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Under the Federal Water Pollution Control Act (the Clean Water Act)
(http://www.epa.gov/lawsregs/laws/cwa.html) NC is delegated the authority to establish the water body classifications and applicable water quality standards to protect human health and the aquatic environment. Per this delegation, the state is expected to adopt water quality standards (WQS), which include numeric and narrative criteria and designated use classifications, as well as antidegradation provisions, to protect all uses of the waters of the state. Requirements to establish these standards is authorized to the Environmental Management Commission (EMC) by NC General Statutes (NC GS §143-214.1 and 215.3(a)). Water quality standards are used in various ways such as setting NC’s National Pollutant Discharge Elimination System (NPDES) permit limits and evaluating the conditions of the surface waters of the state per Clean Water Act Sections 303(d) and 305(b).
Every three years the State is required to review its surface water quality standards, classifications and applicable variances to determine if changes are needed and, if necessary, to make those changes. This review process is called the "Triennial Review." A Notice of Hearing for the Triennial Review was published in the November 1, 2013 edition of the North Carolina Register. On behalf of the EMC, the Division of Water Resources (DWR) held a public hearing on November 19, 2013 in Raleigh to seek comments on potential revisions to the water quality regulations in Title 15A NCAC 02B .0100-.0110, .0201-.0228, .0230-.0231 and .0300-.0317 located at 15A NCAC 02B Regulations. Mr. Steve Tedder, Chairman of the Water Quality Committee (WQC) of the EMC, was the EMC appointed Hearing Officer. Public comments were accepted through the close of the public comment period (January 3, 2014).
Comments from all parties were considered and reviewed by the Hearing Officer, and by DWR staff, for potential modifications to the 15A NCAC 02B regulations. Although submitted comments were varied in nature and extent, commenters, on the whole, voiced support of modifying and updating the water quality standards to maintain and protect North Carolina’s waters. After careful deliberation, Mr. Tedder presented recommendations to the EMC (March 13, 2014) for staff to evaluate as they draft proposed changes to the 15A NCAC 02B regulations. The full report of that public hearing and the Hearing Officer's recommendations can be located at http://portal.ncdenr.org/web/emc/march-13-2014)
Using the recommendations presented by the Hearing Officer, proposed revisions to the 15A NCAC 02B regulations were drafted by NC DWR staff and presented, along with the accompanying fiscal note, to the Water Quality Committee and the full Environmental Management Commission on May 7 and 8, 2014, respectively. A record of those proceedings is located at: http://portal.ncdenr.org/web/emc/may-7-2014-wqc and http://portal.ncdenr.org/web/emc/may-8-2014.
Following EMC approval of the rule package on May 8, 2014, in accordance with NC General Statutes, Chapter 143-214.1, 143-215.3(a) and 150B, a public notice, containing the proposed amendments and the fiscal note was published in the June 16, 2014 edition of the North Carolina Register. (NC REGISTER June 16 2014 ).
Following public notice, the first of two public hearings was conducted in Raleigh NC on July 15, 2014. Approximately 70 individuals attended the public hearing, with 23 requesting to comment. The second public hearing was conducted in Statesville, NC on July 16, 2014. Approximately 50 individuals attended the public hearing, with 12 requesting to make oral comments. Mr. Steve Tedder, Environmental Management Commission member and Chairman of the Water Quality Committee, served as the EMC appointed Hearing Officer for both public hearings. A digital audio recording of the oral comments received at the two hearings is provided: July 15, 2014 Triennial Review hearing part 1 & 2 and July 16, 2014 Triennial Review hearing part 1 & 2
Approximately 925 written comments were received. (They included ~900 e-mails and letters from private citizens; 13 from business and industries, local governments, representatives of local governments and agricultural interests; 9 from non-governmental organizations; 3 from federal government representatives and 3 letters addressing water quality variances specifically (two supported retention of existing variances and one requested review to be concluded as soon as possible). A link to all written comments is available here: Triennial Review Comments
SUMMARY OF PROPOSALS:
The proposed rule text, as published in the NC Register,is located in (NC REGISTER June 16 2014). The proposed changes to the rules comprise the State’s Triennial Review of Surface Water Quality Standards. The proposals would implement the following briefly summarized changes to the surface water quality standards for North Carolina:
1) New health information is available for 2,4 D ( a chlorophenoxy herbicide). When implemented, the standard will lower the applicable human health protective concentration.
2) Updated aquatic life protective concentrations for metals are proposed. The revisions reflect the latest scientific knowledge regarding the effects of the pollutants on aquatic organisms. With the exception of Mercury and Selenium, the state proposes changing from the historical use of Total Recoverable Metals to Dissolved Metal water quality standards.
3)North Carolina currently has chronic aquatic life water quality standards for total recoverable metals. Chronic standards offer protection from toxic effects resulting from long-term exposure to a chemical. With the exception of Mercury and Selenium, addition of standards protective of acute (or short term) exposure are proposed.
3) Where metals toxicity to freshwater aquatic life is hardness-dependent, equation-based criterion are proposed. Hardness-dependent metals standards shall be derived using equations with actual instream hardness. For NPDES permitting purposes, the instream applicable hardness values are defined using the median of instream hardness data collected within the local USGS and NRCS 8-digit hydrologic unit. With the exception of Mercury and Selenium, the proposals allow careful consideration of aquatic life biological integrity for water quality assessment purposes.
4) Variances from applicable standards, revisions to water quality standards, or site-specific water quality standards may be granted by the EMC on a case-by-case basis pursuant to NC GS 143-215.3(e), 143-214.3 or 143-214.1. For metals standards, the proposed language detailed that alternative site-specific standards can be developed when studies are designed in accordance with the "Water Quality Standards Handbook: Second Edition" published by the US EPA (EPA 823-B-94-005a). The mechanisms outlined in the US EPA publication are for the “Water Effect Ratio”, the “Recalculation Procedure”, and the “Resident Species Procedure”. The EMC specifically sought, and received, comment on the application of these provisions with respect to modifying the metals criteria.
5) The water quality standards for Iron and Manganese are proposed for removal from the regulations. Both chemicals are federally designated “non-priority pollutants”. The standard for Total Chromium is also proposed for removal, but is replaced by human health and aquatic life protective standards for Chromium III and Chromium VI.
6) Codify the use of 1Q10 stream flows for implementation of proposed acute water quality standards in NPDES permitting.
7) DWR sought comments on three existing variances from surface water quality standards and federal Clean Water Act Section 316(a) thermal variances.
The Fiscal Analysis of the proposed rule package was also made available for public comment. The analysis assumed the adoption of revised standards to have an estimated cost of $182M over 30 years, Net Present Value (NPV). Costs are likely overestimated due to the fact that the life span of a treatment facility is ~ 20 years, and it is probable that over ~30 years, facilities would need upgrades for replacement/improvement of the plants under normal working circumstances. Local government NPDES dischargers bear about 85% of the cost and the private sector close to 15%. Analysis indicates that approximately 96% of all NC dischargers will not be negatively impacted. The estimated benefit to the state is $110M over 30 years, NPV, and includes benefits associated with aquatic life maintenance, protection and survival and maintenance and improvements to recreational fishing opportunities. Additional unquantified benefits include improved water quality for other recreational activities, human health, and non-use benefits.
No substantive comments were received and OSBM approval of the finalized Fiscal Note was received on October 8, 2014. http://www.osbm.state.nc.us/files/pdf_files/DENR10082014.pdf
Administrative Procedures Act – EMC Actions
After a careful review of the oral and written comments received, the Hearing Officer will present his findings and recommendations at the November 13, 2014 Environmental Management Commission meeting held in the Ground Floor Hearing Room of the Archdale Building, 512 N. Salisbury Street, Raleigh, NC. To receive emails concerning when EMC meetings will occur, send a blank email to: DENR.DWQ.EMCContactsfirstname.lastname@example.org.
A link to the EMC website is as follows: http://portal.ncdenr.org/web/emc