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Proposed Local Nitrogen Strategies

By Clyde Price,2014-03-26 15:10
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8 Sep 2004 Report to the Water Quality Committee of the NC EMC a regulatory framework expressed as one or more ordinances, and integration with

    WQC Agenda Item # 3

    REQUEST FOR APPROVAL OF ELEVEN LOCAL PROGRAMS

    IMPLEMENTING THE TAR-PAMLICO STORMWATER RULE

    REPORT TO THE WATER QUALITY COMMITTEE OF THE NC EMC

    September 8, 2004

    Note: Local stormwater program documents summarized here can be viewed or downloaded from the Tar-Pamlico web page at http://h2o.enr.state.nc.us/nps/tarpam.htm.

    (See the links under “Stormwater Rule”)

SUMMARY AND RECOMMENDATION

    The Tar-Pamlico stormwater rule, 15A NCAC 2B .0258, requires eleven local governments to prepare, adopt, and implement programs to address the issue of nutrient control within their respective jurisdictions. In February 2003, the EMC approved a model local program developed by staff and stakeholders. Communities submitted proposed programs for DWQ staff review in February 2004, and have made revisions based on staff comments. Staff requests that the Committee approve these eleven local programs as meeting the minimum requirements established in section (c) of the rule. The Commission delegated authority to the Committee to approve such programs during the Neuse process, thus the Committee‟s action would constitute final approval.

RULE HISTORY AND REQUIREMENTS

Beginning in 1998 at the Commission‟s direction, DWQ staff conducted a lengthy public input

    process to evaluate nutrient contributions from various nonpoint source types and develop rules where needed. Staff used as a starting point a set of nonpoint source rules just adopted in the adjacent Neuse basin. Over the course of 2000, the Commission adopted rules for agriculture, fertilizer application, riparian buffer protection, and urban stormwater. The resulting rules provide flexibility for the regulated community while maintaining the performance goals of the nutrient strategy.

    One of the rules adopted by the Commission addresses stormwater runoff in urbanized areas of the basin. The stormwater rule, 15A NCAC 2B .0258, requires six municipalities and five counties in the basin to develop and implement stormwater programs. The following local governments are subject to the rule based on their potential nutrient contributions to the Pamlico estuary.

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    WQC Agenda Item # 3

    Municipalities Counties

    Greenville Beaufort

    Henderson Edgecombe

    Oxford Franklin

    Rocky Mount Nash

    Tarboro Pitt

    Washington

    For these local governments only that part of their jurisdiction that falls within the Tar-Pamlico River Basin is subject to the rule. For subject counties, applicable areas are those under the direct jurisdiction of the county, which excludes incorporated municipalities. Applicable areas for a county can also include the extraterritorial jurisdiction (ETJ) of a municipality within the county that has also been designated for rule application, to the geographic extent that the municipality does not itself implement a particular rule element. Municipalities and counties are also authorized by statute to establish joint programs or to delegate their programs as permitted by statutes regulating such interlocal agreements.

    The stormwater rule established broad objectives for limiting nutrient runoff from developed areas based on overall nutrient strategy goals of a 30% reduction in nitrogen loading relative to a 1991 baseline and holding phosphorus loading to a baseline value. It then identified the following set of elements that local governments were to include in their programs:

    1. New Development Review/Approval

     Local governments are to establish permitting programs that require all new

    development activities to meet the following:

    ; 4.0 pounds per acre per year (lb/ac/yr) nitrogen export.

    ; 0.4 lb/ac/yr phosphorus export.

    ; Proposals that exceed these performance standards may partially offset their load

    increases by treating existing developed areas offsite that drain to the same

    classified stream.

    ; At minimum, post-development peak flows leaving the site may not exceed pre-

    development for the 1-year, 24-hour storm event.

    ; Local governments have the option of using regional or jurisdiction-wide

    approaches to help meet nutrient loading and attenuation requirements under

    certain circumstances.

    2. Illegal Discharges

     Local governments are to identify and remove illegal discharges.

    3. Retrofit Locations

     Local governments are to identify sites and opportunities for retrofitting existing

    development to reduce total nitrogen and phosphorus loads.

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    WQC Agenda Item # 3

    4. Public Education

     Local governments are to develop and implement public and developer education

    programs for the Tar-Pamlico basin.

Timeframes for implementation of the rule are as follows:

April 1, 2001: Effective date of the stormwater rule.

    February 13, 2003: EMC approves model local program.

    February 13, 2004: Deadline for submittal of draft local programs to DWQ. September 8, 2004: Water Quality Committee hears request to approve local programs. September, October 2004: Local governments adopt and implement programs.

DIFFERENCES BETWEEN TAR-PAMLICO AND NEUSE STORMWATER RULES

    Significant differences between the Tar-Pamlico and Neuse stormwater rules are as follows:

    ; Phosphorus: The Tar-Pamlico rule imposes a phosphorus control requirement for new

    development that does not exist in the Neuse (both basins require nitrogen control), which

    stems directly from differences in nutrient goals between the two basins‟ strategies.

    ; In-Lieu Fee: Unlike the Neuse, the Tar-Pamlico stormwater rule does not provide an explicit

    “fee-in-lieu” option for new developments. At the time the rule was adopted, the NC

    Wetland Restoration Program was facing challenges in meeting established obligations, and

    could not commit to receiving stormwater offset funds as it had in the Neuse. As an

    alternative, the Tar rule included a requirement for local governments to offer developers the

    option to offset a portion of their nutrient load by retrofitting BMPs into existing developed

    areas offsite. The rule also provided local governments the option to pursue regional or

    jurisdiction-wide initiatives, which could include wetland or riparian buffer restoration

    activities.

    ; Calculation Tool: The Tar nutrient control requirements necessitated improvements in the

    export calculation method. DWQ contracted with NCSU stormwater experts, who expanded

    the export method to address phosphorus and to improve the nitrogen calculation. They

    developed automated spreadsheets and differentiated Coastal Plain and Piedmont versions.

; Local Government Character: The character of local governments under the Tar-Pamlico

    requirements is very different in many respects from those under the Neuse rule. The Tar-

    Pamlico basin is not as developed as the Neuse nor is it generally experiencing the growth

    that the Neuse basin sees. For example, despite having similar areas, the Tar-Pamlico basin

    contains roughly one-third the human population of the Neuse. Because of their smaller size

    and generally poorer growth outlook, local governments in the more rural Tar-Pamlico basin

    frequently lack the staff and fiscal resources that Neuse basin local governments have to

    address the requirements of the rule, as well as less reason to mount substantial regulatory

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    WQC Agenda Item # 3

    efforts. As a result, Tar-Pamlico local governments have found it more challenging than

    those in the Neuse to fully address the rule‟s requirements.

IMPLEMENTATION ISSUES

    There are a number of implementation issues that the committee should be aware of as the local governments move forward with implementation. These are discussed below.

Complexity

    The Tar-Pamlico Nutrient Strategy, although expressed by rule in only two pages, is a complex program when implemented at the local level requiring a plan document, a regulatory framework

    expressed as one or more ordinances, and integration with other land use programs such as

    zoning in effect within the various jurisdictions. Some aspects of the program are especially complex such as the offsite offset option. This option is intended to provide developers flexibility in meeting the loading requirements but will require legal agreements between property owners and vigilant monitoring on the part of local governments to insure continued compliance. The extent to which this option will be used is uncertain. Regional or jurisdiction-wide strategies are another more involved option that would provide local governments greater flexibility for their developers, but which will present additional administrative challenges.

Budget Concerns and Local Funding

    The Tar-Pamlico program has significant budget implications for some local governments already stretched thin by loss of industry, a sluggish economy, and state and federal cut-backs. For this reason, some have or are considering implementing a stormwater utility to generate the revenue necessary to meet the program requirements. Local governments implementing stormwater utilities are the two larger municipalities, Rocky Mount and Greenville. The City of Oxford has also initiated actions to establish one. Others are reviewing and revising their fee schedules to allow for greater cost recovery from the development community, but do so reluctantly when growth is already poor.

Issues of Jurisdiction

    In addition to having authority to govern within their corporate limits, cities also have the authority under general statutes to extend their jurisdiction up to one, two, or three miles beyond their corporate boundary, depending upon population, and to enforce certain regulations within this extraterritorial area (or “ETJ”). These regulations do not provide cities with all of the tools needed to implement all elements of the Tar-Pamlico stormwater rule within the ETJ. Cities thus find it particularly challenging to implement this program fully in their ETJ.

    Statutes authorizing planning and zoning powers provide municipalities with clear authority to conduct new development permitting throughout the ETJ. However, such „land use‟ authorities are stretched to address all aspects of ongoing operation and maintenance of permitted systems as described below. Meanwhile, general ordinance-making and police powers extend only to the corporate limits, so cities cannot rely on these powers to enforce the operation and maintenance of stormwater facilities in the ETJ either.

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    WQC Agenda Item # 3

    “A city's power governing the provision of infrastructure under its land development

    regulations is primarily to ensure that it is constructed or installed properly and to ensure a

    proper mechanism for maintenance is in place, not necessarily to supervise the ongoing

    operation and maintenance of private facilities. The city's general ordinance-making power,

    which may be the only usable municipal authority for regulating certain kinds of private activity

    (e.g., stormwater system discharges) applies only inside city limits. A city may be able to prove

    that an improperly functioning private stormwater facility is a public nuisance (under G.S. 160A-

    193), but a city cannot declare a facility to be a nuisance simply because certain operating 1standards are not met or because the facility is in violation of a local government ordinance.”

    Also, cities are challenged to fully address the illicit discharge detection and removal element of the rule in the ETJ. Land use authorities should allow them to address illicit discharges that can be tied to uses of the land, which may constitute the majority of such discharges, but it does not cover illegal dumping types of discharges, for example. For this, nuisance authority can be relied upon, but this authority extends only one mile into the ETJ, while ETJ‟s including those at play in the Tar-Pamlico basin can extend up to three miles out.

    Jurisdictional limits for stormwater utilities and other public enterprises are less clear as discussed below:

    “…[E]xisting laws authorizing public enterprises for cities and counties do not clearly define

    the geographic jurisdiction for municipal public enterprises or county public enterprises, either

    independently of one another or in areas of potential overlap. In concept, a municipal

    stormwater utility may be operated "within reasonable limitations" outside city limits (G.S. 160A-

    312) as well as inside city limits. A county stormwater utility may be operated in areas outside

    municipal limits. Thus there is an obvious potential overlap between the public enterprise

    authority of cities and counties. Nevertheless G.S. 160A-314(a1) provides that no stormwater

    utility fee may be levied if two units of local government operate separate structural and natural

    stormwater systems in the same area within a county, unless the two agree that one or the other

    will exercise jurisdiction. “…[C]ities that have established so-called stormwater utilities

    have generally done so only inside city limits. Part of the reason for this trend seems to be that

    cities are not particularly inclined to extend their jurisdictions beyond town limits unless they

    have a means of recovering their costs. But charges and fees placed on private property owners

    for stormwater services or facilities generally must be related to the impact of private property

    runoff on public facilities. The problem outside city limits is that that the natural and structural

    stormwater facilities that make up the network outside city limits are overwhelmingly not owned,

    operated, maintained, or controlled by the city. So cities are reluctant to impose fees on a 2fragmented basis, as well they should be.”

    And, there are other jurisdictional issues that apply to properties owned by governmental entities.

    “In a state like North Carolina where home rule does not apply, the regulatory powers of local

    government may not be applied to properties owned or managed by the State or local

    governments in the absence of (1) express statutory authority that provides otherwise or (2)

    agreement by the regulated government to be regulated. In a few notable cases (e.g., zoning and

    water supply watershed regulations), the General Assembly has, in fact, adopted legislation 3making the State and/or other local governments subject to local regulation.”

     1 Rich Ducker. 2 R. Ducker. 3 R. Ducker.

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    WQC Agenda Item # 3

    Where cities are statutorily constrained from addressing all aspects of their programs, such as some aspects of BMP maintenance and illicit discharges, counties can be called upon to step in using their general ordinance making and police power authorities. However, this presents coordination challenges that can take significant time to resolve.

    Table 1 in the Recommendations section reflects the status of ETJ resolution among local governments in the basin. As it shows, the most important short-term issue, new development permitting and much of maintenance, is covered in all ETJ‟s. In the five shared ETJ‟s where full coverage of illicit discharge responsibility is lacking, the involved local governments are working actively to resolve responsibility. In light of this outstanding issue, staff will recommend that the Committee approve the eight programs with ETJ issues contingent on resolution of those issues. This would allow them to begin implementing their programs during September and October 2004.

Professional Permit Review and Inspections

    To ensure that stormwater designs meet rule requirements, staff has required that not only will stormwater plans involving BMPs be certified by a qualified professional, but local governments will need to have a qualified professional reviewing these applications. Taking these precautions on the front end of the project will avoid many construction and maintenance problems that can occur. More important, professional review will better ensure that stormwater discharges from new developments meet the loading goals of the rule. To avoid compliance problems associated with construction errors, development sites using one or more BMPs will also require oversight by a qualified professional during the construction phase and final certification by the local government. Finally, once constructed and approved, inspections will need to be conducted on each BMP at regular intervals to insure that they are functioning as designed and intended. Professional review and inspections necessitate greater local staff resources, which again can be very challenging for small, poor-growth communities, some of which were very resistant to taking these steps.

Long-term maintenance

    BMPs required by the rule are intended to function as water quality measures for the life of the new development. To continue functioning as intended, all BMPs require maintenance and some may require significant repairs or reconstruction depending upon the type, quality of design and construction, and how they weather. Even natural buffer areas are not immune to failure. For these reasons, long-term maintenance is a key component of this stormwater protection program and planning for it was emphasized in plans and regulations.

Meeting the phosphorus load

    As discussed earlier, the rule requires local programs to address phosphorus removal. The phosphorus objective is no net increase in export as opposed to the nitrogen goal of reducing export by 30%. Ironically, in many developments, the phosphorus limitation necessitates greater treatment requirements than nitrogen imposes. The prevalence of phosphorus requirements in these cases is tied to increasing coverage of managed pervious surfaces such as lawns. These surfaces export phosphorus at higher rates than nitrogen, relative to other surfaces. Residential

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    WQC Agenda Item # 3

    development will generally require BMPs at lower use intensities to meet the phosphorus load than under nitrogen-only requirements.

Looking Ahead

    Staff is currently pursuing a fee-in-lieu option for this program similar to the one in the Neuse basin as an alternative to the fairly complex offsite offset option. This has been made possible by a recent shift in the ability of the Ecosystem Enhancement Program to pursue restoration and other projects to help support the rule‟s objectives in the basin.

    As described above, several local governments are working to resolve issues of jurisdiction within the ETJ. Staff will continue to work with these jurisdictions to achieve the fullest program coverage available.

    Staff will continue to support and identify further refinements to the phosphorus load science and BMP science that will provide additional management options and improve the accuracy of existing options whenever possible.

    Local governments are required to provide training to community stakeholders such as developers and elected officials. Staff assisted with one such workshop in March 2004 and will participate in additional workshops as requested.

    Local governments are required to report annually on implementation of their programs, including loading changes from new development permitting and compliance. Staff will monitor these reports and continue to work with local governments to refine their programs.

STAFF RECOMMENDATION

    The eleven local governments subject to the Tar-Pamlico stormwater rule, 15A NCAC 2B .0258, have provided program documents that meet or exceed minimum requirements established in Section (c) of the rule. These programs include a comprehensive Stormwater Program document and one or more ordinances needed for implementing the various elements. The Program document and its appendices describe each element of the program, including general intent, actions and associated timeframes, and supporting technical information. Ordinances contain the language needed to compel the local governments and regulated parties to carry out the state‟s rule. Since these Program documents are numerous and often large, they are not attached to this report. Instead, full documentation for each local government can be accessed at http://h2o.enr.state.nc.us/nps/tarpam.htm.

    Staff respectfully requests that the Water Quality Committee accept this report and its determinations as described above, and grant approval to eleven Tar-Pamlico stormwater programs as meeting the minimum requirements established in section (c) of the rule, with the following qualifications as detailed in Table 1 below:

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    WQC Agenda Item # 3

    1. Approval of three programs would be contingent upon local board adoption.

    2. Approval of seven programs would be contingent upon local board adoption and

    resolution of extraterritorial jurisdiction issues.

    3. Approval of the one remaining program would be contingent upon resolution of

    extraterritorial jurisdiction issues only.

    The Commission delegated authority to the Committee to approve such programs in a memorandum dated September 14, 2000, thus the Committee‟s action would constitute EMC

    approval. Staff requests permission for the Director to grant final approval to these programs upon resolution of contingencies and to approve any subsequent minor program amendments that these communities may propose from time to time. Staff would bring any significant alterations to the Committee for approval. As specified in their ordinances, local programs will begin implementing the new development requirements immediately following ordinance adoption, with adoption dates scheduled during September and October 2004.

    Table 1. Staff Recommendations for WQC Approval of Tar-Pamlico Stormwater Programs

     ETJ Covered?

    Municipality County New Illicit Discharge

    Development Detection & Elimination

    Greenville Yes Land Use Yes, Nuisance - No Pitt

    (Vance) No No Henderson

    Oxford (Granville) Yes Yes

    Yes No Rocky Mount Nash/Edgecombe

    Yes No Tarboro Edgecombe

    Yes No Washington Beaufort

     Franklin N/A N/A

    Plain font: Staff recommends approval contingent upon final local board adoption. Bold font: Staff recommends approval contingent upon resolution of ETJ issues and final

    local board adoption.

    Bold italic font: Staff recommends approval contingent upon resolution of ETJ issues only.

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