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HomeMy WebLinkAboutAgenda - 10-14-2014 - 2ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 14, 2014 SUBJECT: Upper Neuse River Basin Association Update DEPARTMENT: Environment, Agriculture, Parks & Recreation (DEAPR) ATTACHMENT(S): A) Falls Lake Watershed B) Consensus Principles C) UNRBA Surface Water Monitoring Locations in the Falls Lake Watershed D) Falls Lake Sampling Locations E) Tentative UNRBA Project Schedule F) Rules Review Process Flowchart Action Agenda Item No. 2 PUBLIC HEARING: (Y /N) No INFORMATION CONTACT: David Stancil, 919 - 245 -2510 Tom Davis, 919 - 245 -2510 James Bryan, 919 - 245 -2319 1 PURPOSE: To receive an update on the recent activities of the Upper Neuse River Basin Association ( UNRBA). BACKGROUND: The Falls Lake Nutrient Management Strategy (Falls Lake Rules) require local governments, the North Carolina Department of Transportation (NCDOT), the agricultural community, and other regulated parties located in the Falls Lake watershed (Attachment A) to reduce nitrogen and phosphorus nutrient loading to the lake by 40% and 77 %, respectively, by 2036. Regulated parties anticipate significant financial and technical difficulties with meeting the mandated nutrient reduction targets. The fiscal note prepared by the State at the time the Falls Lake Rules were developed estimated the cost of compliance with the rules to be at least $1.5 billion. Many affected parties believe the phosphorus reduction goal of 77% is not attainable at any cost. As a result of the challenges with meeting the goals of the Falls Lake Rules, the Upper Neuse River Basin Association ( UNRBA), of which Orange County is a member, is working to revise Stage II of the Falls Lake Rules. The activities of the UNRBA are guided by the Consensus Principles, which were adopted by nearly all of the jurisdictions in the Falls Lake watershed, including the Orange County Board of Commissioners on March 16, 2010 (Attachment B). The Consensus Principles emphasize the protection of Falls Lake as a water supply for the City of Raleigh, while also stating the need for re- examination of Stage 11 of the Falls Lake Rules. I Consensus Principles Consensus Principle #9 includes the following with regard to the development of the Falls Lake Rules: "...relied on a limited database which will be substantially enhanced by a more rigorous program of sampling, monitoring and analysis." Furthermore: "The EMC [Environmental Management Commission] 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 meeting the water quality standard for chlorophyll -a 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... ". Consensus Principle #10 states: "The limited resources available to DWQ [Division of Water Quality, now Division of Water Resources - DWR] and DENR [Department of Environment and Natural Resources] 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." UNRBA Projects Given the challenges with meeting Stage II of the Falls Lake Rules, as well as the guidelines outlined in the Consensus Principles document, the UNRBA is already either working on, or is planning to begin, the following projects: • Estimation of nutrient sources and jurisdictional loading of nutrients to Falls Lake • Modeling the response of Falls Lake to nutrient input and internal lake processes • Monitoring of changes in the lake as a result of compliance activities in the watershed • The linkage of water quality conditions to the designated uses of Falls Lake • Estimation of BMP credits for measures without DWR - established credits • Support of various options under the existing regulatory framework in North Carolina The UNRBA has retained a consultant to help examine options for meeting the requirements of Stage II the Falls Lake Rules while incorporating the goals of the Consensus Principles. According to the Framework for a Re- examination of Stage 11 of the Falls Nutrient Strategy prepared by the consultant, CardnoEntrix: "The re- examination should consider existing data, models, nutrient management strategies, the Consensus Principles, water quality standards (including designated uses and water quality criteria), implementation costs, and regulatory flexibility." 3 Reports To date, CardnoEntrix has completed the following reports as part of the re- examination process: • Task 1: Framework for a Re- examination of Stage II of the Falls Nutrient Strategy • Task 2: Review Existing Data and Reports for Falls Lake and the Watershed • Task 3: Estimation of Nutrient Loading to Falls Lake • Task 4: Review of Existing Models and Recommendations for Future Studies In addition, CardnoEntrix has also completed two technical memoranda: • TM1: Comparison of Flow Estimation Methods • TM2: Evaluation of the Sensitivity of the Falls Lake Nutrient Response Model Water Quality Sampling During July 2014, CardnoEntrix received approval from DWR for three required technical memoranda that had been prepared and submitted for DWR review that describe in detail the watershed sampling project that will form the foundation of the re- examination process: • Quality Assurance Project Plan (QAPP) • Falls Lake Watershed Monitoring Plan • Modeling Framework The QAPP and the Monitoring Plan describe the three -to five -year watershed sampling effort that was initiated in August 2014. The water quality sampling program will provide information for the following purposes: • Determination of nutrient source allocation and jurisdictional nutrient loading to Falls Lake, • Falls Lake response modeling, • Development of data for consideration of additional regulatory options; and • Linkage of water quality conditions in Falls Lake to the designated uses of the Lake. Attachment C illustrates the locations that will be sampled in the Falls Lake watershed for the determination of jurisdictional loading, as well as the stations that are designed to provide information about nutrient loading to the lake. Attachment D illustrates additional water quality sampling locations that other organizations are monitoring within Falls Lake. Modeling Data Gaps UNRBA re- modeling of Falls Lake is expected to start in approximately two years, and is intended to update the lake response model that DWQ utilized in the development of the Falls Lake Rules. The UNRBA contractor identified several gaps in the data used by DWQ in the modeling completed during the development of the Falls Lake Rules, including: • DWQ held constant the total organic carbon and chlorophyll -a input values assumed for the tributaries feeding into Falls Lake. These concentrations were based on levels measured within the lake, not in the tributaries. It is probable that these concentrations were artificially high to begin with and were unable to decrease at all over the course of the modeling study. • There are no stream gages on any of the streams that flow into Falls Lake east of 1 -85, thus no flow information was incorporated for any of these 12 streams. • Atmospheric deposition of nitrogen in the lake or watershed was not accounted for by DWQ. 0 • Streambank erosion, possibly a significant source of phosphorus in the watershed, was not considered as a possible source by DWQ. • Internal lake processes, such as sediment re- suspension, were also not accounted for by DWQ. BMP Credit Review and Nutrient Trapping Analysis CardnoEntrix is also currently working on a nutrient reduction BMP credit literature review and the analysis of nutrient trapping that occurs within the larger impoundments in the watershed. While the nutrient trapping analysis will be important for the remodeling of the watershed, the BMP credit determination project will be beneficial to entities, including UNRBA member governments, which must use BMPs to meet required nutrient reduction goals. DWR approval of additional BMP credits is expected to take nearly a year per each additional BMP as a result of the stringent credit determination process currently proposed by DWR. With several measures in need of credit determination, the process of developing a thorough BMP "tool kit" for regulated entities to employ may take a decade or more. Schedule A tentative schedule for upcoming UNRBA projects is included as Attachment E. As can be seen from this schedule, the UNRBA anticipates conducting the studies discussed earlier in this document through 2020. Stage II of the Falls Rules is defined as the period extending from 2021 to 2036, with the overall goal of meeting nutrient related water quality standards throughout Falls Lake by 2041. Upcoming Opportunity for Comments about the Rules The Regulatory Reform Act of 2013 (HB74) mandated that all rules expire within ten years of their effective dates, unless readopted. This rulemaking process allows for comments and revisions on the full range of regulated activities, including the Falls Lake Rules (15A NCAC 02B .0275 through .0282 and amended .0235 and .0315). The Rules Review Commission (RRC) is scheduled to begin the review of subchapter 2B rules in October 2014. The review process for all rules must be finished by June 2019. There is a three -step review process (Attachment F). The initial step is the agency's determination report and public comment period. In the determination the agency identifies each rule as "unnecessary and no public comment ", "necessary and with substantive public interest ", or "necessary and without substantive public comment ". DWR has identified the Falls Lake Rules as "necessary and with substantive public interest ". The second step in the review process is for the RRC to review the agency reports and the final step is the issuance of the RRC's final determination report. DWR anticipates re- adoption of all rules under review to begin in 2015. FINANCIAL IMPACT: There is no financial impact to the County at this time. Given the numerous studies planned for the re- examination of Stage II and the timeframe established by the Falls Lake Rules, it is expected that UNRBA dues will remain elevated for several years. RECOMMENDATION(S): The Manager recommends that the Board receive the update on the recent activities of the Upper Neuse River Basin Association ( UNRBA) and provide comments and questions as necessary. Attachment A. Falls Lake Watershed t�.u.t.x c - +rro' �xat¢ &sxtn GW I , l- Q Falls Lake Watershed __�� vl lRO %Lam PERSON " County Boundaries I • ' Municipalities CASWELL i n Fall LakL Management Areas Upper Falls Watershed i 1 DO" Q Lower Falls Watershed Use Support Rating I Supporting c �k ' �Fm &1a Free "' v GRANVILLE Impaired -_� -- ar c. �• No Data VANCE Stem DU AM L ee a -} A FRANKLI I � � L ORANGE / Fors( *Epd XR plathlrn' Ga '�� � R- c r � s Rai gh Attachment B. Consensus Principles. CONSENSUS PR1NCIPLES TO GUIDE FALLS LAIC 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. 3. 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 Neusc 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 a two -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. 1 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 ". 7 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 °.0 redaction 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 alter adoption of the rules by the F-MC, 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. Wherc 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/i, 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 I 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 tune schedule as local govertunents. 2 The Consensus Principles rely on, and do not seek any change from, the apponionment of load allocatioils as proposed by DWQ in the draft rules issued on January 14, 2010 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 wound be sufficient to protect those existing uses, and (iv) tho 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 ' Session Law 2009 -216 (the Jordan Lake legislation), at Section 3(d)(2)(f), sets the following RWtations on the authority of the Fnvironmental Management Commission for its review and approval of local government programs to control nutrient loading from existing development: "The Commission skull 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 incIuded in the proposed program, meet the rcductions 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. Tire Commission shall not require additional or alternative measures that would require a local government to: L Install or require installation of a new stormwater colicrtion 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." 9 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 andlor standards should be established for the Upper Lake. 14. 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 fora 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 halls 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. 10 Attachment C. Falls Lake watershed with UNRBA lake loading and jurisdictional boundary water quality sampling locations shown. 0 Monitoring Locations Active USGS Gages Lake Loading Sites • Discharge JuriWKtionat Smml ry Sites ■ Stage NPDES Permits O Major Fans Lake Watershed • Minor Muniopal Boundaries a O J r( DURHAM � 1d `mod • �Cana nnrunsraaaoo r.. �.ns+.rmea,a 11 Attachment D. Falls Lake with existing sampling locations shown. 12 Attachment E. UNRBA Falls Lake nutrient management strategy re- examination process tentative schedule. Tasks 2013 2014 2015 2016 2017 2018 2019 2020 Complete Moritoring Program O,4PP and D'NR review and apP90Vi3l Condudt Monitoring Optional 5th year of Monitoring Preliminary Revisions to EFDC Model and inputs Deve -op fu II model frarreawork DWR review full model frannework Final Revisiaristo EFDC model and inputs Recalculate Stage I I Load Reductions using Revised EFDC made] MCDWR Review of Mode Revisions Figure 3 Potential Schedule for the nutrient response model refinements and Re- examination of Stage II of the Falls take Rules STEP 1 [G.S. 150 8 - 21.3A (c) (1) ] 60 days STEP 2 [G.S. 1508- 21.3A(c)(2)] STEP 3 [G.S. 1508- 21.3A(c)(3)] Attachment F - Rules Review Process Flowchart H74 Periodic Review and Expiration of Rules RRC Creates Rule Report [G. S. 150B-21.3A (c)] General Meeting /Education on Requirements of H74 RRC Consultation with agencies [G.S. 1508- 21.3A(d)] RRC sets schedule [G. S. 150B-21.3A (d)] Agency Reviews Existing Rules I Agency Report on I OAH website Public Comments Agency reviews & responds to public comments • substantive interest • no substantive interest • unnecessary I Agency Report on I Agency website r------- - - - - -r Agency Submits Report and — — No review by agency r written comments to RRC i Rule expires r ----- - - - - -- RRC reviews report and written comments RRC submits report to APO APO consultation I APO does not meet I within 60 days 13 Committee recommends RRC Rule remains Agency initiates Unnecessary rule determination new review in Code readoptic of rule expires effective r ? This document is prepared by the Office of Administrative Hearings as a public service and is provided to the public for informational purposes only. (06/18/13)