Current through Register Vol. 39, No. 6, September 16, 2024
This Rule establishes a staged, adaptive approach by which
municipalities and counties shall contribute to achieving the nonpoint source
loading objectives of the Falls Reservoir nutrient strategy by reducing or
otherwise offsetting nutrient contributions from existing development. It
provides local governments three years to develop programs that propose Stage I
load reduction actions to the Division and requires local governments to begin
and track measures to reduce nutrient loads from existing developed lands
within their jurisdiction by January 15, 2014, as specified in Item (7). Local
governments shall submit for approval and implement Stage II load reduction
programs by January 15, 2021 and submit revised load reductions programs every
five years thereafter. The following is the watershed stormwater strategy, as
prefaced in Rule
15A NCAC
02B .0275, for existing development in the
Falls watershed:
(1) PURPOSE. The
purposes of this Rule are as follows:
(a) To
achieve and maintain the nonpoint source nitrogen and phosphorus percentage
reduction objectives established for Falls Reservoir in Rule
15A NCAC
02B .0275 on nutrient loading from existing
development in the Falls watershed relative to the baseline period defined in
that rule. Existing development is defined in Rule
15A NCAC
02B .0276; and
(b) To protect the water supply, aquatic
life, and recreational uses of Falls Reservoir.
(2) APPLICABILITY. This Rule shall apply to
municipalities and counties in the Falls watershed as identified in Rule
15A NCAC
02B .0275.
(3) STAGED AND ADAPTIVE IMPLEMENTATION
REQUIREMENTS. Local governments shall employ the following staged and adaptive
implementation program. All local governments subject to this Rule shall
develop load-reducing programs for submission to and approval by the Commission
that include the following staged elements and meet the associated minimum
standards for each stage of implementation:
(a) In Stage I, a local government subject to
this Rule shall implement a load reduction program that provides estimates of,
and plans for offsetting by calendar year 2020, nutrient loading increases from
lands developed subsequent to the baseline period and not subject to the
requirements of the local government's Falls Lake new development stormwater
program. For these post-baseline existing developed lands, the current loading
rate shall be compared to the loading rate for these lands prior to development
for the acres involved, and the difference shall constitute the load reduction
need in annual mass load, in pounds per year. Alternatively, a local government
may assume uniform pre-development loading rates of 2.89 pounds/acre/year N and
0.63 pounds/acre/year P for these lands. The local government shall achieve
this Stage I load reduction by calendar year 2020. This Stage I program shall
meet the criteria defined in Item (4) of this Rule;
(b) By January 15, 2021 and every five years
thereafter, a local government located in the Upper Falls Watershed shall
submit and begin implementing a Stage II load reduction program that meets the
following requirements:
(i) If a local
government achieves the Stage I reduction objectives described in this Item, a
local government's initial Stage II load reduction program shall, at the local
government's election, either (A) achieve additional annual reductions in
nitrogen and phosphorus loads from existing development greater than or equal
to the average annual additional reductions achieved in the last seven years of
Stage I or (B) provide for an annual expenditure that equals or exceeds the
average annual amount the local government has spent to achieve nutrient
reductions from existing development during the last seven years of Stage I. A
local government's expenditures shall include all local government funds,
including any state and federal grant funds used to achieve nutrient reductions
from existing developed lands. The cost of achieving reductions from municipal
wastewater treatment plants shall not be included in calculating a local
government's expenditures. Notwithstanding this requirement, the EMC may
approve an initial Stage II load reduction program based on a lower annual
level of reduction or a lower annual level of expenditure if the local
government demonstrates that continuing the prior annual level of reduction or
annual level of expenditure is not reasonable or cost-effective given the
reductions that will be achieved, or the expenditure would cause serious
financial hardship to the local government;
(ii) If Stage I reduction objectives are not
achieved, a local government's initial Stage II load reduction program shall,
at the local government's election, either (A) achieve additional annual
reductions in nitrogen and phosphorus loads from existing development greater
than or equal to the average annual additional reductions achieved in the
highest three years of implementation of Stage I or (B) provide for an annual
expenditure that equals or exceeds the average annual amount the local
government has spent to achieve nutrient reductions from existing development
during the highest three years of implementation of Stage I. Annual
expenditures shall be calculated in accordance with Sub-Item (3)(b)(i) of this
Item;
(iii) Subsequent five year
programs shall be designed to achieve the Stage II percent load reduction goals
from existing developed lands in a local government's jurisdiction, shall
include timeframes for achieving these goals and shall meet the requirements of
Item (4) of this Rule;
(4) ELEMENTS OF LOAD REDUCTION PROGRAMS. A
local government's Stage I and Stage II load reduction program shall address
the following elements:
(a) Jurisdictions in
the Eno River and Little River subwatersheds shall, as a part of their Stage I
load reduction programs, begin and continuously implement a program to reduce
loading from discharging sand filters and malfunctioning septic systems
discharging into waters of the State within those jurisdictions and
subwatersheds;
(b) Jurisdictions
within any Falls subwatershed in which chlorophyll a levels have exceeded 40
micrograms/liter in more than seventy-five percent of the monitoring events in
any calendar year shall, as part of their Stage I load reduction programs,
begin and continuously implement a program to reduce nutrient loading into the
waters of the State within those jurisdictions and that
subwatersheds;
(c) The total amount
of nutrient loading reductions in Stage I is not increased for local
jurisdictions by the requirements to add specific program components to address
loading from malfunctioning septic systems and discharging sand filters or high
nutrient loading levels pursuant to Sub-Items (4)(a) and (b) of this
Item;
(d) In preparation for
implementation of their Stage I and Stage II load reduction programs, local
governments shall develop inventories and characterize load reduction potential
to the extent that accounting methods allow of the following by January 2013:
(i) Wastewater collection systems;
(ii) Discharging sand filter systems,
including availability of or potential for central sewer connection;
(iii) Properly functioning and malfunctioning
septic systems;
(iv) Restoration
opportunities in utility corridors;
(v) Fertilizer management plans for local
government-owned lands;
(vi)
Structural stormwater practices, including intended purpose, condition,
potential for greater nutrient control; and
(vii) Wetlands and riparian buffers including
potential for restoration opportunities;
(e) A local government's load reduction need
shall be based on the developed lands that fall within its general police
powers and within the Falls watershed;
(f) The load reduction need shall not include
lands under state or federal control, and a county shall not include lands
within its jurisdictional boundaries that are under municipal police
powers;
(g) Nitrogen and phosphorus
loading from existing development, including loading from onsite wastewater
treatment systems to the extent that accounting methods allow, shall be
calculated by applying the accounting tool described in Sub-Item (7)(a) and
shall quantify baseline loads of nitrogen and phosphorus to surface waters in
the local government's jurisdiction as well as loading changes post-baseline.
It shall also calculate target nitrogen and phosphorus loads and corresponding
load reduction needs;
(h) The
Commission shall recognize reduction credit for early implementation of
policies and practices implemented after January 1, 2007 and before timeframes
required by this Rule, to reduce runoff and discharge of nitrogen and
phosphorus per Session Law 2009-486. The load reduction program shall identify
specific load-reducing practices implemented to date subsequent to the baseline
period and for which the local government is seeking credit. It shall estimate
load reductions for these practices and their anticipated duration using
methods provided for in Sub-Item (5)(a);
(i) The program shall include a proposed
implementation schedule that includes annual implementation expectations. The
load reduction program shall identify the types of activities the local
government intends to implement and types of existing development affected, a
prioritization of practices, magnitude of reductions it expects to achieve from
each, and the costs and efficiencies of each activity to the extent information
is available. The program shall identify the duration of anticipated loading
reductions, and may seek activities that provide long-term
reductions;
(j) The load reduction
program shall identify anticipated funding mechanisms or sources and discuss
steps take or planned to secure such funding;
(k) The program shall address the extent of
load reduction opportunities intended from the following types of lands:
(i) Lands owned or otherwise controlled by
the local government;
(ii) Each
land use type of privately owned existing development including projected
redevelopment, on which the local government's load reduction need is based as
described in this Item; and
(iii)
Lands other than those on which the local government's load reduction need is
based as described in this Item, including lands both within and outside its
jurisdiction and including the use of interlocal agreements and private third
party sellers;
(l) The
program shall address the extent of load reduction proposed from the following
stormwater and ecosystem restoration activities:
(i) Bioretention;
(ii) Constructed wetland;
(iii) Sand filter;
(iv) Filter strip;
(v) Grassed swale;
(vi) Infiltration device;
(vii) Extended dry detention;
(viii) Rainwater harvesting system;
(ix) Treatment of redevelopment;
(x) Overtreatment of new
development;
(xi) Removal of
impervious surface;
(xii)
Retrofitting treatment into existing stormwater ponds;
(xiii) Off-line regional treatment
systems;
(xiv) Wetland or riparian
buffer restoration; and
(xv)
Reforestation with conservation easement or other protective
covenant;
(m) The
program shall evaluate the load reduction potential from the following
wastewater activities:
(i) Creation of surplus
relative to an allocation established in Rule
15A NCAC
02B .0279;
(ii) Expansion of surplus allocation through
regionalization;
(iii) Connection
of discharging sand filters and malfunctioning septic systems to central sewer
or replacement with permitted non-discharge alternatives;
(iv) Removal of illegal discharges;
and
(v) Improvement of wastewater
collection systems;
(n)
A local government may propose in its load reduction program the use of the
following measures in addition to items listed in (l) and (m), or may propose
other measures for which it can provide accounting methods acceptable to the
Division:
(i) Redirecting runoff away from
impervious surfaces;
(ii) Soil
amendments;
(iii) Stream
restoration;
(iv) Improved street
sweeping; and
(v) Source control,
such as pet waste and fertilizer ordinances;
(o) The program shall include evaluation of
load reduction potential relative to the following factors:
(i) Extent of physical opportunities for
installation;
(ii) Landowner
acceptance;
(iii) Incentive and
education options for improving landowner acceptance;
(iv) Existing and potential funding sources
and magnitudes;
(v) Practice
cost-effectiveness (e.g., cost per pound of nutrient removed);
(vi) Increase in per capita cost of a local
government's stormwater management program to implement the program;
(vii) Implementation rate without the use of
eminent domain; and
(viii) Need for
and projected role of eminent domain;
(5) The Commission shall approve a Stage I
load reduction program if it is consistent with Items (3) and (4) of this Rule.
The Commission shall Approve a Stage II load reduction program if it is
consistent with Items (3) and (4) of this Rule unless the Commission finds that
the local governments can, through the implementation of reasonable and
cost-effective measures not included in the proposed program, meet the Stage II
nutrient load reductions required by this Rule by a date earlier than that
proposed by the local government. If the Commission finds that there are
additional or alternative reasonable and cost-effective measures, the
Commission may require the local government to modify its proposed program to
include such measures to achieve the required reductions by the earlier date.
If the Commission requires such modifications, the local government shall
submit a modified program within two months. The Division shall recommend that
the Commission approve or disapprove the modified program within three months
after receiving the modified program. In determining whether additional or
alternative load reduction measures are reasonable and cost effective, the
Commission shall consider factors identified in Sub-Item (4)(o) of this Rule.
The Commission shall not require additional or alternative measures that would
require a local government to:
(a) Install or
require installation of a new stormwater collection system in an area of
existing development unless the area is being redeveloped;
(b) Acquire developed private property;
or
(c) Reduce or require the
reduction of impervious surfaces within an area of existing development unless
the area is being redeveloped.
(6) A municipality shall have the option of
working with the county or counties in which it falls, or with another
municipality or municipalities within the same subwatershed, to jointly meet
the loading targets from all lands within their combined jurisdictions within a
subwatershed. A local government may utilize private or third party sellers.
All reductions involving trading with other parties shall meet the requirements
of Rule 15A NCAC 02B .0282.
(7) RULE IMPLEMENTATION. This Rule shall be
implemented as follows:
(a) By July 2013, the
Division shall submit a Stage I model local program to the Commission for
approval that embodies the criteria described in Items (3)(a) and (4) of this
Rule. The Division shall work in cooperation with subject local governments and
other watershed interests in developing this model program, which shall include
the following:
(i) Model local ordinances as
applicable;
(ii) Methods to
quantify load reduction requirements and resulting load reduction assignments
for individual local governments;
(iii) Methods to account for discharging sand
filters, malfunctioning septic systems, and leaking collection systems;
and
(iv) Methods to account for
load reduction credits from various activities;
(b) Within six months after the Commission's
approval of the Stage I model local program, subject local governments shall
submit load reduction programs that meet or exceed the requirements of Items
(3) and (4) of this Rule to the Division for review and preliminary approval
and shall begin implementation and tracking of measures to reduce nutrient
loads from existing developed lands within their jurisdictions;
(c) Within 20 months of the Commission's
approval of the Stage I model local program, the Division shall provide
recommendations to the Commission on existing development load reduction
programs. The Commission shall either approve the programs or require changes
based on the standards set out in Item (4) of this Rule. Should the Commission
require changes, the applicable local government shall have two months to
submit revisions, and the Division shall provide follow-up recommendations to
the Commission within two months after receiving revisions;
(d) Within three months after the
Commission's approval of a Stage I local existing development load reduction
program, the local government shall complete adoption of and begin
implementation of its existing development Stage I load reduction
program;
(e) Upon implementation of
the programs required under Item (4) of this Rule, local governments shall
provide annual reports to the Division documenting their progress in
implementing those requirements within three months following each anniversary
of program implementation date until such time the Commission determines they
are no longer needed to ensure maintenance of reductions or that standards are
protected. Annual reports shall include accounting of total annual
expenditures, including local government funds and any state and federal grants
used toward load reductions achieved from existing developed lands. Local
governments shall indefinitely maintain and ensure performance of implemented
load-reducing measures;
(f) By
January 15, 2021 and every five years thereafter until accounting determines
that assigned load reductions have been achieved, standards are met in the
lake, or the Commission takes other actions per Rule
15A NCAC
02B .0275, local governments located in the
upper Falls watershed as defined in Item (3) of Rule
15A NCAC
02B .0275 shall submit and begin
implementation of a Stage II load reduction program or program revision to the
Division. Within nine months after submittal, the Division shall make
recommendations to the Commission on approval of these programs. The Commission
shall either approve the programs or require changes based on the standards set
out in this Rule. If the Commission require changes, the applicable local
governments shall submit revisions within two months, and the Division shall
provide follow-up recommendations to the Commission within three months after
receiving revisions. Upon program approval, local governments shall revise
implementation as necessary based on the approved program;
(g) A local government may, at any time after
commencing implementation of its load reduction program, submit program
revisions to the Division for approval based on identification of more
cost-effective strategies or other factors not originally recognized;
(h) Once either load reductions are achieved
per annual reporting or water quality standards are met in the lake per Rule
15A NCAC
02B .0275, local governments shall submit
programs to ensure no load increases and shall report annually per Sub-Item (e)
on compliance with no increases and take additional actions as
necessary;
(i) At least every five
years after the effective date, the Division shall review the accounting
methods stipulated under Sub-Item (7)(a) to determine the need for revisions to
those methods and to loading reductions assigned using those methods. Its
review shall include values subject to change over time independent of changes
resulting from implementation of this Rule, such as untreated export rates that
may change with changes in atmospheric deposition. It shall also review values
subject to refinement, such as nutrient removal efficiencies.
Authority
G.S.
143-214.1;
143-214.5;
143-214.7;
143-214.12;
143-214.21;
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;
Eff. January 15, 2011
(this permanent rule replaces the temporary rule approved by the RRC on
December 16, 2010).
