July 18, 2013: As things now stand, Senate Bill 515 (Jordan Lake Water Quality Act) will either repeal the state’s water quality rules for Jordan Lake (Senate version) or delay implementation of the rules for another three years to investigate technologies that may reduce water quality problems caused by nutrient pollution (House version). With the bill still under consideration, some background on how issues of nutrient pollution are playing out nationally and where N.C. stands.
The Clean Water Act requires the state to reduce pollutants that cause water quality violations in a lake or stream by adopting a Total Maximum Daily Load (TMDL) for the pollutants causing the problem. In September of 2007, EPA approved the state’s Jordan Lake nutrient strategy as the TMDL for the lake. The nutrient strategy identifies the amount of nitrogen and phosphorus that can be absorbed by the lake without violating water quality standards and then allocates nitrogen and phosphorus reductions among all of the major sources contributing nutrients to the lake to reach the target level. Sources include wastewater treatment plants, large industrial facilities that discharge wastewater, stormwater from developed areas, and agricultural activities. The part of the Jordan Lake strategy setting the maximum level of nitrogen and phosphorus consistent with meeting water quality standards represents the heart of the TMDL required under the federal Clean Water Act. An earlier post links to a July 10, 2013 letter from EPA’s Acting Administrator for Region 4, Stan Meiburg, saying that EPA does not believe that either delay or repeal of the Jordan Lake rules relieves the state of the obligation to achieve the pollution reductions called for in the approved TMDL.
If a state fails to act on a TMDL, EPA has the ability to impose a federal TMDL. The Jordan Lake rules share the burden of reducing nutrient loading to the lake more broadly than EPA could do under a federal TMDL, which would have to be focused on federally permitted wastewater discharges. The result would be an increased burden on local governments and industries that discharge wastewater because the pollution reductions would no longer be shared by stormwater and agricultural sources that do not require federal permits. EPA also accepted the state’s timeline for implementing pollution reduction measures for Jordan Lake. The original Jordan Lake rules allowed between four years and nearly ten years for implementation of different parts of the nutrient reduction strategy; those timelines have already been extended several years by earlier legislation. A federal TMDL would likely have a shorter implementation time.
Apart from the Jordan Lake TMDL, North Carolina finds itself on the wrong side of EPA’s national policy on permitting nutrient discharges to all lakes and streams. EPA’s longstanding position has been that states need numerical in-stream or in-lake standards for nutrients. That would involve setting a nitrogen and phosphorus standard for each water body in the state and using those standards to set permit limits for wastewater discharges. The N.C. Division of Water Quality (DWQ) has resisted the push for numerical nitrogen and phosphorus standards. N.C.’s water quality program has supported use of the existing chlorophyll-a standard as a better indicator of nutrient impairment and one less likely to put an unnecessary burden on wastewater treatment plants and industrial dischargers.
So while a number of states have adopted numerical nutrient standards, North Carolina has not. (Note: DWQ and the Environmental Management Commission are due to report to EPA soon on the state’s progress on nutrient standards.) EPA has not yet forced the issue here, but EPA has directly intervened in several other states to either press for state adoption of nutrient standards or to actually impose federal nutrient standards. In Florida, EPA adopted federal nutrient rules for some Florida waters in 2010 and proposed additional rules in 2012. A November 2012 EPA document provides a history of EPA actions on nutrient standards in Florida. (Florida has since adopted state nutrient standards that EPA has approved.) EPA has also pushed several midwestern states to adopt numerical nutrient standards. Just last month, EPA ordered the state of Minnesota to tighten nutrient limits on wastewater discharge permits or risk having EPA take over the water quality permitting program. See an article in Governing magazine for an overview of the EPA action in Minnesota.
In deciding how to ease the financial and regulatory burden of the Jordan Lake rules, the state needs to be mindful of Clean Water Act requirements and EPA’s possible response. So far, EPA has allowed North Carolina a great deal of flexibility to address nutrient pollution and has not pressed the issue of numerical nutrient standards. It is likely that EPA has given some deference to the state’s good faith efforts to develop solutions – like the Jordan Lake nutrient strategy — tailored to the state’s needs. But nationally, EPA has also shown a willingness to intervene directly to enforce the Clean Water Act in the face of state inaction on nutrient problems.
There are ways to ease the burden of nutrient reduction on upstream communities without completely walking away from the need to reduce nutrient pollution. One idea (which actually came up in development of the Falls Lake and Jordan Lake rules) is creation of a cost-sharing plan so downstream communities that benefit from upstream pollution controls would help offset the cost. There may also be modifications to the Jordan Lake rules that could ease the burden on upstream local governments without abandoning the goal of reducing nutrient pollution. Putting state energy into improving the Jordan Lake rules and exploring innovative financing of pollution controls would be consistent with the Clean Water Act and less likely to provoke direct EPA action. If N.C. completely steps back from the commitment to reduce nutrient loading to Jordan Lake, the state may lose the ability to create a solution that meets the state’s interests.