HomeMy WebLinkAboutAgenda - 05-24-2007-1ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: May 24, 2007
Action Agenda
Item No. ~,
SUBJECT: Proposed Jordan Lake Nutrient Management Rules
DEPARTMENT: ERCD, Planning PUBLIC HEARING: (Y/N) No
ATTACHMENT(S):
Map of Jordan Lake watershed
Summary of Jordan Lake Rules
TJCOG Memorandum
TJCOG powerpoint presentation
INFORMATION CONTACT:
David Stancil, 245-2590
Craig Benedict, 245-2585
Ren Ivies, 245-2585
Terry Hackett, 245-2585
PURPOSE: To review proposed new rules from the NC Division of Water Quality (NCDWQ) to
implement a Nutrient Management Strategy and Total Maximum Daily Load (TMDL) rules in
Jordan Lake watershed, and determine whether to submit formal comments during a public
hearing that may be held this summer by the Environmental Management Commission (EMC).
BACKGROUND: Over the last 20 years, water quality has become an issue for Jordan Lake.
The levels of chlorophyll a and subsequent algal growth from nutrients have created concerns
about eutrophication in the lake. Portions of Orange County within the Cape Fear River basin
(generally, the southern and western areas of the County including the towns of Mebane,
Chapel Hill and Carrboro and the Joint Planning Area) are within the Jordan Lake watershed. In
addition to serving as a recreational water body and a wildlife habitat impoundment, Jordan
Lake is a water supply reservoir (and flood control device for the Cape Fear) with three
jurisdictions drawing drinking water and others with plans or allocations for the future.
Over the last several years, modeling of the lake's water quality was conducted that indicated
the need for management of nutrients. Specifically, the need to reduce the amount of nitrogen
and phosphorus in the lake was identified as a priority. These levels need to be addressed to
satisfy federal pollutant limits and the Nutrient Sensitive Waters status of Jordan Lake.
In May, 2005, the Board received a progress report on Jordan Lake. Since that time, NCDWQ
has developed new rules for TMDL and a Nutrient Management Strategy. The rules would be
most stringent in the sub-watershed known as the Upper New Hope Arm, where the rules will
require a 35% reduction in nitrogen (N) and a 5% reduction in phosphorous (P). These
provisions will affect a variety of land uses, from agriculture to new and existing development.
The Upper New Hope Arm includes much of southern Durham, Chapel Hill, Carrboro and the
Rural Buffer (University Lake and New Hope Creek basins).
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The implications of the nitrogen and phosphorus reductions throughout the watershed will be
felt in both urban and rural areas. New stormwater management provisions will change the way
future developments are permitted, and how existing developments are addressed after the
fact. In the more-urban jurisdictions that have relied on best management practices (BMP's)
such as retention and detention ponds, the rules will require feasibility studies followed by
programs to ameliorate the nutrient loading to the proposed limits that may include significant
new structural controls. Some estimates of the cost needed to comply with these measures by
the local governments involved have approached or exceeded $600 million.
While the bulk of the cost of addressing new and existing development stormwater runoff will be
felt in urban areas, there are ramifications for rural areas. Orange County has historically, since
its groundbreaking efforts in watershed protection in the early 1980's, pursued a course of non-
structural watershed protection -preferring to infiltrate the first inch of runoff on site of new
development - to construction of permanent structural retention ponds. However, in the
proposed rules, all activity prior to 2001 is treated as "existing development." Under this reading,
the County would be required to conduct the feasibility study on reducing nutrient loading -and
then within three years implement a program to reduce nitrogen by 35% and phosphorus by 5%
-even though it has historically worked to keep these loading rates low. Agricultural activity will
also be affected, especially if proposed oversight committees determine that new BMP's are
required to effect the needed nutrient reduction. These rules address the nutrient loading from
"non-point" sources, such as stormwater. There are also provisions within the rules that will
substantially affect wastewater providers, such as OWASA, with "point-source" loading issues.
In recent months, the State and Triangle J Council of Governments (TJCOG) have hosted
meetings to review and discuss the proposed rules. A summary of the proposed rules prepared
by Sydney Miller (TJCOG Water Resources Program Manager), is attached, along with a
powerpoint presentation on the topic and a memo regarding local government issues. During
these stakeholder meetings, significant concerns have been raised by both wastewater utilities
and local governments about the proposed rules. Two of the primary concerns have been 1)
the potential costs associated to address nutrient reduction, and 2) questions about whether the
implementation measures will in fact achieve the expected reductions. Mr. Miller will be present
to present this report.
At this point in time, it appears that the new Jordan Lake rules will be released for public
comment in mid-June. The public hearing process will last 60 days, perhaps concluding by mid-
August. Three public hearings in July are currently envisioned by NCDWQ.
If the County wishes to comment on the proposed rules and nutrient management strategy, it
may need to consider these comments prior to the Board's summer break.
FINANCIAL IMPACT: There is no financial impact associated with receipt of the report or
provision of comments. However, the implementation of the proposed rules may have financial
implications for the County in terms of stormwater management, nutrient reduction, and
changes to development standards, as well as other as yet unidentified components. A
feasibility study would be required by each jurisdiction to assess the degree of changes needed.
RECOMMENDATION(S): The Manager recommends that the Board receive the presentation
from TJCOG and County staff, and discuss whether it wishes to submit formal comments over
the summer. If comments are desired, staff will draft a letter based on the Board's discussion
and place it on the June 26t" agenda.
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4307 Emperor Boulevard, Suite 110
Durham, NC 27703
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Mailing Address: PO Box 12276
C 1 a S S Research Triangle Park, NC 27709
919.549.0551 FAX: 919.549.9390
Region www.tjcog.dst.nc.us
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 Development
.0266 Stormwater Management for Existing Development
.0267 Protection of Existing Riparian Buffers
.0268 Mitigation for Riparian Buffers
.0269 Options for Offsetting Nutrient Loads
.0270 Wastewater Discharge Requirements
.0271 Stormwater Requirements for State and Federal Entities
.0272 Riparian 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 ofFcials
that works proactively on regional issues in order to sustain and improve the quality of life for our citizens.
5
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 as rule-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 ail persons engaging in
agricultural operations in the Jordan Reservoir watershed. After two years, a Watershed
Oversight Committee would determine 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 Corrunission 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.
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Rule .0265, Stormwater Management for New Development
This rule would require ail 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 Existing 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
expecfiations.
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
minimization criteria. Three mitigation options would be available: 1) payment to the riparian
buffer restoration fund administered by EEP, 2) donation of property, or 3) restoration or
enhancement of anon-forested riparian buffer.
• These requirements supercede 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
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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.
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Date:
To:
From:
TRIANG~,E J COl1NCIL OF GOVERNMENTS
MEMORANDUM
March 16, 2007
Local governments in the Jordan Lake watershed
Sydney Miller, Water Resources Program Manager
4307 Emperor Boulevard, Suite 110
Durham, NC 27703
Mailing Address: PO Box 12276
Research Triangle Park, NC 27709
919.549.0551 FAX: 919.549.9390
www.tjcog.dst.nc.us
Subject: Proposed Jordan Lake nutrient rules dated March 8, 2007 and fiscal analysis dated
March 2007
I have read through the latest drafts of the proposed Jordan Reservoir Water Supply Nutrient
Rules and Fiscal Analysis: B. Everett Jordan Reservoir Water Supply Nutrient Strategy. Staff at
the NC Division of Water Quality has clearly made agood-faith effort to prepare the fiscal
analysis.
I have prepared some comments, generally from the perspective of local government. Do not
construe my comments to represent the opinions of any local governments or their staffs. The
opinions in this memorandum are my own. Furthermore, I am certain that I have missed
important points within both the rule and the fiscal analysis. Additional reviews would only
improve our consideration of the rule and the fiscal analysis.
My comments pertain to both the proposed rules and the fiscal analysis. I have included citations
within my comments in an abbreviated format. ".026X" refers to a rule within 15A NCAC 02B
.0262-.0272. "FA Chapter X" refers to a chapter of the fiscal analysis.
1. Watershed Nutrient Reduction Goals -The rule (.0262 (6)(a)) states that "rules .0265, .0266,
.0267, .0268, and .0269 shall apply to all incorporated municipalities within the Jordan
watershed as identified by the Office of the Secretary of State." However, the rule goes on to
state that "those municipalities shall include:" and provides a list of municipalities. The rule
should be clarified to indicate that the list is meant only as an example, and that the phrase
"shall apply to all municipalities within the Jordan watershed as identified by the Office of
the Secretary of State" controls. Newly incorporated municipalities within the Jordan Lake
watershed, and municipalities previously outside of the Jordan Lake watershed but that annex
property within the Jordan Lake watershed, should become subject to the rule.
MISSION STATEMENT
To serve as an intergovernmental organization for local elected officials
that works proactively an regional issues in order to sustain and improve the quality of life for our citizens.
~fl
2. Agriculture -The relationship between the purpose the rule (.0262 (1)) and the standard
BMPs to be implemented (.0264 (7)) is unclear. This is especially true in consideration of the
statement that "implementation may have occurred at any time before, during, or after the
baseline period." It would seem that the probability of reducing nutrients from agriculture
sufficiently to achieve the nonpoint source nutrient targets under this rule is small. This
undermines the nonpoint source nutrient reduction strategy as a whole. Furthermore,
agricultural sources generate nitrogen credits by implementing any BMP in addition to the
list provided in .0264 (7)(a). By providing a threshold to generate nitrogen credits that bears
no relationship to the nutrient reduction targets, agricultural sources may be generating
spurious credits, fi~rther undermining the nonpoint source nutrient reduction strategy.
3. Stormwater Management for New Development
a. The fiscal analysis makes the assumption (FA Chapter 4, p.43) that because "almost all
municipalities in the watershed are subject to Phase II requirements and are to implement
new development programs beginning mid- to late 2007," and because "virtually all
remaining municipalities fall within water supply watersheds and implement WSW
stormwater programs," that Jordan municipalities will not incur "significant, quantifiable
additional costs to implement this rule." The Phase II and WSW stormwater programs do
not have nutrient reduction requirements. Local governments will need new programs
and resources to address the nutrient reduction requirements, so I question the validity of
this assumption.
b. The fiscal analysis states that "much new development activity is likely to fall within
municipalities' planning jurisdictions. Thus, counties should not incur significant
additional costs to implement this rule" (FA Chapter 4, p.43). Given the growth that
seems to be occurring in counties like Chatham, I question the validity of this
assumption.
c. The pay rate of $36/hour (FA Chapter 4, p.44) used to quantify the cost of local
governments contracting assistance in preparing ordinances seems rather low.
4. Stormwater Management for Existing Development
a. The rule includes the requirement that local governments conduct feasibility studies "to
determine the extent to which the loading goals referenced in this Rule may be achieved
from existing development within a local government's jurisdiction through load
reducing activities" (.0266 (3)(a)(ii)). What happens if any local government determines
that implementing BMPs to reduce loading from existing development sufficiently to
meet the nutrient reduction targets is not technically feasible?
b. BMP surface area calculations were increased by 15% to account for "slopes, etc." (FA
Appendix B, note 22, p.B-3). This may be a sufficient increase in BMP area to account
for topography and site conditions. However, if the land cost calculation is based solely
on the BMP footprint (which is true for the cost equations provided by the Ada Wassink
and Bill Hunt, and A. Moran and B. Hunt references listed in FA Appendix B, notes 1
and 3, p.B-1), then the land costs do not include the cost of land sufficient to provide
access to the BMP for maintenance and monitoring.
c. The land value estimate of $78,000 per acre is based on a weighted average of property
values in the City and County of Durham (FA Chapter 5, p.59). The properties used to
calculate the weighted average included US Army Corps of Engineers' land, NC
2'
university property, and road rights-of--way, none of which could be used by local
governments for locating BMPs (FA Appendix B, table B-2, p.B-7). Because the land
values for those property are lower than average, the weighted average of $78,000 is
likely to be lower than the land costs faced by local governments in implementing this
rule, despite the use of "true" land values described in note 2 (FA Appendix B, note 2,
p.B-2).
d. The fiscal analysis calculates the total lifetime cost for all BMPs needed to achieve
nutrient reductions based on a proportion of different BMPs. The proportions of different
BMPs is based primarily on relative cost effectiveness, with the weighting adjusted
somewhat based on local government input (FA Chapter 5, p.60). The selection of BMPs
implemented has a very large effect on the total cost of implementing this rule. We will
not know what the likely selection of BMPs will be until local governments have
completed their feasibility studies and implementation plans. Therefore, we will not have
abetter idea of total cost until three years after this rule has been adopted.
e. The fiscal analysis states that "reduction needs for one nutrient will overtreat for the other
by some amount" (FA Chapter 5, p.61). More specifically, the analysis assumes that
"significant excess phosphorus reduction would be achieved in meeting nitrogen needs."
The analysis then calculates a "total revenue potential in meeting baseline reduction
needs as approximately $7.6 million." The Jordan Lake nutrient strategy requires
significant reductions in both Total Nitrogen and Total Phosphorus. Because nonpoint
sources must achieve reductions in Total Nitrogen, BMPs to reduce nitrogen must be
implemented. BMPs that reduce nitrogen would also reduce phosphorus, but credit for
one nutrient cannot be traded for a needed reduction in the other nutrient. Phosphorus
credits only have value if there are buyers. The assumption of phosphorus over-treatment
resulting in $7.6 million of revenue potential is questionable.
f. One cost entirely missing from the fiscal analysis is the loss of tax revenue to local
governments. The cost calculation for installing BMPs includes the cost of purchasing
land, but not the cost of the lost tax revenue once the land becomes public property. Local
governments will lose those tax revenue streams forever. Calculating the net present
value of the lost tax revenues could result in a significant cost.
5. Protection of Existing Riparian Buffers
a. The list of affected local governments (FA Chapter 6, p.86) does not include the
municipalities of Ossipee and Swepsonville identified in the rule, .0262 (6)(a).
b. The pay rate of $36/hour (FA Chapter 6, p.87) used to quantify the cost of local
governments contracting assistance in preparing ordinances seems rather low.
6. Offsetting Nutrient Loads -The rules for new development (.0265 (3)(a)(vi)), new
wastewater dischargers (.0270 (6)(a)(ii)), expanding wastewater dischargers (.0270
(7)(a)(ii)), wastewater discharge group compliance associations (.0270 (9)(h)), new
development by non-NCDOT state and federal entities (.0271 (3)(a)(vi)), and new
development by NCDOT (.0270 (4)(c)) allow for payments to the NC Ecosystem
Enhancement Program as provided in Rule 15A NCAC 2B .0240 to partially offset their
nitrogen and phosphorus loads. The NC Ecosystem Enhancement Program is a statewide
organization. Any projects paid for with offset payments from a given Jordan Lake
subwatershed, but are implemented by the NC Ecosystem Enhancement Program outside of
~~
that subwatershed, reduce the probability of achieving the nutrient reduction targets for that
subwatershed.
7. Division of Water Quality Rule Implementation -The fiscal analysis frequently assumes that
the cost of implementation for the DWQ would be $0, because "tasks would be integrated
into existing workloads" or "the Division would rely on existing resources to implement the
rule" (e.g., FA Chapter 4, pp.45-46; FA Chapter 5, pp.69-70; and FA Chapter 6, pp.89-90).
To my knowledge, the DWQ does not currently have idle staff. Implementing this rule will
either require increasing staff and resources, redirection of staff and resources currently
directed to other programs, or a failure to properly implement the rule. In any case, there is a
cost.
8. Cost Calculations in General -The fiscal analysis calculates total costs for implementing
rules .0264, .0265, .0266, .0267, .0270, and .0271 for the years 2009-2013. The fiscal
analysis also calculates the "full cost" of implementing the stormwater rule for existing
development (.0266) and the stormwater rule for state and federal entities (.0271), defining
the full cost as a 30-year period. The fiscal analysis does not include an inflation rate in its
calculations. The fiscal analysis also does not use a net present value approach, which could
be particularly useful for analyzing the costs of long-term programs.
In summary, the proposed rule for agriculture and the provisions for offset payments to the NC
Ecosystem Enhancement Program seem to reduce the probability of achieving the nutrient
reduction targets for Jordan Lake. The fiscal analysis seems to provide reasonable cost estimates
for most of the rules, but may underestimate the cost of the stormwater management rule for
existing development; I doubt that the fiscal analysis over estimates the cost.'We will not have a
better idea of total cost until local governments have conducted feasibility studies and developed
implementation plans. The proposed rules will certainly be costly to implement and there are
elements within the rules that seem contrary to achieving the objectives.
Should the Environmental Management Commission and the NC General Assembly choose to
implement these rules, the state must provide financial assistance to local governments. Local
governments throughout the watershed will bear significant costs in implementing these rules,
yet most of the local governments and their citizens do not benefit directly from Jordan Lake.
This disparity between who pays and who benefits provides a clear role for state government.
Furthermore, the state and local governments will not be able to rely on funding from existing
grant programs and trust funds, all of which have state wide demands and all of which are
already over-extended. The NC General Assembly will have to appropriate funds from the
general budget specifically for implementing the Jordan Lake nutrient rules, or dedicate a stream
of revenue specifically for that purpose. If we accept the fiscal analysis costs as a starting point,
local governments face a cost of implementation at a minimum of $611,598,000.1 The General
Assembly should commit to building a fund for Jordan Lake nutrient management and contribute
at least $40 Million per year to the fund over the first ten years of implementing the Jordan Lake
nutrient rules.
l Total local government implementation cost = $48,000 for new development + $403,000,000 for existing
development + $1,550,000 for riparian buffer protection + $207,000,000 for wastewater (FA Executive Summary,
pp.viii-ix)
4
Jordan Lalce
Nutrient Management Strategy
Orange County Board of Commissioners
May 24, 2007
ti~Jncr Hall Miilcr
Presentation
• How did we get here?
• Where are we now?
• What comes next?
s>rm~y rWl rrn~` I ~ r
1:
How Did We Get Here?
• Nutrient Sensitive Waters
• TMDL
ti}Jrr. i'nnl liiiin. ~ T~Wi~l+1
t'mrc.~1 ~~11~
13
1
Nutrient Sensitive Waters
• 1983 Nutrient Sensitive Waters designation
- DWQ imposed 2 mgt phosphorus limits for WW'I'Ps
- DWQ began using NPDES permitting to assign even more
stringent limits to UNHA W WTPs
• 1997 Clean Water Responsibility Act (Im slsisL
1997-458)
- Act imposed 2 mg/L TP limit for W WTPs
- Act imposed 5.5 mgt TN limit for W WTPs
• 1998 Extend Compliance Date tss t3eeisL 1998-zlz>
- Act allowed time for monitoring, modeling and compliance
- Act required calibrated nutrient response model for extension
s~arr;: r,~ni rximr
TMDL
• 2002 303(d) List
- Developed by DWQ and approved by US EPA
- Upper New Hope Arm impaired for chlorophyll a
- Toml Maximum Daily Lond required by EPA under Clean Water
Act
• 2006 303(d) List
- Upper New Hope Arm impaired for chlorophyll a
- Lower New Hope Arm impaired forchlorophylla
- Haw River Ann impaired for chlorophyll a and pH
- TMDLs promised by 2008
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Where Are We Now?
• B. Everett Jordan Reservoir, North Carolina Phase
I Total Maximum Daily Load (Apri12U07 draft)
• Jordan Reservoir Water Supply Nutrient Rules
(tvtarch 2UU7 draft)
• Fiscal Analysis: B. Everett Jordan Reservoir
Water Supply Nutrient Strategy (~•tarcL 2007 draft)
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Nutrient Management Strategy
• Lake segments and Associated Watersheds
• Nutrient Targets
• Point Sources and Nonpoint Sources
• State Rules
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Lake Segments and Watersheds
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Lake Segments and Watersheds
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Nutrient Targets
• Upper New Hope Arm
- 35% TN reduction
- 6%TPreduction
• Lower New Hope Arm
- 0% TN reduction
- 0% TP reduction
• Haw River Arm
- 8%TNreduction
- 5%TP reduction
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Point and Nonpoint Sources
• UNHA Point Sources
- 3.04 mg/L TN
- .23 mgt TP
• HRA Point Sources
- 5.30 mg/L TN
- .67 mgt TP
• New or Expanding Point Sources
- 3.0 mg/L TN
- .18 mg/L TP
• Nonpoint Sources
- Rules
S>dney 15vI htiller
Proposed Rules
ISA NCAC 2B...
• .0262 Goals
• .0263 NuWentManagement
• .0264 Agriculture
• .0265 Stormwater -New Development
• .0266 Stormwnter-Existing Development
• .0267 Riparian Buffers -Protection
• .0268 RiparianBuffers-Mitigation
• .0269 Options for Offsetting (Trnding)
• .0270 WnstewalerDischnrge
• .0271 Stormwater -State and Federal Entities
• .0272 Riparian Buffer Mitigation Fees
• .031 I Cape Fenr River Basin (Classification Schedule)
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General Strategy Concerns
• PS reductions alone cannot achieve tazgets
• NPS strategy requires significant N and P
reductions Gom till sources
• TMDL and strategy depend on rules to manage
NPS
• DWQ does not have sufficient staff to implement
• Rules do not address onsite wastewater, land
application, or forestry
4~Jnc: Nnd Miller
Goals Rule Concern
• Applicability uncleaz for municipalities
incorporated after rule adoption
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Agriculture Rule Concerns
• Requires only unplementing any of a list of
standard agricultural BMPs
• No reductions required relative to the baseline
period
• Questionable connection between nutrient targets
and implementation
• Potentially generates spurious N credits
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5
New Development Rule Concerns
• Local governments will probably need new
programs and staff to implement
• Triangle has counties experiencing significant
growth outside of municipal planning azeas
• Fiscal analysis may underestimate costs
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Existing Development Rule Concerns
• Cost and feasibility will not be known until local
governments complete studies
• Uncleaz what happens if local governments
determine reduction tazgets unfeasible
• Any development occurring after 2001. and before
rule implementation treated as existing development
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Existing .Development Rule Concerns
• Fiscal analysis may underestimate costs
• Fiscal analysis assumes Pover-treatment will
produce revenue
• Fiscal analysis ignores tax revenue lost from land
purchased for BMPs
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Riparian Buffers Rule Concerns
List of subject local governments inconsistent with
list provided in Goals Rule
Fiscal analysis may underestimate costs
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Nutrient Offset Rule Concern
• Nutrient offset payments to EEP may pay for
projects implemented outside of watershed
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Wastewater Discharge Rule Concerns
Optimization is not defined
Relationship between NPDES permitting and
implementation schedule in rule is unclear
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Major Concerns
• NPS strategy maybe undermined by agriculture
rule and provisions for offset payments to EEP
• Fiscal analysis estimates local government cost at
$611,598,000 which may be an underestimate
• Cost and feasibility of existing development rule
will not be known until local governments complete
studies
• Any development occurring after 2001 and belbre
rule implementation treated as existing development
5alne; I'nnl Miller
Major Concerns
• Unclear what happens if local governments
determine reduction targets unfeasible
• NPS strategy and TMDL fail if rules do not
address all sources of nutrients
• NCGA must commit to helping fund
implementation
S>ilnay Pout htilkr
What Comes Next?
• Rule adoption
• Local government implementation
• Use Attainment Analysis?
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8
Rule Public Comment
• EMC approved DWQ to solicit public comment
• Publication in NC Register (tune is, 2007•?)
• 60-day comment period
• Public hearings (late lune;iarly July 3007^}
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Rule Adoption
• Public hearing officers' report
• EMC rule adoption
• Rules Review Commission review
• NC General Assembly ('_oos'?}
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Local Government Implementation
• Stormwater management for existing development
- public education, mapping, illegal discharge {2010'7)
- feasibility study and implementafion plan (201 I?j
• Stormwater management for new development
- adopt ordinance, commitstaffresources(2011?)
• Existing riparian buffer protection
- adopt ordinance, commit staff resources (IO09?)
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Use Attainability Analysis?
EPA process under Clean Water Act
Determine whether feasible to achieve state water
quality standards for Jordan Lake
Develop site specific nutrient standards if
statewide standards are not attainable
B++Licr 1'nnl Millcr
Information.
• Sydney Miller, 558-9392, smiller@tjcog.org
• http://www.cfra-nc.org/projact.html
• Richard Gannon, 733-5083 ext. 356,
rich.gannon@ncmail.net
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