HomeMy WebLinkAboutAgenda - 06-26-2007-6eORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 26, 2007
Action Agen a
Item No. °~~.
SUBJECT: Draft Comments -Proposed Jordan Lake Nutrient Management Rules
DEPARTMENT: ERCD, Planning, NRCS/S&W PUBLIC HEARING: (Y/N) No
ATTACHMENT(S): INFORMATION CONTACT:
David Stancil, 245-2590
Proposed Rules Summary Craig Benedict, 245-2585
Public Hearing Notice Brent Bogue, 245-2750
Draft Letter to EMC (with map) Ren Ivins, 245-2585
Terry Hackett, 245-2585
PURPOSE: To consider draft comments on the proposed Jordan Lake Nutrient Management
rules, to be presented for public comment this summer, for submittal to the N.C. Environmental
Management Commission.
BACKGROUND: On May 24, the Board received a presentation on the proposed Nutrient
Management Rules for Jordan Lake watershed. The State Environmental Management
Commission (EMC) has authorized the Division of Water Quality (DWQ) to publish the
proposed rules in the June register and initiate a 60-day window for public comment. This 60-
day period began on June 15, and includes public hearings in Carrboro (July 12) and Elon (July
17). A copy of the hearing notice is attached.
The new rules are proposed to address algal growth and chlorophyll-a levels in Jordan Lake,
which has been designated as Nutrient Sensitive Waters. The rules will also set total maximum
daily loads (TMDL) for the lake to meet federal Clean Water standards.
A special area of emphasis in the rules is the "Upper New Hope Arm" of the lake, which.
includes the southern half of Durham County, portions of Wake and Chatham counties, and
southeastern Orange County. This encompasses the towns of Chapel Hill and Carrboro and
the Rural Buffer (New Hope Creek basin, University Lake watershed and the "Southern
Triangle" area southeast of .Chapel Hill) within County planning jurisdiction.
To address nutrient management in this portion of the watershed, DWQ proposes to implement
rules designed to effect reductions in nitrogen by 35% and phosphorus by 5%. The measures
needed to accomplish these reductions will be significant in terms of cost and other resources
for many of the jurisdictions, especially those that have more urban development.
In Orange County's case, the ramifications are quite different but no less significant. From and
since 1975, when Orange County became the first County in the state to adopt an erosion
control ordinance, to 1981, when Orange became the first local government to implement
watershed protection zoning, and through the present-day, the County has instituted
2
progressive non-structural measures to address watershed protection via land use controls.
These include significant and protective stream buffers, on-site infiltration of runoff, larger lot
sizes (5 acres in University Lake, two acres elsewhere in the Upper New Hope), stringent
impervious surface limits and floodplain protection. Added to this, beginning 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 -including
much of New Hope Creek itself as it enters Durham County. Between these actions and the
land within Duke Forest and otherwise protected, over 7,000 linear feet of New Hope Creek is
within protected land in Orange County.
However, many of these progressive measures that served to lower nutrient loading from the
County's jurisdiction are not recognized by the proposed rules, which would treat all activity prior
to 2001 as "existing development" and still require a 35% reduction in nitrogen and 5% for
phosphorus. Added to this is the fact that few agricultural operations remain in this portion of
the County, making it difficult to effect reductions for agricultural loading rates.
As such, in the County's case, it may be difficult to implement apercentage-based nutrient
reduction when loading levels are already projected to be very low - in large part due to County-
implemented programs of the last 30 years.
The draft letter to the EMC notes this fact, along with the County's strong history in watershed
protection and the measures that have been instituted over the years. The letter goes on to
note:
^ The reduction measures proposed are not performance-based and may not be
equitable, with flexibility needed for more rural areas where local governments have
instituted progressive watershed protection and minimized nutrient loading. As such, it is
difficult to determine whether there is an appropriate correlation between nutrient-
loading and reduction measure implementation,
^ The measures for non-point sources were not calibrated to the Jordan Lake model,
^ There is little agriculture in the watershed within County jurisdiction, making reductions
difficult to achieve,
^ The burden of cost for implementing there measures would fall on local governments.
Water quality issues in Jordan Lake have been long-predicted, and State funding
assistance would be helpful,
^ There are questions about equitability of costs and benefits to individual jurisdictions that
need to be further addressed,
o Local governments could use additional flexibility in meeting the requirements, such as
allowing provisions for working with the State Ecosystem Enhancement Program (EEP),
and
^ The timing of the public comment period over the summer months is not conducive to
stakeholder and public participation.
FINANCIAL IMPACT: There is no financial impact associated with the conveyance of these
comments. However, promulgation and Implementation of the Jordan Lake rules will have
financial impacts for local governments, including funding feasibility studies (within one year)
and reduction measures. The cost of implementing reduction measures would not be known
until feasibility studies are completed.
RECOMMENDATION(S): The Manager recommends that the Board authorize the submittal of
the letter, with such changes as deemed necessary.
TRIANGLE J COUNCIL OF GOVERNMENTS
4307 Emperor Boulevard, Suite 11E
Durham, NC 2770:
World
Mailing Address: PO Box 1227E
Class Research Triangle Park, NC 2770E
919.549.0551 FAX: 919.549.9391
Region www.tjcog.dst.nc.u:
Proposed Jordan Lake Nutrient Rules
May 1, 2007
The following description of the proposed Jordan Reservoir Water Supply Nutrient Rules (15A
NCAC 02B .0262-.0272) is excerpted from the Jordan Water Supply Nutrient Strategy and Rules
report to the NC Environmental Management Commission from the Division of Water Quality
dated March 8, 2007.
15A NCAC 02B
Rule Number .Rule Title
.0262. Watershed Nutrient Reduction Goals
.0263 Nutrient Management
.0264 Agriculture
.0265 Stormwater Management for New Develo meat
.0266 Stormwater Management for Existing Development
.0267 Protection of Existing Riparian Buffers
.0268 Mitigation for Riparian Buffers
.0269 O tions for Offsetting Nutrient Loads
.0270 Wastewater Discharge Requirements
.0271 Stormwater Requirements for State and Federal Entities
.0272 Ri arian Buffer Mitigation Fees
.0311 Cape Fear River Basin (classification schedule)
Rule .0262, Watershed Nutrient Reduction Goals
This rule provides an overarching framework for the entire set of rules. Specifically it:
describes strategy objectives; would reclassify the remainder of Jordan watershed as WS-V;
would designate the entire watershed as a `critical water supply watershed'; defines the three
subwatersheds draining to Jordan Reservoir; defines the baseline time period and establishes N
and P percentage reduction goals and corresponding lake loading targets, point and nonpoint
source, for each arm relative to that baseline period; enumerates the set of rules designed to
MISSION STATEMENT
To serve as an intergovernmental organization for local elected officials
that works proactively on regional issues in order to sustain and improve the quality of life for our citizens.
achieve the goals and lists the local governments to which certain rules would apply; details
where these rules supercede the several existing water supply rules; provides an adaptive
management framework following a period of implementation; acknowledges control of
atmospheric nitrogen sources as absent from the proposed rules, and reserves interest in such
rulemaking pending better science. Each subsequent Rule references parameters set forth in this
Rule.
• Nonpoint source loading rate targets are included asrule-specific values to new
development rules, where more appropriate.
• Lower New Hope arm has only "no increase" targets, at a minimum accounting would be
needed to verify and maintain compliance with targets, and depending on changes in
activities, implementation may be needed.
• Counties are subject to the existing development rule in addition to municipalities to
achieve targets and accountability within each lake arm and address equity concerns.
• Clarifies how the rules would supercede existing water supply requirements.
Rule .0263, Nutrient Management
This rule provides planning and training options for fertilizer applicators. Applicators and
consultants in the watershed would either attend nutrient management training offered by the
Cooperative Extension Service or complete certified nutrient management plans for the lands to
which they apply within five years. Homeowners and business owners would not be subject, but
individuals hired by those persons and who apply fertilizer to a total of at least 10 acres per year
would be.
Rule 0264, Agriculture
This rule establishes collective N and P reduction requirements for all persons engaging in
agricultural operations in the Jordan Reservoir watershed. After two years, a Watershed
Oversight Cornrnittee would deternune if the collective N goal for each subwatershed has been
achieved. If not achieved, Local Advisory Committees (LACs) would be formed and tasked with
defining implementation strategies. Five years after the effective date, the Commission would
determine if LACs have achieved individual and subwatershed N and P goals. If not achieved,
the Commission would require additional BMP implementation designed to achieve the goals
within eight years after effective date. P accounting would be qualitative in nature. Pasture
accounting would be based on increases in BMP implementation. The Rule also defines BMP
options, and establishes parameters for individually meeting Rule requirements. Annual reports
would be required.
• Includes an option for the Watershed Oversight Committee to propose alternatives to the
EMC after initial evaluation at 2 years.
• Trading rule allows agriculture's participation.
2
5
Rule .0265, Stormwater Management for New Development
This rule would require all local governments in the Jordan watershed to develop and implement
programs to require stormwater controls on new development activities to meet subwatershed
nutrient loading. rate targets. Developers would control nutrient export to minimum levels onsite,
and could meet remaining reduction needs through in-lieu fee payment to EEP, or to local
governments with aDivision-approved local offset plan. Control of flows for stream protection
would also be required. Development in existing water supply watersheds would also be required
to comply with density-related treatment thresholds and density caps designed to protect local
water supplies where they are more stringent. Within one year of effective date, the Division
would submit a model local program to the Commission for approval. Within another six
months, local governments would submit programs for Division review and subsequent
Commission approval. Within. two and a half years after the effective date, local programs would
be implemented. Annual reports would be required.
• Includes acreage thresholds for new development (Item (3)).
• Incorporates nonpoint source loading rate targets to make them specific to this rule and
consistent with methods used to date, and includes clarifying explanatory language that
may allow refinements during implementation.
• Includes offsite loading rate thresholds for consistency with other programs, to provide
for reasonable onsite measures, and to avoid overtaxing EEP.
• Includes offsite options.
• Incorporates BMP design criteria, including water supply requirements that remain
applicable.
Rule .0266, Stormwater Management for Ezistiing Development
This rule would require all local governments to implement loading reduction measures on
existing developed lands toward long-term load reduction targets for those lands. They would
conduct feasibility studies, and then submit program proposals for Division and Commission
approval within three years after effective date. Programs would propose implementation rate,
nature and .overall timeframes envisioned. Programs would be implemented within four years of
rule effective date. Programs for public education and illegal discharge detection and elimination
are to be implemented within two and a half years. Annual reports would be required.
• Counties would be subject.
• Explicitly credits BMPs implemented post-baseline as reductions
• Explicitly counts load increases from post-baseline development in reduction needs.
• Includes explanation of types of activities that could be credited as load-reducing.
• Includes criteria for content of local program submittals to provide an understanding of
expectations.
Rule .0271, Stormwater Requirements for State and Federal Entities
This rule would establish parallel stormwater control requirements for state and federal entities
to those imposed on local governments under rules .0265 and .0266. Requirements address both
new and existing development and call for education and illicit discharge elimination programs.
Annual reports would be required.
• Specifies that the Division would approve DOT projects.
• Parallels local government stormwater rules.
Rule .0267 & .0268, Protection of and Mitigation for Existing Riparian Buffers
This rule would require local governments to protect existing vegetated riparian areas 50 feet
wide adjacent to intermittent and perennial streams, lakes, and ponds in the Jordan watershed.
The first 30 feet adjacent to waters would be largely undisturbed forest, while the outer 20 feet
could be managed vegetation. Existing, ongoing activities within these buffers could continue,
while a change in land use would invoke the protections. Certain uses of land within the buffer
are identified as exempt, allowable, or allowable with mitigation, while uses not listed would be
prohibited. It provides for mitigation where no practical alternatives exist, details variance
requirements and forest-harvesting limitations, and would require local governments to ensure
that new developments either avoid or mitigate buffer impacts. It would require local
governments to make mitigation options available for certain activities based on avoidance and
minimisation criteria. Three mitigation options would be available: 1) payment to the riparian
buffer restoration fluid adm~.nistered by EEP, 2) donation of property, or 3) restoration or
enhancement of anon-forested riparian buffer.
• These requirements supersede existing water supply buffer requirements.
• Provides an allowance for recreational and accessory structures under 150 ft2, with those
over this threshold requiring mitigation.
• Establishes the Division as approval agency for activities on state and federal lands.
Rule .0272, Riparian Buffer Mitigation Fees
This rule establishes offset payment rates to the Riparian Buffer Restoration Fund for buffer
impacts deemed `allowable with mitigation' under Rule .0267. This rule would not be exclusive
to the Jordan nutrient strategy, and would enable uniform future changes in buffer offset fees
across multiple basins. The Division has initially calculated the rate as $.70/ft2 ($30,492/acre) to
reflect actual costs based on a more extensive cost record from EEP.
Rule .0269, Options for Offsetting Nutrient Loads
This rule would provide parties subject to the various rules -new development, existing
development, State and Federal stormwater entities, agriculture, and point sources -options for
4
alternative, offsite sources of loading reduction in addition to the EEP option. It would require
each to meet minimum onsite standards before seeking credit elsewhere. It sets criteria for those
seeking to sell excess reductions, and would require Division approval.
• Establishes onsite prerequisites and clarifies roles of buyers vs. sellers.
• Includes agriculture as a party that may provide or seek reduction credit.
Rule .0270, Wastewater~Discharge Requirements
This rule would distribute the entire point source annual N and P mass loading goals for each
arm in the form of annual mass allocations to existing dischargers within each of the three
subwatersheds. Discharge concentration equivalents at full flow range from 3.04 mg/L TN and
0.23 mg/L TP in the Upper New Hope Arm to 5.30 mg/L TN and 0.67 mg/L TP in the Haw
River Arm. By comparison, requirements for lower Neuse dischargers equate to 3.71 mg/L TN
and 2.0 mg/L TP. As in the Neuse, includes provisions for new and expanding dischargers, an
option for group compliance and in-lieu offset fees to EEP for cap exceedence, and an option for
transfer of allocation among individual dischargers: It would also require optimization of
existing facilities, and would improve protections against localized water quality degradation.
• Requires P compliance by first year after effective date or rule (2009?).
• Requires N compliance by 2016 permit renewal year.
• Assumes Pittsboro's permitted flow limit is 2.25 mgd.
• Includes allocation change criteria.
Rule .0311, Cape Fear River Basin (classification schedule)
This rule would formalize reclassification of the non-WSW half of Jordan watershed to WS-V.
5
ANNOUNCEMENT
PUBLIC HEARINGS & PUBLIC COMMENT PERIOD
FOR PROPOSED WATER SUPPLY NUTRIENT STRATEGY
FOR B. EVERETT JORDAN RESERVOIR
The North Carolina Division of Water Quality, on behalf of the NC Environmental Management Commission
is seeking public comment through August 14, 2007 on a set of proposed rules to control nutrientrnputs to B.
Everett Jordan Reservoir. Dates and locations for three public hearings are as follows:
PUBLIC HEARING 1
Location: Century Hall @ The Century Center
100 N. Greensboro St.
Carrborro, NC 27510
Date: Thursday, July 12, 2007
Time: 6:30 p.m.
PUBLIC HEARING 2
Location: Koury Business Center, Room 101
Elon University
401 N. O'Kelly Ave.
Elon, NC 27244
Date: Tuesday, July 17, 2007
Time: 1:30 - 4:00 p.m.
PUBLIC HEARING 3
Location: Koury Business Center, Room 101
Elon University
401 N. O'Kelly Ave.
Elon, NC 27244
Date: Tuesday, July 17, 2007
Time: 6:30 p.m.
REASON FOR PROPOSED NUTRIENT RULES
B. Everett Jordan Reservoir in the upper Cape Fear River Basin serves as a drinking water source for the
growing communities of Apex, Cary, Durham, Morrisville, RTP, and Chatham County. In addition, the
reservoir is a popular recreational resource and supports a wide range of aquatic and water dependent wildlife.
Since its impoundment in 1983, the reservoir has consistently shown substantial nutrient over-enrichment.
The NC Environmental Management Commission, which is responsible for protecting and restoring water
quality in North Carolina, designated it a `Nutrient Sensitive Water' and required development of a nutrient
control strategy. Initial requirements reduced phosphorus concentrations in wastewater discharges to streams
in the reservoir watershed. Despite these measures, in 2002 the Upper New Hope Creek Arm of the reservoir
was found by the Division to no longer meet its designated uses due to excess nutrient inputs. The Division
made the same determination for the rest of the reservoir in 2006. The Commission has determined that
additional nutrient management actions are needed to recover the uses of Jordan Reservoir. In addition, the
Clean Water Responsibility Act of 1997, adopted by the NC General Assembly as S.L. 1997-458, includes
requirements to address water quality problems in Nutrient Sensitive Waters including Jordan Reservoir. It
mandates stricter nutrient concentration limits for point source discharges to these waters, and it directs the
Commission to establish goals for reducing overall nutrient inputs. Point and nonpoint, or stormwater runoff,
sources are to share proportionally in responsibility for reducing inputs. In addition, the reservoir's status as
impaired waters invokes federal Clean Water Act requirements to develop and implement nutrient loading
reduction goals for the reservoir in the form of a `total maximum daily load' (TMDL).
SCOPE OF RULES 1
The proposed strategy is designed to comprehensively reduce nitrogen and phosphorus loading to each of the
three arms of Jordan Reservoir (shown in map below). The set of rules targets point and major nonpoint
nutrient sources. The rules are designed to distribute reduction responsibility proportionally among all sources
relative to a common starting point of 2001. The segmented hydrologic behavior of Jordan Reservoir requires
three sets of loading goals corresponding to the three reservoir arms shown on the map: the Upper New Hope,
Lower New Hope, and Haw. A total of 12 rules are proposed that require new management actions for
agriculture runoff, new and existing development stormwater runoff, municipal and industrial wastewater,
fertilizer applicators and protection of riparian buffers across all land uses.
JORDAN RESERVOIR WATERSHED
;~ .,
~--~;2. ~.,, n. Evmerr7onnnN c,u~
.- i
.T-' ~ ~,
-` `-- ~a
~;y x L-~,,._,. .., ~ ,;,.,~-aH~w Subwater~lte~ ~ ~ ~ a~~ ` :__~~_
fi t S r t\-~ ~ ~ ''"^~°(,"~~~ ~ ) r.,% 1 ! ""v^'c'°°n.mwame
- r•.. ~_~ ~:.-'`.~ y.~ ~~ ca;.~,,., i.r'.-~`-'~ ' pp~N~w HA12~ ubwatershe
5=~~ ~Iy1~ ..` I~GM ~ 2; _ ~ OP/WOE ~L-~ _ _ til
~ yvnNWy -•• Cmw)yriyl • eme lYb `• f
1WV9vp~J \'.WM1.d• l~P.-'l W a ~~~ryrw~ew ~ ., ~ ~.~.~.~.~.~ ~ tliwili~tY ~~~~
o wam - ~rM ~~~~ a ~ Mwr..r Ea. L~ ~ ; :4-~
o wsav - ~a.iw.n.e . ~ _ ~ 1 ~~
1 I i :.
r'^~
itJ - ~ e 8a..° r waEE ~~ .~-
e ~/ ':5r
~1 ~. I ~ S r ~n~_ -.
mow r N w Hope<,-~bw t rsh
,~.6,~.. t._ , e
~~~ ,~
PARTIES AFFECTED
• A nutrient management rule would be administered by the Division and would affect fertilizer
applicators, both agricultural and turf and landscape applicators
• An agriculture rule would be administered by the Division and would affect all agricultural
operations.
• A stormwater management for new development rule would be administered by ali local
governments and would directly affect developers.
• A stormwater management for existing development rule would be administered by the Division and
directly affect local governments.
• Riparian buffer rules would be administered primarily by local governments and would affect
property owners across all land uses.
• A wastewater discharge rule would be administered by the Division and would affect public and
private wastewater dischargers.
I~
• A state and federal stormwater rule would be administered the Division and would primarily affect the
NC Department of Transportation and the five state universities in the watershed.
The proposed effective date for the final rules pursuant to this public comment process is March 1, 2008.
HOW TO SUBMIT COMMENTS
The Commission is very interested in all comments pertaining to this proposed set of rules. The Division of
Water Quality encourages those interested and potentially affected by this proposal to review the information
below and make comments on the proposed strategy.
At the public hearings, participants will have the opportunity to make oral comments and submit written
comments. The Hearing Officers will limit the length of time each speaker is allowed, if necessary, in order to
allow all who wish to speak that opportunity.
Written comments may also be submitted to the address below until August 14, 2007. Written comments may
be submitted to Rich Gannon or Jason Robinson of the Division's Planning Section at the postal address, e-
mail address, or fax number listed below.
FOR ADDITIONAL INFORMATION
The following information related to the proposed rules is available on the Division website at:
http://h2o.enr.state.nc.us/nps/JordanNutrientStrateg
• This announcement (3 pp)
• Summary of the reservoir's history and the need for and nature of the rules (8 pp)
• Text of the 12 proposed rules (compiled (81 pp) and individual)
• Fiscal analysis of costs to affected parties (187 pp)
• Links to draft TMDL and related water quality modeling information
• .Final Report of 2003-2004 stakeholder goal-setting/conceptual strategy process (38 pp)
Secondary supporting information is also available as follows:
• Related Division of Water Quality rules:
http://www.ncwaterquality.org/admin/rules/codes statutes:htm
• Full records of 2003-2004 stakeholder process that set strategy goals and developed a conceptual
strategy can be found at the following website by following the path below:
http://www.tlcog.dst.nc.us/dov~mloads.shtml - jorlkstlc
> REGIONAL PLANNING > WATER RESOURCES > Jordan Lake Stakeholder Project
You may also request hard copies of information from or direct questions to:
Rich Gannon or Jason Robinson
DENR-Division of Water Quality, Planning Section
1617 Mail Service Center, Raleigh, NC 27699-1617
Phone (919) 733-5083, ext. 356 or 537, Fax (919) 715-5637
Rich.Gannon~ncmail.net or Jason.T.Robinson cr,ncmail.net
DRAFT
June 26, 2007
Dr. David H. Moreau, Chair.
Environmental Management Commission
1617 Mail Service Center -
Raleigh, NC 27699-1617
Re: Comments on the proposed Jordan Reservoir Water Supply
Nutrient Rules, June 15, 2007
Dear Dr. Moreau:
Thank you for the opportunity to provide comments on the proposed
nutrient management rules for Jordan Lake Reservoir. Orange County
appreciates the work to date by the Environmental Management
Commission (EMC) and the North Carolina Division of Water Quality
(NCDWQ) staff to address the goal of reducing nutrients, and is
supportive of this goal. However, we do have some concerns about the
proposed implementation method of non-point source reductions,
especially in the Upper New Hope Arm of the lake.
As you know, Orange County has a long history promoting proactive
measures for watershed protection. The County implemented
watershed protection measures in its 1981 Land Use Plan and
associated Zoning Ordinance and Subdivision Regulations, and also
implemented an Erosion Control Ordinance in 1975. Both of these
actions were firsts for counties in North Carolina at that time. In
addition, the Erosion Control ordinance mandates that ~ land
disturbance in University Lake Watershed (later extended to other
watersheds) require a building permit approved by the Erosion Control
Division.
For the last 25 years, and beyond, County policy has consistently
focused substantial emphasis on watershed protection, relying
primarily on land use and non-structural measures to protect water
quality. On-site infiltration of the first one-inch of stormwater runoff,
extensive stream buffers that exceed state minimums (measured from
la
the edge of the FEMA mapped floodplain, if present, and not the
stream bank), and protection of riparian buffer lands and floodplains
are among some of the many watershed protection techniques Orange
County uses in this and other watersheds in our jurisdiction. The
reason for this long-standing policy is a fundamental belief that
addressing water quality protection at the source by limiting nutrient
loading at the outset is preferable to relying on structural controls
after the fact.
The portions of the Jordan Lake watershed in Orange County reflect
this proactive approach to water quality protection. Within the Upper
New Hope Arm of this watershed, Orange County has instituted far-
reaching land use or non-structural controls, as shown on the attached
map.
There are three sub-basins draining to the Upper New Hope Arm in the
County's jurisdiction. The University Lake watershed (part of Morgan
Creek) has, since 1989, included a minimum lot size of five-acres for
each new lot, with impervious surfaces limited to as little as 4% in
some cases. These measures were instituted after a comprehensive
watershed technical study and extensive community dialogue. The
Upper New Hope Creek basin, north of Chapel Hill and Carrboro, is
part of an area known as the "Rural Buffer," which has two-acre
minimum lot sizes and over 2,000 acres of protected land. This
protected land also includes over 7,000 linear feet of New Hope Creek
in the County's jurisdiction. A small portion of Morgan Creek
downstream of University Lake and south of Chapel Hill also has two-
acre lot zoning, and significant protected lands.
Orange County also enforces flood damage prevention regulations,
which supplement stream buffer standards. Both of these prohibit any
new structures or septic drain fields near surface water bodies.
As an example of the effects of Orange County watershed standards,
our staff has used an adaptation of the Upper Neuse Basin Site
Evaluation Tool (SET) for a recent development in the University Lake
watershed. On an 80-acre site with a natural nitrogen-loading rate of
0.66 pounds per acre per year, unrestricted development would
produce an estimated 5.17 pounds per acre per year. Orange County
regulations dropped that estimated nitrogen loading rate to 1.81
pounds per acre per year. Larger lot sizes required in this watershed
appear to be the primary cause.
13
Orange County is -and has always been -very supportive of attempts
to reduce nutrient loading and protect water quality in Jordan Lake.
However, the method of the proposed implementation for the non-
point source rules in the Upper New Hope Arm may not be practical or
equitable for a rural jurisdiction, especially since significant protective
measures have been instituted for many years.
In particular, Orange County would like to offer the following points for
the Commission's consideration:
1. Reductions for existing development are not "performance" based.
a. The proposed reductions for nitrogen and phosphorus are
represented as percentage loading reductions. This "one size
fits all" approach does not acknowledge the very different
loading rates and land use patterns between urban and rural
portions of this area; nor does this approach take into
consideration the resultant difficulty in achieving a
percentage-based reduction by jurisdiction.
b. As described above, Orange County already employs
watershed protection measures that account for relatively low
nutrient loading rates. In order to achieve the proposed 35%
reduction in total nitrogen in the Upper New Hope Arm, it is
conceivable that forested areas may have to be converted to
some sort of structural stormwater control, counter to the
County's long-term policy. With forestry outside of the realm
of local government regulation, Orange County may not be
able to enforce any provisions related to forestry.
c. A 35% reduction for rural watersheds with relatively low
nutrient loadings will not be as effective as a 35% reduction
applied to urban watersheds.
d. While stormwater retrofits may be a logical approach in urban
areas where loading rates are higher, it does not seem
practical or equitable to hold rural areas to the same
percentage reduction goal, when protective measures are
already in place.
e. An in-stream nutrient level goal for each sub-watershed of
Jordan Lake, and a corresponding nutrient delivery model to
sustain the goal, may be a more effective method to equitably
address reductions.
14
2. Loading rates by jurisdiction may not be equitable.
a. Because of the location of the monitoring stations further
downstream in both the Morgan Creek and New Hope Creek
sub-basins, it is impossible at this time to accurately project
loading rates by jurisdiction and validate what are very
different land use patterns and non-point source loading
between jurisdictions.
b. As such, it is difficult for each jurisdiction to determine
whether the costs of reduction are being equitably borne by
the jurisdiction where loading- is occurring. If this type of
reduction approach is pursued, further assessment of the
costs of implementing the rules -calibrated as best possible
to the loading coming from each jurisdiction -would be
instructive to help ensure that benefits and costs are
equitably shared. A program that provided reciprocal benefits
to jurisdictions with low loading rates but high levels of
protection is essential to meeting equity concerns raised by
heightened regulation. The City of Raleigh's efforts to fund
upstream watershed protection in the Upper Neuse is
reflective of a proactive realization of such an obligation.
3. Non-point source reductions were not calibrated to the Jordan Lake
model.
a. It is our understanding that the non-point source reductions
called for in the rules were not calibrated to the specific
Jordan Lake model, as was the case with the point-source
loading. The non-point source reduction rates were instead
estimated from other modeling and land use projections.
b. Therefore, it is not as clear whether the proposed rules for
non-point sources will achieve the stated goals, and it may be
impossible to know if the reduction targets will work until
substantial time, funding and other resources are expended
on feasibility studies and implementation.
c. There are also efficiency, cost and feasibility concerns
regarding the splitting of nitrogen reductions for non-point
and point sources. Nutrient reductions from non-point
sources are more complicated and costly to obtain.
1~
4. There is very little agriculture in the New Hope Creek basin.
a. While this portion of the County is rural, this will greatly limit
the ability to achieve percentage-based reductions for
agriculture.
5. Existing development may have lower loading rates than new
development.
a. The rules as proposed may unintentionally require existing
development to have lower loading rates than new
development. Under the proposed rules, new development
will have the option of paying cone-time offset fee in lieu of
reducing nutrient loading on-site. This potentially means that
new development will have higher actual loading rates.
6. Burden of cost falls on local governments.
a. If the rules are implemented, local government will be asked
to shoulder the brunt of what may approach a $1 billion price
tag for the nutrient strategy.
b. Since the water issues in Jordan Lake are not new in terms of
real or expected results, it would be critical to have State
funding assistance to help local governments address these
measures.
c. The current state of Jordan Lake water quality is markedly
similar to predictions made over 30 years ago by a variety of
experts, and it is as much a regional and statewide issue as a
local issue.
7. Local governments need added flexibility in meeting requirements.
a. More flexibility for local governments to participate in buy
down opportunities (with EEP) would help local governments
achieve the rules.
b. The proposed rules allow for a trading program. However,
more time is needed for the stakeholders to assess whether a
trading program will be feasible. While trading scenarios with
partner jurisdictions appear to have merit, the current
targeted watershed study is not complete.
1(0
c. An emphasis on nutrient reduction trading, rather than in-
lieu-of payments, may be more effective. A trading ratio of
2:1 or greater may be needed to ensure actual in-basin
nutrient reduction.
8. The current planned public comment period is not feasible.
a. The current planned timetable for public comment over the
summer months (June 15-August 15) is not optimal to
receive public comment on a subject of this importance.
Many local government boards take a °summer" break.
Because of the potential cost and far reaching ramifications of
these rules, the public comment period should be sufficiently
long enough to allow appropriate response from impacted
local governments.
In summary, Orange County would ask the Commission to consider
modification of and alternatives to application of a single nutrient
reduction percentage to all jurisdictions in the Upper New Hope Arm.
Thank you for considering these comments; and we stand ready to
help work with the State and other local governments in an equitable
and efficient manner to reduce nutrient loading in Jordan Lake. Please
feel free to contact our staff in the Environment and Resource
Conservation and Planning departments if we may provide additional
information or clarification.
Sincerely,
Moses Carey, Jr.
Chair
Orange County Board of Commissioners
Copies
Board of Commissioners
Laura Blackmon, County Manager
Rich Gannon, NCDWQ Non-Point Source Planning Unit Supervisor
Sydney Miller, TJCOG Water Resources Program Manager
....~...
0 HUC14 ' County Boundary ~ Transition Areas °'' ~ N
1 inch equals 18,000 feet
Watershds City Limits ~ ~ RB Zoning ° ~' 0 1 z s
"'~,. c....•• Miles
Upper New Hope Arm ETJ MLS =Minimum Lot Size
IMP = MaXlnlUt71 im BMQUS GOVBr Orange County Planning and Inspections Departrnent
P QS Map Prepared by Brian Carson May 30, 2007
Water Quality Protection Measures in ~~
the Jordan Lake Watershed