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NCLM News & Political Report

Nearly two months into the 2013 Long Session, the N.C. General Assembly is humming. Legislators are taking their first, second, and third cracks at a wide range of bills, diving deep into the minutiae of the state budget, and welcoming visitors into their offices to discuss topics they will soon debate.

City officials have jumped into the action, with over 75 city officials beating a path to Raleigh to speak with legislative leaders as part of the League's Legislative Action Committee Lobby Days at the beginning of the month. And next Wednesday, hundreds more will press their case at the League's annual Town Hall Day event.

Even as city officials discuss individual topics, the overall message they deliver is that our state's cities are the places most North Carolinians go to work. Our state's top leader recognized this fact earlier this month: "McCrory says cities are N.C.’s economic engines," read the WRAL headline reporting on his remarks. The policies initially pursued by the state legislature would seem to indicate a different regard for cities, though, with a WRAL online report this weekend declaring, "State, cities battle for power," and the expanded video segment stating, "Cities say lawmakers exerting too much control."

In response, League members will continue to make the case to legislators for the proper authorities that enable them to provide strong places for job growth. Building and maintaining public infrastructure such as water, wastewater, stormwater, transportation, and recreation systems remains the fundamental municipal strategy for attracting businesses and the people who work for them. In this issue of EcoLINC, you'll find many examples of positive state and federal policies on which the League advocates so that you can continue to build the basic community assets needed to support a thriving local economy.

DENR Fills out Leadership Team

Last week, N.C. Department of Environment and Natural Resources (DENR) Secretary John Skvarla announced the final picks for his leadership team. The League looks forward to working with Ombudsman John Harwood, who will work with interest groups like the League to identify changes that will better-allow the agency to respond to concerns, and Carr McLamb, who will represent the agency as a legislative liaison.

In other state agency leadership changes, Kathleen Waylett has replaced retired Jim Gulick as head of the N.C. Department of Justice's Legal Services Environment Section.

Federal Updates

Our job at the League wouldn't be as interesting without the action coming from Washington, too. Topics of importance to N.C. cities providing water, wastewater and stormwater services include:

Sequester fall-out. Because the federal budget sequester does not give agencies like the U.S. Environmental Protection Agency (EPA) discretion in where to make cuts, reductions will be made across most program areas. For example, states will lose $210 million in funding to support activities such as monitoring and data collection or water body clean-up plans. This figure represents the largest cut to any EPA account; forty percent of EPA's budget flows directly to states through grant programs.

Of that total going to states, roughly eight percent, or $140 million, of funds now supporting the State Revolving Funds (SRF) for drinking water and wastewater/stormwater projects will be cut. The SRF cuts come on top of a trend in recent years of providing less funds for that program in the federal budget and a move by both chambers in Congress to require a reversion of unspent SRF funds. The SRF program is the largest funding source for small water, wastewater, and stormwater projects in North Carolina.

Finally, EPA must furlough federal workers in order to meet budget reduction targets through September 1. By the end of June, employees must take four furlough days (or 32 hours). And EPA has estimated that employees may be required to take up to nine more days of unpaid leave July-September.

Climate resiliency Executive Order. The Obama administration is considering an executive order (EO) to require infrastructure that is "resilient" to extreme weather, administration officials told N.C. municipal officials and others at the National League of Cities (NLC) Congressional City Conference last week. While not yet issued, the draft EO would require critical infrastructure like water and wastewater treatment plants to be built away from major flood plains. For its part, EPA has chosen to address the concept of resiliency through its push for green infrastructure stormwater practices.

Municipal bond tax exemption. Today, NLC will testify at a U.S. House Ways and Means Committee hearing on federal tax provisions that affect local governments, including municipal bonds. For 100 years, municipal bonds have held tax-exempt status, which allows cities to borrow for infrastructure projects like water and wastewater systems at a lower cost. Cities and towns support this partnership with the federal government to provide an efficient financing tool for critical infrastructure, and, in the last decade, they have financed $258 billion in water and wastewater projects nationwide using tax-exempt bonds. However, the Obama administration proposed a 28 percent cap on the exemption, which would increase borrowing costs for cities. And the Simpson-Bowles Commission proposed eliminating the exemption altogether. Read an illustrated background on this tax exemption here.

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League Achieves Goal with Vote on Impaired Waters List Process

Without the extensive discussions that marked previous considerations of the process used by the state to classify water bodies as impaired, the N.C. Environmental Management Commission (EMC) voted unanimously to approve a revised impaired waters listing proposal Thursday. The finalized proposal, supported by the League, achieved one of the League's top regulatory goals, which stated, "Seek updated regulatory procedures that would provide more openness, transparency, and flexibility for development of the impaired waters list."

The League thanks EMC members, N.C. Division of Water Quality (DWQ) staff, and its partners on this issue for working to respond to our concerns and strengthen this significant regulatory process.

Path to Passage

The League had pressed for these changes for nearly two years. Previously, decisions regarding the state's "use assessment methodology" -- the process DWQ employs to determine whether streams are impaired -- were made by DWQ staff members without guidance or input from the EMC and with only limited comment from the public. In response to these concerns over lack of oversight and input, the EMC decided in November to oversee development of this document for the first time.

The use assessment methodology is critical because the decisions made pursuant to that methodology can place waters on the state's 303(d) list, named after Section 303(d) of the federal Clean Water Act. The 303(d) list is updated every two years. For each two-year cycle, the federal law requires states to evaluate the health of their waters and “list” those exhibiting impairments. Impaired waters most often become subject to a “water pollution diet” for the affected watershed, usually in the form of a Total Maximum Daily Load (TMDL). Local governments, as the holders of wastewater and stormwater discharge permits, bear responsibility for reducing their discharges to waters under a TMDL – often a costly requirement.

Given the consequences of having a water body included on the 303(d) list in a municipality's jurisdiction, the League urged a public forum to discuss the adequacy of the use assessment methodology.

Updates Increase Confidence in Listings

Through this discussion, the League sought changes to the assessment process that would ensure confidence in the application of data to measures of stream health. The EMC-approved methodology now includes a mechanism generally called "confidence limits" to provide statistical certainty that a stream is in fact impaired. Going forward, when evaluating streams, DWQ will only list streams as impaired if it is 90% confident the data indicates an impairment. This new method will apply to evaluations of the following water quality parameters: chlorophyll-a, dissolved oxygen, MBAS, mercury, nitrate/nitrite, pH, temperature, toxic substances, and turbidity.

If the statistical analysis does not produce a 90% confidence in declaring that water body impaired, DWQ will list the water body in Category 3 of the 303(d) list. This category lists waters for which an impairment status cannot be determined. Therefore, it is likely that many waters in Category 3 will be the subject of further data sampling and collection. 

Equally important, for the first time, the methodology details the bases upon which a stream may be "de-listed," or removed, from the "impaired" categories of the 303(d) list. According to a methodology explanatory document, a de-listing may occur if:

  • More recent data indicates the water body meets water quality criteria
  • A TMDL is approved for the water body (or other clean-up requirements are in place)
  • There is documentation that the impairment is caused by natural conditions
  • There were flaws in the original assessment
  • A new use assessment methodology concludes that a water body meets the state's water quality criteria

DWQ has announced that it will take data to use in its 2014 assessments process through May 31. Read "Demystifying N.C. Lakes Data Collection Program," below, for more description on how to submit data for use in this process.

Read more about the development of this issue in previous League reports:

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Proposal Eases Ability to Protect Urban Streams, League Comments Say

The League supported a regulatory proposal that offered more opportunity for cities that must protect urban streams in a set of written comments submitted yesterday. The comments responded to a proposal allowing more options for buffer mitigation, a state program that generally requires protection of nearby waters when activities impact a stream on or adjacent to a development site. However, for urban areas, the current program requirements are often too strict to allow buffer mitigation in urbanized areas. For example, one current program element requires a tract with a minimum of 50-foot buffers on either side of a stream. In urban areas, finding such wide swaths of uninterrupted land poses great challenges.

The League worked with members of the N.C. Environmental Management Commission (EMC) and the N.C. Division of Water Quality (DWQ) for several years to institute changes to the state's buffer program that would allow cities easier ways to comply with buffer mandates in urban areas.

In 1999, the state legislature recognized this and other challenges and directed the EMC to write rules that would allow for expanded buffer mitigation options. In response, the EMC debated multiple proposals beginning in 2009, and held two public hearings on the final proposal during a comment period that ended yesterday. Commissioners will consider final adoption of these proposed rules at a future meeting, likely in May.

In urging EMC members to accept rule language that would ease restrictions on buffer mitigation in urban areas, League members hoped to undertake more projects in the urban areas that often need the most water body protection. Many N.C. streams in developed areas have been listed as impaired waters on the state's 303(d) list.

This proposal replaced the state's current patchwork approach to buffer mitigation with one set of unified rules. Therefore, if passed, this proposal would eliminate the following buffer mitigation rules: Neuse River (15A NCAC 02B .0242), Catawba River (02B .0244), Randleman Lake (02B .0252), Tar-Pamlico River (02B .0260), Jordan Lake (02B .0268), and Goose Creek Watershed (02B .0609).

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Browse NCLM Bill Summaries in Improved Online Tool

The League expanded its bill tracking offerings this year by including staff-written bill summaries in its online bill tracking service. The system provides up-to-date information on bills of interest to cities and towns.

Users of the bill tracking system can search for bills by number, see the tracking status the League assigns to a given bill (critical, high, or monitor), view the position taken by the League on any bill being tracked, and search for all bills tracked by the League by category, including "environment." In addition to summaries created by League staff specifically for its members, the service also pulls real-time information about bills directly from the N.C. General Assembly website.

As we draw nearer to bill filing deadlines in both chambers of the North Carolina General Assembly, we are seeing more and more bills being introduced -- many of which impact cities and towns in various ways. The Senate deadlines come first this year, with nearly all bills scheduled to be filed by March 28. The House has more time, with deadlines beginning tomorrow and continuing through April 17, depending on the type of bill being filed.

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Water Supply Bills

So far this session, legislators have addressed water supply in the following bills, only the last of which has received a hearing. Clicking on the bill title will take you to the League's bill tracking service, which includes bill summaries, the League's position and tracking level for the bill, and information on bill status pulled from the N.C. General Assembly website.

  • SB 151 Coastal Policy Reform Act of 2013: This is a multi-faceted bill that makes incremental changes to the state's interbasin transfer (IBT) laws. An IBT occurs when water is transferred from one river basin to another. For municipalities, IBTs occur when a city withdraws drinking water from one basin and discharges its wastewater into another basin.

    This proposal, a product of a water supply stakeholder group on which the League participates, spells out the process for modification of IBT certificates. It also applies a similar process to areas under the Central Coastal Plain Capacity Use Area -- an area in eastern North Carolina required to transition away from groundwater supplies toward surface water supplies -- thereby easing the transition for affected water systems.

    Importantly, the bill also changes the definition for the threshold under which a withdrawer would need to seek a certificate, calculating the two million gallon/day limit on a monthly basis rather than a daily basis. This change addresses the technical limitations of calculating daily withdrawals.

    Finally, the bill includes a provision to allow local governments to remove nuisance structures from beach strips otherwise under state control.
  • SB 163--Protect Landowner Water Rights: The state's agricultural community has promoted this bill as a means of assuring farmers' rights to withdraw water from groundwater, streams, and ponds on their property, except in areas of known groundwater contamination. The bill is close to SB 492 from the previous biennium and includes changes suggested by the League in 2011 to prevent cross-contamination of a municipal water system. That year, the bill passed the Senate but not the House.

    The League's analysis of this bill concludes that it codifies existing case law. Further, while it states that a city may not adopt an ordinance prohibiting landowners within the city from withdrawing water (likely from wells), cities already do not have the ability under current law to prevent such withdrawals or drilling of wells.
  • HB 89/SB 113 DENR Support for Regional Water Supply System: Legislators introduced this bill as a recommendation of the legislative Environmental Review Commission after discussions in 2012 expressing concern over the state's liability when it promotes a local government's water supply project. The bill has passed the Senate and currently awaits House committee discussion.

    This bill would change the law so that the N.C. Department of Environment and Natural Resources (DENR) would provide its full support of any state or federal permit applications for a water supply project, when the local government applicant had met certain listed conditions, rather than becoming a co-applicant for those permit applications. Last session, the League supported the concept of DENR support for water supply projects to speed up the often-long process of securing new drinking water supplies.

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Stormwater Bills

So far this session, legislators addressed stormwater in the following bills, none of which have yet been scheduled for a hearing. Clicking on the bill title will take you to the League's bill tracking service, which includes bill summaries, the League's position and tracking level for the bill, and information on bill status pulled from the N.C. General Assembly website.

  • SB 275 Stormwater Management Fee Uses (counties only): This bill would allow counties to use their stormwater program funds to purchase property and demolish flood-prone structures. It would also allow counties to pay for improvements on private property that would reduce flooding, including elevating, demolishing, or retrofitting flood-prone structures, under listed circumstances. The League has requested that the bill sponsor consider adding cities to this bill as well.
  • SB 294 Exclusion from Post-Construction Practices (Winston-Salem only): This local bill would allow the City of Winston-Salem to be excluded from adherence to post-construction stormwater requirements when undertaking public and private linear transportation projects such as roads. The projects must instead adhere to the N.C. Department of Transportation's best management practices, as outlined in the "Stormwater Best Management Practices Toolbox."

And legislators addressed the state's sedimentation/erosion control program in these bills:

Finally, the League anticipates further legislation to be introduced regarding the Jordan Lake Rules, coastal stormwater rules, and buffers. Read more about these rumored proposals in the League's Long Session Preview from the January 2013 edition of EcoLINC.

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Utility Operations Bills

So far this session, legislators have addressed utilities operations in the following bills, none of which have yet been scheduled for a hearing. Clicking on the bill title will take you to the League's bill tracking service, which includes bill summaries, the League's position and tracking level for the bill, and information on bill status pulled from the N.C. General Assembly website.

  • SB 19 Bldg. Contracts Local Business Participation: This proposal is one of several bills introduced so far to encourage the use of local bidders in public contracting (the other is HB 284, see below). Among other provisions, this bill would mandate that local governments, when following certain bidding procedures, reach out to local businesses that are reasonably expected to submit a bid for a specific project. The bill would then direct a local government to make project specifications available to any interested local bidder at least 30 days before the bid date. Finally, the bill would direct a local government to negotiate in good faith with the local bidder. The bill includes other requirements related to bidder and local government actions under this bidding procedure.
  • SB 102 Public Infrastructure Oversight Commission: This bill makes a reappearance this session, having failed to receive a committee hearing in the 2011-2012 biennium. It would establish a legislative commission to examine public infrastructure issues in the state; make recommendations to the General Assembly on ways to promote coordinated local, regional, and state planning and investment in public infrastructure; inventory the assessments conducted by state and local agencies to develop a comprehensive statewide policy that includes both short-term and long-term solutions for meeting critical infrastructure needs; and identify dedicated sources of funding and methods to leverage private capital, including the creation of an infrastructure bank, to finance those needs.
  • SB 259 LGC Oversight of Water and Sewer Finance: This bill is a request of the state's Local Government Commission (LGC), which oversees the financial health of the state's local governments and associated authorities. If enacted, the LGC would have authority under narrow listed circumstances to assume oversight of a unit's water and wastewater system. Before it could take such actions, the LGC would have to find that the financial stability of the local government or authority was threatened, and that the local government or authority did not take corrective actions after receiving a warning from the LGC.
  • SB 314 Durham County Water/Wastewater Plant Projects: This local bill would allow Durham County to bypass various statutory provisions governing methods for construction of water and wastewater plants. Instead, the County could use the following methods of construction: (1) single-prime contractor, (2) design-build or design-build-operate, or (3) negotiation as an alternative. The bill also describes specific procedures for selecting contractors under any of these methods.
  • SB 330 Study Water and Sewer Providers: This bill directs the legislative Environmental Review Commission to study and make recommendations to eliminate or consolidate the following statutory models for providing water and sewer services: sanitary districts, water and sewer authorities, metropolitan water districts, metropolitan sewerage districts, county water and sewer districts, and any other similar organizations that provide water and sewer service in the state. The Commission would report its findings to the 2014 General Assembly.
  • HB 284 Local Contracts/Local Bidder Preference: This proposal adopts a permissive approach when encouraging local governments to utilize local businesses in public contracting. If passed, the bill would fulfill one of the League's top policy goals, which states, "Seek legislation to give municipalities the option to award contracts for goods and materials to local bidders that are not low bidders, under specified circumstances." The bill describes the circumstances under which a local government may award a contract to a responsible, responsive local bidder that is not the lowest bidder. Local bidders in this situation must bid within five percent or $10,000 (whichever is less) of the bid submitted by the lowest responsible, responsive non-local bidder, and be willing to match that low bid.

Finally, the League anticipates further legislation to address changes to the Underground Damages Prevention Act (as implemented by NC 811), control of the Asheville water system (read more detail in an EcoLINC report from the 2012 session, "Local Control of Water/Wastewater Systems Under Fire"), and operational control of the City of Durham water and wastewater utilities (read this history of SB 382 from the 2012 session).

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Regulatory Reform Bills

After making a splash with high-profile regulatory reform bills the first month of session, legislators have stepped back to work through differences on these bills. Clicking on the bill title will take you to the League's bill tracking service, which includes bill summaries, the League's position and tracking level for the bill, and information on bill status pulled from the N.C. General Assembly website.

Boards & Commissions

Most notably, House members engaged in multiple heated debates over SB 10 Government Reorganization and Efficiency Act, ultimately rewriting many key provisions from the version approved by the Senate earlier this session and giving the bill tentative approval. Due to differences between the House and Senate versions, the bill is now being negotiated in a conference committee, which has members from both legislative chambers.

The House version of the bill would eliminate several boards as currently constituted, then reform those same boards, often with different membership qualifications, numbers of members, and appointing officials. One board targeted in the House version, the N.C. Environmental Management Commission, is followed closely by the League as part of its regulatory advocacy program. This version would eliminate the current seat reserved for a municipal official, though it would retain one at-large appointment currently held by another municipal official.

Hydraulic Fracturing

The Senate gave its final approval to SB 76 Domestic Energy Jobs Act in late February, advancing a measure that bill sponsors stated would bring hydraulic fracturing jobs to the state sooner (read WRAL's report in "Drilling fast-track gets tentative Senate approval"). Senators approved several amendments during floor debate, including an addition that would clarify the bonds required of hydraulic fracturing companies to protect landowners from damages caused by any development on their property.

The Senate-approved bill left previous provisions unchanged from the version prepared by Senate committees, retaining a measure that provides a system of taxation of the hydraulic fracturing industry and allows cities and counties to collect Article 11 property taxes on related activities, and another that ends the current moratorium on hydraulic fracturing and allows permits to be issued on March 1, 2015. Furthermore, it proposes a wide variety of other changes to the processes and boards overseeing the industry and energy development in the state.

Perhaps indicating the strong disagreements between the House and Senate chambers over this bill, the House assigned the bill to three committees for review, an unusually thorough committee path. The first of these committees has not yet scheduled a review of the bill.

Read details of the bill in "As Rulemaking Begins, Legislators Renew Interest in Hydraulic Fracturing" (February 2013 EcoLINC).

No Action Yet

The League provided a description of three other regulatory reform bills introduced this session in this February 2013 EcoLINC article:

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Demystifying N.C. Lakes Data Collection Program

Following state regulators' approval last week of the methodology for determining whether the state's water bodies are impaired (see "League Achieves Goal with Vote on Impaired Waters Process," above), the N.C. Division of Water Quality (DWQ) announced that it would accept data for use in next year's impaired waters determinations so long as it was submitted by May 31. Local governments often collect water quality data for various reasons and may submit it for DWQ's use in impairment decisions if it adheres to certain standards. Data submittals by cities and other public interest organizations supplement the data sets procured by DWQ.

What data already exists, and how it is acquired, is a highly technical subject that can seem mysterious to municipal decision-makers. This article offers a primer on the state's water quality sampling process by focusing on one specific monitoring program among several run by DWQ: the Ambient Lakes Monitoring program. If data from this program and others indicate water body impairment, federal law requires a clean-up plan for that water body. Clean-up plans for N.C. lakes often involve great public expenses from cities that contribute to water quality impairments in those lakes, so cities have an interest in the data sets upon which lake impairment decisions are made.

Lakes Monitoring Program Origins

The lakes monitoring program began in North Carolina in 1981, when the state received federal funding to classify the nutrient enrichment, or trophic, status of the state's lakes. Because nearly all N.C. lakes are man-made, they do not function like naturally-occurring lakes and are prone to impairment based on nutrient enrichment. Such an impairment designation often leads to expensive clean-up strategies, such as those in the Jordan Lake and Falls Lake watersheds.

With those initial lakes monitoring funds, the state developed a NC-specific trophic index, based on samples collected from sixty-five publicly-owned freshwater lakes in 1981, with further sampling of thirty-one of those lakes the following year. The resulting trophic index describes conditions on 160 of the state's publicly-owned lakes currently sampled by the state across 422 data collection sites (also depicted on this interactive state map). These sampling activities mean almost one-tenth of the state's 1,800 lakes are monitored by this program; the program does not monitor the conditions on privately-owned lakes.

Water body conditions on this index range from "oligotrophic," meaning healthy lakes, to "eutrophic" and "hypereutrophic," meaning nutrient-enriched lakes. The index evaluates a lake's trophic status using calculation based on measurements of total phosphorus, total organic nitrogen, secchi depth (how deep light penetrates into the water body), and chlorophyll-a.

Current Data Collection

Since those initial efforts to develop a trophic index for lakes, the state's program has shifted to evaluation of the current nutrient status of monitored lakes. Now, DWQ staff members in the Ambient Lakes Monitoring program collect and report data for other DWQ units that address water body impairment decisions, water quality modeling efforts, water body classifications and standards, river basin plans, and water body clean-up plans, among others.

Funding for these data collection efforts now comes partially from federal Section 319 grants, named after the section of the federal Clean Water Act that addresses pollution from non-point sources. Other funding sources for this program include federal Section 106 funds (also Clean Water Act-based funds) and N.C. state appropriations.

For lakes, the state targets sampling to a period of May-September -- the growing season and the only time of year when evidence of impairment (algal growth) is evident in lakes. During the rest of the year, water quality is expected to demonstrate healthy characteristics. Therefore, to make the best use of its limited resources, the state targets its data collection to monitor only when water quality has the highest potential to be degraded. These sampling practices are generally accepted across the country.

To sample lake water quality, scientists often reach monitoring stations by boat. Most of these stations have existed for over thirty years, providing a long-term continuum of information regarding water quality in those lakes.

A local government may have an interest in sampling at those same sites to verify the state's data. If so, that local government should coordinate with DWQ, which publishes its sampling schedule in advance (2013 schedule is here) and typically contacts local government lake owners days prior to sampling. For data to be acceptable for use in making impairment determinations, it must be collected using an approved standard operating procedure pursuant to an approved quality assurance project plan. For examples that apply to lakes, read the program's standard operating procedure and quality assurance project plan.

The state samples most of its lake stations once every five years. Certain lakes, such as Jordan Lake and Falls Lake, are sampled annually to support the water quality management strategies in place for those lakes. These data collection activities are timed to coincide with development of basinwide plans by other units within DWQ, so the sampling schedule breaks down by river basin. This year, the ambient lakes monitoring program will sample in the Cape Fear and New River river basins. DWQ has already published the schedule of sites to be sampled beginning in May.

When sampling lakes, DWQ scientists collect information on the lake's physical characteristics, which include temperature, secchi depth, salinity, pH, conductivity, and dissolved oxygen. They also collect information on chemical characteristics such as metals, turbidity, nutrients, residue, chloride, and hardness, among others. While the raw data acquired by DWQ is available upon request, the state also packages the data for inclusion in the basinwide plans. These reports are available by individual river basin here.

Other Monitoring Programs

The state's Ambient Lakes Monitoring program is complemented by a host of other targeted monitoring programs. These other efforts may focus on collecting different information, such as with the Biological Assessment program. This program collects data on fish and bottom-dwelling organisms collectively called benthic macroinvertebrates. Or, these programs may focus on data collection for a specific water body, such as for the Falls and Jordan Lake monitoring programs or the Estuarine Monitoring program, which focuses on coastal waters. Other programs with a different focus include the Ambient Monitoring System (sampling rivers and streams), which is supplemented by the Random Ambient Monitoring System, and the Monitoring Coalition Program (sampling to assist with wastewater permit compliance). And the Aquatic Toxicology unit performs additional water quality assessments to test organisms and evaluate the potential impacts of toxic substances on those organisms.

Data collected through all of these programs is available in DWQ's database application, called STORET (STOrage and RETrieval data management system).

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EPA Hands Back Nutrient Regulation to Florida

The U.S. Environmental Protection Agency (EPA) and Florida Department of Environmental Protection signed an agreement Friday that would hand back primary control of nutrient regulation from the federal agency to the state. The move outraged environmental organizations that originally sued for EPA action, but it likely represents an end to long legal battles in which the state and industry groups sought state control of actions to address impairment of water bodies from nutrients such as nitrogen and phosphorus.

This effort began in 2009, when environmentalists reached an agreement with EPA for the federal agency to establish in-stream nitrogen and phosphorus standards -- the so-called "numeric nutrient criteria" that have caused extreme controversy nationwide -- in Florida's waters. According to EPA, "One of America's most widespread, costly, and challenging environmental problems is excess nitrogen and phosphorus in the air and water."

Nutrient-based water quality controls represent the largest area of regulatory concern for League members, who bear enormous costs to clean up nutrient-impaired waters, such as with the Jordan Lake Rules and Falls Lake Rules efforts. As evidence of this concern, in January, League members ranked nutrient controls as their top regulatory goal: "Support solutions addressing nutrient impairment in waters that: are based on site-specific data and analysis, demonstrate use impairment, assign responsibility proportionate to the source of impairment, and include measures to equitably hold accountable all contributors to the impairment."

After years of legal wrangling in state and federal courts and in-depth scientific research and analysis of Florida waters, EPA agreed that Florida's standards and practices (summary here) sufficiently protected the state's waters from nutrient impairments.

Significance to N.C. is Huge

The significance of EPA's approval of Florida's approach to nutrient controls is of large consequence to North Carolina, which is currently revising an agreement with EPA on the state's actions to identify and control nutrient impairments. The League provided advance comments on this agreement, called the Nutrient Criteria Development Plan (NCDP). Public review of the NCDP has been delayed, likely into the summer.

The League's comments expressed a preference for many features of the now-approved Florida approach

  • Site-specific analysis. According to the overview of Florida's plan, the approach "gives preference to site-specific analyses that result in a numeric interpretation" of the state's nutrient criteria. In other words, the state would set numeric limits for nutrient discharges to waters upon a site-specific analysis. Due to the wide variations in effects of nutrients on waters, such a site-specific analysis is necessary to avoid over-regulation. In Florida, numeric limits would come through vehicles such as total maximum daily loads, site-specific alternative criterion, and water quality-based effluent limitations, among others.
  • Flexibility in numeric criteria. The Florida plan does not mandate controls for both nitrogen and phosphorus for any given impaired water body. Instead, the approach allows flexibility to control for only one of those two variables.
  • Evaluation of aquatic life. For each of the different classes of flowing waters in Florida, the state will require an evaluation of the aquatic life in those waters. Then, this biological data will be used in the decision-making regarding nutrient impairments or allowable nutrient discharges to any specific flowing water body. According to the plan, "The final result allows a scenario in which the [nutrient levels] are exceeded, but because the floral and faunal measures are met, the streams are found to be healthy and well balanced."
  • Verify impairments. For North Carolina, the League urged DWQ to change its practices toward water body impairment decisions by placing waters that indicate nutrient impairment on a "further evaluation" list and conducting more data collection and analysis before making an impairment determination. The Florida plan details a similar approach: "If statistically significant adverse trends are present in causal variables [i.e., nitrogen and phosphorus], then the waterbody will initially be placed on the Planning List of potentially impaired waters so that a more rigorous statistical analysis can be conducted."
  • Retain current approaches that work. The League urged North Carolina to keep current approaches to nutrient regulation while developing the NCDP. The state's main approach to nutrient impairment evaluations in lakes uses chlorophyll-a as a measurement. The Florida plan uses the same parameter for lakes.
  • Rethink protection of waters prior to impairment: North Carolina proposed the failed "threshold rules" in 2010 to address future nutrient impairment in waters that did not currently reach levels of impairment. The League vigorously objected to the proposal, which imposed regulations without accounting for trends toward nutrient impairment. Florida takes a more comprehensive, science-based approach toward protection of not-yet-impaired waters, requiring identification of trends in nutrient concentrations in waters and a phased approach to regulation based on site-specific analysis and the severity of the trend in that water body.

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Up First for Hydraulic Fracturing Rules: Water Withdrawals, Wastewater Disposal

The N.C. Mining & Energy Commission (MEC), the state board charged with writing the regulatory and permitting framework for the hydraulic fracturing industry in the state, kicked off its rulemaking efforts by tackling two subjects of primary concern to cities and towns: water withdrawals and wastewater disposal.

Because hydraulic fracturing operations mix water with sand and chemicals to fracture rock deep underground and release natural gas, nearby local governments worry about the sources to which the industry may turn for that water, particularly if those sources impact public water supplies. Local governments are also concerned about disposal options for that mixture, which flows back to the earth's surface along with any constituents it picks up underground. Disposal options in other areas of the country have included underground injection and industrial treatment of the wastes before applying them over land.

These rulemaking efforts by the MEC come as experts question whether economic realities will ever be favorable for development of a hydraulic fracturing industry in the state. Legislators have responded to these concerns by pushing a proposal designed to allow the practice as soon as one year from now (see more explanation in "Regulatory Reform Bills," above).

And MEC Chair Jim Womack expressed his concerns about whether or not the Commission can meet its targets to develop rules in such a short time, given the lengthy procedure state law prescribes for rule development. In remarks at the March 8 MEC meeting, Womack stated that he might ask legislators to allow the Commission to waive certain regulatory procedures, such as review of final rules by the N.C. Rules Review Commission, or shorten the time for public comment. He also said any requests would be made so as not to compromise the opportunity for public comment.

Water Withdrawals Proposal

The MEC Water & Waste Management Committee began review of proposed rule language that would regulate water withdrawals for use in hydraulic fracturing processes at its March 7 meeting. In presenting the draft language, N.C. Division of Water Resources (DWR) Director Tom Reeder stated that passage of these rules would make these withdrawals the only ones regulated in the state besides withdrawals in the Central Coastal Plain Capacity Use Area.

The draft rule would limit withdrawals to twenty percent of 7Q10 flow, a conservative technical measurement that accounts for periods of low flow in streams. Reeder told committee members that practically, this restriction on withdrawals means that withdrawals would come from larger streams and rivers, rather than low-flow tributaries. He also said that the amount of water typically withdrawn by the industry in other areas of the country does not exceed the amounts withdrawn by many other industries currently operating in North Carolina. He said the rule proposal treats the hydraulic fracturing industry similarly to other industries already operating in the state.

The proposal would also require from industry applicants:

  • Approval of a detailed Water Management Plan by DWR staff
  • Documentation of the proposed water source
  • Evaluation of all other possible water sources
  • Reporting of other withdrawers from potential water sources
  • Monitoring and reporting requirements related to water usage

The Committee will provide state staff comments on the draft proposal and discuss a revised version at its meeting May 2, when the Committee will likely vote on the proposal. If you have suggestions to improve the proposal, please email them now to Erin Wynia.

Wastewater Proposal Is Up Next

The Committee also received a briefing on management of hydraulic fracturing wastewater at its March 7 meeting. The Committee learned that it would need to create regulations for disposal of four types of wastewater associated with hydraulic fracturing processes: produced water, acquired by the industry for use during fracturing operations; encountered water, underground water which comes up from fracturing wells after drilling and is often mixed with other fluids and mud; spills and releases; and fracking fluid.

State regulatory staff members are still researching this topic, but stated that they expected to begin bringing forth draft rule language for hydraulic fracturing wastewater management in the coming months.

Meanwhile, media reports from the past few weeks focused on possible wastewater disposal methods, including the controversial reality that the state's geology would force any underground injection disposal options to take place in coastal communities, far away from the fracturing sites in the state's central region:

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Regulatory Briefs

DWQ will accept applications for Section 319 grants, which fund wastewater and stormwater projects, until May 23...In a meeting with the National League of Cities and other local government organizations last month, EPA strongly hinted that it would not include stormwater retrofit requirements in its national post-construction rulemaking to be issued in June...DWQ launched a multi-year stakeholder effort regarding the state's wetlands program and included a League representative in the group...A state budget office report of 2013 anticipated environmental rules with a fiscal impact on local governments did not include the ongoing triennial review of surface water quality standards...DWQ Director Chuck Wakild told EMC members that the state's work-in-progress Nutrient Criteria Development Plan was unlikely to be finished in time for their May meeting...A California appeals court overturned a local ban on land application of biosolids, a position supported by League members as one of their top five regulatory goals...EPA decided to shelve proposed guidance on the Clean Water Act jurisdiction over waters and move straight to a rulemaking...Environmental groups that lost a petition for rulemaking to force changes to the state's groundwater quality rules that would apply to coal ash ponds (as well as potentially applying to municipal practices to land-apply biosolids) have taken their fight to Wake County Superior Court...U.S. senators again introduced a bill establishing a Water Infrastructure Finance and Innovation Authority (WIFIA) -- a federal funding program to funnel assistance for large-scale water, wastewater, and stormwater projects -- and caused states to worry about the continued viability of state revolving funds...Meanwhile, U.S. representatives, including N.C. Rep. Mike McIntyre, re-introduced a measure that would eliminate court-ordered double-permitting for pesticide applications...Researchers at the UNC School of Public Health published a research paper cataloging reports of adverse health effects attributed to land application of biosolids...The U.S. Government Accountability Office issued a survey to EPA and all states on how they implement the TMDL program, with a report to Congress expected late this summer...In debating the first review of the Central Coastal Plain Capacity Use Area program, the EMC and DWR staff debated whether the current rules accommodate requests by permittees for staff-level modifications to their water withdrawal permits, or whether EMC rulemaking was needed to explicitly give state staff that modification authority.
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