Tag Archives: Water Supply

The Legislative Response to GenX

September 10, 2017. At the end of its most recent one-week session, the N.C. General Assembly added GenX  provisions to an existing bill,  House Bill 56  (Amend Environmental Laws),  and passed the bill with little discussion.  Section 20 of H 56:

  1. Amends the state budget to give $185,000 to Cape Fear Public Utility Authority (CFPUA) — $100,000 to study water treatment methods to remove GenX from the water supply and $85,000 for ongoing monitoring of water withdrawn from the Cape Fear River.
  2. Allocates $250,000 to UNC-Wilmington to “identify and quantify GenX and measure the concentration of the chemicals in the sediments of the Cape Fear River, the extent to which the chemical biodegrades over time or bioaccumulates within local ecosystems, and what risk the contaminant poses to human health”. The provision requires a final report from these studies by April 1, 2018.
  3. Directs UNC-Chapel Hill to develop a proposal to (i) identify and acquire digital environmental monitoring and natural resource data and digitize analog data;  (ii)  create an online, searchable public database of  water quality permits, permit applications, and supporting documents; and (iii)  create a system for electronic filing of permit applications. The provision also directs UNC-CH to study the feasibility of housing the database at UNC rather than with the permitting agencies in the Department of Environmental Quality (DEQ).
  4. Requires DEQ to report back to the legislature if the department has not issued a Notice of Violation to any person or company for discharge of GenX into the Cape Fear River by
    September 8.

The bill does not allocate any additional funding to either DEQ or the Department of Health and Human Services (DHHS). Governor Cooper had requested $2.5 million for the two departments to provide more resources for water quality monitoring; inspection of permitted facilities; permitting (and particularly elimination of the backlog in permit renewals); and development of health advisories for unregulated contaminants. Instead, DEQ  faces a $1.8 million budget reduction for 2017-2018, continuing a trend of repeated cuts to the department’s budget over the last 10 years. (See an earlier blogpost for the effect of those budget reductions.)

How will House Bill 56 affect efforts to address GenX?  The bill supports efforts by Cape Fear Public Utility Authority to identify treatment systems capable of removing GenX  from the water; increase water quality monitoring; and learn more about the impact of  GenX. Much of the funding would offset the cost of efforts already underway by CFPUA.

Cape Fear Public Utility Authority had begun pilot testing use of granular activated carbon and ion exchange systems to remove  GenX from the water several weeks before. The $100,000 appropriation to study water treatment alternatives could reimburse CFPUA for past and future expenses incurred in the pilot testing. The funding would not be sufficient to actually upgrade water treatment in the water systems affected by  GenX contamination. 

Cape Fear Public Utility Authority had also entered into a one-year  contract  with UNC-Wilmington for just under $65,000  to analyze raw water and treated water samples  for additional perflourinated compounds  and to advise the utility on water treatment. House Bill 56 does not specifically describe the intent of the $85,000 appropriation for water supply monitoring, but the funds could cover the existing CFPUA/UNC-W contract. (The water quality monitoring would supplement, but not replace,  monitoring done by the Department of Environmental Quality.)

The $250,000 in funding directed to UNC-Wilmington to study GenX  would support new research and could generate important information about persistence of GenX in the environment and public health risk. The 6-month timeframe for the study, however, allows only  a very short  time to gather data and reach conclusions.

The UNC-Chapel Hill feasibility study for a digitized public database of water quality permit information would be the first step in a very long term project.   Creating a permitting database outside the permitting agency will raise a number of  legal, practical, policy and funding issues:  how to protect confidential information in permit applications (such as trade secrets);  cost of digitizing analog data and creating a new database; and the complications of maintaining  a database (or databases) to meet the very different needs of permit writers and the public.  Whatever the outcome of the study, the benefits of increased public access to permitting databases would likely be far in the future and require funding not provided in House Bill 56. [Note: Currently, anything in the permit file that is not protected by state confidentiality laws can be obtained through a public records request.]

What has been left undone?  None of the funding in the bill would go toward keeping GenX and other unregulated contaminants out of the Cape Fear River and other water supply sources. Only state and federal regulators can adopt water quality standards for the Cape Fear River and set permit limits for the discharge of GenX and other emerging contaminants to the river; local water systems do not have that power.

The bill does not address the lack of resources in DEQ and DHHS to evaluate the health and environmental risk of compounds like GenX before contamination of a water supply causes a crisis. GenX issue is only the most recent of several controversies over unregulated contaminants in North Carolina water supplies. Just within the last four years, the state has faced similar concerns about hexavalent chromium in drinking water wells and 1,4 dioxane in the Haw River. In each instance, state agencies had to develop guidance on safe levels of the contaminant in the absence of a clear federal standard and decide how to use the risk analysis in state permitting and enforcement decisions.

The weakness of the GenX response in House Bill 56 is that it reacts to water supply contamination without taking steps to prevent it. Once a contaminant has entered a water supply source, water systems — and their customers — shoulder the financial burden of using technology to reduce contamination to safe levels through water treatment. The bill also focuses narrowly on GenX rather than the broader problem of emerging contaminants affecting state water supplies. Nothing in the bill strengthens the state’s ability to detect other emerging contaminants in water supply sources; enforce water quality permit conditions; or assess health and environmental risk.

Next steps. As of today, the Governor had not yet signed or vetoed House Bill 56; the Governor’s decision could be affected by any number of provisions in the bill beyond those responding to GenX.  DEQ has taken an enforcement action against Chemours based on both discharge to GenX to the Cape Fear River and detection of GenX in groundwater on the site. (More about the enforcement action in the next blogpost.)

Ecological Flows: Round 3

June 30, 2014. Last week, the House approved a new  version of  House Bill 1057 (originally a study of interbasin transfer issues).  The House  added a new section requiring the Environmental Management Commission (EMC) to study the method used for establishing minimum stream flows necessary to protect stream ecology  — or “ecological flows”. In the meantime, the bill would prevent the Department of Environment and Natural Resources (DENR) from developing river basin hydrologic models based on the recommendations of an ecological flow study just completed in late 2013 — work the  General Assembly itself directed in 2010 legislation.

The state’s Division of Water Resources (DWR) has been  working on  river basin hydrologic models for more than a  decade. The models turn information like  water volume; seasonal flow;  user demand (such as drinking water intakes); and permitted wastewater discharges  into a tool for predicting how water supply will  respond  to different conditions.  Federal relicensing of North Carolina’s hydropower dams prompted development of some of the earliest hydrologic models;  those models became  the basis for new hydropower license conditions.  DWR has completed models  for most of the state’s major river basins; the piece missing from the models has been a placeholder for  water needed to maintain aquatic ecosystems.

State and federal permit reviews for large water supply projects  (like reservoirs and new drinking water intakes) have long required analysis of impacts on aquatic life as well as downstream water users. The analysis has generally been done by the permit applicant on a project by project basis.   Session Law 2010-143 required DENR to characterize the ecology of the state’s river basins; identify the flow needed to maintain the integrity of those ecosystems;  and incorporate the “ecological flow” into each  river basin hydrologic model.     S.L. 2010-143 did not give the “ecological flow” component any regulatory effect; the law simply set in motion a process for looking more systematically at the impact of stream flows on aquatic ecosystems. Even though the law had no immediate regulatory impact,  it immediately encountered opposition from some municipalities  — led by the City of Raleigh —  out of concern that development of ecological flows would  lead to greater limits on public water supply projects.

As required under S.L. 2010-143,  DENR  convened a science advisory board to  recommend a  method for identifying the minimum stream flow necessary to maintain ecosystem integrity in each of the state’s river basins.  The science advisory board included representatives of agriculture, local government, electric utilities, conservation organizations and both state and federal regulatory agencies. The advisory board’s 2013 report titled “Recommendations for Estimating Flows to Maintain Ecological Integrity in Streams and Rivers in North Carolina” just became available in November 2013. The report recommends a   minimum “flow-by” (the percentage of  flow that remains in a stream after allowing for withdrawals ) of 80-90%.  Based on the recommendation, DENR intends  to use 85% flow-by as a planning tool, but will not  change  existing permitted flows or individually determined flow regimes.  DENR  has also indicated  that  more data will be needed before implementing other recommendations in the report. You can find a DWR presentation on use of the science advisory board’s report here .

House Bill 1057  appears to reject outright the work done by the science advisory board and requires the  EMC to do a new review of methods used to establish ecological flows — again based on the provisions of  S.L. 2010-143. The bill also allows the EMC to  create another scientific advisory panel. It isn’t clear what would be accomplished other than a further delay in consideration of ecological needs in river basin wear supply modeling.

In some ways, the ecological flows controversy parallels the earlier (successful) effort to limit use of sea level rise projections in state planning.  Opposition to possible policy changes no longer waits for the actual policy discussion — instead, the opposition has organized to limit use of the  underlying scientific or technical information.

Recycling Wastewater for Drinking Water — Without a Permit

June 19, 2014. In one of many quick changes over the last few legislative days, Senate Bill 163 (“Protect Landowner’s Water Rights”)  entered the telephone booth of the House Environment Committee yesterday and emerged as an entirely different bill entitled “Reclaimed Water as Source Water”.  The House adopted the new version of S 163 today,  making a significant change to state water quality  and drinking water laws with little debate.

The bill endorses the use of highly treated wastewater, classified under  state water quality rules as “reclaimed” water, to supplement drinking water supplies.  The policy makes sense  under the right conditions.  Treated wastewater  already indirectly supplements  drinking  water supplies; many wastewater treatment plants discharge to streams and rivers that also serve as  water supply sources for downstream communities. State reclaimed water rules also allow direct  use of reclaimed water for many non-potable purposes, including  landscape irrigation, easing demand on the drinking water supply.

Senate Bill 163,  as adopted by the House, goes further and  for the first time allows reclaimed wastewater to be used to directly supplement a drinking water supply. The problem — the bill appears to allow a water system to add reclaimed wastewater to a drinking water reservoir without a water quality permit.  If that is the  effect of the bill, it represents a significant change in the way the state protects the quality of drinking water supplies and  likely conflicts with the federal Clean Water Act.

Under the bill,   “notwithstanding any other provision of law, a local water supply system may combine reclaimed water with source water treated to provide potable water supply”  in an impoundment controlled by  the  water system.  The bill does not define “impoundment”,   but under state drinking water rules an “impoundment” means a reservoir.  That interpretation would also be consistent with  other  Senate Bill 163 language describing the addition of reclaimed water  as occurring before the water goes to the water treatment plant.

An impoundment used as a  public water supply source  would  usually be considered a “water of the state” under water quality laws. Most impoundments  have  been created by damming a river or stream segment to store water for  water supply and continue to release water through the dam to maintain downstream flows.  Wastewater  (even treated wastewater) can only be discharged to a water of the state under a  permit that  insures the discharge  will not result in violation of a water quality standards.  Under G.S. 143-215.1, it is unlawful to:

Cause or permit any waste, directly or indirectly,  to be discharged to or in any manner intermixed with the waters of the State in violation of the water quality standards applicable to the assigned classification.

An impoundment used as a drinking water source has specific water quality standards (adopted in state rules) to protect its  use as a water supply. Discharge of treated wastewater to a water supply source can be allowed,  but only  under permitted limits.  Unfortunately, the “notwithstanding” language in Senate Bill 163  seems to sweep away both the requirements of state  water quality permitting laws and the N.C.  Drinking Water Act.  Nothing in the bill itself requires the addition of reclaimed wastewater to be done under a water quality permit  or in compliance with water quality standards for public water supplies. Instead, the conditions in the bill read like a self-contained set of standards that rely on a 20% limit on the proportion of reclaimed water to total water produced by the impoundment  and a minimum  5-day holding time in the impoundment as a substitute for meeting water quality standards.

If — as it appears — the bill allows discharge of reclaimed water to a “water of the state” without a permit, it also  conflicts with federal  law. Many impoundments that are  “waters of the state”  would also be considered “waters of the United States” under the federal Clean Water Act.  Federal law  makes it unlawful to discharge a pollutant into waters of the United States without a Clean Water Act permit — a requirement that state law cannot waive.

Senate Bill 163 will now go back to the Senate for approval or disapproval of the new  House version of the bill.  If the Senate rejects the House rewrite, the bill will have to go to a conference committee to work out the differences between the two chambers.

If the House did not intend to allow the discharge of treated wastewater to a water supply reservoir without meeting state and federal water quality laws, it would be  helpful to clarify  the bill  before final adoption.

Beyond Coal Ash – Other Environmental Bills

For those of you making scorecards and tracking sheets for  2014 legislation, a list of other bills on energy and the environment filed  so far; some  bills have already  been  introduced in both chambers:

Environment. The first six bills listed below   were recommended by the House/Senate Environmental Review Commission (ERC).    The last, House Bill 1105,  came out of a House/Senate legislative study commission on land development.

House Bill 1081 (Senate Bill 765)  addresses several  concerns about  state and local permit review of engineering plans.  An engineer submitting an innovative design proposal to a state or local permitting agency will have the opportunity to elevate the  permit review to a supervising engineer.  The bill also allows the permitting agency to charge the applicant for a third-party engineering review if the agency does not have a staff engineer qualified to review the innovative design.  The bill makes other less significant changes. The bill requires  permit reviewers to clearly distinguish necessary design changes  from suggested changes and  cite the law or rule that makes a design change necessary for permit  approval. The bill also directs permitting agencies to review working job titles for permit reviewers  to insure only PEs have “engineer” job titles. For more on the history of these proposals, see an earlier post.

House Bill 1057 (Senate Bill 757)  requires the Department of Environment and Natural Resources (DENR) to study several  issues related to transfer of water from one river basin to another  or “interbasin transfer” (IBT):  1.  Whether  temporary and emergency interbasin transfers, including transfers to relieve water shortages caused by drought, should be regulated differently  than long-term interbasin transfers; 2. Whether interbasin transfers between river sub-basins should be regulated differently  than interbasin transfers between major river basins. and 3. Whether there are types of interbasin transfers that should be exempt from state approval or  other regulatory requirements.

Interbasin transfers  usually  involve piping water from a drinking water source in one river basin to  a water system in another, although some large water systems cross river basin boundaries  and need an IBT just to serve  system customers. An  IBT  of  2 million gallons per day or more requires a certificate of approval from the Environmental Management Commission (EMC). Rather than using the boundaries of the  17 major state river basins,  the  IBT law requires  a certificate for any transfer among  38 sub-basins.  Over the last seven years, a series of legislative changes have made the IBT approval process increasingly difficult.   The House and Senate IBT bills signal an interest in reexamining some of the restrictions.

House Bill 1058 (Senate Bill 756) directs the General Assembly’s Program Evaluation Division (PED) to study: 1.  the benefits of combining water and sewer systems into larger, regional entities; 2. potential incentives for systems to merge; and 3. the possibility of  allowing one system to apply for grants  on behalf of  a less efficient  system  based on a commitment to purchase, interconnect  or enter into a joint management agreement with the less efficient system. The idea of encouraging merger of  small water systems and wastewater  systems into larger, more efficient utilities  has popped up in just about every legislative session for a decade or more.  The biggest obstacles tend to be local resistance and the financial burdens  associated with the takeover of  a small, inefficient system often badly in need of capital investment.  The last of the three PED study issues (allowing one system to apply for grants on behalf of a system targeted for takeover) may be focused on removing the financial disincentives.

Senate Bill 737 (Amend Isolated Wetlands Regulation). “Isolated wetlands”  fall outside the federal Clean Water Act permitting program for wetland impacts because the wetlands do not have a connection to navigable waters.  (Congress adopted the Clean Water Act  under its  authority to regulate interstate commerce and  limited federal regulatory jurisdiction to navigable waters used in interstate commerce.)   In response to pressure from realtors and developers to eliminate state  protection of isolated wetlands,  S737  allows additional  impacts  to isolated wetlands without  prior state permit review.  State water quality rules  now allow  development impacts  to  isolated wetlands below specific thresholds to be “deemed permitted”.  S737 raises those thresholds from 1/10th of an acre to 1/3 of an acre west of Interstate 95 and from 1/3 of an acre to 1 acre east of Interstate 95.  (I-95 has long been used as the  dividing line between the wetter eastern counties and drier piedmont/western counties.)  DENR has expressed concern that raising the  threshold to 1 acre east of I-95 will effectively eliminate review of projects impacting isolated wetlands in the eastern part of the state. S737 also reduces the amount of mitigation required for isolated wetland impacts (from a 2:1 ratio to 1:1) and eliminates the  practice of giving more mitigation credit for creation or restoration of wetlands  than  for preservation of existing wetlands.

Senate Bill 738 (Clarify Gravel Under Stormwater Laws). In 2013, the N.C. Homebuilder’s Association successfully lobbied for legislation directing  the state stormwater  program to  treat gravel areas as “pervious” (meaning the surface allows water to percolate through to the soil beneath) and exclude  them  from the calculation of built-upon area on a development site.  The amount of built-upon area determines the level of stormwater control required for the project, so excluding gravel areas from the calculation  potentially  reduces stormwater costs.  The 2013  provision  (included in  Session Law 2013-413)  also directed the ERC to study “how partially impervious surfaces are treated in the calculation of built-upon area under [the stormwater] programs”.    Ironically, the ERC study found: 1.  no consensus on  the definition of  “gravel”; and 2. evidence that permeability is a function of several factors, including the nature of the substrate and method of installation as well as the surface material itself.  Instead of further weakening stormwater control requirements,   the  ERC bill recommends repeal of the 2013  provision declaring  gravel areas to be pervious and  funds a study of the permeability of different surface materials to be done by the North Carolina State University Department of Biological and Agricultural Engineering.

Senate Bill 734  (Authority to Adopt Certain Ordinances).  The  Regulatory Reform Act of 2013 (Session Law 2013-413)  put  a one-year moratorium on local environmental  ordinances and directed the ERC  to study  local authority to adopt environmental ordinances. The  moratorium/study  provision represented a compromise  between the House and the Senate after the Senate  passed  a bill (Senate Bill 112) putting significant restrictions on local environmental ordinances.

An ERC working group looked at the issue  of local authority through the lens of actual conflict between local ordinances and state or federal environmental  rules.  The legislators identified only one  conflict — local ordinances on use of fertilizers regulated by the N.C. Department of Agriculture and Consumer Services.  Based on the working group recommendation, the ERC  proposed  a limited bill addressing state  versus  local authority to regulate fertilizer use. The bill also  directs  DENR and the Department of Agriculture to  report back in  November 2014  and again one year later on any  local ordinances that  “impinge on or interfere with” state rules.  Supporters of S112   almost certainly want something more.  It seems clear the intent of S112 was to prevent  local government from imposing  additional environmental requirements on developers  and not simply  to avoid conflict with state rules.

House Bill 1105  amends the section of the  state Sedimentation Pollution Control Act that allows DENR to delegate  authority to a local sedimentation program. The amendment transfers responsibility for enforcement of previously approved erosion and sedimentation control plans from DENR to the local government when DENR approves a local program.


House Bill 1055   would appropriate a total of  $5 million to North Carolina State University and UNC-Charlotte  for research on renewable energy, energy storage, and coal ash reuse.  The bill sponsor,  Rep. Mike Hager,  spent much of the 2013 session   in an unsuccessful effort  to repeal  the state’s renewable energy portfolio standard (REPS).  (You can find the first of several  posts on the 2013 REPS repeal bill here.)  Some of the 2013 combatants  have already signaled an intent to  continue the battle for  repeal  of the REPS standard.    That  very fresh legislative history makes  Rep. Hager’s  proposal to  fund research on renewable energy  somewhat surprising.

Senate Bill 786, (The Energy Modernization Act).  The bill proposes so  many changes to state law on  oil and  gas exploration and development that it merits a separate  post. (To follow.)

The Links between Coal Ash Disposal and Water Pollution

January 23, 2014. Burning coal  generates ash; depending on the  type of  coal,  the ash may contain iron, chromium,  manganese, lead, arsenic, boron and selenium.   At high levels of exposure, some  of those elements  cause  health problems  such as increased cancer risk and neurological damage.  At many coal-fired power plants, large open impoundments (or “ponds”) store coal ash in water; the ponds may also receive stormwater and process wastewater from the electric generating plant. Dry ash may be disposed of in a landfill, but can  also be  used in manufacturing cement or as additional fill material on construction sites.  Concern about the environmental impacts of  coal ash disposal prompted the U.S. Environmental Protection Agency (EPA) to  propose new federal rules  in 2000. EPA ultimately withdrew the proposed rules in the face of opposition from  electric generating companies, members of Congress and state governments. More than a decade later, regulation of coal ash disposal  remains at a stalemate — no new federal rules have been adopted and Congressional supporters of the electric generating companies have responded to a new EPA  rule proposal by attempting to remove EPA’s authority to regulate coal ash disposal altogether. In the meantime, data collected by EPA and events in North Carolina suggest real risks to surface water and groundwater supplies.

Coal ash in North Carolina.  Duke Energy Carolinas and Duke Energy Progress (related companies  resulting from the 2012 merger of Duke Energy and Progress Energy)  have a combined 33  wet coal ash ponds located at 14 electric generating stations  in North Carolina.  You can find a map showing the location of the N.C. ash ponds here.  The  ponds have been largely unregulated until very recently.  No state or federal standards applied to construction of the existing coal ash ponds. Unlike modern landfills, the ash ponds  are not lined to prevent contaminants from percolating into the groundwater below.   Although coal ash  can have some of the characteristics of hazardous waste,  EPA  has excluded  coal ash from federal hazardous waste regulations.

Before  2009, DENR’s water quality program exercised  very limited regulatory authority over coal ash ponds.  The Division of Water Quality (DWQ)  issued a federal Clean Water Act permit for any direct discharge from an ash pond to surface waters, but did not require stormwater controls or groundwater monitoring. State law exempted coal ash ponds and other utility impoundments from regulation under the  N.C. Dam Safety Act. The  state’s largely hands-off approach to coal ash ponds  began to change after a massive spill at the Tennessee Valley Authority (TVA) Kingston plant in 2008.   On December 22, 2008,  an  ash impoundment at the  Kingston plant breached and spilled an estimated  5. 4  million cubic yards of ash slurry. The spill flooded 15 homes, covered 300 acres and deposited over 3 million cubic yards of ash in the nearby Emory River, making it one of the largest industrial spills in American history. The cleanup cost $1.1 billion and  took over four years to complete.

In response to the TVA disaster, North Carolina legislators introduced several bills in 2009 to strengthen state regulation of coal ash disposal.  House Bill 1354    may have been  the most comprehensive; the bill  set standards for coal ash disposal,   required groundwater monitoring around  existing ash ponds, and prohibited construction of new wet ponds.  The bill ran into opposition from the major electric generating companies and never got out of committee. The only piece of coal ash legislation enacted in 2009,   Session Law 2009-390 , repealed  the N.C. Dam Safety Act  exemption for coal ash ponds and other utility impoundments.

Although comprehensive state legislation on coal ash disposal failed,  DWQ increased efforts to use existing state laws to  reduce the water pollution risk and  began putting groundwater monitoring requirements in  Clean Water Act  permits for coal ash ponds in 2009-2010.  One of the factors  in  DWQ’s decision: troubling results from  voluntary groundwater monitoring carried out by Duke Energy and Progress Energy as part of an  industry-led program started in 2006.  DWQ also began  work on  stormwater requirements for  coal ash  disposal facilities.   In 2013,  several things happened  to shine a much brighter light on the coal ash ponds in North Carolina:

Clean Water Act citizens’ suits and  DENR enforcement action.  In early 2013,  the Southern Environmental Law Center (SELC) filed two  notices of intent to sue under the Clean Water Act  based on water pollution from coal ash ponds. (Under the Clean Water Act, a citizen  can sue to enforce the Act only  if the water quality permitting agency has failed to take effective enforcement action. The 60-day notice  gives the permitting agency  time to show that effective enforcement action has  been taken.)  One notice, filed on behalf of the N.C. Sierra Club, Western N.C. Alliance and the Waterkeeper Alliance,    concerned illegal discharges  into the French Broad River from ash impoundments at the Asheville Steam Electric Generating Plant operated by Duke Energy Progress.  The other notice, filed on behalf of the Catawba Waterkeeper Foundation, attributed contaminants in Mountain Island Lake  – a water supply for the City of Charlotte – to  seeps from coal ash ponds associated with the Riverbend Steam Station in Gaston County operated by Duke Energy Carolinas.

In response to the  two  SELC notices,  DENR filed enforcement actions against Duke Energy Carolinas and Duke Energy Progress  in the spring of 2013 and immediately  began work on a consent order to resolve  the Asheville and Riverbend  violations.   The state enforcement action described  illegal discharges in the form of seeps through the impoundment walls at both facilities and groundwater standard violations near  the Asheville impoundments.  After taking  public comment on a draft consent agreement, DENR filed a revised consent agreement with the court in October 2013.  You can find a copy of the proposed consent agreement  here. The consent agreement would require the companies to pay civil penalties, increase groundwater monitoring  and eliminate unpermitted discharges  to  rivers and lakes. The consent agreement has not yet been approved by the court;   meanwhile, the pending state enforcement action keeps the threatened citizens suits on hold.

Drinking water well  contamination near  the  Asheville  coal ash pond.  In 2012,  the state water quality program   found  high levels of iron and manganese in one of five private drinking water wells located near the Asheville  plant.   When DENR retested the well  in 2013,  the results showed a level of contamination that made the water unsafe for use without filtration and  DENR  ordered  Duke Energy Progress to provide the homeowner with an alternative water supply and increase off-site groundwater monitoring around the  ash pond.   The contaminated drinking water well added another groundwater impact to those  identified in the DENR enforcement action filed earlier in the year.

Duke Energy’s agreement with Cape Fear Public Utility Authority. Last fall, Reporter Bruce Henderson  wrote  an  article  for the Raleigh News and Observer about an  unusual agreement between  Duke Energy Progress and Cape Fear Public Utility Authority.   Cape Fear Public Utility Authority has  two public water supply wells located within 2,000 feet of an impoundment holding coal ash from Duke’s Sutton Electric Generating Plant; one of the two wells supplies water to the Flemington community.  Under the agreement, Duke Energy Progress will pay up to $1.8 million  to extend a water line  to carry treated  Cape Fear River water to Flemington and the Authority will close the water supply well. The agreement is significant for two reasons:

1.  In entering into the agreement, Duke has implicitly acknowledged that  groundwater contamination from  the  coal ash pond  may  move offsite and contaminate  the public water supply wells.

2. The agreement requires  Cape Fear Public Utility Authority to close four existing water supply wells in a 17-square mile area bounded by the Cape Fear and Northeast Cape Fear rivers. The Authority also agrees  not to install new  public water supply wells  in the area.  As a result,  groundwater in the entire 17-square mile area will be off-limits for  public water  supply for the foreseeable future because of the potential for contamination from the coal ash pond. (The agreement does  not affect private water supply wells in the area, but those wells would presumably face the same risk of contamination.)

Total cost of the project has been estimated at $2.25 million and costs above the first $1.8 million will be shared between Duke Energy and  Cape Fear Public Utility Authority. You can find a copy of the agreement (as presented  at the October 2013 meeting of the Cape Fear Public Utility  Authority Board)  here.

National data on environmental harm caused by  coal ash disposal.  A 2007 EPA report   assessed 85 instances of  suspected damage  caused by disposal of coal  ash in  landfills or  in ponds.  In 67 cases,  EPA confirmed  either  “proven”  damage (direct health impacts or documented harm to fish, wildlife, or water quality) or “potential” damage (contamination exceeding  drinking water standards either  beneath or near the waste disposal site).  The 67 cases broke down into 24 proven damage cases and 43 potential damage cases.   In the remaining 18 cases, EPA could not confirm a link between  coal ash disposal and environmental or health risks.

In 2009, EPA  surveyed  electric generating companies  to get  more information specifically on wet ash impoundments and  asked the  companies to report  any known  spills or discharges  that had occurred over the previous ten years (not including groundwater releases).  The 240  companies responding to the survey reported  29  spills, breaches and  discharges.  There was little overlap between the incidents reported in the survey and those assessed in EPA’s 2007 report.  Some of the spills reported in the 2009 survey had occurred since the 2007 assessment; others had never been reported to EPA.

North Carolina in the national data.  Two  of the “proven” damage cases described in the 2007 EPA report involved older incidents at North Carolina facilities.   Permitted releases of  water from a coal ash impoundment  at the Roxboro Steam Electric Generating Plant made  fish in Hyco Lake unsafe to eat for a number of years because of high levels of selenium.  In 1990,  Carolina Power & Light shifted to a dry ash system at the Roxboro plant to meet tighter selenium discharge limits and the fish consumption advisory was lifted in 1994.  In the second “proven” damage case from North Carolina, selenium in  discharges from an impoundment at Duke Energy’s Belews Creek plant entirely eliminated 16 of  20 fish species originally found in Belews Lake, including all of the major sport fish.  Under state orders to reduce the selenium discharge,   Duke Energy changed its method of fly ash disposal in 1985 and the state lifted the  fish consumption advisory for Belews Lake  in 2000.  (Descriptions of the environmental damage at Hyco Lake and Belews Lake come from the 2007 EPA  Coal Combustion Waste Damage Assessment Report; the link is provided  above.)  Duke Energy’s Allen Steam  Generating Plant appears in the EPA list of potential damage cases. The Asheville and Riverbend releases  cited in  DENR’s 2013 enforcement action do not appear in either the 2007 EPA report or in the 2009 survey  responses submitted on behalf of Duke Energy and Progress Energy.

State and federal regulatory action?   In June of 2010, EPA published  a new draft rule on disposal of coal combustion residuals. The rule proposed  two alternative approaches to regulating coal ash disposal –1.  treat the ash as a “special waste” under federal hazardous waste rules, establishing specific standards for disposal; or 2. adopt standards for disposal of coal ash as solid waste (the same broad category that covers other, non-hazardous waste). EPA has not yet decided on  which path to take and in the meantime there have been several efforts to shut down the EPA rulemaking entirely.   In July of 2013, the U.S. House of Representatives approved H.R. 2218 (The Coal Residuals Reuse and Management Act of 2013)  which would prohibit EPA from adopting enforceable national standards  for  coal ash disposal and leave regulation to the states.  See the Library of Congress bill summary for more on H.R. 2218.  The U.S. Senate has not acted on the bill.

In North Carolina, the Regulatory Reform  Act of 2013 ( Session Law 2013-413) included a provision limiting DENR’s  authority to require steps to contain groundwater contamination at a  permitted waste disposal facility  — including coal ash impoundments.  For more detail, see the  section on groundwater in an earlier post on 2013  water quality legislation.

So.   It seems clear that large, unlined coal ash impoundments present  some  risk to groundwater,  surface water  and  fish. Recent  events suggest that the risk may be greater than previously known. There was little or no groundwater monitoring around coal ash ponds  before 2006 and  no state oversight of  groundwater monitoring until 2009-2010.  It is simply a fact that groundwater contamination is much more likely to be found if someone is actually looking for it.  The same is true for discharges to rivers and lakes through the walls of coal ash impoundments. The  Riverbend and Asheville  enforcement cases  only happened after citizens documented  unpermitted discharges and gave notice of intent to sue under the Clean Water Act.  It is not clear that the state’s water quality program had found the illegal discharges identified in the consent order or has the resources to do adequate inspections of these large  impoundments.  (The Asheville impoundments alone total 91 acres.) So as new information suggests the need for  frequent, careful inspection of coal ash ponds and quick, effective response to groundwater contamination, state budget and environmental policies are moving in the direction of making both  more difficult.

Reorganization and Review of N.C. Water Programs

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.

Compromise Budget Significantly Cuts Water Quality/ Water Resource Programs

July 22, 2013:  The House and Senate have released a compromise budget proposal to be voted on by both chambers this week. The budget comes in two pieces: 1. The report on continuation, expansion and capital budget (the “money report”) shows the proposed changes up or down in appropriations for state agencies. The money report also shows funds set aside for state capital improvement projects. You can find a copy of the money report here; 2. The conference committee report on the budget bill (Senate Bill 402) has the text of statute changes being adopted as part of the budget. Some of the statute changes are needed because of appropriations decisions; others pop up in the budget bill  for more strategic reasons and have very little relationship to budgeting. Another post will provide an overview of budget decisions affecting environmental programs. This post focuses on one of the most significant — the reorganization of water quality and water resources programs and a large budget cut associated with the reorganization.

The money report shows a $2 million cut to water quality and water resource programs beginning the second year of the biennium (2014-2015)  from  savings to be realized by combining the Division of Water Quality (DWQ) and the Division of Water Resources (DWR). The $2 million dollar reduction represents 12.4% of state appropriations to programs in the two divisions in 2012 and comes on top of a department-wide budget reduction of 2% also required in the compromise budget. An earlier post talked about DENR’s plans to reorganize the state’s water quality programs and anticipated some reduction in positions as part of the reorganization. The questions raised in the earlier post become more important given the magnitude of the cut proposed in the budget bill.

The challenge comes from the fact that the two divisions do very different things.  The Division of Water Quality  has responsibility for  the quality of water in rivers, lakes, streams and aquifers. DWQ develops and enforces state  water quality standards. DWQ also carries out federal Clean Water Act  programs, including permitting programs for wastewater discharges, stormwater discharges and development activities affecting streams and wetlands.  The Division of Water Resources deals with water quantity — the amount of water available in rivers, lakes, streams and underground aquifers;  water supply planning;   drought response;  and regulation of  public water systems. Functions of the two divisions  intersect at points (and there may well be some efficiencies there), but do not overlap. The kind of data needed to monitor water quality in a river is different from the data needed to  understand the volume of water in the same river. Water supply planning and water quality planning are not exactly the same thing – it may well make sense to marry the two, but the marriage will only work  if there are still  sufficient resources to look at both water quality and quantity. After four years of budget cuts, it will be difficult to achieve the  12.4% reduction required in the budget without compromising either the level of service provided to permit applicants or water quality/water supply monitoring and planning activities.

When the earlier post was written in June, the word on the street had been that DENR planned to transfer all of the state’s stormwater programs to the Division of Energy, Mineral and Land Resources (DEMLR) effective August 1 and move remaining Division of Water Quality programs into the Division of Water Resources. About the time word began to get out about the department’s reorganization plans, the Senate put language in House Bill 94  (and later in House Bill 74)  directing DENR to combine the Division of Water Quality and Division of Water Resources. The Senate language seemed to anticipate that stormwater programs would  go to the Division of Water Resources with other DWQ programs. (Both bills made changes to a number of state stormwater statutes to substitute “Division of Water Resources” for “Division of Water Quality”.)  Those bills are still waiting for final action and until that happens, there may be lingering questions about exactly what form the reorganization will take.

See the earlier post  for  more about the implications of moving stormwater programs to the Division of Energy, Mineral and Land Resources. Whatever the final configuration of the state’s water quality programs, the budget cut will be a challenge. The  sedimentation pollution control program  in  DEMLR  (the only water quality -related program in that division)  has already been decimated by budget cuts  that  reduced sedimentation program staff by 35% over  the last four years. As the  number of sedimentation program staff declined, the number of  open construction sites  to be monitored for sedimentation and erosion control did not.  (“Open” construction sites includes sites actively under construction  and sites where construction stopped before completion of the project.) There are now 40 state sedimentation staff to manage an inventory of 8,000 open construction sites across the state. The gap between open  construction sites and state staff to enforce the Sedimentation Pollution Control Act will only become larger as new development activity picks up.  There are no efficiencies left to wring out of  the sedimentation program and it isn’t clear that DWQ  stormwater programs  could help given other state and federal stormwater responsibilities.

The question for DENR is whether any combination of programs can absorb the additional reduction without damaging essential water quality programs. After the budget reductions of the last four years, can the department continue to do all of the things required for delegated Clean Water Act and Safe Drinking Water Act programs, maintain water quality and water supply planning functions, enforce the state Sedimentation Pollution Control Act, and provide good customer service with  another  12.4% budget cut targeting water quality and water resources programs?

NOTE: The original post was modified to make it clear that the $2 million cut begins in the second year of the biennium (2014-2015).