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.