Environmental Management Commission January 10, 2013 Request Approval to Proceed to Public Notice with Session Law Revisions to the Jordan Lake Nutrient Strategy and Approval of the Fiscal Analysis -Nutrient Strategy has been established since 2009 -Doing this process because its required by SL -Describing (briefly) changes to the rules Environmental Management Commission January 10, 2013

Talk Outline Session Law History Rulemaking Timeline Fiscal Analysis Session Law-based Rule Changes

Session Law History May 2008 – EMC Adopted Rules 2009 – Two Session Laws affecting 5 rules August 2009 – Strategy becomes effective 2011 – Session Law affecting wastewater rule 2012 – Three Session Laws affecting 2 rules

Strategy Rules 15A NCAC 02B .0262 Purpose and Scope (Goals) .0263 Definitions .0264 Agriculture .0265 Stormwater- New Development .0266 Stormwater- Existing Development .0267 Buffer Protection .0268 Buffer Mitigation .0269 Buffer Mitigation Fees .0270 Wastewater Discharges .0271 Stormwater - State and Federal Entities .0272 Fertilizer Management .0273 Trading Those highlighted in green have been affected by Session Laws In total, 6 of 12 rules have been affected by SL. Currently, we are over three years into the strategy implementation. At this stage of the strategy, the buffer and fertilizer managm’t rules are fully in place. Others rules (e.g., Ag, New D, WW, Ex. D, agriculture) are advancing toward full-implementation.

Session Law Requirements Amend or replace rule Must be substantively identical to the Session Law Rulemaking following most elements of the Administrative Procedure Act Rules must return to the General Assembly for review All the SLs includes a section directing the Commission to adopt amended or replacement rules. SL references APA section G.S. 150B-21.9 through G.S. 150B-21.14. These section address the pre-requisites authorizing rulemaking and whether RRC can approve or object to rules.

Rulemaking Timeline February– March 2013 – Public comment May 2013 ‐ EMC rule adoption June 2013 – RRC Presentation Spring 2014 –General Assembly review and July 2014 – Projected effective date for rules Rules are written with a projected implementation date of July 2014 based on their review during the 2014 short-session. Given that the scope of the relevance public comment will be limited to input on whether we have faithfully captured the substance of the SLs, we believe it is reasonable to utilize a process that provides only for written comment.

Revised Fiscal Analysis OSBM approved in August 2012 Addendum to the 2007 note Qualitative assessment of costs Laws imposed fiscal changes Minor effects - Mostly delaying implementation The Division completed a fiscal analysis for the original strategy that was approved by OSBM. The SL requirements are effective and currently being implemented. The rules must be substantively identical to the SL requirements and do not alter costs and benefits from those mandated by the General Assembly.

Rules Affected by Session Laws Purpose and Scope (.0262 ) Exempts WS-V from meeting certain standards New Development Stormwater (.0265) 85% TSS treatment requirement Relaxes the on-site nitrogen treatment thresholds Delays implementation from Aug. 2012 to Aug. 2014 Purpose and Scope: Sought by the Department to address some unintended consequences of the strategy. Removes certain water quality standards in the WS-V Rule 02B .0218 except at industrial intakes for drinking water or where they violate standards at boundaries of WS-II, III, or IV waters. Applies to thirty constituents and/or compounds including Sulfates, Nitrate, Chlorides, Total Dissolved solids. SL language includes pursuant to SL 2009-216 and SL 2009-486. New Dev’t: For dev’t that exceeds the loading rate targets, adds minimum requirement to treat 85% TSS Increases from 4 to 6 (residential) and from 8 to 10 (Comm., Ind., Hi-Res) lbs/ac/yr the on-site N treatment thresholds. Targets are still the same (UNH is 2.2 N lb/ac/yr &  0.82 P lb/ac/yr , LNH is 4.4 N lb/ac/yr &  0.78 P lb/ac/yr, and Haw is 3.8 N lb/ac/yr & 1.43 P lb/ac/yr). Delayed implementation of new dev’t requirements from Aug 2012 to Aug 2014. New Development Programs were approved by the Commission in May or Sept. of 2012.

Rules Affected by Session Laws Local Gov’t Existing Development Stormwater (.0266) Triggers for implementing Stage 2 stormwater programs Stage 2 load reduction goals of 8% N and 5% P Contingency for 35% N reduction in the Upper New Hope State/Federal Stormwater Dev’t (.0271) Triggers for Stage 2 Programs (same as .0266) Gives NCDOT a 3 BMP/yr compliance option for existing dev’t Existing Dev’t: New rule includes the following adaptive management elements to the strategy to treat existing dev’t: Stage 1 Stormwater program requirements. (Currently being implemented) Lake monitoring program administered by the Division. Triggers for implementing Stage 2 stormwater requirements if lake monitoring shows that nutrient related water quality standards are not being achieved. Stage 2 implementation process and existing development load reduction goals of 8% and 5%. Stage 2 load reduction amounts to be set by Department through use of a watershed model. The Division is developing a Model Stage 2 adaptive management program that will be completed no later than July 1, 2013. That work includes input from a Nutrient Scientific Advisory Board as required in Section 4.(a) of the same SL. Requirements for plans to meet N reduction measures of 35% N for communities in the Upper New Hope if water quality standards in the upper lake are not achieved by 2023. Provision allowing local governments to bypass development of a Stage 2 program by demonstrating to the Division that they have achieved their Stage 2 reductions - Allowance for local gov’ts to scale back their existing dev’t treatment if lake water quality standards have been achieved. State/Federal: Nutrient controls for new and existing development for both state and federal entities including NCDOT Starting in 2014, triggers for implementing Stage 2 stormwater programs. Goals and implementation process mirror those for local governments. Timelines for implementing the Stage 2 programs were taken from SL 2009-216. Original implementation timeframe would have had existing dev’t requirements starting in late 2013.

Rules Affected by Session Laws Buffer Protection (.0267) Clarifying language prohibiting impacts to buffers Specifies the process for approving alternative stream maps Wastewater Discharge Rule (.0270) Delays the N compliance from 2014 until 2016 Conditionally allows further delay to 2018 Buffer Protection: Prohibits activities outside the buffer that impact diffuse flow into the buffer. Adds the Geographic Information Coordinating Council into the approval process for alternative maps identifying streams subject to buffer protection. Adds a 30-day public comment period prior to the use of alternative maps. WW: SL 2009-216 changes the nitrogen compliance date from 2014 to 2016. Subsequent SL 2011-394 allows a discharger an extension to 2018 if the discharger has received construction authorization to improve treatment at their facility by January 2016.

Request approval to proceed to public comment for: Action Request Request approval to proceed to public comment for: Session Law Revisions to the Jordan Lake Nutrient Strategy Fiscal Note Addendum

Questions

Jordan Strategy Reduction Goals UNH 35% N 5% P Haw 8% N 5% P LNH 0% N 0% P