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NCLM News & Political Report

For the League, the new year has started with a whirlwind of activity, beginning right at home on the Government Affairs Team. Most importantly, we welcomed Whitney Christensen as our new Government Affairs Associate. Whitney previously served as staff attorney and government affairs manager for the N.C. Restaurant and Lodging Association. She covers general government issues for the League membership and serves as the League liaison to the American Public Works Association--NC chapter. And soon, we look forward to having our new Regulatory Affairs Associate join the staff to bolster our regulatory advocacy program, as well as a new Director of Governmental Affairs to fill the shoes of current Director Paul Meyer, who will become the League Executive Director next month.

The additional staff for our team does not come a moment too soon. Interim legislative committees and study groups studying environment issues have stacked meetings on top of each other this month -- check out the schedule for the next few weeks below. The League will testify before several of these committees, including one today studying the statutory models for water and sewer services and one tomorrow studying the circumstances under which cities and counties pass environmental ordinances. Other environmental study topics these committees will explore in the coming weeks that are of importance to the League members include study committees on stormwater, the Jordan Lake Rules, and wetlands and stream mitigation. Legislation from last session required studies of all these topics -- read more detail on these studies in this article and this one from the November 2013 edition of EcoLINC.

In addition, state regulatory bodies continue moving forward in response to legislative mandates from the past few years:

Stay tuned to next month's EcoLINC for a comprehensive report on all decisions of importance to cities and towns that were made in these upcoming meetings.

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League Leads City Input on Surface Water Quality Standards

The League led the local government response to regulators' recent call for feedback on the state's current water quality standards. In comments provided as part of a public comment period ending January 3, the League sought changes to the way state regulators implement those standards in wastewater discharge permits.

The comments came as part of the state's long-running "triennial review," a process mandated by the federal Clean Water Act (CWA) that directs states to review their surface water quality standards every three years. A highly technical scientific process, the review accounts for updated toxicological studies and other research regarding aquatic health in surface waters. In this most recent review, North Carolina proposed changes to certain metals standards such as cadmium, chromium, nickel, silver, and zinc, as well as other measured parameters such as chlorophyll-a.

The League membership selected the triennial review as one of its top regulatory goals because of the impacts the standards have on wastewater treatment costs as well as on the growth of business and industry in communities. Municipalities holding National Pollutant Discharge Elimination System (NPDES) wastewater discharge permits must adhere to surface water quality standards. A complex mathematical exercise translates the standards into permit limits, taking into account the metals and other substances a wastewater system receives from homes and industries that discharge into its collection system. The assumptions made in those calculations determine whether or not a wastewater system (1) must make upgrades, or (2) can accept more wastewater connections from industries and other customers such as residences and businesses.

Municipal Comments

To support the N.C. Environmental Management Commission (EMC) in its efforts to update these standards without limiting growth or harming the environment, the League's comments focused on:

  • Reiterating the many successful, comprehensive water quality programs currently in place to control discharges of metals and other pollutants from wastewater facilities
  • Providing support for maintaining certain approaches
  • Making suggestions to update other implementation measures used by DWR when writing permits
  • Urging that changes to standards, particularly chlorophyll-a, incorporated rigorous scientific study

In addition to comments from agriculture, energy, septic tank, and environmental interests, other municipalities contributed specific comments during this public comment period as well, including:

  • Buncombe MSD
  • Charlotte
  • Durham
  • Eden
  • Graham
  • Greensboro
  • Hendersonville
  • Lincolnton
  • Mebane
  • Reidsville
  • Rocky Mount
  • Wilkesboro
  • Wilson
  • Winston-Salem

The comments submitted by the League and its member cities partially responded to statements made by environmental advocates at a public hearing in November. Nearly all of the commenters at that hearing represented non-governmental environmental interests. Generally, these commenters described updates to the state's water quality standards as long-overdue, and they cited the state for failing to take quick action to lower many of the standards.

Updating Standards = Rulemaking

The EMC must pass any changes to the state's water quality standards into the administrative code through rulemaking. In support of this effort, the N.C. Division of Water Resources (DWR) pledged to form a small stakeholder group to inform development of the standards. The League will have representation on this stakeholder group, which will likely begin meeting in the next few months.

The timeline for the stakeholder discussion and a new proposal for the state's standards must take into account the expectations of the U.S. Environmental Protection Agency (EPA). According to DWR Director Tom Reeder, EPA grew frustrated with the continued delays of North Carolina's triennial review, which was originally proposed in 2009. In response, Reeder said, the EMC would aim to pass new standards by the middle of next year. EPA's pressure caused this timeline to change from DWR's original plan to incorporate updates to the water quality standards through the legislatively-mandated "review of rules" process.

EPA's influence over the triennial review process cannot be taken lightly. Under the CWA, if a state fails to uphold its triennial review responsibilities, EPA could impose water quality standards for that particular state. Reeder indicated that EPA supported the state's current efforts to update its standards through the recent public comment period and upcoming rulemaking.

The League has been deeply involved in this state effort since it began in 2009 and will continue to advocate for changed implementation policies throughout the triennial review rulemaking process. Read more about past League member efforts in "Triennial Review Action to Pick Up in New Year" (November 2012 EcoLINC).

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Vote Brings Clarity for Regulation of Gravel Surfaces

The N.C. Environmental Management Commission (EMC), the state's top environmental rulemaking body, approved a temporary rule last week that would add a definition of "gravel" to state rules and address concerns over excess stormwater runoff from non-paved surfaces. It also addressed objections held by Governor Pat McCrory, who last summer considered vetoing the omnibus regulatory reform bill that sparked this rulemaking due to his concerns about the effects of this specific provision, according to EMC Chair Benne Hutson.

This new rule clarified a provision in HB 74 Regulatory Reform Act of 2013, which excluded gravel from the definition of "built-upon area." This legislative redefinition used the term "gravel" in layman's terms. In common usage, "gravel" includes a wide range of materials that are actually considered by the aggregates industry to be crushed rock or stone, not gravel. Therefore, the legislative redefinition ignored scientific reality of how surfaces covered in crushed stone and rock easily become compacted with foot and vehicle travel. Once compacted, these surfaces do not allow infiltration of water, thereby increasing runoff into the state's waters. Practically, then, most crushed stone and rock surfaces function the same as "built-upon areas" that have buildings and other impervious structures on them.

League members, who are held accountable for water quality impacts of runoff coming from impervious surfaces, supported the EMC's temporary rule. The new rule distinguished between the types of stone and rock materials that become impervious with use -- such as those materials used in parking lots, driveways, and roads -- and the types of gravel material that do not become impervious over time, such as those materials used for landscaping, cell tower, and solar farm uses. The rule relied on the industry definitions of these various materials, as published by the American National Standards Institute (ASTM).

The specific definition of gravel approved by the EMC, as stated in the motion for approval, was, "'Gravel' means a clean or washed, loose aggregation of small, rounded, water-worn or pounded stones ranging in size from .08” to 3.0” in size. Gravel is not crushed stone or rock." This definition differed from the original rule proposal, which otherwise received the EMC's approval without changes. After a lengthy explanation of the aggregates industry's definitions of these various materials colloquially known as "gravel," the EMC made changes to the original proposal to allay concerns raised by individual commissioners that the original proposal contained a gravel size that was too small to accomplish the intent of the rule.

Rule Ensures Environmental Compliance, Benefits Redevelopment

Practically, the new rule allowed state and local stormwater program managers to continue requiring stormwater controls for new impervious areas -- such as parking lots, driveways, and roads -- that were covered with crushed stone or rock. Therefore, it ensured that developers incorporated adequate stormwater controls into site designs. Without the new rule, a stormwater control device may not have been designed to handle the actual amount of stormwater runoff from those surfaces, increasing the stormwater pollutant load into streams. Under their stormwater discharge permits, most cities are responsible for this increased pollutant load. Therefore, prior to the EMC's action, cities and taxpayers faced increased liability for potential permit violations.

The new rule also allowed these same program managers to continue the practice of including impervious crushed stone- and rock-covered surfaces as built-upon areas for redevelopment sites. Without the rule to clarify last session's legislation, the costs of redevelopment would have increased because regulators would not have been able to grandfather these surfaces, as was standard practice. Now, developers will not lose the benefit of counting these surfaces as built-upon area, a benefit which allows them to reduce the amount of stormwater controls needed on the redeveloped parcel.

Finally, because it applied to local governments as well as the state, the EMC temporary rule vote gave direction to local governments as to how to consider gravel versus crushed stone or rock surfaces when calculating built-upon area, thereby ensuring more regulatory consistency across the state.

Legislature Remains Interested

During discussion of the temporary rule, Hutson predicted that legislators remained interested in modifying state statutes further in the upcoming legislative Short Session that begins May 14. Already, a study group of the legislative Environmental Review Commission (ERC) began its examination of the issue, in meetings last month and today.

In last month's meeting, study leader Rep. Ruth Samuelson explained that last session, legislators wanted to address a concern they had heard from coastal developers regarding irregular treatment by regulators of gravel and crushed stone or rock areas. Rep. Samuelson also indicated that legislators had an interest in ensuring that built-upon areas with partial permeability received appropriate credit for their ability to allow infiltration of water.

Several League members testified before this study committee in December. They explained how the law passed last session, without further clarification, removed the existing benefits given to developers when they redeveloped sites. They also reminded lawmakers that their federal stormwater discharge permits required them to effectively control for stormwater runoff from sites, despite the legislative redefinition. And they demonstrated how runoff volume from these surfaces varied depending on factors such as the underlying soil type and the grade of the slope upon which they were placed.

Finally, the municipal representatives joined other local government and industry presenters at the meeting in pointing out that any directive to account for partial permeability of these surfaces would necessitate further technical studies and eventual incorporation into guidelines such as the state's stormwater BMP Manual.

Following the study group meeting, Samuelson, other ERC members, legislative staff, and staff from the N.C. Department of Environment and Natural Resources toured several quarries to gain a hands-on understanding of how the aggregates industry treated these various materials.

Temporary Rule Expires in 270 Days

While the legislature continues its examination of this issue, the EMC's temporary rule would become effective -- perhaps as early as March -- after completing the remaining administrative procedures for temporary rules, including a brief public comment period. Under state law, once in effect, any temporary rule expires after 270 days.

The EMC discussion of the temporary rule last week acknowledged the likelihood of the Commission considering a permanent rule to further refine how the state's regulations treat surfaces covered with gravel or crushed stone or rock. What that permanent rule might contain depended on any action taken by the legislature next session, said Hutson.

Further, other commissioners pointed out that a more thorough rule likely was needed to consider directing standards for the substrate underneath these materials, among other design guidelines to help design professionals meet regulators' expectations. As discussed in the December legislative study committee as well, these standards and guidelines would likely be incorporated into the BMP Manual.

Read background about the this rulemaking in "Regulators to Settle Gravel Issue with Temporary Rulemaking" (November 2013 EcoLINC).

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Cities Detail Review of Engineering Plans Processes in Report

The League, along with other state agencies and local government groups, submitted a report and recommendations last week in response to a legislative study on the role professional engineers play in state and local review of engineering plans. A provision in last session's regulatory reform bill required the report, which will serve as a starting point for an interim legislative study on how state agencies and local governments consider the engineering plans that come to them for approval.

The broadly-written study provision applied to many different types of municipal plan reviews, including those of stormwater, sedimentation/erosion control, water/wastewater system, and transportation designs. During the legislative debate last session, the League, state agencies, and other local government groups expressed concerns about additional restrictions on their ability to review these plans, especially if the restrictions slowed down the review and permitting process.

Report Recommendations

In addition to detailing the processes local governments generally followed when conducting these technical reviews, cities in the report recommended procedures to increase transparency and streamline plan review. The local government suggestions included:

  • Implement an electronic application and plan review process to increase transparency
  • Establish staff performance goals so reviews are completed within a reasonable amount of time
  • Define what comments "constitute the practice of engineering" so that non-professional engineers can avoid making these comments when reviewing plans

The N.C. Department of Environment and Natural Resources (DENR) led the study, forming a workgroup last fall that included representatives of the League, the N.C. Association of County Commissioners, the N.C. Department of Transportation, and the N.C. Department of Health and Human Services. Coming out of this workgroup discussion, the agencies recommended improvements to their technical review processes, including bolstering opportunities for design professionals to meet with agency plan reviewers throughout the plan approval process. The agencies also recommended increased internal communication between agency plan reviewers themselves to ensure consistency in plan review and identify opportunities to improve the process. Cities and towns with multiple plan reviewers on staff already engage in many of these best practices.

Legislative Study is Next

After hearing a presentation on the report's contents to the legislative Environmental Review Commission tomorrow, a small group of legislators on that committee will further study the issue and possibly propose legislation for consideration in the upcoming Short Session, which begins May 14. No meeting date for this legislative study group has been announced, although the League anticipates a first meeting to occur later this month.

The primary legislative champions of this subject last session were two freshmen consulting civil engineers from the coast, Rep. Rick Catlin (New Hanover County) and Rep. Chris Millis (Pender County). Both responded to the concerns raised by the state agencies and local governments during the legislative debate and agreed to study the topic during the interim. Rep. Millis will lead the legislative study along with Sen. Stan Bingham.

Prior to becoming a study provision, initial drafts of last session's legislation would have shifted liability for the performance of structures from the designing engineer to a professional engineer working on behalf of a state agency or local government, if that plan review engineer suggested changes to the design that constituted the practice of engineering. The early drafts shifted legal responsibility to the plan reviewer by requiring that reviewer to seal the design. If it had been implemented into state law, that provision would have significantly limited the discretion of plan reviewers and would have likely slowed development approvals.

In lieu of that initial legislative proposal, the study language required the DENR-led working group to examine:

  • The role professional engineers play in the review of applications and plans for environmental permits
  • Mechanisms in place to ensure non-professional engineers were not engaged in the practice of engineering
  • Whether applications and plans were being reviewed to satisfy the requirements of the applicable statute, rule, standard, or criterion, or whether reviews exceed those requirements
  • Opportunities to eliminate unnecessary revisions and streamline and improve the review process

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Regulators Preview Changes to State Nutrient Plan

North Carolina would see a new approach to nutrient management under its revised Nutrient Criteria Implementation Plan (NCDP), according to lead plan writer Dianne Reid. In previewing expected changes to the NCDP last week, Reid, Chief of the Division of Water Resources' (DWR) Environmental Sciences Section, told the state's top environmental regulatory panel that DWR incorporated feedback stakeholders offered last year into a revised plan. The League suggested many of the changes Reid said would appear in the revised plan, expected to be released for a short public comment period next week.

DWR began developing the plan in late 2012. Following rejection of the first draft by the U.S. Environmental Protection Agency (EPA) last summer, state regulators sought further stakeholder input. In response, the League submitted a letter reiterating its earlier comments. The topic of nutrient impairment is a top EPA priority as well as a top League regulatory priority, and EPA imposed a February deadline on DWR to submit a final plan.

Site-Specific Considerations Top List of Plan Revisions

In briefing the N.C. Environmental Management Commission (EMC) last week, Reid told commissioners to expect the revised plan to reflect site-specific prioritization of water bodies for which DWR would develop nutrient management strategies. The League pressed for site-specific consideration of water bodies in its comments, and Reid stated that under the plan, DWR would first address High Rock Lake. She said the Division selected High Rock Lake as the first water body to receive attention under the plan because DWR already completed a watershed model and lake model for the lake.

This lake lies downstream of over six dozen local governments in the Yadkin-Pee Dee river basin. If the strategy contained elements similar to previous N.C. nutrient strategies -- such as wastewater discharge limits and drastically increased stormwater measures -- development patterns over a wide swath of central North Carolina would change dramatically. However, this strategy could potentially contain different types of provisions, pending the outcome of a technology test and legislative study of the Jordan Lake nutrient strategy (read related coverage in this WRAL article and this News & Observer report). According to leading state water quality regulators, any changes resulting from this reexamination of an existing nutrient management strategy would transfer to future strategies developed by the EMC.

Reid then said that the state next planned to pursue a nutrient strategy for the Albemarle Sound, in partnership with the Albemarle-Pamlico National Estuary Program. Then, she said, the NCDP would list the middle Cape Fear River as its third priority.

In addition to including site-specific development of nutrient strategies in the NCDP, Reid told EMC members to expect the plan to reflect an emphasis on stakeholder involvement throughout every aspect of the plan's action items, faster timelines for taking more targeted actions, cost-benefit analyses for each strategy, and discussion of implementation measures throughout the process. Stakeholder groups such as the League had particularly pressed DWR to include consideration of implementation in this process because the means by which any nutrient standards were implemented were the cost drivers for regulated entities like cities and towns. Advance knowledge of these cost drivers would ensure better financial planning by affected cities and towns as they considered measures to achieve regulatory compliance with the resulting strategies.

Finally, Reid committed to continually update the EMC on the state's progress once it began to tackle the items in the plan, expected after EPA approval of the plan later this spring. These updates would be important because the EMC must ultimately promulgate any rules to write nutrient strategy elements into the state's water quality standards and any other related rulemakings to implement those plans.

Nutrient Plan Background

North Carolina is a state without numeric nutrient criteria, though the state has regulated the nutrient content in waters for decades using other measures such as chlorophyll-a, a parameter that can indicate biological impairment of aquatic life in the waters. In the earlier drafts of the NCDP, North Carolina proposed to continue basing certain nutrient management strategies on chlorophyll-a, though it also committed to developing "numeric nutrient criteria," or numerical standards for nitrogen and phosphorus. In North Carolina and across the country, pollution from these two nutrients presents the most urgent yet difficult water quality issue to address.

Last month, DWR Director Tom Reeder told a local government group that the revised plan would not specifically commit to developing nitrogen and phosphorus standards for the state. Instead, he said, the state would commit to considering numeric nutrient criteria as it developed its site-specific nutrient plans.

The NCDP is required as part of an agreement between the N.C. Division of Water Resources (DWR) and EPA that outlines a work plan for regulators to use in addressing nutrient impairments across the state. Similar work plans, negotiated for all states receiving EPA funding, contain a description of an agency's tasks, timelines, and milestones for development of numeric nutrient criteria.

Past N.C. regulations to control nutrients include the Jordan Lake Rules, Falls Lake Rules, Neuse Rules, Tar-Pamlico Rules, and Randleman Rules.

The League participated in all previous NCDP efforts and reported extensively on them in previous EcoLINC articles:

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Surface Water, Wetlands Rules Begin Regulatory Review

Kicking off the state's "review of rules" process, members of the N.C. Environmental Management Commission's (EMC) Water Quality Committee voted Wednesday to assign categories to all 375 of the state's surface water and wetlands rules. The vote was the first of several required as part of a legislative mandate to review -- and potentially readopt -- each rule in the state administrative code every ten years. EMC Chair Benne Hutson had previously referred to the review process as "the biggest regulatory review in the history of North Carolina" and one that would afford the EMC the opportunity to rewrite rules with the aim of common-sense environmental regulation. 

Rule Categories

In the vote, Committee members voted to categorize all of these rules as "necessary with substantive public interest." In addition, the Committee voted to assign most of these rules a supplemental classification of "required by federal law." Only the isolated wetlands and closed-loop recycling portions of the rules were deemed by the Committee to not be required by federal law. If given a federal law supplemental classification, as the Committee did for most of these rules, a rule would not expire. For cities and towns subject to and protected by many state regulations required by the federal Clean Water Act, having rules classified with a "federal law" designation could become important to ensure the protections offered by those rules -- such as shields from citizen lawsuits -- remained in place.

For this review of rules, the categories into which these rules are placed ultimately determines the extent of the regulatory review of those rules. For example, the "necessary with substantive public interest" category assigned to these surface water and wetlands rules means that the EMC must readopt each of those rules, a substantial undertaking. Readoption of a rule potentially opens the rule up for amendments or deletion altogether. Other possible categorizations dictated by the legislature would not create that investment of time and effort. The other two possibilities include "unnecessary," which causes a rule to expire, or "necessary without substantive public interest," which allows a rule to remain in effect unchanged. 

The rules included in the EMC Water Quality Committee's recommendation last week covered many regulations affecting cities and towns, such as the rules governing wastewater and stormwater discharges, buffers, reclaimed water, land application of biosolids, and various nutrient management strategies. All of these rules were contained in the "2B," "2H," "2T," and "2U" subchapters of the state's environmental management rules. The EMC anticipated that rules affecting water supply (subchapter "18C"), and water treatment facility operators (subchapter "18D") would follow next, likely later in 2014.

Next Steps for Review

Following the Water Quality Committee decision on the rule categories last week, several other entities must vote to concur with that decision before the EMC can consider changes to the rule language itself. As dictated by the process set up by the legislature in HB 74 Regulatory Reform Act of 2013, the EMC anticipated that the timeline for the remaining decisions was:

  • March: EMC votes to send report on this first set of rules to a 60-day public comment period
  • May: deadline for public comment on whether a rule was placed into the correct category; the N.C. Division of Water Resources (DWR) compiles and responds to comments, relays that response to EMC for its consideration; possible EMC approval of report
  • Summer: likely deadline for report to the Rules Review Commission (RRC); RRC reviews and approves report, possibly with changes; legislative oversight panel decides whether to weigh in on categorizations
  • Late 2014-on: EMC initiates readoption of any surface water quality or wetlands rules categorized as "necessary with substantive public interest."

In the past few months, DWR Director Tom Reeder pledged to support the EMC's review of rules effort by leading a substantial stakeholder process to gather feedback on desired changes to the many rules up for readoption. Last month, he told stakeholders (including the League) to expect an intense six-month process that would begin after the categorizations were finalized later this year. Following that period of intense input, he said DWR would continue to solicit stakeholder input throughout the remainder of the readoption process. For the first set of rules, he anticipated the full readoption process to take until at least 2017 to be completed.

The League developed a simple flowchart to explain this process; the RRC developed another. For full background on the review of rules process, read our synopsis in the November edition of EcoLINC, "EMC Readies 'biggest regulatory review in the history of N.C.'"

Many details about the process remain outstanding, and most regulators anticipate further changes to the process in the upcoming legislative Short Session, which begins May 14. The League will provide input to legislators and state regulators on this evolving process.

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Regulatory Briefs

Hired by the Nutrient Scientific Advisory Board, a contractor completed the initial Jordan Lake Jurisdictional Allocations model and will accept comments on this tool, designed to assign nutrient loads to specific sources in the Jordan Lake watershed...To complement the Jordan Lake Rules strategy, at the direction of the legislature, DWR will test SolarBee in-lake treatment technology for two summers, beginning March 1...EPA finalized its TMDL program vision document last month, thereby allowing states to prioritize waters for clean-up plans as opposed to mandating completion of as many plans as possible...In response to two lawsuits filed against it by the Department of Defense, EPA has agreed to enter settlement talks and avert a possible negative ruling regarding its attempts to require retention standards in stormwater permits for two DoD bases...Assuming it gains approval from FERC, DWR plans to begin hydrologic basin models for the Yadkin-Pee Dee and Lumber river basins while completing models for the Tar, Roanoke, Cape Fear/Neuse, and Catawba basins this year...EPA officials stated that the agency would likely hold a second comment period for its pending NPDES electronic reporting rule due to significant changes the agency anticipated making after receiving a first round of comments...Charlotte joined the rest of the state last month and came into compliance with the 1997 federal ozone standard, while DENR reported that last year, North Carolina saw its lowest ozone levels since monitoring began in the 1970s...DENR announced that Bill Crowell would lead both the Clean Water Management Trust Fund and the Albemarle-Pamlico National Estuary Project...In response to an EPA climate model predicting increased phosphorus loads to Lake Champlain, Vermont regulators revised the lake's TMDL to anticipate these effects of climate change and require more stringent reductions, particularly from non-point sources...Despite this action, an environmental group filed suit against EPA seeking to force the agency to consider climate change in TMDLs the agency is writing for Cape Cod, MA...In contrast to its stance on incorporating climate change data into the Vermont TMDL, EPA pushed back against a lawsuit filed by environmental interests and some local government officials in Miami-Dade County, arguing that it did not have to take climate change into effect in a wastewater consent decree with the local government...On the other hand, as part of EPA's draft climate adaptation implementation plan released in November, the federal agency encouraged states to consider climate change when assigning loads in TMDLs...A federal judge dismissed on procedural grounds a lawsuit filed by environmental groups challenging the water quality trading program for the Chesapeake Bay.
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