August 7, 2013. An earlier post talked about reported plans for reorganization of water programs in the Department of Environment and Natural Resources and legislation directing DENR to combine the Division of Water Resources and the Division of Water Quality. Since then, DENR’s plans have become public and the General Assembly adopted budget provisions related to the reorganization. On August 1, 2013, Secretary John Skvarla announced that all of the stormwater programs in the Division of Water Quality would move to the Division of Mineral, Energy and Land Resources effective that same day and the remaining water quality programs would become part of a reorganized Division of Water Resources. You can find the press release here.
Stormwater. Transfer of the stormwater programs significantly changes the responsibilities of the Division of Mineral, Energy and Land Resources. The Division of Water Quality managed a number of different state and federal stormwater programs, including: a state coastal stormwater program designed to protect shellfish waters from bacterial contamination; stormwater control requirements associated with the Neuse River, Tar-Pamlico River, Falls Lake and Jordan Lake nutrient strategies; federal stormwater programs (delegated to the state by EPA) that issue permits for municipal and industrial stormwater discharges and for stormwater generated by active construction sites. The Division of Energy, Mineral and Land Resources (DEMLR) has no stormwater experience other than a supporting role in construction stormwater permitting (through the DEMLR sedimentation program) and no experience managing federal Clean Water Act programs. Taking on a much broader range of stormwater programs and responsibility for delegated federal programs could make for a steep learning curve.
Transfer of the stormwater programs to DEMLR separates NPDES stormwater permitting from NPDES permitting for wastewater discharges. (National Pollutant Discharge Elimination System — or “NPDES”– permits are the federal Clean Water Act permits required for discharge of pollutants to surface waters.) The move also separates programs that work together to reduce pollution loading to water bodies — like Falls Lake and the Neuse River estuary — that have become impaired by pollutants coming from both point sources and nonpoint sources.
One footnote on the stormwater move — legislation that directs DENR to combine programs in the Division of Water Quality and the Division of Water Resources assumes that stormwater programs will remain in the reorganized Division of Water Resources. The section of House Bill 74 (Regulatory Reform Act) that directs DENR to reorganize the water programs also makes changes in a number of water quality laws to reflect the reorganization and substitutes “Division of Water Resources” for “Division of Water Quality” in state stormwater laws. I am guessing that reflects a lapse in communication rather than a conflict between DENR and the General Assembly – but in the short term, several state laws seem to identify the Division of Water Resources as the stormwater permitting agency.
Other Water Quality Programs. Remaining Division of Water Quality (DWQ) programs will move into the reorganized Division of Water Resources (DWR) under director Tom Reeder. The state budget attached a $2 million budget reduction to the water program reorganization. Using the reorganization to cut programs and people has risks. After four years of budget cuts, it will be difficult to reduce the combined water programs by another 12.4% without hurting critical functions. In reality, there has been little overlap in the activities of the two divisions; DWQ had responsibility for water pollution programs and DWR focused on water supply — quantity rather than quality. It is not clear that the additional budget reduction will leave the state with effective water quality and water supply programs. DENR will also need to be sure program cuts don’t threaten its ability to meet federal requirements for delegated permitting authority under the Clean Water Act and Safe Drinking Water Act. Those requirements go beyond simply having people to issue permits. In addition to meeting regulatory and planning standards set in federal law, the federal grant agreements link to specific performance measures for state permitting and compliance activities. The earlier post on reorganization proposals talked about some of the program requirements linked to delegation of Clean Water Act permitting.
A July video message from Division of Water Resources director, Tom Reeder, to staff in the Water Resources and Water Quality divisions provides some insight into next steps for the water programs. New information about the reorganization was limited, although Reeder said the new organization of around 700 employees would have fewer managers (and no deputy director). After briefly talking about the reorganization, Reeder described plans for a review of water programs and rules that will begin right away and be completed by the end of December. The purpose of the review goes beyond identifying duplication of programs in the newly combined divisions. Reeder describes it as an effort to eliminate rules and programs that are overly burdensome or ineffective.
In the video, Reeder specifically mentions riparian buffer rules as a program area needing review. It isn’t clear whether that means minor adjustments or wholesale revision of the buffer rules, but the buffer rules are a good example of one potential pitfall in the review process — some rules are part of larger water quality strategies and the burdens and benefits need to be looked at in that context. Buffer rules put an additional burden on real estate developers and property owners, but using buffers as part of a broader nutrient reduction strategy can lower the cost to other nutrient sources (including municipal wastewater treatment plants and agricultural operations). Continuing to balance the burden among point and nonpoint sources will be particularly important where buffer rules rules account for some of the load reduction required to meet an EPA-approved Total Maximum Daily Load for impaired waters.
The Division of Water Resources has formed an outside involvement committee to help with the review of water programs and rules. You can find the Reeder video on YouTube. Discussion of the reorganization and review of water rules begins around the 7-minute mark.