? Will local govemments need to undertake the
full set of BMP installations whether or not it is practicable and whether or not it actually
reduces nitrogen exports to the lake?
4. .The nu#rient accounting tool referred to in §.0265(4}(a) is to be developed by DWQ within
12 months after the effective date of the Rule. According to §.0266(3)(a)(i} local
govemments must include estimates of and plans for offsetting nutrient loading increases
from lands developed subsequent to the baseline period but prior to implementation of new
development programs. According to §.0266((3}{a}(ii) a feasibility study to determine the
extent to which loading goals may be achieved from existing development must be
conducted by local governments. In order to estimate nutrient loads from redently-
developed lands and to conduct a feasibility study, local govemments should be using the
same loading calculation methods that will be in the nutrient accounting tool, especially in
Page 4 of 9
20
light of any transport factors not explicitly stated in the Hales. Will a draft version of this tool
be available early enough for local govemments to use in their calculations and studies?
5. According to Rule .0266{3)(a)(ii} the feasibility study shall propose an implementation rate
and schedule for toad reducing activities. Rule .0269 also allows a jurisdiction to buy
nutrient credits to meet its load reduction requirements. However, there are no
benchmarks for progress or a suggested timeline for meeting load reduction requirements.
How are proposed implementation rates and schedules judged to be adequate? If a
feasibility study indicates that load reduang activities and projects are insufficient to meet
reduction goals across the jurisdiction, is the jurisdiction then required to buy nutrient
credits to meet its goals?
6. What exactly constitutes °retrofitting° as referred to in §.0266(3)(a)(iv)? One assumes it
includes installation of new BMPs in existing developments. According to DWQ staff,
BMPs existing during the baseline period cannot be counted towards nutrient load
reduction. However, could improvement or mod cation of existing BMPs to treat nutrients
or increase treatment be considered for credit? Could repair of broken/poorly-functioning
BMPs to restore nutrient treatment capacity be considered for credit? Given the potential
for these activities to improve nutrient management can repair or improvement of these
existing BMPs be used for full or even partial nutrient credit?
7. When stormwater infrastructure is shared or crosses boundaries between local
jurisdictions, which entity bears the responsibility for nutrient reduction? Local
govemments, such as towns and counties, are encouraged to work with each other to
jointly meet loading targets in §.02fi6(3)(a)(vi), which does allow a method to address such
shared infrastructure. Similarly, NCDOT-maintained roads and UNC properties are
scattered throughout Chape! Fliil's jurisdiction such that the stormwater infrastructure of
these three entities is highly interconnected. However, there is no clear guidance in these
rules on responsibilities for nutrient reduction when stormwater infrastructure is shared
between local govemments and state agencies. While it would probably be highly
beneficial and reduce inefficiency, it is similarly unclear whether NCDOT or UNC is allowed
to enter into joint nutrient management agreements with local governments.
8. According to discussions with DWQ staff and based on similar calculations for the Neuse
and Tar-Pamlico, installation of a new stormwater BMP upstream of an existing BMP being
used for nutrient reduction has the potential to lower the nutrient removal credit for the
downstream BMP (through the °BMPs in series" calculations). What is the minimum
separation distance between BMPs in order to be considered separate? Or are nutrient
treatment loads for BMPs in series, even if separated, calculated only using the drainage
area flowing to them that doesn't already pass through a BMP? This is likely to be an
extraordinarily complex calculation of BMP nutrient removal. How is treatment capacity
managed under this scenario?
15A NCAC 028.0267: PROTECTION OF EXISTING RIPARIAN BUFFERS
In §.0267(9), Table of Uses, Vegetation Maintenance includes the removal of understory
nuisance vegetation as defined in "Exotic Plant Guidelines," by Cherri L Smith, Dept. of
Environment and Natural Resources. Division of Parks and Recreation. Raleigh, NC. This
reference does not provide a definition of "understory nuisance vegetation." Please
provide a definition or change to "invasive exotic species," which is defined in the cited
reference.
Page 5 of 9
21
2. In §.0267(9), Table of Uses, `wildlife passage" is considered an Allowable Use in the
riparian buffer only if a determination of no practical altematives is made. `Wildlife
passage" is not defined in §.0267(2). If `wildlife passage" is the maintenance of a forested
or other natural corridor connecting natural areas {as the term is used in conservation
biology), why is it considered a land use impacting the riparian buffer to the extent that a
determination of no practical alternatives is necessary'?
15A NCAC 026.0268: MITIGATION FOR RIPARIAN BUFFERS
No comments.
15A NCAC 026.0269: OPTIONS FOR OFFSETTING NUTRIENT LOADS
No comments.
15A NCAC 028.0270: WASTEWATER DISCHARGE REQUIREMENTS
No comments.
15A NCAC 026.0271: STORMWATER REQUIREMENTS FOR STATE AND FEDERAL
ENTITIES '
The requirements and schedule for the state and federal agencies need to be identical to those
for local govemment. The state agency implementation schedule appears to lag local
govemment by 18 months. Further, comparable requirements to those contained in
§.0266(3)(o-e) for local governments appear to be missing for non-DOT agencies.
15A NCAC 026.0272: RIPARIAN BUFFER MITGATION FEES
No comments.
15A NCAC 026.0311: CAPE FEAR RIVER BASIN
No comments.
FISCAL ANALYSIS
1. The Fiscal Analysis includes no new costs to the Division to implement these rules (pg.
xviii), which is not realistic.
2. To avoid complexity, cost calculations were carried out at the scale of the entire watershed
(pg. xx). This likely greatly overestimates costs for those in the Lower New Hope Arm
subwatershed, somewhat overestimates costs for the Haw Arm, and underestimates costs
for those in the Upper New Hope Arm. This is attributable to the significantly greater
amount of nutrient reduction that must be achieved in the Upper New Hope Arm. The
Fiscal Analysis needs to provide more realistic cost analyses for the separate
subwatersheds. Further, the estimated costs for each local government should be
identified.
3. At the Carrboro public hearing, some Haw dischargers asserted that they will be required
to remove closer to 20% in order to meet the 8% nitrogen reduction at the lake because of
Page 6 of 9
22
transport factors. The transport factors describe the attrition of nutrients as they travel
down through a subwatershed. If the local export was reduced by 8%, the delivered Toad
would also be reduced by 8°~. The local export and delivered load would not be the same
"mass," but they will be the same `percent mass." Can the DWQ provide some
Gariflcation?
4. The cost estimates for additional regulatory transactions on the part of [oval governments
for new development (pg. 35) and for riparian buffer protection are significantly under-
estimated. Cost estimates assume negligible costs for additional regulatory transactions
on the part of local governments for new development (pg. 35) and for riparian buffer
protection, partly because local governments already have programs that deal with new
development stormwater controls and stream buffer protection to some degree. However,
the Jordan Rules for new development stormwater treatment and r-iparian buffer protection
are sufficienily different in many ways, and much more strict in other ways, to require extra
time and effort from local jurisdictions for increased inspection and enforcement costs (in
order to ensure compliance, which is the responsibility of local governments), increased
plan review costs (experience has shown that more complex engineering calculations
require significantly more plan review), and increased public education and outreach.
5. Cost calculations for new developments use a weighted average for the entire Jordan
watershed, rather than different calculations for the different subwatersheds (pg. 37). This
greatly underestimates costs for those in the Upper New Hope Arm subwatershed and
overestimates costs for others.
6. In the section concerning new development, the calculation methodology assumes no
regulatory costs to developers in 2009 or 2010 (for some reason they are merged with
riparian buffer protection -but not all riparian impacts happen in the course of
development) (pg. 49}. However, prudent jurisdictions are likely to attempt to modify their
development ordinances to approximate the expected stormwater program rules in order to
minimize the amount of retrofitting they have to. do to very new developments. Similarly, it
assumes there will be no maintenance costs for BMPs in 2009 and 2010 as well (pg. 46).
7. In the section concerning new development, costs are likely underestimated for Chapel Hill
as proportionately more of its development will be moderate-to-higher density residential
and mixed development, incurring much greater treatment requirements (average TN load
15.0 Ib/acJyr) than for residential (average TN load 4.04 Ib/ac/yr) (pg. 40}. A likely
unintended side effect of the nutrient management strategy encourages. sprawling
residential development over compact forms that set aside open space because the
nutrient treatment requirement is so much greater for compact development.
8. Cost calculation methods for new development also used an allowable nitrogen value of
3.66 Ib/aclyr, higher than the 2.2 Ib/ac/yr that Upper New Hope Arm (UNHA) developers
will be allowed (pg. 40). Using the designated UNHA target, developers will have to treat
up to 85°~ of nitrogen coming off their sites. With an average BMP efficiency for nitrogen
of 36%, and the problems of using BMPs in series (lower BMPs in series only remove a
portion of what is left), developers would have to install a minimum of three BMPs to get
down to the 4.0 Ib/ac/yr threshold for buying nitrogen credits and would have to use five
BMPs per acre to get below the ultimate 2.2 Iblaclyr goal. Even residential, with 113 acre
,lots, would require two BMPs per acre. Calculations only use a single BMP cost-
effe~iveness value, which you can only assume if you use only one BMP. BMPs in series
will have progressively poorer cost-effectiveness. Treatment efficiencies for BMPs are
Page 7 of 9
23
only listed for a certain size of BMP as well. It is not calculated/determined whether an
oversized BMP will perform better for these development cases that need so much more
nutrient removal.
9. In the section regarding new development (pg. 45}, it is noted that credits can easily be
generated for overtreating phosphorus, but that these credits could not be used to cover
nitrogen reduction needs. However, for existing development (pg. 55) it is asserted that
local governments would be able to trade excess phosphorus reduction credits in order to
meet nitrogen reduction needs, contradicting the methods used for calculating costs for
new development. That credit value is used towards reducing the estimated costs for
existing development retrofits. By their calculation this comes to $5.4 million per year (pg.
66}.
10. In the section regarding existing development, the calculation methodology assumes no
costs until the fifth year (pg. xxi and 69). ,However, local governments will need to start
feasibility studies immediately upon Rule adoption, and will need to go through the lengthy
process of wrrting and adopting new ordinances. The cost of conducting feasibility studies
is completely absent Calculations also assume that DWQ will be the entity developing
regulations, monitoring and recordkeeping, and inspection and enforcement, in addition to
installation, operation, and maintenance of BMPs, when in fact these responsibilities are
also the responsibility of the local governments because they must keep track of these
issues far their annual reports (pg. 70}. In any case, DWQ calculates these costs to be
zero, when they most certainly will not be.
11. For calculating existing development retrofit costs for DOT, DWQ used an areal loading
value supplied by DOT, of 3.17 Ib N/ac/yr (pg. 129). No other entities were allowed to
estimate their nutrient contribution or loads in this way. This very likely significantly
underestimates loads generated ftom DOT roads, as the supplied [oading rate is just
slightly less than that used for urban parklandlopen space (3.57 Ib Nlaclyr) (calculated to
have 0% imperviousness far the TetraTech model) and less than all residential values
(sewered, ranging from 9.37 to 15.03 Ib N/ac/yr) except for very low density (sewered only,
more than 2 acres per dwelling unit).
12. The °co-mingled drainage treatment' scenario for DOT refers to the treatment of runoff
from both DOT and non-DOT land in order to be most efficient in runoff treatment. It
proposes that DOT may sell treatment credits at hiaher rates than it costs to DOT to local
jurisdictions for treating their runoff (pg. 130). This is a significantly lower estimate of costs
for DOT ($71 million) compared to the estimate for putting a BMP on every outfall on all of
their existing roads in.the watershed {$595 million) (pg. 129). This suggests that DOT may
transfer much of the BMP costs to local governments, but this cost to governments is not
included. DOTs lowest cost alternative ($58 million) was to use only EEP offsets. There
is concern whether there are a sufficient number of sites in the Upper New Hope Arm that
meet the EEP project criteria to offset all the miles of DOT roads in the UNHA.
13. Costs for regulation of new development are rolled into those for riparian buffer protection,
including estimates for plan review, permitting, variance process, etc. Cost estimates for
these are all rolled into one value including inspection and enforcement, permitting, plan
review, program development (pg. 94). Some regulatory costs are presented, all based on
the assumption that NPDES Phase 2 would require riparian buffer protection anyway (pg.
78) (a dubious assumption), but they are Likely sign~cantly underestimated. In our
experience, inspection and enforcement will likely be extensive as many property owners
Page 8 of 9
24
will impact the buffer for both. activities that would need a development pem~it, as well as
activities that currently do not (such as clearing, other activities currently considered
"maintenance" that affect the buffer). Enforcement would have to include the collection of
data on location of different buffer cover types and monitoring to ensure that forested
buffers are not impacted and the footprints of uses in buffers did not increase. No costs
are included far the extensive education that will be required for landowners, developers,
engineers, surveyors, real estate agents, and attorneys.
14. The Fiscal Analysis asserts that the NPDES Phase 2 requirements include a 30-foot
setback for impervious surfaces for all perennial and intermittent streams (pg. 78) and that
therefore the additional costs associated with the Jordan requirements for the protection of
existing riparian buffers are minimal. The NPDES requirements state that "built-upon
areas are at least 30 feet landward of perennial and intermittent surface waters.° The
NPDES requirement does not prohibit the disturbance (e.g., clearing and grading) within
the 30 foot setback and it should not be interpreted as affording the same protection as a
buffer protection requirement.
15. The Fiscal Analysis assumes landowners would likely take steps to revegetate cleared
riparian areas in existing developments regardless of the rule's requirement (pg. 81), and
therefore pose no new costs. VKe have found that most landowners are usually only willing
to revegetate to lawn. Even those with interest to reforest #heir riparian areas will require
guidance, and possibly assistance, from local governments.
16. Costs for mitigating riparian buffer impacts are supposedly rolled into those for riparian
buffer protection {pg. 100), but any costs for administering this program are not explicitly
mentioned in the cost estimates for riparian buffer protection. In the experience of staff,
costs associated with plan review, inspection, recordkeeping, and ensuring maintenance,
even for restoration projects not undertaken by the Town, are sign cant.
Page 9 of 9
25
July 5, 2007
TOWN OF CARRBORO
NORTH CAROLINA
North Carolina Environmental Management Commission
c/o Rich Gannon or Jason Robinson
DENR-Division of Water Quality, Planning Section
1617 Mail Service Center, Raleigh, NC 27699-1617
Dear members of the NC EMC,
Thank you very much for this opportunity to review and comment on the proposed nutrient
management strategy for the B. F. Jordan Reservoir. The Town appreciates the work of the
committee in seeking the protection and management of North Carolina's invaluable natural
resources. Comments on both the March 2007 draft rule and the Fiscal Analysis prepared by
the staffof the North Caroina Division of Water Quality are listed below. Representatives of
the Town will also be on hand to provide comments during the July 12 public hearing at the
Carrboro Century Center.
1. General -Section .0262 (6)(a) of the rules states that, "rules .0265, .0266, .0267,
.0268, and .0269 shall apply to all incorporated municipalities within the Jordan
watershed as identified by the Office of the Secretary of State." However, the rule
goes on to state that, "those municipalities shall include," and provides a list of
municipalities. The rule should be modified so that it does not include a list of any
municipalities; instead the phrase, "shall apply to all municipalities within the Jordan
watershed as identified by the Office of the Secretary of State," should control.
Newly incorporated municipalities within the Jordan Lake watershed, and
municipalities previously outside of the Jordan Lake watershed but that annex
property within the Jordan Lake watershed, must become subject to the rule.
2. General - Carrboro's long-standing commitment to watershed protection through land
use planning and development management strategies in the years prior to 2001
makes it difficult to do more without raising the cost of living significantly or further
limiting new growth. This effect stands to undermine the regional commitment, as
defined in the Joint Planning Agreement between Orange County and the Towns of
Chapel Hill and Carrboro, of the maximization of urban services within a defined
boundary. Two current examples of the Town's commitment to watershed protection
include the Bolin Creek Watershed Restoration Team, and the Greenhouse Gas
Emissions Inventory and Reduction Planning Effort.
301 West Main Street, Carrboro, NC 27510
AN EQUAL OPPORTUNITY EMPLOYER
26
Comments on March 2007 Drag Rules -Jordan Reservoir
9/17/2007
Page 2 of 5
3. General - Carrboro's population of neazly 18,000 citizens occupies a municipal area
from which the tax revenue is 90 percent residential and 10 percent commercial.
Though the town has made a commitment to diversifying its tax base, a significant
alteration of the mix and associated revenue generation will take some time, and
could be severely limited by these rules. What happens if Carrboro finds that it
cannot achieve the required nutrient reductions through load reducing activities
without bankrupting the Town, either through budgeting that applies the bulk of town
resources to Jordan Rules implementation or the payment of fines due to its lack of
compliance? What will be acceptable time frames for implementing the local plan,
and how will the state ensure/support/work with the Town to yield the shared desired
outcome of water quality enhancement without financial ruin?
4. General -The Upper New Hope Arm of Jordan Lake has demonstrated water quality
characteristics lower than those of the remainder of the lake. It is the town's opinion
that this difference is substantially due to the configuration of the lake, particularly
the causeway that supports Farrington Road and the constriction of water flow that
occurs between the Upper New Hope Arm and the remainder of the lake. The Town
is interested in determining whether either of the following actions has been
considered as alternative measures to improve water quality in the lake.
a. Modeling removal of the causeway and its replacement with a structure
that would reduce the constriction on flow. While it is understood that the
enhanced flow that would occur under this option may not completely
restore chlorophyll A to desired levels, it is postulated that the levels
would be closer to state standards, therefore decreasing the required
nitrogen and phosphorous reductions to achievable levels.
b. Since it acts similarly to a forebay in a structural best management
practice, reclassification of the Upper New Hope Arm of the lake and
modification of its permitted uses, and/or revision of the applicable
chlorophyll A standard so that levels might not be as limiting.
5. General - In order for the application of the nutrient management requirements for
Jordan Lake to be fair and accurate, modeling of atmospheric nitrogen associated
with existing land uses and vehicle miles traveled, water quality degradation, and the
necessary nutrient management strategies must be part of the rule when it is adopted.
Funds need to be budgeted for these activities immediately, if this has not yet
occurred. The possibility of expending extensive resources -time and money - on
nutrient management that does not account for the atmospheric contribution of
nitrogen is wasteful and costly.
6. General -Are the nitrogen and phosphorous loading rate targets technically feasible
in association with dense development activities? Carrboro officials have expressed
grave concerns that loading rate targets may present such an insurmountable obstacle
so as to render areas of the Town's jurisdiction undevelopable. The Town's existing
stormwater regulations have been identified as discouraging development and
redevelopment. Additional regulations run the risk of further discouraging
redevelopment and any associated water quality improvements that would be
achieved through such redevelopment's compliance with existing Town regulations,
or future versions which go further toward addressing Jordan's nutrient issues.
301 West Main Street, Carrboro, NC 27510
AN EQUAL OPPORTUNITY EMPLOYER
27
Comments on March 2007 Drag Rules - Jordaa Reservoir
9/I7/2007
Page 3 of 5
7. Agriculture -The relationship between the purpose in Section .0262 (1) and the
standard BMPs to be implemented in Section .0264 (7) is unclear. This is especially
true in consideration of the statement that, "implementation may have occurred at any
time before, during, or after the baseline period." It would seem that the probability
of reducing nutrients from agriculture sufficiently to achieve the nonpoint source
nutrient targets under this rule is small. This undermines the nonpoint source nutrient
reduction strategy as a whole. Furthermore, agricultural sources generate nitrogen
credits by implementing any BMP in addition to the list provided in Section .0264
(7)(a). By providing a threshold to generate nitrogen credits that bears no relationship
to the nutrient reduction targets, agricultural sources may be generating spurious
credits, further reducing the effectiveness of the nonpoint source nutrient reduction
strategy. Agricultural uses should have to meet changes related to the 2001 baseline
as is proposed for all other uses. Otherwise, the rules should be modified to allow
any other uses whose actions prior to 2001 can be shown to have water quality
benefits to receive credit for those actions.
8. Fiscal Impacts -The estimated costs, as high as they are already, still appear to
grossly underestimate the full cost of implementing the rule as written.
a. Direct costs which are not yet fully noted appear to include monitoring
and enforcement activities both to the local government and citizens, and
prospective developers. In and of themselves, these costs are expected to
significantly exceed the estimates provided. Additional costs are
expected, but will not be known until the Town prepares its program and
determines what types of actions will be needed to achieve the required
nutrient reductions from existing development.
b. Indirect costs may be of a larger magnitude and include lost tax revenue,
gross receipts and other funds associated with land taken out of the private
supply to install best management practices towards achieving the nutrient
reductions for existing development, and land development and building
that does not occur because interested developers choose to locate
elsewhere where requirements are less stringent and lower densities
encourage more vehicle miles traveled.
c. Environmental costs associated with sprawling land use that is
encouraged, particularly in less developed portions of the Jordan Lake
watershed. Such costs will include at a minimum, water quality impacts
from riparian buffer and surface water alteration and removal and
insufficient replacement, continued and expanded air quality impacts (e.g.
atmospheric nitrogen) from increased vehicle miles traveled, reductions in
land available for agriculture, forests, open space, and wildlife. Fracturing
the forests for low-intensity Land uses is known to result in significant
reductions in biological diversity of plants and animals.
d. Administrative costs associated with tracking the compliance of local
governments with the rule. Who will pay for this data collection,
monitoring, tracking, plan review, etcetera? The stated assumption that
the DWQ can absorb these costs into an already overbooked and
understaffed agency seems exceedingly optimistic. At a minimum,
coordination of this effort would seem to require the installation of
301 West Main Street, Carrboro, NC 27510
AN EQUAL OPPORTUNITY EMPLOYER
28
Comments on March 2007 Draft Rules -Jordan Reservoir
9/17/2007
Page 4 of 5
mechanical devices throughout the Jordan watershed that can continuously
monitor stream flows, such as the stream gauging stations installed by the
USGS, and frequent, routine water quality monitoring at those stations.
Such devices and the associated monitoring programs will be the only way
to provide the data necessary to accurately assess the benefits yielded by
changing land uses, stormwater retrofits, nonstructural BMPs, et cetera.
Are such expenses covered in existing DWQ budgets or will such
expenses be incorporated into future budgets?
9. Fiscal Impacts -The fiscal analysis makes the assumption (FA Chapter 4, p.43) that
because, "almost all municipalities in the watershed are subject to Phase II
requirements and are to implement new development programs beginning mid- to late
2007," and because, "virtually all remaining municipalities fall within water supply
watersheds and implement WSW stormwater programs," that Jordan municipalities
will not incur, "significant, quantifiable additional costs to implement this rule." The
Phase II and WSW stormwater programs do not have nutrient reduction requirements.
Local governments will need new programs and resources to address the nutrient
reduction requirements; the validity of this assumption must be questioned.
10. Fiscal Impacts -The pay rate of $36/hour (FA Chapter 4, p.44) used to quantify the
cost of local governments contracting assistance in preparing ordinances seems rather
low.
11. Fiscal Impacts -Section .0265 (3)(a)(vi) must be clarified such that if there exists a
local govenunent option for mitigation then that local option shall be the only offset
option that developers use. This would ensure that developers will not be allowed to
opt out of local mitigation programs and into the NC EEP when local governments
choose to charge a substantially higher mitigation fee than the NC EEP rate. These
higher rates will be necessary to recuperate adequate funds to support the actual
implementation of nutrient off-setting measures, and this more stringent option for
the local governments is supported by the language in Section .0265 (3) that describes
the following standards as, "minimum," and which is clearly meant in spirit to allow
more stringent standards to be established by local goven~unents. In fact, clarification
throughout these rules that local governments have the option to implement more
stringent standards to achieve the nutrient reduction goals will be essential.
12. Fiscal Impacts Section .0265 must also be clarified such that any contributions to NC
EEP resulting from development occurring within a particular jurisdiction and within
one of the three Jordan Lake arms, or other appropriate hydrologic unit must be
expended within that same political and hydrological area of Jordan Lake.
13. Implementation -Delete Section .0263 (4)(b) that requires homeowners to bear the
responsibility for verifying that nutrient applicators they hire have met the
requirements of Section .0263 (4)(a). Such a requirement is cumbersome and
unrealistic.
14. Implementation -The five-year time frame for the completion of nutrient
management training specified in Section .0263 (5)(a) is too long. Local
governments affected by this rule are, as it is currently written, required to prepare
programs demonstrating how required reductions will be achieved within three years.
The nutrient management training time frame should be no longer than three years as
well.
301 West Main Street, Carrboro, NC 27510
AN EQUAL OPPORTUNITY EMPLOYER
29
Comments on March 2007 Draft Rules -Jordan Reservoir Page 5 of 5
9/17/2007
15. Agriculture - Reconsider the numbers of livestock that in Section .0264 (4)(c); these
thresholds will allow too many small farming operations to operate without necessary
nutrient management practices.
16. Administration -Section .0265 (4)(e) should be revised to allow local governments
that are also subject to NPDES II, or other State-mandated stormwater programs
which require an annual report, to prepare one annual report that responds to the
initiatives of all programs.
17. Administration -Section .0266 does not provide clear information on how required
water quality improvements will be tracked.
18. Administration -Funding assistance from the State and Federal governments will be
needed to assess existing development and stormwater management in order to
achieve the requirements of Section .0266 (3)(a)(iv). Where will money come from to
address this need?
19. Implementation -The buffer portion of the rule should apply to all intermittent and
perennial surface waters, as defined in Section .0267 (2) and per the latest publication
of DWQ's Identification Methods for the Origins of Intermittent and Perennial
Streams, rather than only those delineated on the USGS or Soil Survey maps. It is
well known that many of the aforementioned surface waters are not shown on these
maps.
Your careful consideration of these comments is greatly appreciated. Best of luck with
your deliberation on the draft rules and associated public comments.
Don't' hesitate to contact Patricia McGuire, Planning Administrator, at 919/918-7327 or
pmc uire e, wnofcarrboro.org if you have questions.
Sincerely,
Mark Chilton, Mayor
Carrboro, North Carolina
SS/pjm
301 West Main Street, Carrboro, NC 27510
AN EQUAL OPPORTUNITY EMPLOYER
.+ a
30
February 12, 2009
Dear Chairwoman Foushee, and Members of the Orange County Board
of Commissioners:
The Jordan Lake Rules were approved by the NC Rules Review Commission on November 20,
2008. This brings to a close a very long process that started with DWQ convening a stakeholder
group to craft the rules in 2003, a long public comment period, and the Environmental
Management Commission (EMC) adopting them eazlier in 2008.
The rules that have emerged from this process are strong, fair and sensitive to economic
conditions. The work is not over however -the rules will now have to be passed as law by the
NC General Assembly due to continued objections led by Burlington, Greensboro, Durham and
certain homebuilder and realty lobbies. Supporting the rules are many of the local governments
that know just what is at stake for their residents if we don't clean up Jordan Lake -a vitally
important resource for drinking water and recreation in our area. We aze asking Chatham
County, Orange County, Chapel Hill, Carrboro, Pittsboro, Cary, Apex, Wake County and
Morrisville to pass resolutions in favor of the current rules adopted by the EMC.
We urge Orange County to join the many citizens and other local governments who aze
supporting these new rules to reduce pollution in Jordan Lake. We believe the rules are fair and
proportional, and will result in cleaner water not only in Jordan Lake, but in all the tributazies
that are upstream of it. We urge you to pass a resolution directed to members of the General
Assembly in favor of the rules that were adopted by the EMC and approved by the RRC.
What are the proposed rules?
To develop the rules, the state estimated the total nitrogen and phosphorus pollution that Jordan
Lake can absorb and still be healthy. The state then calculated how much pollution is currently
flowing into the lake -and it's much more than the lake can take. Jordan Lake operates as three
distinct sections - so the reductions needed are based on which part of the lake the pollution
flows to (as measured for the 2002 model) Nitrogen will need to be reduced by 8% in the Haw
River arm and 35% in the Upper New Hope arm. Phosphorus will need to be reduced by 5% in
each arm. The rules spread the needed reductions in nutrients among all the sources of pollution:
* Wastewater treatment plants. The proposed rules require wastewater treatment plants to
reduce phosphorus one yeaz after the rules take effect, and to reduce nitrogen by 2014.
Wastewater treatment plants contribute approximately 32% of total nitrogen delivered to the
P.O. Box 187 Bynum NC 27228 (919) 542-5790 info@hawriver.org
31
lake. Reductions from this source will result in immediate improvements to both the lake and the
impaired streams that are the first "receivers" of the effluent - such as Morgan Creek.
* Existing development. This is one of the most controversial and misunderstood parts of the
rules. Jordan Lake cannot become healthy again unless local governments take steps to control
polluted runoff from existing development. The proposed rules have lengthy timeline that begins
with a three and a half year period for local governments to write plans for projects to reduce
one-half of the excess nutrient pollution within 10 years..The rules support alternative
stormwater practices that also increase water conservation and groundwater re-charge -like rain
barrels, cisterns, and raingardens - as well as stream restoration and new fertilizer and pet waste
ordinances. These are all practices that will make streams cleaner in developed and urban areas,
before their waters ever reach Jordan Lake. Local governments can receive credits for
documented BMP's and storm water practices put in place after the base period of 2001 and
before the rules become effective.
* New development, Stream buffers The rules require new development to limit pollution
released upstream from the lake by better controlling stormwater runoff and leaving buffers along
creeks and streams. Many local governments in the Haw River basin already have riparian
buffers stronger than the minimum 50' required in these rules, but these rules will ensure buffers
throughout the watershed.
* Agriculture. The rules require farmers in the Jordan Lake watershed to work together to adopt
best management practices to keep nitrogen and phosphorus out of rivers and creeks upstream
from the lake. Similar rules have worked successfully in the Neuse and Tar-Pamlico river basins
without placing a noticeable burden on fanners. The rules also require training and plans for
fertilizer applications on crops, golf courses, landscaping nurseries, etc.
*NC Department of Transportation. The proposed rules will require the state Department of
Transportation and other state and federal entities to take modest steps to control polluted runoff
from existing and new projects.
* Nutrient Trading. To improve flexibility and lower costs, the rules also allow the various
contributors to `trade' pollution reductions - so, if a farmer can cheaply reduce nitrogen, even
beyond their required reduction, they can sell that reduction to a wastewater treatment plant or
local government.
The Haw River Assembly urges the members of the Orange County Board of Commissioners to
join other local governments in adopting a resolution to the General Assembly letting them know
that. you want to see strong rules passed to protect Jordan Lake Thank you for your
consideration of this important issue.
Sincerely,
Elaine Chiosso
Haw RIVERKEEPER®
www.hawriver.org
32
DRAFT LANGUAGE FOR:
A RESOLUTION BY THE ORANGE COUNTY BOARD OF COMMISSIONERS IN SUPPORT
OF THE PROPOSED JORDAN RESERVOIR WATER SUPPLY NUTRIENT STRATEGY
RULES 15A NCAC 02B .0262-.0273 & .0311
WHEREAS, the Jordan Lake Reservoir is a popular recreation destination for over lmillion
visitors each year including residents of Orange County; and
WHEREAS, the Jordan Lake Reservoir is a major drinking water source for residents in the
Triangle; and
WHEREAS, the State of North Carolina first directed local governments to reduce nitrogen in
waters that flow to the Jordan Lake Reservoir in 1997 under the Clean Water Responsibility Act; and
WHEREAS, the Jordan Lake Reservoir is on the EPA 303(d) list of impaired waters due to
excessive nutrients from point and non-point sources, and has been since 2002; and
WHEREAS, the Jordan Lake Reservoir Nutrient Strategy rules were developed by the NC
Division of Water Quality through a lengthy stakeholder process and were adopted by the NC
Environmental. Management Commission (EMC) on May 8, 2008 and approved by the Rules Review
Commission (RRC) on November 11, 2008; and
WHEREAS, the Jordan Lake Reservoir Nutrient Strategy rules are based on sound scientific
monitoring and modeling to apportion decreases in the nutrient load from all point and non-point sources
in the Jordan Lake watershed in order to improve water quality; and
WHEREAS, the Jordan Lake Reservoir cannot meet water quality standards unless nutrient loads
from all current and future sources are reduced, including those from wastewater, and from stormwater
from existing and new development; and
WHEREAS, the threat to the water quality in the Jordan Lake Reservoir and drinking water
users, as well as recreations users will continue until all sections of the rules are approved by the NC
General Assembly;
WHEREAS, Orange County supports protection of waters within its own boundaries that flow to
the Haw River and to the Jordan Lake Reservoir;
NOW, THEREFORE, BE IT RESOLVED BY THE ORANGE COUNTY BOARD OF
COMMISSIONERS that members of the North Carolina General Assembly are hereby requested to vote
to approve the Jordan Lake Reservoir Nutrient Strategy rules in their entirety, as adopted by the EMC and
approved by the RRC, in order to protect the public health and welfare of the citizens of Orange County
and other residents of North Carolina.
Adopted, this the .day of , 2009
ATTEST:
~Q~rven1 ~ 33
North Carolina Association of Countv Commissioners 2009-2010 Legislative Goal
Related to Watershed Pollution Rules/Jordan Lake
Watershed Pollution Rules -Seek legislation eliminating required retrofitting by counties of
existing development under rules impacting nutrient levels in existing watersheds.
34
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
HOUSE BILL 3
H
Short Title: Disapprove Jordan Lake Rules.
(Public)
Sponsors: Representatives Allred, McCormick (Primary Sponsors); Blust, Cole, and
West.
Referred to: Rules, Calendar, and Operations of the House.
January 29, 2009
1
2
3
4
5
6
7
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A BILL TO BE ENTITLED
AN ACT TO DISAPPROVE RULES ADOPTED BY THE NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION AND APPROVED BY THE
RULES REVIEW COMMISSION.
The General Assembly of North Carolina enacts:
SECTION 1. Pursuant to G.S. 150B-21.3(bl), 15A NCAC 02B .0264 (Jordan
Water Supply Nutrient Strategy: Agriculture), 15A NCAC 02B .0268 (Jordan Water Supply
Nutrient Strategy: Mitigation for Existing Riparian Buffers), 15A NCAC 02B .0269 (Riparian
Buffer Mitigation Fees to the NC Ecosystem Enhancement Program), 15A NCAC 02B .0270
(Jordan Water Supply Nutrient Strategy: Wastewater Discharge Requirements), 15A NCAC
02B .0271 (Jordan Water Supply Nutrient Strategy: Stormwater Requirements for State and
Federal Entities), 15A NCAC 02B .0272 (Jordan Water Supply Nutrient Strategy: Fertilizer
Management), 15A NCAC 02B .0273 (Jordan Water Supply Nutrient Strategy: Options for
Offsetting Nutrient Loads), as adopted by the North Carolina Environmental Management
Commission on May 8, 2008, and approved by the Rules Review Commission on October 16,
2008, are disapproved.
SECTION 2. Pursuant to G.S. 150B-21.3(bl), 15A NCAC 02B .0262 (Jordan
Water Supply Nutrient Strategy: Purpose and Scope), 15A NCAC 02B .0263 (Jordan Water
Supply Nutrient Strategy: Definitions), 15A.NCAC 02B .0265 (Jordan Water Supply Nutrient
Strategy: Stormwater Management for New Development), 15A NCAC 02B .0266 (Jordan
Water Supply Nutrient Strategy: Stormwater Management for Existing Development), 15A
NCAC 02B .0267 (Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian
Buffers), as adopted by the North Carolina Environmental Management Commission on May 8,
2008, and approved by the Rules Review Commission on November 20, 2008, are disapproved.
SECTION 3. This act is effective when it becomes law.
11111111
35
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
H
HOUSE BILL 239
Short Title: Disapprove Jordan Lake Rules. (Public)
Sponsors: Representatives Allen, Gibson, Bordsen (Primary Sponsors); M. Alexander and
Faison.
Referred to: Environment and Natural Resources, if favorable, Judiciary I.
February 23, 2009
1 A BILL TO BE ENTITLED
2 AN ACT TO DISAPPROVE THE JORDAN WATER SUPPLY NUTRIENT STRATEGY
3 RULES.
4 The General Assembly of North Carolina enacts:
5 SECTION 1. Pursuant to G.S. 150B-21.3(bl), 15A NCAC 02B .0264 (Jordan
6 Water Supply Nutrient Strategy: Agriculture), 15A NCAC 02B .0268 (Jordan Water Supply
7 Nutrient Strategy: Mitigation for Riparian Buffers), 15A NCAC 02B .0269 (Riparian Buffer
8 Mitigation Fees to the NC Ecosystem Enhancement Program), 15A NCAC 02B .0270 (Jordan
9 Water Supply Nutrient Strategy: Wastewater Discharge Requirements), 15A NCAC 02B .0271
10 (Jordan Water Supply Nutrient Strategy: Stormwater Requirements for State and Federal
11 Entities), 15A NCAC 02B .0272 (Jordan Water Supply Nutrient Strategy: Fertilizer
12 Management), and 15A NCAC 02B .0273 (Jordan Water Supply Nutrient Strategy: Options
13 for Offsetting Nutrient Loads), as adopted by the North Carolina Environmental Management
14 Commission on May 8, 2008, and approved by the Rules Review Commission on October 16,
15 2008, are disapproved.
16 SECTION 2. Pursuant to G.S. 150B-21.3(bl), 15A NCAC 02B .0262 (Jordan
17 Water Supply Nutrient Strategy: Purpose and Scope), 15A NCAC 02B .0263 (Jordan Water
18 Supply Nutrient Strategy: Definitions), 15A NCAC 02B .0265 (Jordan Water Supply Nutrient
19 Strategy: Stormwater Management for New Development), 15A NCAC 02B .0266 (Jordan
20 Water Supply Nutrient Strategy: Stormwater Management for Existing Development), 15A
21 NCAC 02B .0267 (Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian
22 Buffers), and 15A NCAC 02B .0311 (Cape Fear River Basin), as adopted by the North
23 Carolina Envirorunental Management Commission on May 8, 2008, and approved by the Rules
24 Review Commission on November 20, 2008, are disapproved.
25 SECTION 3. This act is effective when it becomes law.
immnn
36
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
H
HOUSE BILL 350
1
Short Title: Disapprove Jordan Lake Rule: Tech Amendment. (Public)
Sponsors: Representatives Allred; and Blackwood.
Referred to: Environment and Natural Resources, if favorable, Judiciary I.
March 2, 2009
1 A BILL TO BE ENTITLED
2 AN ACT TO DISAPPROVE A RULE ADOPTED BY THE NORTH CAROLINA
3 ENVIRONMENTAL MANAGEMENT COMMISSION AND APPROVED BY THE
4 RULES REVIEW COMMISSION.
5 The General Assembly of North Carolina enacts:
6 SECTION 1. Pursuant to G.S. 150B-21.3(bl), 15A NCAC 02B .0311 (Cape Fear
7 River Basin), as adopted by the North Carolina Environmental Management Commission on
8 May 8, 2008, and approved by the Rules Review Commission on November 20, 2008, is
9 disapproved.
10 SECTION 2. This act is effective when it becomes law.
i~~i~wnm
37
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
S 1
SENATE BILL 166
Short Title: Disapprove Jordan Lake Rules. (Public)
Sponsors: Senators Foriest; and Vaughan.
Referred to: Agriculture/Environment/Natural Resources.
February 16, 2009
1 A BILL TO BE ENTITLED
2 AN ACT TO DISAPPROVE RULES ADOPTED BY THE NORTH CAROLINA
3 ENVIRONMENTAL MANAGEMENT COMMISSION AND APPROVED BY THE
4 RULES REVIEW COMMISSION.
5 The General Assembly of North Carolina enacts:
6 SECTION 1. Pursuant to G.S. 150B-21.3(bl), 15A NCAC 02B .0264 (Jordan
7 Water Supply Nutrient Strategy: Agriculture), 15A NCAC 02B .0268 (Jordan Water Supply
8 Nutrient Strategy: Mitigation for Existing Riparian Buffers), 15A NCAC 02B .0269 (Riparian
9 Buffer Mitigation Fees to the NC Ecosystem Enhancement Program), 15A NCAC 02B .0270
10 (Jordan Water Supply Nutrient Strategy: Wastewater Discharge Requirements), 15A NCAC
11 02B .0271 (Jordan Water Supply Nutrient Strategy: Stormwater Requirements for State and
12 Federal Entities), 15A NCAC 02B .0272 (Jordan Water Supply Nutrient Strategy: Fertilizer
13 Management), and 15A NCAC 02B .0273 (Jordan Water Supply Nutrient Strategy: Options
14 for Offsetting Nutrient Loads), as adopted by the North Carolina Environmental Management
15 Commission on May 8, 2008, and approved by the Rules Review Commission on October 16,
16 2008, are disapproved.
17 SECTION 2. Pursuant to G.S. 150B-21.3(bl), 15A NCAC 02B .0262 (Jordan
18 Water Supply Nutrient Strategy: Purpose and Scope), 15A NCAC 02B .0263 (Jordan Water
19 Supply Nutrient Strategy: Definitions), 15A NCAC 02B .0265 (Jordan Water Supply Nutrient
20 Strategy: Stormwater Management for New Development), 15A NCAC 02B .0266 (Jordan
21 Water Supply Nutrient Strategy: Stormwater Management for Existing Development), 15A
22 NCAC 02B .0267 (Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian
23 Buffers), and 15A NCAC 02B .0311 (Cape Fear River Basin), as adopted by the North
24 Carolina Environmental Management Commission on May 8, 2008, and approved by the Rules
25 Review Commission on November 20, 2008, are disapproved.
26 SECTION 3. This act is effective when it becomes law.
~IIIIIIIII
~~~
CxA~~Ar~ Cow
~iORTH CAROLINA
Es~blfshed 1771
~~~r+ren7
• c~uN11f COMMISS~~
George Lacier, Chair
san!-[cos~tlice
1Apoe Cross
~ Til0lr~Or1
TOrrl {~811derileCif
• tAUNTY MANAGER
Charlie Hrose
38
P. Q Bax 9809, PittsbOro, NC 27312-iSU9 • Phone: (919)542-8200 • Fair (89.9) 542272
Laura Blackmon, County Manager
PO BOX 8181
Hillsborough, NC 27278
February 18, 2009
Re: Attached resolution: Jordan Lake Rules
Dear Laura,
_1!~{~~
~..._.._
.;
. t FHB 2 0 2Q09
{~ ~ j.
•E.w~ ri
On February 16, 2009 at their regular board meeting the Board of Commissioners
adapted the attached resolution. As you will see upon reading it, the resolution
comes as a response to the introduction of House Bill 3 titled, "Disapprove Jordan
Lake Rules". The Board is encouraging the General Assembly to keep Jordan Lake
Rules in place and continue the process to implement those rules. As part of their
comments leading to adoption the board requested us to send the resolution to
jurisdictions which have a vital interest in keeping Jordan Lake water quality high.
We hope that your jurisdiction will consider a similar resolution.
Please pass.the resolution along to your Mayor and council.
Sin rely
Charlie Horne,
County Manager
Attachment 5
Draft Legislative Issues Work Groun Position/Statement on Watershed Pollution
Rules/Prouosed Jordan Lake Rules
Orange County has a long history of supporting and implementing watershed
protection measures such as those proposed for Jordan Lake, often to the benefit of
communities outside Orange County. As currently written, the rules do not recognize
these previous actions and in effect penalize good stewards such as the County for past
efforts. The County believes the proposed rules should be rewritten to recognize these
past efforts. Additionally, counties do not typically own or operate stormwater
management systems and Orange County does not support making counties
responsible for the impacts of nutrient levels. The County believes modifications to the
proposed Jordan Lake rules are necessary and that the State should provide funding to
share in the cost of implementing the rules. Orange County is opposed to House Bill 3
and any other similar legislation which would eliminate the rules entirely.
39
1 Jordan Lake Rules
~`~~-~' ads ~~~a>ai~~~ ~-~-~Da,.;,-•~~
1 ~ t. x ~ x ~Y x~~3
Current Status of Rules
^ ,9pproved by the_ EMC m'November 2006,
Approve6 by Rules Revievi Commission
^S~l~atepdt~p,.b~epin~tryo~~duced an 2p09 Gerieral
`~ Ass~mbly.s,+~essan-.+T y~ R.~ Lt }' F 1 a ~ 3YJ T.S'~"+.+.:
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41
Orange County Areas
Y tJPPB[.New Hope Arta ~ Maw,Rn!er Arm ~:
357L tibgpen Ren~ntletd Cape Fir
-5%Phosp7forus .° ~
+! . Std ubaA Areas •` 5~4~sW~
# W1 Calrttorq
s ~: Cane;Creek.+ratergped ~ `
Y.lufsdicflon oral. ~/1c ~,~raagin
r :W !iy~. u:
t ~M n.+ac• ~ x. b'rTy r ~~
~i-~~z=``~M+-ate-a?c~ru~~ K~,~v"~y~ 4-i ~t'~y~`~Jt
I °r,.#.,,. i~..(......~,d~~,., .7~`.'k<.rrE'S.~.k~i• .';~*=~d. n:rTW rr: r.-+~: ~~.,~.'~',f,;-.-u-'
Primary Focus Areas
ipment (Stormwatecj
vebPment:XSto~rnwaF~r)
pstly Ietiottts ioriocal 9gtRs
fare .
Possible Timeline
(A,i~ual dates ~drffiaift ^ January 201 '
a;:this 6me pending ,Create and submit
rules adopbonj plan to address _::
^ July 2011 ° D~1VC eiusbng dev't `.
m~el.tsrogram ^ January 2Q14
^ January 2012
Irtlplemeiit Lx~sUng
' , Pub11~ education.and-_ De~rt program -
d'ischargeefforts ^. July2019 -~A9o ~f
^ July2012.- New i all reductions mast
:
' dev't rules apply `,
' be accom~~shed '
.
.i..
1.
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42
Implications for Orange
^ Cost of ~mplemen6rtig • /lgnculture; vanes'
rules (ebsting devt): > fiy:vrdterslied arms'
f • Upper New'l-lope • State Funding
' . Nrtrpgen.Target? Ass~shdnce
i
_.~,
=y!-~u~n~n ,~"d gnat ^ ...:~ r= ~iaal3hipc annrnv~t~l*:
Closing Thoughts
Staff to continue to monitor and evaluate.
..potelitial: costs .;
^ Begrn dialogue on. aradmg and credit
options.with ~urisi]ctions; pariners~
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