June 22, 2016. A controversial water quality provision in the N.C. Senate’s proposed budget would repeal (and perhaps replace –that is less certain) all state rules adopted over the last twenty years to address pollution problems caused by excess nutrients. Sec. 14.13 in the Senate version of House Bill 1030 further delays full implementation of the Falls Lake and Jordan Lake rules; creates a $2 million study of nutrient management programs; and repeals all existing water quality rules addressing nutrients pollution effective December 31, 2020.
The Senate Proposal. The provision requires the state’s Environmental Management Commission (EMC) to adopt new nutrient management rules based on the study results, but repeals all existing rules at the end of 2020 even if no alternative rules are in place. In addition to Jordan Lake and Falls Lake, the repeal/replace provision would affect water quality rules in the Tar-Pamlico River Basin; the Neuse River Basin; the Catawba River Basin; the Randleman Reservoir watershed; and the endangered species management plan in the Yadkin-PeeDee River’s Goose Creek watershed. It would also apply to any other riparian buffer requirements identified by the Department of Environmental Quality (DEQ). Still hoping for an alternative to rules, the Senate budget also appropriates $500,000 to study use of freshwater mussels to reduce the water quality impact of excess nutrients.
In most cases, state nutrient management rules also satisfy a federal Clean Water Act requirement to reduce the discharge of a pollutant (in this case nitrogen and/or phosphorus) causing impaired water quality. In North Carolina’s “nutrient sensitive” river basins and watersheds, the U.S. Environmental Protection Agency (EPA) has approved the nutrient reduction targets in state rules as meeting Clean Water Act requirements. To achieve the reduction targets, the rules require reductions in nutrient discharges by wastewater treatment plants and nutrient runoff from agriculture and development activities. Walking away from the nutrient reduction targets has implications for Clean Water Act enforcement and the state’s delegated water quality permitting programs.
Although the Goose Creek rules rely on similar pollution reduction tools (including riparian buffers and stormwater controls), those rules protect endangered species habitat. The rules resulted from a lengthy negotiation with the U.S. Fish and Wildlife Service which has responsibility for enforcing the federal Endangered Species Act. Repeal of the rules would likely bring both U.S. Fish and Wildlife and EPA into the conversation.
Nothing similar to the Senate provision appears in the House version of the budget or in any other legislation pending in the House. The two chambers are currently negotiating this (and other) differences between the House and Senate budget bills.
Have the Nutrient Rules Failed? The Senate provision describes the state’s existing nutrient management programs as failures. In reality, legislation has prevented full implementation of the Falls Lake and Jordan Lake nutrient rules. The rules that have been fully implemented — such as those in the Neuse River and Tar River basins — significantly reduced nutrient loading from wastewater discharges, agriculture and stormwater runoff. In judging the effectiveness of watershed-based strategies, some things to keep in mind: 1. Population growth and development in the watersheds continued to increase; and 2. Existing nutrient reduction strategies do not address all potential nutrient sources (smaller wastewater treatment plants; failing septic tanks; atmospheric deposition of nitrogen; and soil erosion).
DEQ has tracked the effect of nutrient rules in the Neuse River and Tar-Pamlico River basins; some of the results can be found here. A number of independent academic researchers have also studied the Neuse and Tar-Pamlico river basin rules. All of the studies confirm that sources covered by the rules significantly reduced their nutrient discharges. Wastewater treatment plants met the goal of reducing nitrogen discharges by 30% from the baseline years even as population and wastewater flows increased. Agriculture met or exceeded the 30% reduction goal for agricultural operations through use of Best Management Practices. A recent EMC report confirmed the value of riparian buffers as part of a watershed-based plan to reduce nutrient runoff from developed areas.
Complicating the picture is the fact that total in-stream nutrient concentrations have not consistently remained below baseline levels. A DEQ study completed in 2008 found that in-stream concentrations of inorganic forms of nitrogen (nitrates and ammonia) declined at the monitoring sites, but increases in organic nitrogen offset those reductions. The rules haven’t failed; given population growth and increased development in the Neuse and Tar-Pamlico river basins, nitrogen concentrations would have been higher in the absence of the rules. But the rules have not fully solved the problem of nutrient over-enrichment.
Opposition to the Nutrient Rules. Opposition has tended to be strongest in the communities on the Haw River arm of the Jordan Lake watershed affected by the Jordan Lake rules. (The Haw River watershed includes the cities of Greensboro and Burlington.) Since EMC adoption of the Jordan Lake rules in 2009, legislation to repeal or delay implementation of the rules has been introduced every year. Objections have focused on the cost of wastewater treatment plant upgrades to meet tighter discharge limits; expansion of stormwater programs; and the development impact of new riparian buffer requirements. To these upstream Haw River communities, the costs have no local benefit; water quality improvements benefit downstream communities. (Although many of the downstream communities have met similar requirements under the Neuse River rules for years to benefit the Neuse River estuary.)
The City of Durham and Durham County, affected by both the Falls Lake and the Jordan Lake rules, also have concerns about the feasibility and cost of meeting nutrient reduction goals.
Also in the background — riparian buffer requirements have long been unpopular with real estate developers and homebuilders in all of the river basins/watersheds where buffers have been part of a nutrient reduction strategy.
DEQ’s Position. DEQ has not taken a public position on the Senate proposal, but a February presentation by DEQ Assistant Secretary Tom Reeder to the legislature’s Environmental Review Commission questioned the effectiveness of the watershed-based nutrient rules. Reeder’s presentation tended to emphasize the cost of the nutrient rules and limited impact on instream nitrogen and phosphorus concentrations. Asked what alternative to the nutrient management rules would protect the Falls Lake and Jordan Lake drinking water supplies, Reeder responded that drinking water treatment may become more expensive. The presentation suggested little DEQ commitment to defend watershed-based nutrient rules and a willingness to shift the cost of impaired water quality to communities using Falls Lake and Jordan Lake as drinking water sources. Reeder’s presentation did not address the impacts of a failure to reduce excess nutrients on natural resources such as fisheries; recreational use of these rivers, lakes and estuaries; or compliance with the Clean Water Act.
Possible compromises. Past studies of the Neuse and Tar-Pamlico rules suggest a need to fill gaps in the nutrient strategies, but do not provide a scientific case for abandoning watershed-based nutrient reduction strategies. Nearly seven years after final adoption of the Jordan Lake rules, opponents have not identified an alternative approach to protect drinking water and meet Clean Water Act requirements.
At the same time, the EMC’s recent riparian buffer report identified potential buffer rule changes to ease the burden on property owners while maintaining the buffer’s water quality benefits. The legislature could also look at the possibility of authorizing cost-sharing arrangements to allocate some of the upstream cost of water quality improvements to the downstream communities that will benefit. The idea surfaced briefly during development of the Falls Lake and Jordan Lake rules, but wasn’t pursued at the time.