1 ENVIRONMENTAL MANAGEMENT COMMISSION WATER ... - NC.gov
ENVIRONMENTAL MANAGEMENT COMMISSION WATER QUALITY COMMITTEE MEETING SUMMARY September 7, 2016 Archdale Building-Ground Floor Hearing Room 1:00 PM – 3:30 PM
BRIEF The Water Quality Committee (WQC) of the Environmental Management Commission (EMC) at the September 7, 2016 meeting:
approved the draft summary for the July 13, 2016 WQC meeting. approved to proceed to the EMC with the initial determinations for the Dam Safety Rules. directed Division of Water Resources’ (DWR) basinwide staff to return to the 2016 November WQC meeting with the Basinwide Water Quality Management Plans Annual Report. approved a request for an After-the-Fact Major Variance from the Neuse Riparian Area Protection Rule by Capital City Property Solutions, Inc. for a home constructed at 611 N. Elizabeth Street in Durham, NC heard an overview of § 143-214.23A. (Limitations on local government riparian buffer requirements). heard an overview of Nutrient Management Regulatory Framework (S.L. 2016-94).
WQC Members in Attendance: Mr. John D. Solomon, WQC Vice Chair Dr. Lawrence W. Raymond Mr. Thomas Craven Mr. Kevin Martin Dr. Albert Rubin Mr. Steve Tedder WQC Members not in Attendance: Ms. Julie Wilsey, WQC Chair Others Present: Mr. Steven Rowlan, EMC Chair Mr. William “Bill” Puette, EMC Mr. Charles Carter, EMC Ms. Jennie Hauser, Attorney General Office Jay Zimmerman, Director of Division of Water Resources
1
I. Preliminary Matters None of the WQC members has recused themselves from making a decision on any of the action items on the September 7, 2016 WQC agenda.
1. Request Approval to Proceed to the Environmental Management Commission with the Initial Determinations for the Dam Safety Rules (15A NCAC 02K) in accordance with HB74 and GS 150B Description Mr. Boyd Devane with the Division of Energy, Mineral, and Land Resources (DEMLR) had requested WQC’s approval to proceed to the EMC with the review of the 33 rules in NC’s Dam Safety program. The rule review process is mandated in HB74. The first requirement in the review process is for the EMC to make an initial determination for the categorization of the rules as either: 1) necessary with substantive interest; 2) necessary without substantive interest; or 3) unnecessary. DEMLR staff will recommend that two rules be categorized as “unnecessary” but the remainder be categorized as “necessary without substantive public interest.” Although this recommendation differs from most of the previous recommendations to the EMC, the staff believes that this is the proper categorization for these rules. The Dam Safety rules have been in existence for over 30 years and they have been subject to almost no controversy. The experience of DEMLR has been that most of the public, even the regulated public, see the necessity of having a strong Dam Safety program and feel that the existing rules appropriately address environmental protection and public safety issues. In addition, these rules are based on a comprehensive NC Dam Safety Law that is consistent with nationally-recognized engineering and public safety standards. DEMLR staff requested the WQC to send the “Report for 15A NCAC 02K” spreadsheet to the EMC as the “initial determination” for the categorization of the Dam Safety Rules. Discussion Mr. Tedder commented that no matter what (rule) they still will go through the (APA) rulemaking process. Mr. Martin commented that the geologist definition (in the rule) is outdated. Mr. Solomon asked if a stakeholder process or public comment period would be implemented. Mr. Vinson with DEMLR said with this step it will go only through a public comment period. He went on further to say that a stakeholder process will be implemented, when in the re-adoption period, there are recommendations for any changes in the rules. Motion Mr. Tedder made a motion to approve the staff’s recommendation and it was seconded by Mr. Martin. The motion passed.
2
2. Request Approval to Proceed to the Environmental Management Commission for Approval to Send the Basinwide Water Quality Management Plans Annual Report to the Environmental Review Commission per G.S. 143-215.8B (d) Description Ms. Nora Deamer with the Division stated that the General Statute 143-215.8B (d) requires the EMC and the Department of Environmental Quality (Department) to report on or before 1 October of each year to the Environmental Review Commission (ERC) on the progress in developing and implementing water quality management plans. The report includes information on the completion and approval of the Tar-Pamlico River basin management plan by the EMC in July 2015. The report also includes a list of water resource plans currently under development by the state’s Basin Planning Branch with the assistance of many other resource agency staff. As a requirement of the statute to include an overall pollutant summary for surface waters of the state, a summary graph of the draft 2016 Integrated Report is included. Division staff requested the WQC’s approval to send the annual report to the August 2016 EMC meeting for their approval to submit the report to the ERC. Discussion Mr. Tedder commented that more work needs to go into the report before we (WQC) put our name and send it over as an update. It lacks specificity on the status for the basin including but not limited to legislative driven activities and basin schedules. Mr. Rubin commented that he would like to see information on the targets and goals for various sectors. EMC Chairman Mr. Rowlan commented that the report needs to reveal expectations, be received sooner, and show progress. Motion
Mr. Tedder made a motion to bring the Basinwide Water Quality Management Plans Annual Report back to the November (2016) WQC meeting and it was seconded by Dr. Raymond. The motion passed. 3. Request for an After-the-Fact Major Variance from the Neuse Riparian Area Protection Rule by Capital City Property Solutions, Inc. for a home constructed at 611 N. Elizabeth Street in Durham, NC Description Jennifer Burdette with DWR presented to the WQC a request received for the WQC to grant an after-the-fact Major Variance from the Neuse Riparian Area Protection Rule to Capital City Property Solutions, Inc. for a home constructed at 611 N. Elizabeth Street in Durham, NC that was built in Zone One and Zone Two of the buffer. The applicant is proposing mitigation to offset the buffer impacts and treatment of stormwater runoff from the house. Based on the information submitted, DWR supports this request for a Major Variance from the Neuse Riparian Area Protection Rule because all of the requirements in 15A NCAC 02B. 0233 have been met. 3
Discussion Dr. Rubin asked staff about the tree planting on the property. Specifically, he wanted to know when the trees would be planted and was there any size recommendation for the trees. Ms. Burdette mentioned that the native trees will be planted in the fall and that there was no consideration of the size of the trees. She went on to say that the planting is a requirement for clearing the buffer and that the trees once they are planted must survive for 5 years. Mr. Martin commented that this (situation) is why existing lots platted before the buffer rules need to be exempt from the rule. Mr. Craven asked if the lot had been divided due to the presence of a fence that extend over into the adjacent lot. Ms. Burdette stated that applicant had provided a copy of the plat showing the same lot width as the current survey. EMC Chairman Rowlan asked about whether compensatory buffer mitigation could be required before issuance of the variance to ensure compliance. Mr. Martin explained that the mitigation bank could not accept payment until the major variance was granted. Ms. Burdette added that the Division would follow up with an inspection to ensure compliance with the permit conditions. Ms. Hauser said that the WQC’s decision could include a deadline for paying the compensatory mitigation. Motion Mr. Martin made a motion to approve the After-the-Fact Major Variance as proposed with the conditions recommended by staff and it was seconded by Mr. Tedder. The motion passed. 4. Overview of § 143-214.23A. Limitations on local government riparian buffer requirements Description Ms. Karen Higgins with DWR presented an overview of § 143-214.23A (S.L. 2015-246), which places limits on local government riparian buffer requirements. Also included are studies from four local governments that will be brought before the WQC and EMC for action in November (2016). Discussion The WQC asked the following questions on some of the provisions of the Session Law 2015246. 1) “Within 90 days after the Commission receives a complete application, …” § 143214.23A.d Who makes the determination of completion and has it been done? 2) What does - "scientific studies of the local environmental and physical conditions that support the necessity of the riparian buffer requirement for the protection of water quality, " § 143-214.23A.d – mean as far as what we (EMC) should and should not consider in evaluating studies that are submitted? 4
Other pertinent questions 3) When a local government has a part of its jurisdiction in a watershed and has been delegated responsibility for the Buffer program but also has a part in another buffered watershed and has not been delegated the buffer program in that watershed, should the EMC's decision be restricted to the part of the county where it has been delegated the program only or should it apply county wide? 4) Has any guidance been given from the Department to the local governments of what should and should not in the report (scientific study)? 5) Did anybody discuss the Session Law with the Legislature and their staff? Motion Not Applicable 5. Overview of Nutrient Management Regulatory Framework S.L. 2016-94 Description Mr. John Huisman with DWR provided a summary of recently passed Session Law 2016-94 which calls for an evaluation of the Falls and Jordan nutrient management strategies and separates these rules from the rest of the periodic rules readoption process and establishes their own rulemaking timelines. This new legislation also calls on the University of North Carolina at Chapel Hill to oversee a study of the Jordan and Falls strategies that includes an assessment of the costs and benefits of nutrient strategies in other states. The Department is tasked with developing individual reports on lake treatment technologies, the nutrient offset program, and the need for state-specific values for stormwater best management practices. The EMC is charged with considering the findings of these studies, convening a stakeholder working group, and initiating the rule readoption process no later than March 15, 2019. A plan for the stakeholder working group will be presented to the EMC for approval in November. Discussion WQC Vice Chair Solomon asked for a member of the WQC to volunteer to work with staff to identify individuals for a work group. Mr. Tedder said that there would be many groups and that you (staff) are looking to have one member per group on the work group. Mr. Huisman agreed. Mr. Tedder and Dr. Rubin volunteered to work with staff. The WQC Vice Chair indicated that either he or WQC Chair would help as well. Mr. Huisman said the list of those individuals will be brought to the WQC in November 2016 and then be sent to the EMC for approval. Motion Not Applicable
5
This summary was prepared by Adriene Weaver with assistance from presenters: Boyd Devane, Nora Deamer, Jennifer Burdette, Karen Higgins and John Huisman
6
BRIEF The Water Quality Committee (WQC) of the Environmental Management Commission (EMC) at the September 7, 2016 meeting:
approved the draft summary for the July 13, 2016 WQC meeting. approved to proceed to the EMC with the initial determinations for the Dam Safety Rules. directed Division of Water Resources’ (DWR) basinwide staff to return to the 2016 November WQC meeting with the Basinwide Water Quality Management Plans Annual Report. approved a request for an After-the-Fact Major Variance from the Neuse Riparian Area Protection Rule by Capital City Property Solutions, Inc. for a home constructed at 611 N. Elizabeth Street in Durham, NC heard an overview of § 143-214.23A. (Limitations on local government riparian buffer requirements). heard an overview of Nutrient Management Regulatory Framework (S.L. 2016-94).
WQC Members in Attendance: Mr. John D. Solomon, WQC Vice Chair Dr. Lawrence W. Raymond Mr. Thomas Craven Mr. Kevin Martin Dr. Albert Rubin Mr. Steve Tedder WQC Members not in Attendance: Ms. Julie Wilsey, WQC Chair Others Present: Mr. Steven Rowlan, EMC Chair Mr. William “Bill” Puette, EMC Mr. Charles Carter, EMC Ms. Jennie Hauser, Attorney General Office Jay Zimmerman, Director of Division of Water Resources
1
I. Preliminary Matters None of the WQC members has recused themselves from making a decision on any of the action items on the September 7, 2016 WQC agenda.
1. Request Approval to Proceed to the Environmental Management Commission with the Initial Determinations for the Dam Safety Rules (15A NCAC 02K) in accordance with HB74 and GS 150B Description Mr. Boyd Devane with the Division of Energy, Mineral, and Land Resources (DEMLR) had requested WQC’s approval to proceed to the EMC with the review of the 33 rules in NC’s Dam Safety program. The rule review process is mandated in HB74. The first requirement in the review process is for the EMC to make an initial determination for the categorization of the rules as either: 1) necessary with substantive interest; 2) necessary without substantive interest; or 3) unnecessary. DEMLR staff will recommend that two rules be categorized as “unnecessary” but the remainder be categorized as “necessary without substantive public interest.” Although this recommendation differs from most of the previous recommendations to the EMC, the staff believes that this is the proper categorization for these rules. The Dam Safety rules have been in existence for over 30 years and they have been subject to almost no controversy. The experience of DEMLR has been that most of the public, even the regulated public, see the necessity of having a strong Dam Safety program and feel that the existing rules appropriately address environmental protection and public safety issues. In addition, these rules are based on a comprehensive NC Dam Safety Law that is consistent with nationally-recognized engineering and public safety standards. DEMLR staff requested the WQC to send the “Report for 15A NCAC 02K” spreadsheet to the EMC as the “initial determination” for the categorization of the Dam Safety Rules. Discussion Mr. Tedder commented that no matter what (rule) they still will go through the (APA) rulemaking process. Mr. Martin commented that the geologist definition (in the rule) is outdated. Mr. Solomon asked if a stakeholder process or public comment period would be implemented. Mr. Vinson with DEMLR said with this step it will go only through a public comment period. He went on further to say that a stakeholder process will be implemented, when in the re-adoption period, there are recommendations for any changes in the rules. Motion Mr. Tedder made a motion to approve the staff’s recommendation and it was seconded by Mr. Martin. The motion passed.
2
2. Request Approval to Proceed to the Environmental Management Commission for Approval to Send the Basinwide Water Quality Management Plans Annual Report to the Environmental Review Commission per G.S. 143-215.8B (d) Description Ms. Nora Deamer with the Division stated that the General Statute 143-215.8B (d) requires the EMC and the Department of Environmental Quality (Department) to report on or before 1 October of each year to the Environmental Review Commission (ERC) on the progress in developing and implementing water quality management plans. The report includes information on the completion and approval of the Tar-Pamlico River basin management plan by the EMC in July 2015. The report also includes a list of water resource plans currently under development by the state’s Basin Planning Branch with the assistance of many other resource agency staff. As a requirement of the statute to include an overall pollutant summary for surface waters of the state, a summary graph of the draft 2016 Integrated Report is included. Division staff requested the WQC’s approval to send the annual report to the August 2016 EMC meeting for their approval to submit the report to the ERC. Discussion Mr. Tedder commented that more work needs to go into the report before we (WQC) put our name and send it over as an update. It lacks specificity on the status for the basin including but not limited to legislative driven activities and basin schedules. Mr. Rubin commented that he would like to see information on the targets and goals for various sectors. EMC Chairman Mr. Rowlan commented that the report needs to reveal expectations, be received sooner, and show progress. Motion
Mr. Tedder made a motion to bring the Basinwide Water Quality Management Plans Annual Report back to the November (2016) WQC meeting and it was seconded by Dr. Raymond. The motion passed. 3. Request for an After-the-Fact Major Variance from the Neuse Riparian Area Protection Rule by Capital City Property Solutions, Inc. for a home constructed at 611 N. Elizabeth Street in Durham, NC Description Jennifer Burdette with DWR presented to the WQC a request received for the WQC to grant an after-the-fact Major Variance from the Neuse Riparian Area Protection Rule to Capital City Property Solutions, Inc. for a home constructed at 611 N. Elizabeth Street in Durham, NC that was built in Zone One and Zone Two of the buffer. The applicant is proposing mitigation to offset the buffer impacts and treatment of stormwater runoff from the house. Based on the information submitted, DWR supports this request for a Major Variance from the Neuse Riparian Area Protection Rule because all of the requirements in 15A NCAC 02B. 0233 have been met. 3
Discussion Dr. Rubin asked staff about the tree planting on the property. Specifically, he wanted to know when the trees would be planted and was there any size recommendation for the trees. Ms. Burdette mentioned that the native trees will be planted in the fall and that there was no consideration of the size of the trees. She went on to say that the planting is a requirement for clearing the buffer and that the trees once they are planted must survive for 5 years. Mr. Martin commented that this (situation) is why existing lots platted before the buffer rules need to be exempt from the rule. Mr. Craven asked if the lot had been divided due to the presence of a fence that extend over into the adjacent lot. Ms. Burdette stated that applicant had provided a copy of the plat showing the same lot width as the current survey. EMC Chairman Rowlan asked about whether compensatory buffer mitigation could be required before issuance of the variance to ensure compliance. Mr. Martin explained that the mitigation bank could not accept payment until the major variance was granted. Ms. Burdette added that the Division would follow up with an inspection to ensure compliance with the permit conditions. Ms. Hauser said that the WQC’s decision could include a deadline for paying the compensatory mitigation. Motion Mr. Martin made a motion to approve the After-the-Fact Major Variance as proposed with the conditions recommended by staff and it was seconded by Mr. Tedder. The motion passed. 4. Overview of § 143-214.23A. Limitations on local government riparian buffer requirements Description Ms. Karen Higgins with DWR presented an overview of § 143-214.23A (S.L. 2015-246), which places limits on local government riparian buffer requirements. Also included are studies from four local governments that will be brought before the WQC and EMC for action in November (2016). Discussion The WQC asked the following questions on some of the provisions of the Session Law 2015246. 1) “Within 90 days after the Commission receives a complete application, …” § 143214.23A.d Who makes the determination of completion and has it been done? 2) What does - "scientific studies of the local environmental and physical conditions that support the necessity of the riparian buffer requirement for the protection of water quality, " § 143-214.23A.d – mean as far as what we (EMC) should and should not consider in evaluating studies that are submitted? 4
Other pertinent questions 3) When a local government has a part of its jurisdiction in a watershed and has been delegated responsibility for the Buffer program but also has a part in another buffered watershed and has not been delegated the buffer program in that watershed, should the EMC's decision be restricted to the part of the county where it has been delegated the program only or should it apply county wide? 4) Has any guidance been given from the Department to the local governments of what should and should not in the report (scientific study)? 5) Did anybody discuss the Session Law with the Legislature and their staff? Motion Not Applicable 5. Overview of Nutrient Management Regulatory Framework S.L. 2016-94 Description Mr. John Huisman with DWR provided a summary of recently passed Session Law 2016-94 which calls for an evaluation of the Falls and Jordan nutrient management strategies and separates these rules from the rest of the periodic rules readoption process and establishes their own rulemaking timelines. This new legislation also calls on the University of North Carolina at Chapel Hill to oversee a study of the Jordan and Falls strategies that includes an assessment of the costs and benefits of nutrient strategies in other states. The Department is tasked with developing individual reports on lake treatment technologies, the nutrient offset program, and the need for state-specific values for stormwater best management practices. The EMC is charged with considering the findings of these studies, convening a stakeholder working group, and initiating the rule readoption process no later than March 15, 2019. A plan for the stakeholder working group will be presented to the EMC for approval in November. Discussion WQC Vice Chair Solomon asked for a member of the WQC to volunteer to work with staff to identify individuals for a work group. Mr. Tedder said that there would be many groups and that you (staff) are looking to have one member per group on the work group. Mr. Huisman agreed. Mr. Tedder and Dr. Rubin volunteered to work with staff. The WQC Vice Chair indicated that either he or WQC Chair would help as well. Mr. Huisman said the list of those individuals will be brought to the WQC in November 2016 and then be sent to the EMC for approval. Motion Not Applicable
5
This summary was prepared by Adriene Weaver with assistance from presenters: Boyd Devane, Nora Deamer, Jennifer Burdette, Karen Higgins and John Huisman
6
