Current through Register Vol. 39, No. 6, September 16, 2024
PURPOSE. The purpose of this Rule and Rules
15A NCAC
02B .0276 through
02B .0282 and
02B .0315(q) shall be to attain
the classified uses of Falls of the Neuse Reservoir set out in
15A NCAC
02B .0211 from current impaired conditions
related to excess nutrient inputs; protect its classified uses as set out in
15A NCAC
02B .0216, including use as a source of water
supply for drinking water; and maintain and enhance protections currently
implemented by local governments in existing water supply watersheds
encompassed by the watershed of Falls of the Neuse Reservoir. The reservoir,
and all waters draining to it, have been supplementally classified as Nutrient
Sensitive waters (NSW) pursuant to
15A NCAC
02B .0101(e)(3) and
15A NCAC
02B .0223. These Rules, as enumerated in Item
(6) of this Rule, together shall constitute the Falls water supply nutrient
strategy, or Falls nutrient strategy, and shall be implemented in accordance
with 15A
NCAC 02B .0223. The following items establish
the framework of the Falls nutrient strategy:
(1) SCOPE AND LIMITATION. Falls of the Neuse
Reservoir is hereafter referred to as Falls Reservoir. All lands and waters
draining to Falls Reservoir are hereafter referred to as the Falls watershed.
The Falls nutrient strategy rules require controls that reduce nitrogen and
phosphorus loads from significant sources of these nutrients throughout the
Falls watershed. These Rules do not address atmospheric emission sources of
nitrogen that is deposited into the watershed but do include provisions to
account for reductions in such deposition as the water quality benefits of air
quality regulations are quantified. Neither do these Rules address sources on
which there is insufficient scientific knowledge to base regulation, other
sources deemed adequately addressed by existing regulations, sources currently
considered minor, or nutrient contributions from lake sediments, which are
considered outside the scope of these Rules. The Commission may undertake
additional rulemaking in the future or make recommendations to other rulemaking
bodies as deemed appropriate to more fully address nutrient sources to Falls
Reservoir. While the scope of these Rules is limited to the reduction of
nutrient loads to surface waters, practitioners are encouraged to maximize
opportunities for concurrently benefiting other ecosystem services where
feasible in the course of achieving the nutrient objectives.
(2) CRITICAL WATER SUPPLY WATERSHED
DESIGNATION. Water supply waters designated WS-II, WS-III, and WS-IV within the
Falls watershed shall retain their classifications. The remaining waters in the
Falls watershed shall be classified WS-V. The requirements of all of these
water supply classifications shall be retained and applied except as
specifically noted elsewhere within the Falls nutrient strategy. In addition,
pursuant to
G.S.
143-214.5(b), the entire
Falls watershed shall be designated a critical water supply watershed and
through the Falls nutrient strategy given additional, more stringent
requirements than the state minimum water supply watershed management
requirements. Water supply requirements of
15A NCAC
02B .0104 apply except to the extent that
requirements of the Falls nutrient strategy are more stringent than provisions
addressing agriculture, forestry, and existing development. These requirements
supplement the water quality standards applicable to Class C waters, as
described in Rule .0211 of this Section, which apply throughout the Falls
watershed. Water supply watershed requirements shall be as follows:
(a) For WS-II, WS-III, and WS-IV waters, the
retained requirements of Rules
15A NCAC
02B .0214 through
02B .0216 are characterized as
follows:
(i) Item (1) addressing best
usages;
(ii) Item (2) addressing
predominant watershed development conditions, discharges expressly allowed
watershed-wide, general prohibitions on and allowances for domestic and
industrial discharges, Maximum Contaminant Levels following treatment, and the
local option to seek more protective classifications for portions of existing
water supply watersheds;
(iii)
Sub-Item (3)(a) addressing wastewater discharge limitations;
(iv) Sub-Item (3)(b) addressing nonpoint
source and stormwater controls; and
(v) Sub-Items (3)(c) through (3)(h)
addressing aesthetic and human health standards.
(b) For waters classified WS-V, the
requirements of water supply Rule
15A NCAC
02B .0218 shall be applied.
(3) GOAL AND OBJECTIVES. To
achieve the purpose of the Falls nutrient strategy, the Commission establishes
the goal of attaining and maintaining nutrient-related water quality standards
identified in
15A NCAC
02B .0211 throughout Falls Reservoir pursuant
to G.S.
143-215.8B and
143B-282(c) and
(d) of the Clean Water Responsibility Act of
1997. The Commission establishes a staged and adaptive implementation plan,
outlined hereafter, to achieve the following objectives. The objective of Stage
I is to, at minimum, achieve and maintain nutrient-related water quality
standards in the Lower Falls Reservoir as soon as possible but no later than
January 15, 2021 and to improve water quality in the Upper Falls Reservoir.
The objective of Stage II is to achieve and maintain
nutrient-related water quality standards throughout Falls Reservoir. This is
estimated to require a reduction of 40 and 77 percent in average annual mass
loads of nitrogen and phosphorus respectively, delivered from the sources named
in Item (6) in the Upper Falls Watershed from a baseline of 2006. The resulting
Stage II allowable loads to Falls Reservoir from the watersheds of Ellerbe
Creek, Eno River, Little River, Flat River, and Knap of Reeds Creek shall be
658,000 pounds of nitrogen per year and 35,000 pounds of phosphorus per
year.
(4) STAGED
IMPLEMENTATION. The Commission shall employ the staged implementation plan set
forth below to achieve the goal of the Falls nutrient strategy:
(a) STAGE I. Stage I requires intermediate or
currently achievable controls throughout the Falls watershed with the objective
of reducing nitrogen and phosphorus loading, and attaining nutrient-related
water quality standards in the Lower Falls Reservoir as soon as possible but no
later than January 15, 2021, while also improving water quality in the Upper
Falls Reservoir as described in this Item. Implementation timeframes are
described in individual rules, with full implementation occurring no later than
January 15, 2021;
(b) STAGE II.
Stage II requires implementation of additional controls in the Upper Falls
Watershed beginning no later than January 15, 2021 to achieve nutrient-related
water quality standards throughout Falls Reservoir by 2041 to the maximum
extent technically and economically feasible, with progress toward this overall
objective as described in Sub-Item (5)(a); and
(c) MAINTENANCE OF ALLOCATIONS. Sources shall
maintain the load reductions required under these Rules beyond the
implementation stages.
(5) ADAPTIVE IMPLEMENTATION. The Commission
shall employ the following adaptive implementation plan in concert with the
staged implementation approach described in this Rule:
(a) The Division shall perform water quality
monitoring throughout Falls Reservoir and shall accept reservoir water quality
monitoring data provided by other parties that meet Division standards and
quality assurance protocols. The Division shall utilize this data to estimate
load reduction achieved and to perform periodic use support assessments
pursuant to 40 CFR
130.7(b). It shall evaluate
use support determinations to judge progress on and compliance with the goal of
the Falls nutrient strategy, including the following assessments:
(i) Attainment of nutrient-related water
quality standards downstream of Highway NC-98 crossing of Falls Reservoir no
later than January 15, 2016;
(ii)
Attainment of nutrient-related water quality standards in the Lower Falls
Reservoir no later than January 15, 2021;
(iii) Attainment of nutrient-related water
quality standards in the Lick Creek arm of Falls Reservoir and points
downstream no later than January 15, 2026;
(iv) Attainment of nutrient-related water
quality standards in the Ledge and Little Lick Creek arms of Falls Reservoir
and points downstream no later than January 15, 2031;
(v) Attainment of nutrient-related water
quality standards at points downstream of the Interstate 85 crossing of Falls
Reservoir no later than January 15, 2036;
(vi) Attainment of nutrient-related water
quality standards throughout Falls Reservoir no later than 2041;
(vii) Where the Division finds that
acceptable progress has not been made towards achieving nutrient-related water
quality standards throughout Falls Reservoir defined in Sub-Items (i) through
(vi) of this Item or that conditions have deteriorated in a segment of Falls
Reservoir as described in this Item, at any time, it shall evaluate compliance
with the Falls nutrient strategy rules, and may request Commission approval to
initiate additional rulemaking;
(viii) Where the Division finds, based on
reservoir monitoring, that nutrient-related water quality standards are
attained in a previously impaired segment of Falls Reservoir, as described in
this Item, and are met for sufficient time to demonstrate sustained maintenance
of standards, as specified in individual rules of this strategy, it shall
notify affected parties in that segment's watershed that further load
reductions are not required and of requirements for maintenance of measures to
prevent loading increases. Sufficient time is defined as at least two
consecutive use support assessments demonstrating compliance with
nutrient-related water quality standards in a given segment of Falls
Reservoir.
(b) The
Division, to address resulting uncertainties including those related to
technological advancement, scientific understanding, actions chosen by affected
parties, loading effects, and loading effects of other regulations, shall
report to the Commission and provide information to the public in January 2016
and every five years thereafter as necessary. The reports shall address all of
the following subjects:
(i) Changes in
nutrient loading to Falls Reservoir and progress in attaining nutrient-related
water quality standards as described in Sub-Items (5)(a)(i) through (vi) of
this Rule;
(ii) The state of
wastewater and stormwater nitrogen and phosphorus control technology, including
technological and economic feasibility;
(iii) Use and projected use of wastewater
reuse and land application opportunities;
(iv) The utilization and nature of nutrient
offsets and projected changes. This shall include an assessment of any load
reduction value derived from preservation of existing forested land
cover;
(v) Results of any studies
evaluating instream loading changes resulting from implementation of
rules;
(vi) Results of any studies
evaluating nutrient loading from conventional septic systems and discharging
sand filter systems;
(vii)
Assessment of the instream benefits of local programmatic management measures
such as fertilizer or pet waste ordinances, improved street sweeping and the
extent to which local governments have implemented these controls;
(viii) Results of applicable studies,
monitoring, and modeling from which a baseline will be established to address
changes in atmospheric deposition of nitrogen;
(ix) Recent or anticipated changes in
regulations affecting atmospheric nitrogen emissions and their projected effect
on nitrogen deposition;
(x) Results
of any studies evaluating nutrient loading from groundwater;
(xi) Updates to nutrient loading accounting
tools; and
(c) The
Division shall submit a report to the Commission in July 2025 that shall
address the following subjects in addition to the content required elsewhere
under this Item:
(i) The physical, chemical,
and biological conditions of the Upper Falls Reservoir including nutrient
loading impacts;
(ii) Whether
alternative regulatory action pursuant to Sub-Item (5)(g) would be sufficient
to protect existing uses as required under the Clean Water Act;
(iii) The impact of management of the Falls
Reservoir on water quality in the Upper Falls Reservoir;
(iv) The methodology used to establish
compliance with nutrient-related water quality standards in Falls Reservoir and
the potential for using alternative methods;
(v) The feasibility of achieving the Stage II
objective; and
(vi) The estimated
costs and benefits of achieving the Stage II objective;
(d) The Division shall make recommendations,
if any, on rule revisions based on the information reported pursuant to
Sub-Items (b) and (c) of this Rule;
(e) In developing the reports required under
Sub-Items (b) and (c) of this Rule, the Division shall consult with and
consider information submitted by local governments and other persons with an
interest in Falls Reservoir. Following receipt of a report, the Commission
shall consider whether revisions to the requirements of Stage II are needed and
may initiate rulemaking or any other action allowed by law;
(f) Recognizing the uncertainty associated
with model-based load reduction targets, to ensure that allowable loads to
Falls Reservoir remain appropriate as implementation proceeds, a person may at
any time during implementation of the Falls nutrient strategy develop and
submit for Commission approval supplemental nutrient response modeling of Falls
Reservoir based on additional data collected after a period of implementation.
The Commission may consider revisions to the requirements of Stage II based on
the results of such modeling as follows:
(i) A
person shall obtain Division review and approval of any monitoring study plan
and description of the modeling framework to be used prior to commencement of
such a study. The study plan and modeling framework shall meet any Division
requirements for data quality and model support or design in place at that
time. Within 180 days of receipt, the division shall either approve the plan
and modeling framework or notify the person seeking to perform the supplemental
modeling of changes to the plan and modeling framework required by the
Division;
(ii) Supplemental
modeling shall include a minimum of three years of lake water quality data
unless the person performing the modeling can provide information to the
Division demonstrating that a shorter time span is sufficient;
(iii) The Commission may accept modeling
products and results that estimate a range of combinations of nitrogen and
phosphorus percentage load reductions needed to meet the goal of the Falls
nutrient strategy, along with associated allowable loads to Falls Reservoir,
from the watersheds of Ellerbe Creek, Eno River, Little River, Flat River, and
Knap of Reeds Creek and that otherwise comply with the requirements of this
Item. Such modeling may incorporate the results of studies that provide new
data on various nutrient sources such as atmospheric deposition, internal
loading, and loading from tributaries other than those identified in this
Sub-item. The Division shall assure that the supplemental modeling is conducted
in accordance with the quality assurance requirements of the
Division;
(iv) The Commission shall
review Stage II requirements if a party submits supplemental modeling data,
products and results acceptable to the Commission for this purpose. Where
supplemental modeling is accepted by the Commission, and results indicate
allowable loads of nitrogen and phosphorus to Falls Reservoir from the
watersheds of Ellerbe Creek, Eno River, Little River, Flat River, and Knap of
Reeds Creek that are substantially different than those identified in Item (3),
then the Commission may initiate rulemaking to establish those allowable loads
as the revised objective of Stage II relative to their associated baseline
values;
(g) Nothing in
this strategy shall be construed to limit, expand, or modify the authority of
the Commission to undertake alternative regulatory actions otherwise authorized
by state or federal law, including the reclassification of waters of the State
pursuant to
G.S.
143-214.1, the revision of water quality
standards pursuant to
G.S.
143-214.3, and the granting of variances
pursuant to
G.S.
143-215.3.
(6) RULES ENUMERATED. The Falls nutrient
strategy rules consists of the following rules titled as follows:
(a) Rule .0275 Purpose and Scope;
(b) Rule .0276 Definitions. An individual
rule may contain additional definitions for terms that are used in that rule
only;
(c) Rule .0277 Stormwater
Management for New Development;
(d)
Rule .0278 Stormwater Management for Existing Development;
(e) Rule .0279 Wastewater Discharge
Requirements;
(f) Rule .0280
Agriculture;
(g) Rule .0281
Stormwater Requirements for State and Federal Entities;
(h) Rule .0282 Options for Offsetting
Nutrient Loads; and
(i) Rule .0315
Neuse River Basin.
(7)
APPLICABILITY. Categories of parties required to implement the Falls nutrient
strategy rules and, as applicable, their geographic scope of responsibility,
are identified in each rule. The specific local governments responsible for
implementing Rules .0277, .0278, and .0282 shall be as follows:
(a) All incorporated municipalities, as
identified by the Office of the Secretary of State, with planning jurisdiction
within or partially within the Falls watershed. Those municipalities are
currently:
(i) Butner;
(ii) Creedmoor;
(iii) Durham;
(iv) Hillsborough;
(v) Raleigh;
(vi) Roxboro;
(vii) Stem; and
(viii) Wake Forest;
(b) All counties with jurisdiction in Falls
watershed and for land where municipalities listed in Sub-Item (7)(a) do not
have an implementation requirement:
(i)
Durham;
(ii) Franklin;
(iii) Granville;
(iv) Orange;
(v) Person; and
(vi) Wake;
(c) A unit of government may arrange through
interlocal agreement or other instrument of mutual agreement for another unit
of government to implement portions or the entirety of a program required or
allowed under any rule of this strategy to the extent that such an arrangement
is otherwise allowed by statute. The governments involved shall submit
documentation of any such agreement to the Division. No such agreement shall
relieve a unit of government from its responsibilities under these
Rules.
(8) ENFORCEMENT.
Failure to meet requirements of Rules .0275, .0277, .0278, .0279, .0280, .0281,
or .0282 of this Section may result in imposition of enforcement measures as
authorized by
G.S.
143-215.6A (civil penalties),
G.S.
143-215.6B (criminal penalties), and
G.S.
143-215.6C (injunctive relief).
Authority
G.S.
143-214.1;
143-214.3;
143-214.5;
143-214.7;
143-215.1;
143-215.3;
143-215.3(a)(1);
143-215.6A;
143-215.6B;
143-215.6C;
143-215.8B;
143B-282(c);
143B-282(d);
S.L. 2005-190; S.L. 2006-259; S.L. 2009-337; S.L. 2009-486;
Eff.
January 15, 2011 (this permanent rule replaces the temporary rule approved by
the RRC on December 16, 2010).
