[Durham INC] Jordan Lake Rules -- more misconceptions and clarifications.
mmr121570 at yahoo.com
Wed Feb 11 11:40:48 EST 2009
see the attached document (the text of which is also cut and pasted
below) which was drafted to clear up more misconceptions about the
Jordan Lake Rules.
Apparently, the huge costs being quoted by Durham and others are not correct and
are based on a much earlier version of the draft rules --if you read
the actual Existing Development rule it is clear that the combination
of a lengthy (perhaps infinite) timetable to implement anything, and
the ability to use a big "toolbox" of methods for reducing stormwater
will make this much much less costly than is being discussed.
Local governments will also get credit for bmp's and stormwater
management that was implemented after the 2001 baseline. And new
funding sources may be in the pipeline to help create some of this--
Read the exisitng development rule on DENR's website:
Cheers, Melissa (Rooney)
Frequently Asked Questions on the
Jordan Lake Nutrient Strategy
is a list of some of the most frequently asked questions and comments from stakeholders
and the public concerning the Jordan Lake Nutrient Strategy rules, and
‘Division of Water Quality staffs’ replies.
Most of these questions were submitted during the summer 2007 public
comment period on the rules, and some reflect false information and
misrepresentations that have been presented as fact by some individuals and
organizations. The questions have been
organized into five categories: Lake
History / Water Quality, Modeling and Data Issues, Rule Content, Cost Issues,
and Fairness Issues. The full list of
all comments received during the public comment period, along with detailed
replies, can be found in the Division’s Report
of Proceedings on the Proposed Rules for the B. Everett Jordan Reservoir Water
Supply Nutrient Strategy. Each
question below is followed by a reference to similar comments in the Report of
Proceeding, or ROP, which is available at the following website: http://h2o.enr.state.nc.us/nps/JordanNutrientStrategy.htm.
Lake History / Water Quality Problems
Is Jordan Lake’s water quality really that bad? (See
ROP Comment #2-3, 31-32)
While the lake is not so
degraded as to make it unfit for swimming or fishing, these uses are being
impacted by its poor water quality. The
lake does not meet water quality standards related to nutrients, and in terms
of the federal Clean Water Act, it is not meeting its designated uses. The Lake was designated a Nutrient Sensitive
Water in 1983, the year of its impoundment.
In 2002, the Division determined that the Upper New Hope Creek Arm of
the Lake no longer met its designated uses due to exceedances of the
chlorophyll a standard, an indicator
of excess nutrients, and was listed as “impaired.” The same designation was determined for the Haw River Arm in
2006. The chlorophyll a standard used by the state of NC is
actually much less stringent (almost ten times less stringent) than what the
EPA suggests for this ecoregion. The
Haw River Arm was also impaired for pH exceedances in 2006, also a possible
indicator of excess nutrients. Without
measures put into place, the water quality will most likely continue to degrade
as development occurs throughout the watershed and in the growing Triad and
Wasn’t the lake predicted to have nutrient problems
prior to construction? Was the Lake even
intended to be a water supply reservoir originally? (See ROP Comment #13)
problems were predicted prior to the lake’s construction, and the lake was
intended to be a water supply reservoir.
Despite the predicted nutrient problems, the lake was constructed because
of the need for a water supply reservoir, for downstream water quality and
flood control, and for recreation and wildlife conservation. The prediction of an abundance of nutrients
does not change the fact that the lake is impaired and state and federal
statutes require this impairment be addressed.
Jordan Lake was originally intended to be used for water supply, in
addition to other uses. As stated in
part in Public Law (PL) 88-253, 77 Stat 840, dated December 30, 1963 “The B.
Everett Jordan Project is authorized for flood control, water supply, water
quality, recreation, and fish and wildlife conservation.” Text of this law is available on the Army
Corp of Engineers website: http://epec.saw.usace.army.mil/bejdesc.txt. Moreover, the need to restore the lake is
not solely tied to the drinking water use.
Even if the lake were not used as a water supply, its impairment would
still need to be addressed.
Will implementation of the Jordan Rules guarantee an
improvement in lake water quality? (See ROP Comment #1)
A mathematical model of any
natural system will have some level of uncertainty and cannot guarantee
success. However, the impairment of the lake needs to be addressed. The Commission and the USEPA have approved
the model, and the Hearing Officers found that the reservoir model is an
appropriate tool to establish reduction goals. The fact remains that the Lake is impaired, and rules are
required to address this impairment.
Adaptive management will allow the results to be examined, and possibly
changed accordingly in the future.
Isn’t atmospheric deposition a source of nutrients
that the strategy doesn’t address? (this question was a lot more common) (See ROP Comment #10)
Atmospheric deposition is a
significant contributor of nitrogen to water bodies. While a more thorough evaluation of all sources would always
improve our understanding, our evaluation has provided a sound basis for taking
timely action and we have identified and addressed the major sources of
nutrients to the lake that require further management measures with this set of
rules. In developing these rules, we
have considered the adequacy of other existing regulations that address the
sources of nitrogen deposition. Also,
in practicing adaptive management, ongoing monitoring of the nutrient input to
the lake will allow the requirements and accounting methods to be revised in
the future if this reduction in atmospheric deposition does occur and results
in lower nutrient delivery to the lake.
Modeling / Data
Are the models and data that the strategy is based on
reliable? Aren’t there other studies
that show improved water quality? (See ROP Comment #3, 33-40, & 43-47)
The Hearing Officers accepted
the validity of the chlorophyll a
data and the modeling conclusions based on that data. As with any model, they recognized the uncertainty, but accepted
the results of the Jordan reservoir model as the best available analysis and
find the model to be a reliable and sound basis for the management
strategy. The EPA and Commission
approved this model. The strategy’s
model was as good, if not better than any lake model in the past. A USGS study showing a loading decrease can
be attributed to specific actions that cannot be expected to yield further
improvement, such as mandated wastewater improvements, statewide phosphate
detergent ban and loss of industries and cultivated lands. The USGS data was also sparse and not
focused on the critical summer months when algal blooms occur more
frequently. Despite these factors, the
USGS observations were in general agreement with both Division data and model
predictions. In addition, decreasing TN
trends in the division’s 1990-2004 trend analysis of the New Hope Creek, a
principal tributary to the Upper New Hope Arm, while encouraging, do not change
the fact that both the Haw Arm and Upper New Hope Arm continue to substantially
exceed the chlorophyll a standard and remain impaired. Those loading decreases can also be
attributed to many of the same specific actions listed earlier that cannot be
expected to yield further improvement. In
addition, a study funded by the Haw River dischargers that showed chlorophyll a
data lower than DWQ’s data was performed by a lab that was later determined to
have consistently lower-biased chlorophyll a data as compared to other
certified labs. More recent and more
intensive monitoring by DWQ shows consistent nutrient indicator exceedances in
the Haw and Upper New Hope arms. We believe
that the rapid growth occurring in parts of the watershed can be expected to
increase nutrient loading and further degrade water quality.
Isn’t Phase II Sufficient? Shouldn’t we wait to see its results before implementing new
regulations? (See ROP Comments # 61
II rules are not sufficient to address Jordan Lake’s nutrient impairment. Phase II stormwater regulations are designed
for general water quality protection and use a density-based approach. The Jordan Rules target the specific water
quality issue of excess nutrients, and use a target nutrient loading rate
approach. In addition, Phase II is not
enforced throughout the entire Jordan watershed. The Jordan rules cover the entire watershed. In addition, Phase
II does not set any quantitative requirements for existing development.
Wouldn’t removing the causeway at Fearrington Rd.
increase circulation, resulting in better water quality? Why wasn’t this possibility considered? (See
ROP Comment #11)
Removal of the Fearrington Rd.
causeway could potentially improve water quality above it, but likely at the
expense of the lake below it and the river downstream of the dam. The associated re-modeling, planning, and
construction costs would likely be significant. New modeling would be required, since removal would affect the
boundary condition of the models, particularly at the dam. The Haw River Arm would still be impaired,
and removal of the causeway could lead to an even greater impairment in the Haw
and Lower New Hope arms, as well as downstream of the dam. This potential option has always been
recognized, but until the Division’s fiscal analysis of rule costs, it wasn’t
given serious attention. However,
evaluation of this option would need to include comparison to the range of
potential costs for other options, not just the worst case estimates for
existing development provided in the original fiscal analysis.
Purpose & Scope (Rule .0262)
Why is it necessary to designate the entire watershed
as a “critical water-supply watershed”?
Won’t this trigger a host of increased regulations now and in the
future, particularly on water and water treatment plants? (See ROP Comment #61)
There seems to be some
confusion as to what a “critical water supply watershed” designation
means. This designation is not the same as a “critical area”, which
is the ½ mile area around the normal pool elevation of a water supply
reservoir, and is accompanied by density restrictions. The “critical water supply watersheds”
designation does not call for density restrictions, and is designated solely to
establish the Environmental Management Commission’s ability to impose more
stringent requirements than the minimum state water supply requirements. The more stringent requirements that are
imposed are the Nutrient Strategy and accompanying rules. The “critical water supply watershed”
designation does not give the Director any authority to change the rules
without a public hearing.
Under the New Development Rule, is it true that new
commercial and industrial development will have to build up to three BMPs to
achieve the minimum reduction rates needed to buy-down the remaining load? (See
ROP Comment #125)
We find this statement to be
inaccurate, and believe that in most scenarios even two BMPs will not be
required. Using the Tar-Pam accounting
method, the offsite thresholds can be met with two BMPs under any circumstance,
especially for single-family residential developments. As of now, a final accounting method for the
Jordan watershed has not been established, but the Tar-Pam Method is predicted
to be comparable. Some of the confusion on this issue may come from the public
using the land use loading rates that are published in the watershed
model. These numbers were higher than
most published loading rates and will not be used in the accounting method
developed for the Jordan Rules.
Existing Development Rule (.0266)
10. Does the
Existing Development Rule require local governments to retrofit all previously
developed areas? Will this result in
the condemnation of private property? (See ROP Comments #141-145)
No, the Existing Development
Rule does not require retrofits. The
rule is not prescriptive as to what practices are to be used to achieve
reductions. Structural stormwater
retrofits are only one of the many ways that reductions can be achieved under the
Rule. Many other more cost-effective
options are available. The rule is
broad in its methods of achieving reductions, which include, but are not
limited to: street sweeping, improvement of existing ponds and stormwater
structures, removal of existing built-upon areas, treatment of runoff in
redevelopment projects, over-treatment of runoff in new development projects,
source control activities such as fertilizer and pet waste ordinances,
alternative stormwater practices such as rain barrels, cisterns, downspout
disconnections, and stormwater capture and reuse, restoration of ecological
communities such as streams and riparian buffers, and wastewater activities
such as the creation of surplus allocation through advanced treatment,
expansion of surplus allocation through regionalization, collection systems improvements,
removal of illegal discharges, and connection of onsite wastewater systems and
discharging sand filter systems to central sewers An accounting tool will be developed prior to implementation to
determine percent reductions for many of these alternative options. Addressing the second part of the question,
condemnation should be avoidable in most circumstances by using government
owned land, willing landowners, and utilizing the alternative options to structural
retrofits listed above.
Wastewater Rule (.0272)
11. With the
inclusion of the adaptive management clause, will DWQ come back and require
more stringent wastewater limits after five years? (ROP Comment #62)
intent of adding adaptive management to the strategy was to provide a comfort
level and allow for the reduction of restrictions if water quality improved in
the lake over time. If the water
continues to degrade, adaptive management may allow for more restrictive
limits, but this is not anticipated, and any new requirements would be taken
through a collaborative decision-making process with ample opportunity for
discussion. The timeframe to review the
effectiveness of the nutrient strategy was changed from five to ten years at
the request of the RRC.
12. Will DWQ use
the ‘hotspot’ provision in the wastewater rule to declare the entire watershed
a ‘hot spot’, and ratchet down the limits through NPDES permits? (See ROP
will not declare the entire watershed a ‘hot spot’. A ‘hot spot’ is local in nature and an entire watershed or even a
sub-watershed could not be considered a ‘hot spot’. If DWQ were to act on a watershed or subwatershed level, the
Jordan TMDL would have to be modified, requiring public and EPA approval and
require additional rulemaking.
of the Wastewater Rule states “The Director may establish more stringent N or P
limits for any discharger upon finding that such limits are necessary to
prevent the discharge from causing adverse water quality impacts on surface
water other than an arm of Jordan reservoir as defined in Rules .0262(4) of
this strategy.... through modification of the discharger’s NPDES permit.” This could only be done in the smaller
watersheds within each of the three arms.
A similar provision has been in the Neuse Rules since 1997 and has yet
to be acted on. It is worded a little
differently, but addresses the same issue:
“The director shall establish more stringent limits for nitrogen and
phosphorus upon finding that such limits are necessary to protect water quality
standards in localized areas.”
13. Don’t reductions
at the lake equate to much higher reductions at the treatment plants? For example, the 8% TN reduction equates to
about a 70% reduction from past loads at Greensboro’s WWTP, and the 5% TP
reduction at the reservoir translates to 67% reduction from current
limits. (ROP Comment #228)
switch from concentration limits to mass limits fundamentally changes the
nature of nutrient control requirements for NPDES dischargers in the Jordan
TMDL established the mass ‘caps’ for nitrogen and phosphorus in the watershed,
that is, the allowable loads that will protect water quality in each portion of
the reservoir. That load is divided between the point and nonpoint source
categories, and the point source portion is then divided among the NPDES
dischargers in proportion to their permitted discharge flows. Affected
dischargers will receive mass limits for N and P in their permits.
the dischargers have been subject to concentration limits for P. With
concentration limits, as wastewater flows increase with population growth, each
facility must continue to provide the same level of treatment in order to meet
its fixed limit.
mass limits, on the other hand, the facility must provide further treatment to
meet its limit as its flows increase. Mass is a function of both flow and
concentration; as flows increase, the effective concentration (hence, the level
of treatment) necessary to maintain the same mass load will decrease. The
greater the increase, the greater the required improvements. Also, the more rapid the increase in flow,
the more quickly the treatment improvements will be necessary.
strategy and rules require a 5% reduction in the mass load of phosphorus to the
reservoir’s Haw River arm (8% nitrogen) as compared to the actual load in the
1997-2001 baseline period. Two key points need to be made to address the
1. The 8% and 5% reduction requirements are
essentially the same as at end-of-pipe for point sources in the aggregate.
Reductions required at individual facilities will vary because the new limits
will require the same level of treatment at each treatment plant. Those that
have already made nutrient treatment improvements will have less work to do to
meet the new limits.
2. The apparent 67% reduction in P
limits at Greensboro is misleading. The 5% reduction in phosphorus is accurate,
but it is a reduction in mass loads, not in concentrations. Greensboro
and other dischargers will have to treat to much lower than the 2 mg/L limits.
However, the new limits also reflect an 85% increase in point source flows from
the baseline values to the permitted flows (53 MGD and 97MGD, respectively).
This increase in flows accounts for the greatest part of this reduction in
concentrations. The dischargers must upgrade their treatment capabilities to
offset the increase in flows. Again, the extent of improvements required at
each facility will be less for those that have already taken measures to reduce
nutrients. Further, facilities now operating well below their permitted flows
will generally have more time to make necessary improvements than those
operating nearer their flow limits.
effect of transport losses between the discharge point and the reservoir is a
much less significant factor than those described above.
is a simple example showing that an 8% reduction in mass load (total pounds) of
nutrients at the lake equates to an 8% reduction in mass loading at the lake:
fictitious WWTP discharges 400 pounds of nitrogen a day. The plant is in a sub-watershed that has a
transport factor of 75% (75% of the nutrients are lost between the time it
leaves the plant and the time it enters the lake.) Therefore, this WWTP delivers 100 pounds/day of Nitrogen to the
400 lb/day x (1 - 75%) = 100 lbs/day
Haw River Arm, there is an 8% reduction requirement for Nitrogen loads entering
the lake. Therefore, there should be an
8% reduction of the 100 lbs that is entering the lake.
100 lbs/day x (1 - 8%) = 92 lbs/day
an 8 lb reduction at the lake (100 lbs – l92 lbs). Working backwards to determine what reduction would be required
at the plant to get an 8 pound reduction at the lake:
X lbs/day x (1-75%) = 8 lbs/day
X = 32 lbs/day
this particular plant with a transport factor of 75%, an 8 lb reduction at the
lake equates to a 32 lb reduction at the plant. 32 lbs is 8% of 400.
Therefore, an 8% reduction at the lake is achieved by reducing the mass
load at the plant by 8%.
14. Are Point
Sources (Waste Water Discharges) even a significant contributor of nutrients in
the Haw River Arm?
sources are the largest contributor of nitrogen to the Haw River Arm. According to the watershed model, Point
Sources contribute 32% of the total nitrogen delivered to the lake. Agricultural operations contribute 31%, and
existing development contributes 22-26%.
sources are a lesser contributor of phosphorus to the Haw River Arm,
contributing 17% of the total phosphorus delivered to the lake according to the
watershed model. This is behind
agricultural operations, which contributes about 51%. Phosphorus contributions
from point sources are comparable to the contributions from existing
development, which contribute 10-22%.
15. Why are dischargers
who were performing at limits below their permit during the baseline now being
the contrary, those facilities that have already made nutrient control
improvements will have to take fewer measures to meet the new limits than those
who have made little or no improvements. The nutrient limits proposed in the
strategy are based on equivalent concentrations, hence, levels of treatment,
for similar facilities. That is, the mass limits are equivalent to the same
concentration at full permitted flow.
Also, if dischargers who were operating below permit requirements were
operating at full permit limits during the baseline, then the required percent
reductions would probably be higher across the board.
16. Won’t the
Existing Development Rule be extremely costly for local governments? Will the implementation of the Rule really
cost $400-900 million just in the first five years? (See ROP Comments #
While it’s recognized that
this rule may be costly, it must be noted that the estimated cost that was
presented in the original Fiscal Analysis ($530 million) was based on a
worst-case scenario that solely utilized structural stormwater retrofits for
the entire watershed, including the more stringently regulated Upper New Hope,
and was the total cost, which might be spread out over decades. The Division believes that the actual cost
may be significantly less than this worst-case estimate, as many of the more
cost-effective options listed above in Question 10 may be used as opposed to
costly structural retrofits. The Report
of Proceeding, available on the Jordan website, presents these possible costs
in the Fiscal Analysis Revision Appendix.
In addition, this cost was estimated to be for full compliance. The timeframe over which the Existing
Development Rule will be implemented introduces other uncertainties in the
cost. One factor that might not have been foreseen
five years ago is how this summer’s drought created interest in technologies
for capturing rainfall as a resource.
Water-harvesting technologies also reduce nutrient loading, and will
likely become more available and cost-effective with time. Also, several NOx emission air quality
regulations currently in place are expected to result in reductions in nitrogen
export from impervious surfaces over the next thirty years. The magnitude of this effect will be
determined through the monitoring of runoff.
17. Will local governments be given
any assistance in the funding of projects for this rule? (See ROP Comments #6,
141, 163, & 184)
Environmental Management Commission approved a resolution that will be
delivered to the General Assembly, requesting a $10 million recurring
appropriations to local governments to assist in meeting the Existing and New
Development Rule, and a $1 million recurring appropriations to meet the
requirements of the Buffer Rule. Other
possible sources of funding include the Clean Water Management Trust Fund (for
existing development and wastewater projects), the State Revolving Fund, the Federal
Clean Water Act 319 and 205j grant programs and agriculture cost share
18. Why is the
Haw River Arm unfairly burdened while the Upper New Hope Arm has a much larger
impact on the lake’s water quality? (See ROP Comment #8)
The lake essentially acts as
three separate lakes due to the hydrology, and all the arms have been
independently designated as impaired for chlorophyll a exceedances. In addition,
the Haw River Arm has been designated as impaired for pH exceedances. The Haw River Arm’s reduction requirements
are due to inputs from the Haw River Arm watershed, and would be the same
regardless if the Upper New Hope was impaired or not. The rule clearly treats the two Arms differently in regards to
percent reductions in response to the inputs from each arm of the lake. The Haw River only has a nitrogen reduction
requirement of 8% to meet the Haw Arm’s TMDL.
On the other hand, the Upper New Hope Arm must reduce its nitrogen by
35%, almost four times more stringent as the Haw’s requirements. These reductions clearly reflect the difference
in the dynamics and impacts of the Lake’s separate arms.
19. Will the
goals be achievable in the Upper New Hope Arm?
(See ROP Comment #68)
It may prove challenging to meet the goals of the
Upper New Hope Arm, particularly for the agricultural community and for local
government’s existing development.
Regarding agriculture, if the goal is not met after a period of
implementation, that rule provides for a practicability evaluation and
recommendations to the Commission. For
existing development, other options besides structural retrofits may make the
requirements more feasible. This is
discussed above in Question #10. Also,
the Existing Development Rule gives the option of allowing local governments to
determine the feasibility of the requirements with a technical analysis and
give them the option of proposing an alternative timeline to meet their
20. Why are the
agricultural community’s costs so low when the majority of nutrient runoff in
the watershed comes from farmlands? (See ROP Comments #92).
Point sources contribute 32%
of the total nitrogen and 16% of the total phosphorus that is delivered to the
lake. Out of the non-point sources, agriculture is the largest contributor of
both nutrients. However, agriculture
also occupies the most land in the watershed, after forests. When considering the amount of land occupied
by the different land uses, agriculture does not contribute much more than
developed land. Also, with the advent
of state and federal cost share and technical support programs, farmers began
implementing water quality-oriented practices in the late 80’s and early
90’s. With the exception of within
water supply watersheds, this has not been done for residential, commercial,
and industrial development. These practices decreased agriculture’s baseline
loading, which will result in cheaper implementation. These aforementioned
programs will continue to assist in meeting the requirements associated with
these rules. This was taken into account when estimating agriculture’s future
costs. In addition, agricultural BMPs
are far cheaper than other BMPs, especially retrofits.
21. Does the
Environmental Management Commission (EMC) have the statutory authority to enact
the Rules? (See ROP Comments # 9 & 149)
Yes. The legislature has delegated authority to
the EMC to develop rules for the protection and preservation of the State’s
water resources, including drinking water supplies and water supply
watersheds. The Water Supply Watershed
Protection Act (WSWPA) of 1989, G.S. 143-214.5, clearly requires local
governments to adopt ordinances implementing local watershed protection
programs. The Clean Water
Responsibility Act of 1997, S.L 1997-458 and often referred to as House Bill
515, included requirements to address water quality problems in Nutrient
Sensitive Waters (NSWs). The Bill set
concentration limits on larger wastewater facilities discharging into NSWs and
directed the Commission to establish goals to reduce nutrient inputs by targeting
point and nonpoint sources equally. In S.L. 2005-190, the General Assembly
explicitly recognized excess nutrients as a major source of impairment in
drinking water supplies and identified the need to protect impaired
waters. The Hearing Officers affirmed
that the Commission is acting within its statutory powers, that it is taking
actions necessary to execute its duties and responsibilities, and that the
statues from which this set of rules draws from provides appropriate authority
to enact the various proposed requirements.
22. Did the Hearing
Officers read and consider the public’s comments? (See ROP pages 13-14)
Yes, the Hearing Officers reviewed all public comments, evaluated the
concerns and reviewed and discussed with Division staff the processes that were
used to establish impairment, to model restoration needs, and related data and
study issues and were involved in creating a document with all comments and
responses to the comments. These
responses, drafted by staff and reviewed by the Hearing Officers, can be found
in the Report of Proceedings, available on DWQ’s Jordan Rules website.
http://h2o.enr.state.nc.us/nps/JordanNutrientStrategy.htm. Some of the comments
led to revisions or changes in the rules.
Revisions to the rules can also be found in the Report of Proceedings.
23. Are previous BMPs and stormwater
baseline period for the TMDL is 1997-2001.
Any measures that have been done since 2001 and up until the effective
date of the rules can be credited. Measures
taken should be documented, so as to receive credit.
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