HomeMy WebLinkAboutAgenda - 11-05-20; 7-a - Interim Alternative Implementation Approach (IAIA) – Upper Neuse River Basin Association (Falls Lake Rules)
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: November 5, 2020
Action Agenda
Item No. 7-a
SUBJECT: Interim Alternative Implementation Approach (IAIA) – Upper Neuse River Basin
Association (Falls Lake Rules)
DEPARTMENT: DEAPR, County Attorney,
Planning and Inspections
(Engineering)
ATTACHMENT(S):
1 - Executive Summary of the IAIA, Core
Principles and Timeline
2 - Falls Lake Watershed Map
3 - Orange County Watershed Maps
4 – Under Separate Cover
UNRBA Background Information is
available online at:
http://unrba.org/sites/default/files/URNBA_Fast-
Facts-Dec-2018_FINAL_190115_0.pdf
http://unrba.org/sites/default/files/UNRBA_Infogr
aphic-Dec-2018_FINAL_190115_0.pdf
INFORMATION CONTACT:
Commissioner Sally Greene 245-2130
Commissioner Jamezetta Bedford 2130
David Stancil, 245-2522
Craig Benedict 245-2592
James Bryan, 245-2319
Wesley Poole, 245-2513
Christopher Sandt, 245-2583
PURPOSE: To consider joining the Upper Neuse River Basin Association’s (UNRBA’s) planned
and coordinated multi-jurisdictional implementation approach to implementing Stage 1 of the
Falls Lake Watershed Rules, promulgated by the N.C. Division of Water Resources.
BACKGROUND: Orange County was a founding member of the UNRBA, which was created in
the 1990’s to coordinate mandatory watershed protection efforts among the jurisdictions of the
Falls Lake watershed. Falls Lake (henceforth, “the Lake”), located in Durham and Wake
counties, serves as the primary water supply source for Raleigh and many Wake County
municipalities. Most of central, eastern and northeastern Orange County is located within the
Falls Lake watershed (please see Attachments 2 and 3).
As the Falls Lake Nutrient Management Strategy (henceforth, “the Rules”) was adopted in 2011
to address nutrient loading in the Lake (primarily nitrogen and phosphorus), the UNRBA began
to work as a coordinating entity among the jurisdictions to address this effort and to pursue a re-
examination of the Rules. Implementation of the Rules, which would occur in two stages, has
been estimated to cost the combined watershed jurisdictions over $1.5 billion in total to address.
In addition, evaluation of the Rules by water quality consultants has determined that the
proposed reductions as originally adopted are not technically feasible and that a new method is
needed. (Prior estimates of Orange County’s likely costs to address the Rules, if it acted on its
own, have ranged as high as $46 million over a 10-year period.)
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As a result, the UNRBA jurisdictions collectively worked to encourage a re-examination of the
Rules, with an alternative method of addressing nutrient reductions for the Lake. Rather than
trying to implement jurisdictional load reductions on their own - at great cost and questionable
results - the UNRBA and its member local governments have spent the last few years working
with consultants and in coordination with the NC Division of Water Resources to find a preferred
and “doable” alternative approach to meeting the nutrient reduction goals. Note: Considerable
additional detail and information about the Falls Rules, UNRBA findings, types of reduction
measures, and the “Path Forward” to identifying an alternative approach, may be found on the
UNRBA website at www.UNRBA.org.
To this end, since 2018 the UNRBA has been developing an alternative option for achieving
compliance with Stage I existing development nutrient load reductions that would be required by
the Rules. This alternative approach would promote a commitment to additional actions directed
at reducing nutrient loading impacts from existing development, using both existing and new and
innovative measures, to improve the water conditions in the Lake. Titled the “Interim Alternative
Implementation Approach” or IAIA, this program is considered interim because it would apply
only during the period between the time this alternative approach is initiated and when the Rules
are readopted (expected to occur in 2025 or later). However, it is important to note that it is
anticipated that the experience and use of this approach may very well inform and serve as a
model for the future readopted Rules to be implemented beyond 2025. A summary of this
document (in draft form) may be found as Attachment 1. The full IAIA document is provided as a
link and may be found at http://www.orangecountync.gov/DocumentCenter/View/13322/DRAFT-
IAIA-Program-.
The IAIA is based on voluntary participation of UNRBA members in the Program, and will allow
participating jurisdictions to achieve compliance with the Stage I requirements. Choosing not to
participate in the IAIA would result in a jurisdiction having to comply on their own by developing
a Stage I local program consistent with the Rules and the Model Program as written. Phase I
compliance without the IAIA would require installation of nutrient-removing measures in direct
relation to Orange County’s prior nutrient loading. In other words, the County would need to
install enough nutrient-reducing ponds or similar SCMs to compensate for the amount of
Nitrogen and Phosphorus added to Falls Lake from Orange County between 2006 and 2012.
Participating in the IAIA will allow a jurisdiction, in the interim period, to achieve full Stage I
existing development compliance. The IAIA also allows for credit for land conservation. There is
currently no credit for land conservation, of which Orange County has achieved considerable
success, except through the IAIA (until such time as the rules may be revised to include this
measure). Under a local-only program outside of the IAIA, the nutrient reduction would need to
be accomplished with traditional Stormwater Control Measures (SCMs - ponds, permeable
pavement, green roofs, etc) or other structural controls.
As noted, the NC Division of Water Quality has been advising on the IAIA and has indicated
support for this alternative approach to date.
At this time, the UNRBA has completed work on the IAIA and is asking all member jurisdictions
to tentatively commit to participating in this effort beginning in FY 2021-22, before authorizing
staff and consultants to complete the actions that would be needed to formally implement the
program. Staff from DEAPR, Planning and the County Attorney’s office have been involved in
the development of the IAIA from the outset, and recommend participation in the program as a
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more cost-effective, collaborative and technically-efficient way to address the nutrient loading
issues that will be needed for Falls Lake.
Commissioner Greene serves as the County’s member on the UNRBA Board of Directors, with
Commissioner Bedford as alternate. At the November 18 UNRBA Board meeting, each delegate
will be asked to participate in an initial vote to indicate intent to participate in the program
beginning in FY 2021-22. (Formal approval and action would come in 2021).
FINANCIAL IMPACT: The IAIA program is based on the organization’s cost-share basis, which
reflects a combination of water usage from the Lake and the amount of watershed area in the
jurisdiction. The annual commitment for funding participation in the IAIA for Orange County is
$161,943 per year, anticipated to continue through FY 2024-25. This is based on the
participation of 12 jurisdictions that have indicated to date an interest in participating at the staff
level.
This contrasts to the projected cost of Orange County’s requirement to develop its own
individual program for Rules implementation, expected to be in the millions of dollars each year,
depending on the actual jurisdictional loading rate. Phase I compliance without the IAIA would
require installation of nutrient removing measures in direct relation to Orange County’s prior
nutrient loading. In other words, the County would need to install enough nutrient-reducing
ponds or similar SCMs to compensate for the amount of Nitrogen and Phosphorus added to the
Lake from Orange County between 2006 and 2012. Some estimates have projected the total
cost of this individual program to be approximately $46 million for Orange County.
Based on the development of the IAIA over the last few years, the current Capital Investment
Plan or CIP (and the proposed FY 2020-25 CIP) includes a Falls Lake Nutrient Management
Strategy item that allocates $175,000 per year during the years of the IAIA implementation. This
funding would begin in FY 2021-22. In addition, some of the work and funds of the Lands
Legacy program in the Falls Lake watershed will also count toward the funding commitment.
This model approach, if successful, may be used in the future phase of the Rules, resulting in
considerable cost savings to the County and all jurisdictions.
SOCIAL JUSTICE IMPACT: Participation in this proposed program would address the Social
Justice Goal of “Establish Sustainable and Equitable Land Use and Environmental Policies,” as
it will provide a means to addressing require State-mandated watershed nutrient management
rules through cost-sharing among the jurisdictions - that will result in a significantly-reduced cost
to County taxpayers and residents, while also utilizing a more efficient and innovative ecological
approach to address this water quality concern.
ENVIRONMENTAL IMPACT: Participation in the proposed program would address the goal of
“Resultant Impact on Natural Resources and Air Quality,” by providing a proactive and more
technically-achievable means to reducing nutrient loading in Falls Lake, thereby improving the
lake’s water quality (and in the streams in the upper watershed within Orange County).
RECOMMENDATION(S): The Manager recommends that the Board authorize Commissioner
Greene to indicate Orange County’s intent to participate in the IAIA at the November 18, 2020
UNRBA Board meeting, with formal approval and action to be forthcoming in 2021.
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Upper Neuse River Basin Association (UNRBA)
Stage I Existing Development
Interim Alternative Implementation Approach (IAIA)
Executive Summary
What is the Falls Lake Nutrient Management Strategy and how does it relate to the IAIA?
The Falls Lake Nutrient Management Strategy (the Strategy) was passed by the State in 2011
(NCAC.2B.0275) as a plan to reduce nutrient loading to Falls Lake. The Strategy includes two
stages of nutrient reductions (Stage I and Stage II), and it is estimated to cost over $1.5 billion.
Parts of the Strategy are not technically feasible. The UNRBA’s re‐examination of the Strategy
is directed at developing a replacement that is reasonable and manageable. While the IAIA
addresses the Existing Development (ED) Rules associated with Stage I, it also serves as a “pilot”
to inform the development of a revised strategy for Stage II.
How is the IAIA different than the Falls Lake Nutrient Management Strategy when it comes to
requirements for Existing Development?
The Falls Lake Nutrient Management Strategy requires each jurisdiction to individually work
with the Division of Water Resources (DWR) to establish their Stage I nutrient‐load reduction
requirements. These reductions are equivalent to the increase in nutrient loading resulting
from development that occurred between 2006 and 2012. Reaching agreement on estimating
these requirements has made it difficult to finalize and develop a plan to address them. After
the Stage I load reduction requirements are established (sometimes referred to as jurisdictional
loads), each local government is required to develop and implement a plan that documents
what practices will be installed and the nutrient pounds per year that each practice will reduce.
Only practices that have NC‐approved nutrient reduction credits can be used under this
“pounds counting” approach. Many of the practices are expensive and do not yield substantial
credit in terms of pounds credited.
The IAIA is a manageable, collaborative, voluntary approach where the jurisdictions in the Falls
Lake Watershed commit to reasonable investments in projects and activities aimed at reducing
nutrient loading. The focus of this alternative is engagement in beneficial activities throughout
the watershed. Because this alternative does not require counting nutrient pounds, activities
that are known to be beneficial, but that do not have State‐approved nutrient credits, are
eligible under the IAIA. One example is land conservation which is beneficial to water quality
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but difficult to assign a numeric credit. The IAIA is expected to be more cost‐effective than that
described in the current Strategy.
An important aspect of the IAIA is to promote additional actions directed at reducing nutrient
loading impacts from ED and to promote general improvement in the eutrophication conditions
in Falls Lake (Lake). The IAIA is considered interim because it would apply only during the
period between the time the IAIA is initiated and when the Falls Lake Rules are readopted
(expected in 2025 or later). Participation in the IAIA will allow a jurisdiction, in the interim
period, to achieve full Stage I ED compliance with the current Strategy. However, it is
anticipated that this approach may be a model to be used for future implementation efforts.
What are the goals of the IAIA?
The members of the Upper Neuse River Basin Association (UNRBA) have established the
following goals for the IAIA:
Continue to improve water quality in Falls Lake and its watershed until the re‐
examination of Stage II is completed and a new strategy is adopted
Engage each jurisdiction in a collaborative, watershed‐focused approach
Provide flexibility to the IAIA participants in terms of cost‐effectiveness, types of
projects, where to implement projects, and who to partner with
Shift the focus from counting pounds to implementing projects
What will it cost each participant? What will it cost Orange County?
Funding of Stage I IAIA eligible activities and projects are based on minimum investment levels
for each participating jurisdiction as determined cooperatively by the participating jurisdictions.
Table 1 shows how a $1.5 million investment could be assigned to the IAIA participants if all
current UNRBA member jurisdictions with an ED requirement participate. Orange County’s
Stage 1 participation commitment is currently expected to be $161,943.
Table 1. Local Government Financial Commitment Fiscal Year Levels for Members that Choose
to Participate in the Stage I ED IAIA
Member Annual Funding
Level
Member Annual Funding
Level
Town of Butner $23,393 Town of Hillsborough $34,221
City of Creedmoor $16,926 Orange County $161,943
City of Durham $337,587 Person County $114,394
Durham County $133,300 City of Raleigh $466,081
Franklin County $19,058 Wake County $88,968
Granville County $100,453 Town of Wake Forest $13,692
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IAIA funding commitments will follow the established budgeting fiscal year (July 1 to the
following June 30). Note: Orange County, anticipating this cost, has included in the adopted
Capital Investment Plan funding for these efforts as Falls Lake Nutrient Management Efforts.
Funding commitments would allow roll over from year to year if a participant made a large
upfront commitment or earmarked funds for a planned future Capital Improvement Project. If
a jurisdiction already has financial resources going toward IAIA eligible projects, these funds will
“count” toward meeting the identified commitment level. The identified investment
commitments also represent minimum levels. With an established 5‐year timeframe for
commitment, allocation of financial resources beyond the annual minimum levels would be
tracked and credited to the jurisdiction’s entire obligation.
What activities will be eligible under the IAIA?
The key guiding principle for inclusion of activities and projects in the IAIA is how a project
benefits water quality and quantity in the watershed and the Lake. Cost effectiveness in terms
of water quality improvement will be a factor in making selection of projects and activities by
each participating member. However, opportunity and other factors will be considered as well.
Expenses associated with site screening and selection, planning, land acquisition, design,
permitting, demolition and removal (e.g., impervious surfaces); construction, operation, and
maintenance for the following types of projects are eligible to be counted against the
commitment amount. Project funding level in excess of the commitment amount can be
carried forward to the next or future years of this interim program (and certainly will be
identified for credit in the future revised strategy).
The following list identifies the activities/projects eligible for use under the IAIA:
All State‐approved practices with established nutrient credits including stormwater
control measures (SCMs) including retrofits
Green infrastructure and other best management practices (BMPs) that include water
quality and quantity improvements
Stream and riparian buffer restoration and enhancement
Programmatic measures beyond baseline program activities (i.e., levels in 2006) for
years after the start of the IAIA program
o Fertilizer application education of businesses and homeowners
o Onsite wastewater treatment system inspection programs, maintenance
tracking, repair, replacement, and pump‐out programs, education of owners
regarding proper maintenance, and training of professionals who inspect and
repair onsite systems
o Pet waste pickup education, waste management stations, and enforcement
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Infrastructure improvements including
o Repair and replacement of leaky infrastructure
o Reduction of sanitary sewer overflows
o Extension of sewer lines to areas using onsite systems (targeting areas with
known failure issues) or package plants
Illicit discharge detection and elimination
Land conservation in high priority areas (as determined through an appropriate
evaluation resource, i.e., land conservation programs that identify water quality aspects
of available preservation sites)
Floodplain restoration and reconnection
Greenways and parks with water quality and quantity benefits (as documented through
the development plans)
Projects and activities that focus on flooding that have an associated water quality
benefit
Operation and maintenance costs associated with preserving long‐term functionality of
practices implemented under the IAIA
Additional activities/projects beyond those listed above are allowed under the IAIA pending
approval by DEQ/DWR. The assessment of additional activities/projects will be based on the
general principles and provisions contained in the IAIA which are aimed at meeting the general
criteria of water quality improvement or protection in the watershed and the Lake.
What are the ways that jurisdictions can demonstrate participation in the IAIA?
There are four options for funding projects that would count under the IAIA:
Self‐funded (single jurisdiction)
Interlocal agreement (two or more jurisdictions)
Funding existing local organizations (like County Health Departments, School Districts,
Soil and Water Conservation Districts, existing utilities, etc.)
Contributing to a “pool” of funds to be managed by the UNRBA in consultation with the
jurisdictions contributing to the pool
Regardless of the type of funding arrangement used to demonstrate participation and
compliance under the IAIA, participants will be required to report their efforts to DWR, in
accordance with IAIA guidelines.
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Is participation in the IAIA a requirement? What happens if Orange County does not
participate in the IAIA?
Participation in the IAIA is not a requirement, but if a jurisdiction chooses not to participate, it
will be on its own to comply with the requirements under the current Strategy. Stage I
compliance without the IAIA would require installation of nutrient removing measures (i.e.
SCMs and other methods) in direct relation to Orange County’s prior nutrient loading.
Stage I compliance under the IAIA would be based upon expenditures at an agreed upon
amount, which is currently expected to be $161,943 for Orange County. If Orange County
chooses not to participate in the IAIA, Orange County would need to meet Stage I compliance
via the self‐funded installation of enough nutrient‐reducing ponds or similar SCMs to
compensate for the amount of Nitrogen and Phosphorus added to Falls Lake (from Orange
County) between 2006 and 2012. Orange County staff has previously calculated the required
nutrient reduction amount to be approximately 5,900 lbs of Nitrogen and 450 lbs of
Phosphorus – with estimated compensatory costs ranging between $49,792 and $46,057,600.
An important difference is that the IAIA will explicitly allow credit for land conservation efforts,
of which Orange County has and plans considerable commitment. At present, there is no credit
for land conservation under the adopted Rules, although the State is reassessing this as a
measure. If the IAIA was not chosen, as things currently stand the entire allotment of nutrients
would need to be reduced with traditional SCMs (ponds, permeable pavement, green roofs,
etc). However, with the IAIA compliance is accomplished through the financial commitment of
$161,943 to include expenditures on land conservation, which may emanate from multiple
funding sources.
In conclusion, Orange County staff believes that strength and voice is much greater in numbers,
and that taking on the Stage I compliance task by ourselves may be a difficult and potentially
much more costly approach. Staff believes that continuing our partnership with the UNRBA
and participating in the IAIA will allow Orange County to meet Stage I compliance requirements
in an organized and financially efficient manner, while also better positioning Orange County
for future (pending) Stage II compliance requirements.
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Key Core Principles* of an Interim Alternative Implementation Approach (IAIA) Under the Existing
Development Falls Lake Rule for Supporting the Development of An Interlocal Agreement and/or Modification
of UNRBA Bylaws to Establish the Administrative Structure for the IAIA
The IAIA is a group or joint compliance effort, but compliance under Stage I Existing Development (Stage I ED) is
assessed individually for each participating jurisdiction
o Participants must be members of the UNRBA, but UNRBA members are not required to participate
o Only formal participants in the IAIA can vote on IAIA‐related decisions
o Each jurisdiction must document and track investments and eligibility of expenditures
o Point source credits belong to the jurisdiction that owns the utility that created them, unless the credits
are sold or leased to another jurisdiction by the generating jurisdiction.
o A jurisdiction’s adherence to the provisions of the IAIA represents compliance with the Stage I ED Rule.
Participation is based on agreement to make a 5‐year investment commitment, specified by jurisdiction, for
projects determined to be eligible for credit in reduction of existing development loading as described in the
IAIA Program Document.
o A 5‐year timeframe for commitment is established to minimize overall administrative burden for the
program
o Commitments are assigned annually based on the UNRBA’s dues formula utilizing a $100,000 per year
commitment from Granville County for the initial IAIA commitment. IAIA participants may revise the
annual commitments in the future.
o Total program commitment is the sum of each participating jurisdiction’s commitment. Jurisdictions are
responsible for their assigned annual commitment, and if financial resources are made in excess of the
annual commitment, the excess will be credited against the jurisdiction’s entire 5‐year commitment.
o Each jurisdiction can choose from several options to expend funds (e.g., individual projects, joint
projects, funding eligible projects through organizations like local soil and water districts, school systems
and county health departments)
o Jurisdictions can change which funding options they utilize from year to year.
o Investment‐based credits generated from multi‐jurisdictions projects shall be credited to the
jurisdictions in proportion to contribution levels and accounting for long‐term operation and
maintenance costs, unless the project contract provides otherwise for allocation of credits.
o Each jurisdiction has the option to withdraw at the end of any fiscal year included in the 5‐year
commitment period with the understanding that rejoining the IAIA is not allowed.
Commitments can either be directed individually at the local level or as part of a joint project
o Individual jurisdictions decide how their funds are spent to accomplish projects eligible under the IAIA
Program Document
o Each jurisdiction may specify how its funds are spent, and the IAIA Program Document is not
prescriptive, but rather is flexible
o The cost of maintenance of a project to retain its eligibility as a credit in future years shall be the
responsibility of the jurisdiction in which the project is located unless otherwise described in a project
contract
If a participant drops out during a year,
o The jurisdiction must notify the other participating jurisdictions and DWR before the end of the current
fiscal year
o The withdrawing jurisdiction must contact DEQ‐DWR to notify the Department‐Division of its decision to
withdraw from the IAIA
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o The jurisdiction must complete its full commitment through the fiscal year of its withdrawal with no
implementation lag under the individual local program
o The withdrawing jurisdiction will be required to develop, under the Model Program and direction of
DWR, a local program for individual compliance under the Rule and submit it for approval by DWR and
the Environmental Management Commission.
The group as a whole is not out of compliance if a member drops out.
The ongoing participation in joint projects that are multi‐year agreements may have to continue
with their participation, subject to the agreement reached for the joint project, even if the
participant withdraws from the IAIA.
o The total investment level will change in the following fiscal year by the amount of the commitment
assigned to the leaving jurisdiction being removed from the total (the initial commitment level of the
remaining participants will not change in future years due to a participant’s withdrawal).
o The IAIA agreement, or project‐specific contract, will address the implications of a participant
withdrawing and how that may impact any particular project commitment that was directed to be
completed in future years
o When a project is located in a jurisdiction that withdraws from the IAIA, the contract with other
jurisdictions will establish how the jurisdictions will assign the credits from the project in future years
or have redress for loss of the credits from the project in future years.
* This summary represents key core IAIA principles as reflected and described in greater detail within the IAIA
Program Document.
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