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HomeMy WebLinkAboutAgenda - 03-16-2010 - 7aORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: March 16, 2010 Action Agenda Item No. ~- Q SUBJECT: Falls Lake Nutrient Management Strategy Consensus Principles DEPARTMENT: ERCD PUBLIC HEARING: (Y/N) No ATTACHMENT(S): 1) Consensus Principles to Guide Falls Lake Nutrient Management Strategy 2) General Summary of Projected Potential Implications 3) Chart -Percent of Falls Lake Watershed Within Each Jurisdiction 4) Chart -Percent of Each Jurisdiction Within the Falls Lake Watershed INFORMATION CONTACT: Frank Clifton, County Manager, 245-2300 David Stancil, ERDC, 245-2510 Thomas Davis, ERCD, 960-3878 Terry Hackett, Planning, 245-2588 Gail Hughes, Soil & Water, 245-2753 Tom Konsler, Environmental Health, 245- 2370 PURPOSE: To consider adopting the "Consensus Principles to Guide Falls Lake Nutrient Management Strategy" discussed and adopted by the attendees at the February 9, 2010 Triangle Mayors and Chairs meeting. BACKGROUND: The final Falls Lake (Falls of the Neuse Reservoir) Nutrient Management Strategy stakeholder meeting was held on January 21, 2010. Draft rules have been created and are likely to be available soon for public comment. A fiscal analysis of the draft rules must be completed, after which the Environmental Management Commission's (FMC's) Water Quality Committee (WQC) and the EMC will act on the draft rules beginning in March 2010. The General Assembly will consider the draft rules in 2010, with the rules likely to become effective in January 2011. Similar to the Jordan Lake Nutrient Management Strategy, the proposed Falls Lake rules (15A NCAC 02B .0275 through .0283) could have significant impact on Orange County. The goal of these rules is to reduce the loads of phosphorus (P) and nitrogen (N) entering Falls Lake from various sources by 77 and 40 percent respectively. These reductions would be accomplished through regulations targeting several areas, including agriculture, stormwater runoff from existing development and new development, runoff from state and federal properties, and point source (wastewater) effluent. Reductions could include measures to address discharging sand filter systems and septic tanks, riparian buffers, and fertilizer management plans. Future development would be impacted through stricter stormwater runoff controls. Voluntary reductions in nutrient runoff from agricultural lands are initially required, after which, if stated goals are not achieved on a watershed basis, cropland buffers and exclusion fencing would be mandated. Additional nutrient reductions could be required in fertilizer management, and nutrient trading is also expected to be a factor for local governments to meet the requirements of the draft rules. Significant reductions in nutrient loading in wastewater treatment plant effluent, including from the Town of Hillsborough's plant, are anticipated as a result of these nutrient management rules. The Division of Water Quality (DWQ) has proposed staged implementation for the Falls Lake rules. Stage I of the rules is intended to reduce nutrient loads in the reservoir such that state water quality standards are achieved in the lower portion of Falls Lake (east of NC 50 in Durham County) within 10 years of rules implementation. Stage II of the rules is intended to further reduce nutrient loads in the upper watershed within an additional 20 years so that progress towards achieving state water quality standards throughout the remainder of the lake is made. The attached Consensus Principles concerning the draft Falls Lake Nutrient Management Rules were discussed and adopted at the February 9, 2010 Triangle Mayors and Chairs meeting. Consensus Principles 9 and 10 call fora "re-examination" of the nutrient management strategy prior to the initiation of Stage II of the staged implementation discussed above, including additional water quality monitoring and possibly more modeling of Falls Lake by the EMC, via a Scientific Advisory Board as a result of limitations in the existing database. This re-examination could include an analysis of the lake's water quality, consideration of the cost of implementing the draft rules, the feasibility of meeting the nutrient reductions called for in the draft rules, the feasibility of eventually meeting state water quality standards in the lake, and a consideration of the existing uses of Falls Lake. Revisions to the draft rules have been made by DWQ in the last several days to address some of the issues raised. Staff is preparing an updated memo on the implications of the proposed rule for the County, in preparation for the public comment/public hearing period anticipated to occur in the late-spring or summer of 2010. In addition, the Orange County Board of Health and the Commission for the Environment are expected to review the latest draft of the proposed nutrient management rules, as well as the Consensus Principles, and provide comments of their own. Attachment 2 summarizes some of the projected implications for Orange County which are anticipated if the current draft nutrient management rules are adopted. FINANCIAL IMPACT: There are no financial impacts at the current time. However, approval of the Falls Lake Nutrient Management Strategy by the General Assembly is likely to ultimately have a significant financial impact on the County. The water quality monitoring and modeling steps, if implemented, as well as other steps associated with the proposed re-examination of the draft rules, would be paid for by the local governments in the Falls Lake watershed, including Orange County, as described in the Consensus Principles. The actual cost of implementing the proposed rules has not been calculated and would be addressed by the proposed Scientific Advisory Board. This would be completed during the re-examination proposed to occur approximately eight years after the implementation of the draft rules. RECOMMENDATION(S): The Manager recommends that the Board consider and then adopt the attached "Consensus Principles to Guide Falls Lake Nutrient Management Strategy". Prior to the public hearings on the draft rules, staff will prepare a memorandum and potential draft comments on the Nutrient Management Rules for the Board's consideration. ,~f T1~C~n.rh er`~ .~.- 3 CONSENSUS PRINCIPLES TO GUIDE FALLS LAKE NUTRIENT MANAGEMENT STRATEGY Falls Lake is currently classified by the North Carolina Environmental Management Commission (EMC) as WS-IV, B: NSW, CA. Pursuant to this classification, the designated uses of Falls Lake include aquatic life propagation and biological integrity (including fishing and fish), wildlife, primary and secondary recreation, agriculture, and water supply. Falls Lake serves as a water supply for the City of Raleigh (Raleigh) and six other municipalities in Wake County. 2. The EMC has established a water quality standard for chlorophyll-a of 40 ug/L to protect the designated uses of all waters in the state, including Falls Lake. Since the time it was constructed, portions of Falls Lake have experienced nutrient conditions that have contributed to monitored exceedances of the chlorophyll-a standard. In 2005, the General Assembly directed the EMC to develop a nutrient management strategy for Falls Lake. The legislation was amended so that the nutrient management strategy and implementing rules are to be established no later than January 15, 2011. 4. In 2008, the Division of Water Quality (DWQ) found that the chlorophyll-a levels at certain locations in Falls Lake exceeded the water quality standard. The EMC found, in the 2009 Neuse Basin Plan, that new nutrient management measures were needed to address nutrient-related problems in Falls Lake. 5. The level of nutrient loading reductions necessary to protect and improve water quality in Falls Lake make it appropriate to establish atwo-stage nutrient management strategy -the first stage (Stage 1) designed to achieve the water quality standard for chlorophyll-a in the lower lake below Highway 50 (Lower Lake), where the water supply intake is located, and to improve water quality in the upper lake above Highway 50 (Upper Lake), and the second stage (Stage 2) designed to further address water quality in the Upper Lake. 6. The first stage of nutrient loading reductions and protection measures for Falls Lake, as described below, are designed to achieve sufficient improvements in water quality to result in the removal of the Lower Lake from the 303(d)' list of impaired waters by 2021. 7. The Stage 1 management measures should include reductions in loading from all major categories of sources including point sources, agriculture and other fertilizer using activities, new development, and existing development. ' Under Section 303(d) of the U.S. Clean Water Act, waters of the state that have water quality violations resulting in the failure to meet the designated and protected uses are designated as "impaired". 4 Consensus Principles February 9, 2010 Page 2 of 4 a. Point Sources: Large point sources as a group should be required to achieve by 2016 a 20% reduction in 2006 nitrogen loads and a 40% reduction in 2006 phosphorus loads. The allowable mass load for these point sources should be allocated among them based on 110% of current flows? Smaller point sources should be required to meet limits of technology by 2016. b. New Development: As soon as is reasonably feasible, and no later than eighteen months after adoption of rules by the EMC, new development throughout the Falls watershed should be required to meet a nitrogen annual loading limit of 2.2 pounds per acre and a phosphorus annual loading limit of 0.33 pounds per acre, a portion of which may be achieved through offset payments. c. Existing Development: No later than three years after adoption of the rules by the EMC, all jurisdictions throughout the Falls watershed should be required to begin and continuously implement a program to reduce existing development nutrient loads to 2006 levels within ten years from adoption of the rules by the EMC. 1. Where septic systems account for more than 20% of the nitrogen loading in the portion of a subwatershed of Falls Lake within a jurisdiction (according to DWQ's watershed model), that jurisdiction should be required, as a part of its Stage 1 existing development program, to begin and continuously implement a program to reduce loading from septic systems, discharging into waters of the State within that jurisdiction and subwatershed, which accounted any part for nutrient loading for the jurisdiction. 2. A jurisdiction that includes any part of a subwatershed of Falls Lake in which chlorophyll a levels have exceeded 40 ug/L in more than 75% of the monitoring events in any calendar year should be required, as a part of its Stage 1 existing development program, to begin and continuously implement a program to reduce nutrient loading into waters of the .State within that jurisdiction and subwatershed. However, the total amount of nutrient loading reductions in Stage 1 is not increased for local jurisdictions by the requirement to add specific program components to address septic loading or high nutrient loading levels. d. State and Federal Agencies: State and federal agencies, including but not limited to DOT, shall be required to reduce nitrogen and phosphorus loading from new and existing development to a similar degree and within a similar time schedule as local governments. z The Consensus Principles rely on, and do not seek any change from, the apportionment of load allocations as proposed by DWQ in the draft rules issued on January 14, 2010 5 Consensus Principles February 9, 2010 Page 3 of 4 Stage 2 management measures should be designed to achieve water quality standards in the Upper Lake and to maintain water quality in the Lower Lake. The compliance date for achieving all additional reductions from point sources and agriculture should be no earlier than 2036. Additional existing development reductions, as determined pursuant to paragraph 9 should begin in 2021 and should be continuously implemented according to timelines proposed by each local government in plans periodically submitted to and approved by the EMC, subject to the limitations on the EMC's authority regarding existing development criteria contained in the Jordan Lake legislation. 9. The process by which the proposed regulatory scheme has been developed relied on a limited data base which will be substantially enhanced by a more rigorous program of sampling, monitoring and analysis. In addition, it may not be feasible to attain all currently designated uses in the Upper Lake and attempting to do so may result in substantial and widespread economic and social impact. The EMC should therefore begin a re-examination of its nutrient management strategy for Falls Lake by January 1, 2018. The re-examination should consider, among other things, (i) the physical, chemical, and biological conditions of the Lake with a focus on nutrient loading impacts and the potential for achieving the Stage 1 goal by 2021 as well as the feasibility of both achieving the Stage 2 reduction goals and meeting the water quality standard for chlorophyll-a in the Upper Lake, (ii) the cost of achieving, or attempting to achieve, the Stage 2 reduction goals and the water quality standard in the Upper Lake, (iii) the existing uses in the Upper Lake and whether alternative water quality standards would be sufficient to protect those existing uses, and (iv) the impact of the management of Falls Lake on water quality in the Upper Lake. As the first step in the re-examination, a Scientific Advisory Board should analyze and review the information identified above along with the additional monitoring and modeling data compiled since the model was approved and should present its recommendations for changes in the Nutrient Management Strategy and its implementing rules to DWQ and the EMC by s Session Law 2009-216 (the Jordan Lake legislation), at Section. 3(d)(2)(f), sets the following limitations on the authority of the Environmental Management Commission for its review and approval of local government programs to control nutrient loading from existing development: "The Commission shall approve the program if it meets the requirements of this subdivision, unless the Commission finds that the local government can, through the implementation of reasonable and cost-effective measures not included in the proposed program, meet the reductions in nutrient loading established by the Department pursuant to sub-subdivision b. of this subdivision by a date earlier than that proposed by the local government. ...In determining whether additional or alternative load reduction measures are reasonable and cost effective, the Commission shall consider factors including, but not limited to, the increase in the per capita cost of a local government's stormwater management program that would be required to implement such measures and the cost per pound of nitrogen and phosphorus removed by such measures. The Commission shall not require additional or alternative measures that would require a local government to: 1. Install or require installation of a new stormwater collection system in an area of existing development unless the area is being redeveloped. 2. Acquire developed private property. 3. Reduce or require the reduction of impervious surfaces within an area of existing development unless the area is being redeveloped." 6 Consensus Principles February 9, 2010 Page 4 of 4 January 1, 2019. In light of the report from the Science Advisory Board, the EMC should direct the DWQ to prepare proposed rule revisions, if any, and an updated fiscal note on Stage 2 by August 1, 2019. In its development of any proposed rule revisions, DWQ shall consult with the local governments and other interested parties. Except to the extent that management measures identified as a part of Stage 2 are required to achieve the Stage 1 goal, local governments should not be required to begin implementing Stage 2 management measures without a determination by the EMC of whether alternative goals and/or standards should be established for the Upper Lake. 10. Annual monitoring of chlorophyll-a in Falls Lake should be funded and implemented through a collective effort by all jurisdictions partially or wholly within the Falls Lake watershed. The limited resources available to DWQ and DENR for the implementation of the nutrient management strategy and the need for a robust and active sampling and monitoring program, as well as additional modeling, make it desirable for the affected local governments to share resources and undertake these important activities, and other activities associated with the re-examination of the Nutrient Management Strategy, collectively. The affected local governments should share resources and assist with funding for the examination of the Nutrient Management Strategy. The affected local governments created the Upper Neuse River Basin Association, among other reasons, as a means to more effectively perform functions related to Falls Lake and the Upper Neuse River Basin. The Association with an expanded mission and authority, or some similar organization, should be considered for expanded duties that the local governments may agree to assume consistent with this paragraph and paragraph 11 of this document. The results of the additional monitoring and modeling and other relevant information gathered by the collective efforts of the local governments should be shared on a regular basis with DWQ and made available to the Scientific Advisory Board and the EMC in connection with the review described in Paragraph 9. 11. A robust and innovative trading program among all regulated sources is critical to the success of the nutrient management strategy for Falls Lake. In addition, local governments should be able to use any combination of point and nonpoint controUreduction strategies, including land preservation, within their respective jurisdictions to meet their overall obligations under the nutrient management strategy. 12. Nothing in these principles is intended to imply that the EMC is precluded from complying with the requirements of federal law. 7 Attachment 2 Summary of Potential Implications for Orange County Current Draft Falls Lake Nutrient Management Rules 1. New Development Stormwater controls will require new development to achieve nutrient export limits of 2.2 pounds/acre/year for Total Nitrogen and 0.33 pounds/acre/year for Total Phosphorus. There will also be restrictions as to how much nutrient reduction will be required on-site, the remaining necessary reductions could be achieved off-site activities. Orange County would have to enforce these regulations locally as well as develop a Stormwater Management Plan which would need to be approved by the Division of Water Quality (DWQ). 2. Existing Development Nutrient load reduction targets will also be necessary for existing development. In Stage I, by 2021, nutrient loads from existing developed lands in Orange County would have to be no larger than the total nutrient load which was produced in the baseline year of 2006. In Stage II, additional reductions in nutrient loads from existing development would be required by 2041, with probably half of the required reductions achieved by 2036. Orange County would be required to develop a Load Reduction Program for approval by DWQ, as well as use the nutrient accounting tool which is under development by DWQ, to determine the baseline nutrient load which was produced in-the county in 2006, as well as at certain points in the future to determine compliance. Orange County may have to determine suitable locations for Best Management Practices (BMPs), i.e., stormwater controls, which could be required to be installed in order to offset the nutrient load emanating from existing developed lands in the county. Reductions in nutrient loading to surface water from septic tanks may also be required in Orange County under the existing development rules as currently drafted. Attachment II, continued 8 3. Point Sources Significant reductions in point source nutrient loads would be required as a result of the implementation of these nutrient management rules. Although Orange County does not operate a wastewater treatment plant, impacts to Hillsborough's plant are likely. 4. Agriculture Nutrient reduction measures would be required for agricultural operations with more than 5 horses, 20 cattle, 120 sheep, 130 goats, 650 turkeys, 3,500 chickens, or 20 swine not in a feedlot or 150 swine if they are kept in a feedlot. During Stage I (through 2021), the draft rules describe collective voluntary actions aimed at reducing nutrient loads from agricultural lands. These actions would be coordinated through a Local Advisory Committee, as well as a Watershed Oversight Committee, and are intended to achieve nutrient reductions of 20% in Total Nitrogen and 40% in Total Phosphorus export. If mandated nutrient load targets are not met through the voluntary measures called for in Stage I, Stage II would require buffers on all cropland and livestock exclusion measures on all pasture operations. Nutrient reductions of 40% Total Nitrogen and 77% Total Phosphorus would be required under Stage II. It is expected that county staff in the Soil and Water Conservation District office would be involved in these activities. 5. Nutrient Trading Under the draft rules, it is anticipated that local governments would participate in nutrient trading as a means of meeting their required nutrient reduction targets. This would be on a watershed basis and would likely include other local governments on an as-needed basis. Orange County would be required to limit their trading activities to areas within the watershed above Falls Lake. 6. Fertilizer. Management Restrictions on the application of fertilizer are likely as a result of the draft nutrient management rules. Training of applicators could be required, as well as the development of Nutrient Management Plans. It is expected that the Orange Soil and Water Conservation District and Cooperative Extension Service staff would be involved in these efforts, as well as other staff. Percent of Falls Lake Watershed within Each Jurisdiction {~~CN~OUNTIES FRANKLIN COUNTY ORANGE,(yC~OUNTY WAKE COUNTY Lower Lake Watershed Upper Lake Watershed Total Fatls Lake Watershed Siva (mill % of Watarsherl ~ Size (mi21 % of Watershed Size (mi21 % of Watershed ~. 4 '"-fir. _ 4- i _ ~~ I F ~ ~ '~~.5. ~ ~ ~4 ..'.. ' t l ~ 3 ti d ~.. ~.Y_ .I `% `{H ~ 8 5% 8 1 °io .. ~ ,.. , 196 32% 196 25% 1"~ 7~x 4~ •'yt { ~ ~ -„ki;d' e ,4 ~ a* . [t , ~~ °=4 ! y k~ ~,.,...aE 88 58% 12 2% 1i)0 13% Total Falls Lake Watershed MUNICIPALITIES ~~ ~ ~. City of Creedmoor u ~~ .~. Crty of Hillsborough A L"Q"F: ~ City_of Roxboro Town of Wake Forest ~~ ~~ e. ~ . Lower Lake Watershed ~17P (mill % of Waterchecl 151 100"/0 szv 7 UU"lo Upper Lake Watershed Size (mi21 % of Watershed !/7 7UU% Total Falls Lake Watershed Size 1mi21 °!o of Watershed j 2 1 % 2 0% 4 1 _ ~ 5 1% 5 1% 3 ~ ~ ,~$'3Y3'ki. '~~ °7,-w!~'° ~~i~r'.'K~`cirY~.i: ~ _ - ,_.VI 'I ~ °~£~.~, "d'.RM~ '~ ~ ~ - ~'! ¢ _ _ ~ . 3 0 % 3 0% a - ,.tC ~ ~ ~' '~ - Ya- 1 1 °10 1 0°l0 , } Total Falls Lake Watershed 151 100% 620 100% 771 100% W co COUNTIES Percent of Each Jurisdiction within the Fa{{s Lake Watershed Lower Lake Watershed Upper Lake Watershed Outside of Watershed c~~o /rr~i9\ °% of h iricrlintinn fii~c (mi91 % of Jnrisriictinn Riga /mill % of Juricrtirtinn Outside of Watershed Totai Jurisdiction a (mil) % of Jurisdiction Size (mi21 % of Jurisdic FR ANKLIN COUNTY 8 2% 4$7 98% 495 100% yyq~~~n r[y b ~~y}, GRANGE COUNTY 196 49% 205 51 % 402 100% JVAKE COUNTY 88 10% 12 1% 756 88% 856 100% MUNICIPALITIES To~f~'~~ ' ~ ~ City of Creedmoor City of Hillsborough City of Roxboro Town of Wake Forest Lower Lake Watershed Size mil % of Jurisdiction 2„• 49% 1 8% Upper Lake Watershed Size mil % of Jurisdictioi ~,,, ..r;~~y „ 8 2 51 °lo ~~ >; 5 100% Total Jurisdiction .^,i~P (mill % nf.luricdirtinn 4 I 100% .° 5 100% ~...,. 4 56% 6 100% 0