HomeMy WebLinkAboutAgenda - 06-01-2010 - 7aORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 1, 2010
Action Agenda
Item No. —] - CA
SUBJECT: Draft Comments - Proposed Falls Lake Nutrient Management Rules
DEPARTMENT: Planning PUBLIC HEARING: (Y /N) No
Environment, Agriculture, Parks
& Recreation (DEAPR)
ATTACHMENT(S):
Draft Letter to EMC
Proposed Rules Summary
Ag Preservation Board Comments
INFORMATION CONTACT:
David Stancil, DEAPR, 245 -2522
Tom Davis, DEAPR, 960 -3878
Craig Benedict, Planning, 245 -2592
Terry Hackett, Planning, 245 -2588
Gail Hughes, DEAPR- Soil & Water
245 -2753
Tom Konsler, Environmental Health,
245 -2370
PURPOSE: To consider draft comments for submittal to the N.C. Environmental Management
Commission on the proposed Falls Lake Nutrient Management Rules, which are to be
presented for public comment this summer.
BACKGROUND: On March 16, the Board received a presentation on the Triangle Mayors and
Chairs "Consensus Principles" regarding the proposed Nutrient Management Strategy for the
Falls of the Neuse Reservoir (Falls Lake) watershed. The draft Nutrient Management Strategy
(usually referred to as the "Falls Lake Rules ") was forwarded to the Environmental Management
Commission (EMC) in March. A summary of an earlier version of the Falls Lake Rules prepared
by the North Carolina Division of Water Quality is attached. The summary includes discussion
of the rules development process. This document, dated January 2010, summarizes an earlier
set of rules which are slightly different from the current set of draft rules.
Based on recent conversations with the Division of Water Quality (DWQ) staff, the EMC is likely
to authorize the DWQ to publish the proposed Falls Lake Rules in the June 2010 State register,
which will in turn initiate a 60 -day "window" for the public to comment on the draft rules. This 60-
day period is likely to begin on or about June 15 and end circa August 15. The 60 -day public
comment period may include public hearings in Raleigh and Durham. The Falls Lake rules are
expected to go into effect in February 2011, initially as "temporary rules ", and then later as
permanent rules once they are approved by the Rules Review Commission and the North
Carolina General Assembly.
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The entire Falls Lake watershed was previously designated by DWQ as a Nutrient Sensitive
Water as a result of elevated chlorophyll -a (a species of algae that is an indicator of excessive
nutrient levels) and turbidity levels in the Lake. The draft rules are intended to address these
nutrient levels and achieve water quality standards in Falls Lake by reducing the nitrogen and
phosphorus loading reaching the Lake. A staged approach to nutrient reduction is included in
the draft rules with the intent of reaching water quality targets in the watershed by 2036, such
that the Lake will achieve water quality standards by 2041 at the latest.
To address nutrient management in the upper portion of the watershed, which includes Orange
County, DWQ proposes to implement rules designed to yield reductions in nitrogen loading by
40% and phosphorus loading by 77 %. The measures needed to accomplish these reductions
will be significant in terms of cost and other resources for many jurisdictions, especially those
areas that are more densely developed.
In Orange County's case, the ramifications are different but no less significant. From and since
the mid- 1970's, when Orange County became the first County in the state to adopt an erosion
control ordinance and the Board of Health adopted more stringent rules governing septic
systems, to 1981, when Orange became the first local government to implement watershed
protection zoning, and through the present -day, the County has instituted progressive non-
structural measures to address stormwater runoff and watershed protection via land use
controls. These controls include significant and protective stream buffer requirements, on -site
infiltration of runoff, increased lot sizes, stringent impervious surface limitations and floodplain
protection. In addition, in 2001, the County's Lands Legacy Program began acquiring critical
natural and cultural resource lands that include watershed riparian buffers and farmland within
water supply watersheds.
However, many of these progressive measures that have already served to lower nutrient
loading from the County's jurisdiction are essentially unrecognized by the proposed rules, which
would treat all activity prior to the 2006 "baseline year" as "existing development" and still
require a 40% reduction in nitrogen and 77% for phosphorus from the baseline loading which
originated in the County in 2006. Furthermore, the remaining agricultural operations in the
affected area of the County have already reduced nutrient loads as a result of the Neuse Basin
Rules which became permanent in 2000, making it difficult at this time to effect further
reductions from already lowered current agricultural loading rates. The County's Agricultural
Preservation Board has prepared comments, which are included in an attachment, specifically
addressing the agriculture section of the draft Falls Lake Rules.
In the County's case, it may be difficult to implement a percentage -based nutrient reduction
when baseline loading levels are already projected to be very low — in large part due to County -
implemented programs of the last 30 years. Staff estimates that the nutrient reductions which
may be eventually required may be close to background levels. Accurate determination of the
County's current and baseline nutrient loads are not possible at this time as DWQ has not
released the accounting tool which will be used to determine the nutrient loads from different
land cover types.
Since the public hearing period may close before the Board returns from summer break, the
attached draft letter to the EMC is written for potential submittal to the EMC. The letter is based
on the approach taken by the County (under very similar circumstances and timing) for the
Jordan Lake Watershed rules in 2007, and discusses these issues and also provides
information concerning the County's strong history of watershed protection. The letter includes
the following highlights:
• The reduction measures proposed are not performance- based, but are in fact a "one
size fits all" set of regulations, and may not be equitable, with flexibility needed for more
rural areas where local governments have previously instituted progressive watershed
protection and minimized nutrient loading.
• There is less agriculture in the watershed within County jurisdiction than the model may
assume, and the agricultural operations that do remain have already made significant
reductions in nutrient loading as a result of the earlier Neuse Basin Rules and changes
to no -till agriculture - making any required further nutrient reductions difficult to achieve
for the agricultural community.
• The burden of cost for implementing these measures would fall in large part on local
governments. Water quality issues in Falls Lake have been long- predicted and are
regional in nature. State funding assistance would be appropriate in addressing this
larger regional problem, especially for a jurisdiction with a proven history of watershed
protection — voluntary protection which has also come at cost to the County.
• Uncertainty exists regarding some of the input parameters used in the modeling.
• Finally, the timing of the public comment period over the summer months is not
conducive to stakeholder and public participation. As the County proposed for the similar
Jordan Lake Rules public comment period in summer 2007, an extension to allow a
fuller discussion and dialogue would be desirable.
FINANCIAL IMPACT: There is no financial impact associated with the conveyance of these
comments. However, promulgation and implementation of the Falls Lake rules that have been
proposed will have significant financial impacts for local governments for an extended period of
time. The cost of implementing reduction measures will not be known until the accounting tool is
made available. Some jurisdictions (with more urbanized areas and expensive retrofit options)
have estimated the cost of complying with the draft rules to be in excess of $500 million dollars.
RECOMMENDATION(S): The Manager recommends that the Board consider and discuss the
attached draft public comments letter and authorize the submittal of the letter to the EMC during
the public hearing period, with such changes as deemed necessary.
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May 18, 2010
Mr. Stephen T. Smith, Chair
Environmental Management Commission
1617 Mail Service Center
Raleigh, NC 27699 -1617
RE: Comments on the draft Falls Lake Nutrient Management Strategy
15A NCAC 02B.0275-.0283
Dear Mr. Smith:
Orange County is pleased to be able to provide comments on the draft Falls Lake
Nutrient Management Strategy, which is intended to reduce nutrient loading to
Falls of the Neuse Reservoir (Falls Lake). The County appreciates the work that
the Environmental Management Commission (EMC, the Commission) and the
North Carolina Division of Water Quality (DWQ) have undertaken to tackle the
issue of reducing the nutrient loading to this important public water body. At a
local level, this work is supported by the history of watershed protection that has
been a cornerstone of Orange County policies and regulations since the 1970's.
The nutrient reduction measures and regulations which the county has already
addressed were the first of their kind in North Carolina. These include the
implementation of an Erosion Control Ordinance in 1975 as well as the adoption
of a Land Use Plan and associated Zoning Ordinance and Subdivision
Regulations in 1981. Since then, Orange County has continued to enforce and
update regulations and procedures to ensure that the water supply watersheds in
the county are protected, including obtaining local delegated authority in 2001 to
enforce the Neuse River Basin rules.
It has long been the policy of the county to rely on land use measures and non-
structural methods of protecting water quality — to treat protection at the source
as much as possible. Stream buffer regulations in Orange County have long
exceeded the minimums established by the State. Other regulations which serve
to protect the quality of water in Orange County include extremely restrictive
flood damage prevention standards and impervious cover restrictions. For
example, the county's designated Upper Eno critical watershed area, which is
Falls Lake Draft Rules Comments 5
Page 2
within the Falls Lake watershed, exceeds the state designated critical area
almost six -fold. Elected officials in Orange County have consistently supported
the fundamental idea that concentrating on limiting nutrient loading at the source
is greatly preferred over relying on structural stormwater controls to remove
nutrients after they have been generated.
These measures are indicative of the level of commitment given to protecting
water quality in Orange County. Given this proactive history of working to protect
watersheds in the county, Orange County believes it has a somewhat - unique
perspective on the proposed Falls Lake Nutrient Management Strategy (Falls
Lake Rules). The County believes that there are several areas of concern with
the draft Falls Lake Rules which are important for the Commission to consider,
including the following:
1. The "one size fits all" approach of the draft regulations.
2. Uncertainties regarding parameters utilized in the development of the
watershed model.
3. Concerns about further nutrient reductions being required from
agricultural lands - which have already reduced nutrient runoff by
implementing the buffers required as a result of the Neuse Rules
(which became permanent in 2000).
4. Uncertainty as to whether the nutrient reductions required by these
Rules will actually achieve what appears to be necessary, and
uncertainty as to the length of time it will take the lake to respond to
reductions in nutrient loading.
5. Calls by some for an opportunity to include a "re- examination" of the
modeling done by DWQ indicate that uncertainty and doubt concerning
the original modeling effort seems to exist.
6. The uncertainty surrounding what reductions will be required and the
likely tremendous cost to be borne by local governments.
7. The timeframe of the public comment period may inadvertently serve
to suppress public and local government comment.
The following paragraphs provide further details about each of these areas of
concern.
1. While the legislation governing the creation of these rules calls for a set of
rules that are "fair, reasonable and proportionate," it does not seem certain that
these characteristics can be used to describe a "one size fits all" set of rules
which is intended to be applied to densely developed urban areas as well as rural
areas which have been covered by regulations protecting water quality for many
years. It appears certain that the nutrient loads emanating from urban areas are
much greater than the load originating in rural areas, as evidenced by the
preponderance of "impaired" streams in the more urban areas of the Falls Lake
watershed versus the lack of such water bodies in the more rural areas of the
watershed, such as in Orange County.
Falls Lake Draft Rules Comments 6
Page 3
Given the relatively low nutrient load originating in sparsely developed, rural
areas such as Orange County, a percentage -based reduction target - such as is
proposed in the draft rules - will not likely result in any significant reduction in
nutrient loading at Falls Lake from rural areas alone. The same percentage -
based reduction in a more urban environment will likely result in a more
significant reduction in nutrient loading at Falls Lake as a result of the much
higher loading rates of these areas.
Instead, if all entities were to meet certain nutrient loading targets, larger sources
of nutrients would need to enact larger reductions than smaller sources in order
to meet the target. This would seem to be more "fair, reasonable and
proportionate." If such regulations were enacted, local governments which have
acted to protect water quality over the years, possibly by limiting development
impacts, would in fact be essentially rewarded for these past practices. Areas
that have over the years promoted development with less regard to
corresponding water quality impacts would likely (some may say, appropriately)
have larger reductions to make in order to meet nutrient loading targets, but they
would also likely have a larger tax base to pay for the required reductions.
Enacting a "one size fits all" set of regulations certainly does not reward areas
which in the past have enacted land use controls and development density
parameters to address watershed protection.
2. Considerable concern exists about some of the parameters used in the
development of the watershed model. Most significantly, we feel that the
contributions of nutrients included from septic systems and sand discharge filters
in the Eno and Little River subwatersheds were likely highly overestimated in the
watershed model. Durham County contains approximately 3,000 sand discharge
filters, while Orange County contains less than 300 of these devices. Septic
systems (with sand discharge filters added in) were determined to be the main
source of Total Nitrogen in the entire Eno River subwatershed by the watershed
model. If this is true, this indicates that, in fact, the main source of nitrogen in
these two subwatersheds is most likely not in Orange County. Furthermore, no
local studies have assessed the actual rate of nutrient export to surface waters
attributable to ground absorption septic systems. No local data appears to exist
to support the idea that ground absorption septic systems are a significant source
of nitrogen in surface waters. For these reasons, Orange County does not
believe that on -site wastewater systems in Orange County represent a significant
source of nutrients to Falls Lake.
It should also be noted that the land cover information included in the watershed
model report indicated that the majority of the land in both the Eno and Little
River subwatersheds was in fact forestland, with only 17% of the Eno
subwatershed and less than 10% of the Little River subwatershed even
developed. Given historical development trends and policies, it is likely that
these subwatersheds are more rural in Orange County than in Durham County.
Falls Lake Draft Rules Comments 7
Page 4
These facts make the claim of these areas as significant sources of nitrogen from
septic systems even more doubtful.
3. Significant reductions in nutrient loading from agricultural lands were
already achieved in Orange County as a result of the existing Neuse Rules, as
well as the advent of "no -till' agriculture in the recent decades. Further reductions
in nutrient loading from the dwindling number of agricultural operations in the
county may not be feasible. Additional reductions in croplands and pastures as a
result of buffer and livestock exclusion requirements may force more agricultural
operations out of business, likely having the detrimental affect of increasing
urban -style development within rural areas, counter to the County's
Comprehensive Plan. Any such increase in developed lands is likely to result in
an increase in nutrient -laden runoff.
4. While there is little doubt that measures are required to reduce the
nutrients entering Falls Lake, little information seems to be available as to what
the proposed nutrient reductions described in the draft rules will actually
accomplish to this end. Will the proposed reductions actually result in Falls Lake
no longer being "impaired "? How long will it take for reductions in nutrient levels
in the lake to be seen, based on reductions in nutrient loading in the watershed?
Is it even feasible to continue to maintain all designated uses of Falls Lake? Are
there alternative water quality standards which would be sufficient to protect the
main uses of Falls Lake and which would not be so difficult to achieve?
Unfortunately, answers to these important questions likely do not exist at this
time.
It may be worthwhile to have an independent organization examine these issues,
and others, once Stage I of the Nutrient Reduction Strategy is underway - if for
no other purpose than to give support to the further reductions that are called for
under Stage II. Given the enormous nutrient load reductions called for in Stage II
of the draft rules, and since the technology that several area wastewater
treatment plants will depend upon to meet the reduction goals does not exist, a
review of the progress to date seems like an excellent idea.
5. The Triangle Chairs and Mayors Group published a set of Consensus
Principles earlier this year concerning the draft Nutrient Management Strategy.
While these principles supported many of the draft rules, contained within the list
of principles was a desire for the proposed rules to include a "re- examination" of
the rules after they have been in effect for several years, prior to Stage II of the
rules (which calls for even more drastic reductions in nutrient loading than
mandated in Stage 1). The Consensus Principles state that the rules
development process "relied on a limited data base which will be substantially
enhanced by a more rigorous program of sampling, monitoring and analysis."
This limited data base included lake samples collected during the extraordinarily
dry year of 2007.
Falls Lake Draft Rules Comments 8
Page 5
There seems to be considerable uncertainty concerning the accuracy and
reliability of the modeling which was completed in support of the rules
development process, as supported by the concept of the need for a "re-
examination" of the nutrient management strategy, which otherwise would not be
needed. Such a re- evaluation is likely to be a good idea, as the true impact of
Stage I of the draft rules is not known. It is hoped that any future "re- examination"
of the nutrient management strategy includes outside experts and that it results
in a more - accurate representation of the Falls Lake watershed.
Thus, it seems logical to include a provision for examining the impact of the rules
after they have been in place for some time, given the length of time that the draft
rules are likely to impact the subwatershed, as well as the likely cost and the
numerous uncertainties associated with the implementation of the rules.
Ongoing evaluation and modeling of the lake appear to be worthy efforts, given
what is involved in this effort and what is at stake.
6. It is extremely difficult to comment on the proposed existing development
rules without knowing the details of the accounting tool which remains
unavailable as of this writing. As a result, it is difficult to estimate the cost
associated with implementing the existing development portions of the draft
rules, but these costs are expected to be very significant.
In an effort to quantify nutrient loading rates from existing development in
advance of the availability of the future accounting tool, our staff has estimated
impervious surface and land cover data from available high - resolution aerial
photography. Nutrient loading rates were then calculated using the current
methodologies which are in place for both the existing Neuse and Tar - Pamlico
rules.
Using the Neuse methodology, estimated nitrogen loading from developed lands
within Orange County was only 1.46 pounds per acre per year (Ibs /ac /yr). Using
the Tar - Pamlico methodology, estimated nitrogen loading was calculated to be
only 1.30 Ibs /ac /yr and phosphorus loading was calculated to be 0.30 Ibs /ac /yr.
These numbers clearly demonstrate that the existing watershed protection
measures previously implemented by Orange County have significantly limited
nutrient loading from developed lands within the county. In addition, these
calculations also make evident that developed land within Orange County is
already well below the baseline target for nitrogen included in Stage 1 of the draft
rules (2.89 Ibs /ac /yr).
The numbers calculated using the Neuse and Tar - Pamlico methodologies
described above also further support point #1 in this document, the concept of
using loading targets rather than a "one -size fits all" approach to achieve the
proposed nutrient reductions. Otherwise, in order to meet the proposed
reductions of 40% for nitrogen and 77% for phosphorus, Orange County would
have to reduce loading rates from developed lands to 0.78 Ibs /ac /yr for nitrogen
Falls Lake Draft Rules Comments 9
Page 6
and 0.07 Ibs /ac /yr for phosphorus. These potential loading rates equate to what
would be considered "background" loading rates for this area (natural loading
from undeveloped land). Other developed areas in the subwatershed with
substantially higher loading rates will continue to contribute considerably higher
loads of nitrogen and phosphorus to Falls Lake than development in Orange
County contributes, even after loading has been reduced by 40% and 77 %, as
proposed.
In the absence of an accounting tool or a financial note for the draft rules, our
staff also estimated the cost to reduced nutrient loading from developed lands
within Orange County to the essentially "background" concentration levels as
explained above. This was done by utilizing the established fee schedule to
offset nitrogen loading which is utilized by the North Carolina Ecosystem
Enhancement Program (EEP). The in -lieu fee to offset one pound of nitrogen
under this program is currently $28.35 per year. Using the estimated loading rate
for nitrogen listed above, Orange County would need to offset 0.52 Ibs /ac /yr
(from an already very low background loading rate) in order to achieve the
proposed 40% reduction. This equates to a reduction of 63,700 pounds of
nitrogen at a cost of $1,800.000 annually. Furthermore, this cost only includes
the needed nitrogen reduction from stormwater nutrient loading. The ultimate
costs could be even higher, depending on the reductions in loading which could
also be required from septic systems.
Given these projected costs, and the regional scope of this issue, we believe that
State funding should be made available to assist with this clean -up effort. Falls
Lake nutrient management is a regional problem that cuts across many local
governments and some state and federal facilities. In addition, the vast majority
of costs associated with the Falls Lake rules could be borne by local
governments that will not benefit from the nutrient reductions in Falls Lake. Local
governments will also be required to implement, administer and enforce many of
the provisions of the draft rules, and the costs of these activities will be significant
and problematic for local governments, most of which are already in difficult
financial situations at the current time. We certainly acknowledge that this same
financial scenario exists for the State.
7. Finally, given the enormous potential ramifications of the proposed Rules,
it would seem reasonable to conduct the Public Comment period beyond the
summer recess months, as this would provide greater opportunity for our citizens
and elected officials to provide input on these important regulations. This is
similar to the situation that occurred in 2008 with the Jordan Lake rules.
Unfortunately, it is extremely difficult for some citizens and elected officials to
devote the time and effort necessary to this effort if the comment period occurs
over the summer, when many people are on summer break or vacation or may
be traveling and unavailable. Many local elected boards do not meet precisely
during the proposed public comment period. A fuller and more robust dialogue
Falls Lake Draft Rules Comments 10
Page 7
about the rules would likely occur by extension of the public comment period into
September.
In closing, we believe it is important to point out that Orange County is a
headwaters county with many watersheds, such that the net result of the water
quality regulations adopted and enforced by the County essentially protect and
enhance the drinking water resources of our neighbors. Falls Lake, the Little
River Reservoir, Lake Michie, Graham- Mebane Reservoir and Jordan Lake all
benefit from the water protection regulations in place in Orange County. As a
result of watershed standards which have been in place for some time in Orange
County, the amount of impervious surface in water supply watersheds in the
county is already less than 4 percent. It seems appropriate that local
governments that have been longtime water quality stewards, and that have
enacted effective regulations to protect the water quality of both their own and
neighboring jurisdiction's water sources should be rewarded for these practices.
Thank you for the opportunity to comment on the draft Falls Lake Rules. As
always, Orange County remains dedicated to protecting water quality and is
eager to implement fair and reasonable regulations directed at reducing nutrient
loading to Falls Lake. If we can further assist with this process in any way, feel
free to contact staff in our Department of Environment, Agriculture, Parks and
Recreation, Planning or Health departments. Thank you for your consideration of
these comments.
Sincerely,
Valerie P. Foushee
Chair
Orange County Board of Commissioners
CC: Orange County Board of Commissioners
Frank W. Clifton, County Manager
Gwen Harvey, Assistant County Manager
John Huisman, NCDWQ, Nonpoint Sources Planning Unit
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Attachment for June 1 BOCC meeting
EMC Requests for Public Comments on Certain Provisions of the Draft
Falls Lake Nutrient Management Rules
May 17, 2010
An updated set of draft Falls Lake Nutrient Management Strategy rules which
includes requests by the EMC for comments regarding several important issues
was received on Friday May 14th. This attachment summarizes these requests.
• The EMC is asking for public comments on the idea of reducing Stage 1 to
7 years instead of the previously proposed 10 years.
• The EMC is also including language seeking input on the idea of reviewing
the results /progress of Stage 1 prior to setting the limits of Stage II.
• The EMC is also asking for comments on the idea of developing
regulations for "hobby farms ", which are not covered under the existing
draft rules as they are not commercial enterprises. Should they include
"large gardens" ( >1 acre) and dog kennels which have more than a certain
number of dogs per square foot? And also, if any of these should be
regulated, what should the regulations be?
• And finally, the EMC is asking for comments on the idea of including land
acquisition and conservation as an option for achieving nutrient reduction
credits.
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Falls Lake Nutrient Management Strategy Development Process
January 2010 EMC
The Environmental Management Commission faces a tremendous challenge in the months ahead
in developing nutrient rules to protect and restore Falls Lake. Nutrient management rules will
be drafted by March 2010 with the goal of achieving unprecedented nutrient reductions in the
watershed. This document provides background information, rule concepts currently being
reviewed by stakeholders, a rulemaking timeline, and an outline of the strategy report that staff
will provide the Commission in March.
In 2005 the NC General Assembly passed SL 2005 -190 (5981), which includes a requirement for
the Commission to adopt a nutrient strategy for Falls Lake. The 2009 regular session produced
Senate Bill 1020, a bill devoted to water quality improvements in Falls Lake. This bill revises
the EMC adoption deadline to January 15, 2011 and adds certain requirements aimed at water
quality improvement in the watershed. The bill was ratified and signed into law on August 26,
2009. A stakeholder meeting process begun in late 2008 is now providing input on draft rule
language and will meet to review revised draft rules on January 21, 2010. Staff plans to request
EMC approval to take rules to public comment in March 2010.
Lake Background: Following questions in 2004 over the condition of Falls Lake, DWQ began
more intensive sampling for use support assessment. A Falls Lake Technical Advisory
Committee (TAC) was formed in July 2005 to assist DWQ with the review and modification of
the monitoring strategy and developing levels of confidence for decision making associated with
the monitoring and lake modeling activities. The field study was completed in fall 2007. Based
on water quality data collected between 2002 and 2006, Falls Lake was listed as impaired for
chlorophyll a on the draft NC 2008 303(d) list. The portion of the lake above I -85 was also listed
as impaired for turbidity.
Stakeholder Process: A watershed and lake model were completed by DWQ staff in November
2008 and February 2009 respectively and presented to the TAC for their review. A stakeholder
process conducted through a joint effort between the Triangle J Council of Governments
(TJCOG) and DWQ began meeting in August 2008 to provide stakeholders an opportunity for
input on development of a nutrient strategy for the lake. The stakeholder group has convened
eight times over the past year. The group has gained an understanding of lake issues, modeling
basics and results, and has begun to grapple with strategy design issues and options.
Presentations and meeting summaries are posted to a Falls Lake stakeholder website hosted by
TJCOG. An online discussion forum, known as a "wiki ", was also created to provide
stakeholders an open forum to raise questions and exchange information between meetings.
Stakeholder Subcommittee Meetings: The stakeholder group broke into four smaller
subcommittees that held a total of twelve meetings between September 17th and December 7th ,
2009 to work on detailed nutrient reduction rule ideas by source type and provide input on the
fiscal impacts of the strategy between. In late November and early December draft rules
addressing new development stormwater, existing development, agriculture, and point sources
were provided to stakeholders for their review and review with comment. DWQ plans to
reconvene the full stakeholder group on January 21 st to review revised drafts of the rules before
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taking the package to the Environmental Management Commission for approval to go out to
public comment in March 2010.
Draft Nutrient Management Strategy Approach
The following is an outline of the rule concepts that have been developed with input from the
stakeholders and incorporated in draft rule text provided to the stakeholder subcommittees for
review.
Strategy Goal
Meet chlorophyll -a standard lake -wide via reductions in nitrogen and phosphorus loading to
surface waters by 30% and 70 %, respectively which equates to a 40% and 77% reduction from
the 2006 baseline by all regulated sources.
Staged Approach
Given the large reduction needs, DWQ proposes an adaptive / staged approach:
• Stage l: Initial reductions watershed -wide to ensure the chlorophyll -a standard is met in
the lower lake. 10 years.
• Stage 2: Additional reductions in upper watershed (above NC 50) to ultimately achieve
the chl a standard lake -wide. Additional 15 years.
• Stage 3: Additional reductions from existing development as needed and feasible up to
40% TN and 77% TP.
Lake Water Quality Monitoring
• Use support assessment every 2 years on Integrated Report cycle
• Data window = 5 years preceding assessment
• Example: 2016 -2020 data => 2021 assessment (for 2022 IR)
Rule Stages by Source Type
New Development Stormwater
• Applies to all local governments
• Achieve nutrient export rate targets: 2.2 lbs /ac /yr TN and 0.33 lbs /ac /yr TP
o Based on 40% TN and 77% TP reductions from acreage weighted average export
rate from buildable land in watershed
Greatest reasonable level of nutrient control onsite, remaining achieved offsite
Staged approach does not apply to New Development Rule
Existing Development
• Each local government achieves load reduction goals from existing developed lands
• Stage 1
• Reduce existing development load to 2006 baseline levels
• By 2021 (10 yrs)
Stage 2
o Possible options:
2
rN
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• Local government proposes compliance timeframe, plan shall meet
explicit criteria; or
• At least half of reductions by 2036 ( +15 yrs) before implementing a Stage
3 load reduction program
Stage 3
o Local government proposes compliance timeframe to achieve the remainder of
reductions up to the 40% TN and 77% TP goal, plan shall meet explicit criteria
Point Sources
Each nutrient - producing point source achieves reductions in load
• Waste load allocations for large facilities ( >O.1 MGD)
• Small facilities ( <O.1 MGD) implement O &M measures to get reductions
Stage 1
• Mass allocations for large facilities in upper watershed based on 20% TN / 40%
TP reductions using equivalent concentrations at current flow + 10%
• Implement Biological Nutrient Removal (BNR) technologies at large package
plants in lower watershed.
• Achieve by 2016 (5 years)
• Stage 2
• Mass allocations for large facilities in upper watershed based on 40% TN / 77%
TP reductions using equivalent concentrations at full permitted flow
• Achieve by 2031 ( +15 years)
Agriculture
• Stage 1
• Achieve collective N & P reduction goals of 20% TN and 40% TP
• Residuals application uses RYE N rates and run, comply with PLAT
• Achieve by 2021 (10 years)
• Stage 2 (if Stage 1 goals achieved)
• Achieve collective N & P reduction goals of 40% TN, 77% TP
• Achieve by 2036 ( +15 years)
• Stage 2 (if Stage 1 goals not achieved)
• Buffer all cropland and buffers and exclusion on all pasture, and
• Achieve collective N & P reduction goals of 40% TN, 77% TP
• Achieve by 2036 ( +15 years)
State and Federal Entities
• Similar approach as used in Jordan requirements
Nutrient Trading
• Similar approach as used in Jordan to provide overarching open trading across all sources
Buffer
• No new rules - Existing Neuse Buffer Rules continue to apply
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Next Steps in Rule Makinz Timeline
m
Final Stakeholder meeting to review draft rule text
January 21, 2010
Submit Fiscal Analysis to OSBM
January 31, 2010 (target)
W C / EMC approval to take draft rules to public comment
March 2010
Public comment period
TBD
Hearing Officers deliberate public comments
TBD
W C / EMC approval of final rules
January 15, 2011
Falls Lake Rules go into effect as "temporary rules"
February 1, 2011
Rules Review Commission reviews rule language
I February 2011 - TBD
Rules may o to N.C. General Assembly
May 2012
TBD =To be determined based in large part on the fiscal note approval process. The note must be approved by the
Office of State Budget Management before public hearings can be held.
Falls Lake Nutrient Management Report
The models developed and used in developing the strategy will be documented in a report that is
currently under development. Staff plans to provide this document to the WQC and EMC in
March 2010 in support of the draft rules that will be provided then. An outline of the report is
provided below.
I. Background
a. Nutrient Problems
i. Map of Violations
ii. Graph of Historical Chl -a data
b. TAC & Stakeholder Process
II. Modeling & Model Application
a. Two Models
i. Serial vs. Parallel Approach
ii. Data used by both models
iii. Watershed Model loading estimates
iv. Loads used by Lake Model
b. Lake Model Scenario Run
i. 2006 Baseline discussion
ii. Use ofNEU13B as "compliance area"
iii. Upper vs. Lower lake
iv. Development of "The Curve"
III. Decision on Strategy Development
a. General Decisions
i. Decision on use of 30/70 reduction combination
ii. Process to adjust to 40/77 reduction
iii. Stage 1 / Stage 2 discussion
iv. Trading
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v.T ransport factors
b. Source - specific decisions made based on stakeholder input
i. What we decided to do
ii. What we decided not to do
iii. Others
Links to More Information
Draft Falls Lake Rules
littp: / /fall slakestakeholder .wikispaces.com/Draft +Ru les
Senate Bill 1020
http: / /www.nclei,z. net / Sessions /2009 /Bills /Senate/PDF /Sl02Ov4 pdf
Session Law 2005 -190
http: /hvww.ncle,.net/ Sessions /2005 /Bills /Senate /PDF /S981v5 pdf
Falls Lake Stakeholder Website
http://-vN,ww.fallslakestakeholder.org
Falls Lake Stakeholder Online Wiki
http:// fallsiakestakeholder .wikispaces.com
Watershed Model Report
http: //h2o.enr.state.nc.us /tmdl/ documents/ JuIY09DraftFallsLak-eWatershedModelReport pdf
Lake Model Report
http: / /h2o.enr. state. nc. us /tmdl/ documents /F`al]sLak-eDrafflReport8 full pdf
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Orange County Agricultural Preservation Board
TO: Board of County Commissioners
FROM: Orange County Agricultural Preservation Board
DATE: May 21, 2010
RE: Falls Lake Nutrient Management Strategy Draft Rules
At its May 19th meeting, the Agricultural Preservation Board (APB) received a PowerPoint
presentation on the Falls Lake Nutrient Management Strategy Draft Rules from Tom Davis and
Gail Hughes (Department of Environment, Agriculture, Parks and Recreation). While the Board
of County Commissioners (BOCC) is scheduled to hear a similar presentation on June 1 ", the
focus of our presentation and subsequent discussion was the potential impact of the
forthcoming state regulations on local farmers. The APB wishes to convey the following key
points from its meeting to aid in the BOCC's discussion of the topic and to offer items of
potential inclusion should the Board wish to prepare written remarks during the proposed
regulation comment period.
The nutrient management strategy outlines a two- staged approach to reduce the levels of
nutrients entering Falls Lake by the year 2036: a 40% reduction of Nitrogen and a 77%
reduction of Phosphorus measured against the baseline year of 2006. This is a substantial
reduction, much more than what was required by the Jordan Lake Rules. Orange County
farmers have been working steadily to reduce nutrient levels in the Neuse River Basin since the
introduction of new watershed regulations in 2000. Using 2006 as the base line for data
collection disregards local efforts to substantially reduce nutrient levels during 2000 -2006
Much of the data supporting the proposed rules appear to be based on modeling rather than
actual sample testing from the Division of Water Quality (DWQ). The most nutrient heavy
drainageways, as shown on Figure VI -1 of DWQ's materials, are in the vicinity of Ellerbe Creek
in Durham. Reading through the proposed rules, Orange County residents, farmers and non
farmers alike, are at risk of being held responsible for reducing nutrient levels that are occurring
down stream. Will the proposed new rules be able to account for the specific locations within
the watershed where nutrient levels are actually increasing? In other words, if input levels are
reduced in Orange County but increase elsewhere downstream, will the proposed rules be able
to balance the requirements? The APB recommends that regularsampling occur at the Eno
River, Flat River and Little River at or near the point where these rivers flow out of Orange
County and into Durham County.
Furthermore, the proposed rules overlook the impact of fertilizers for residential lawns and
garden care. Is there any data to account for the nutrient levels through residential storm
water run -off? Most brands of grass seed and top soil sold at home improvement stores come
prepackaged with fertilizer. The APB encourages the County begin a dialogue with our
municipal and regional partners, local stores and local consumers to discuss the unintended
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consequences of using these products The APB would welcome the opportunity to work with
the Commission for the Environment to consider embarking on such an informational campaign.
Considering these factors, the APB questions how much more the local agricultural sector can
reduce nutrient levels? Soils in some areas of Orange County have high levels of Phosphorus,
occurring naturally. It will be very difficult to demonstrate any reduction in these communities
since farmers have reduced the use of Phosphorus as part of their fertilizer mix now. In
addition, the proposed rules do not speak to organic farming practices, which are increasing in
popularity in Orange County. The accounting tool should including references to organic
practices where appropriate.
Part of the APB's mission is to advise the BOCC on matters pertaining to local farming. It is our
understanding that the BOCC may have an opportunity to submit comments on this program in
the coming weeks. We hope you will consider incorporating our concerns into your broader
remarks on potential impact of these regulations on all local residents.
Thank you for the opportunity to submit comments on behalf of the agricultural community. If
we may offer any additional information please let us know.
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