Water Quality Committee Meeting Summary

ENVIRONMENTAL MANAGEMENT COMMISSION WATER QUALITY COMMITTEE MEETING SUMMARY November 12, 2014 Archdale Building-Ground Floor Hearing

BRIEF At the November 12, 2014 meeting of the Environmental Management Commission (EMC) Water Quality Committee (WQC), the WQC: . approved the September 10, 2014 WQC meeting summary. . heard information on the following matters: Subchapter 02R Rules Review; Minimum Design Criteria Team for stormwater; Rule 15A NCAC 2B .0295 rulemaking process; and the Integrated Water Quality/Quantity Plan.

WQC Members in Attendance: Mr. Steve Tedder (Chairman) Mr. David Anderson Mr. William Puette Dr. Albert Rubin Mr. Benne Hutson Mr. Kevin Martin Mr. Thomas Craven Mr. Charles Elam Dr. Lawrence W. Raymond

Others Present: Mr. Tom Reeder, Division of Water Resources (DWR) Director Ms. Jennie Hauser, Attorney General Office Ms. Julie Wisely, EMC Mr. Daniel Dawson, EMC

None of the WQC members recused himself from making a decision on any of the items on the November 12, 2014 WQC agenda. II. Agenda Items 1. Request for an After-the-Fact Major Variance from the Tar-Pamlico Riparian Area Protection Rules by Mr. Ernest Floyd Foster for a Commercial Seafood Operation at 70 Captain Tom’s Rd in Washington, NC – (Action Item) (Jennifer Burdette) Description A request has been received for WQC to grant a Major Variance from the Tar-Pamlico River Riparian Area Protection Rules (15A NCAC 2B .0259) to Mr. Ernest Floyd Foster for a commercial blue crab operation at 70 Captain Tom’s Road in Washington, NC. Because crabs must be kept cool for grading and storage, Mr. Floyd has located two refrigerated trailers adjacent to the existing docks and boardwalk in Zone One and Two of the riparian buffer. The applicant is proposing mitigation and maintenance of diffuse flow to offset the proposed buffer

1 impacts. Although DWR recognizes that the applicant does not comply with the evaluation criterion 15A NCAC 02B .0259(9)(a)(i)(E), DWR supports this major variance request. Discussion Mr. Martin commented that he is disconcerted by the applicant, who withdrew the trailers from the CAMA modification request in order to get CAMA approval and buffer authorization and then illegally placed an unauthorized trailer and loading deck into the buffer knowingly and then came back to the WQC for the major variance request after notice of violation was issued. Mr. Craven asked to clarify that Mr. Foster placed the loading deck and one trailer in buffer after being notified that they were not allowed in the buffer without a variance. Ms. Burdette reported that Mr. Foster indicated that he placed the trailer and loading deck in the buffer because his permits for the future residence were delayed. Motion Mr. Craven made a motion to deny the request on the basis that the applicant knowingly violated the Tar Pamlico Riparian Area Protection Rules by placing in the buffer semi-trailers and docks in connection with his commercial crab operation. Dr. Raymond seconded the motion. The WQC members voted in favor of the motion except for Mr. Martin. 2. Status of Rules Review of Subchapter 02R in accordance with S.L. 2013-413 - (Information Item) (Kelly Williams) Description In accordance with General Statute 150B-21.3A the Environmental Management Commission (EMC) at its July meeting made an initial determination of “necessary with substantive public interest” for the ten rules in 15A NCAC 02R. A comment period was held from July 11, 2014 to September 17, 2014 to accept comments on the initial determinations. Staff presented an overview of the comments received and will return to the EMC in January with a final recommendation for the EMC’s action. Discussion None Motion Not Applicable 3. Minimum Criteria Design Team for Stormwater – (Information Item) (Annette Lucas) Description Session Law 2013-82 (House Bill 480) requires the Department of Environment and Natural Resources (DENR) to convene a Minimum Design Criteria (MDC) Team that includes industry experts, engineers, environmental consultants, university faculty and other stakeholders. The purposes of the MDC Team are: 1. To consult with DENR in developing MDCs that encompass all requirements for siting, design, construction and maintenance of stormwater BMPs. The MDC shall be developed with the goal of generating state stormwater permits that comply with water quality standards. DENR shall submit its recommendations to the Environmental Review Commission by February 1, 2015. 2. To consult with the EMC in developing a fast-track permitting process for issuing state stormwater permits without a technical review when all BMPs comply with all MDCs and the permit application is prepared by a qualified individual. The EMC shall adopt a fast-track permitting rule no later than July 1, 2016. The MDC Team has met once a month since March 2014. Staff provided an update on the status thus far and an explanation of the future steps for the MDC Team. Discussion Mr. Craven asked whether there is in the MDC a way to provide a stronger expression that either of the recommended methodologies for calculation of the full treatment volume is acceptable. Ms. Lucas explained that it is DEMLR’s intent to allow municipalities to choose one method and implement the MDC in the same way that the agency would. She went on to say, that there will be education of design community and local government after the MDC goes in to effect. Dr. Rubin asked will there be certification training programs for operators of the BMPs. Ms. Lucas said that yes, NCSU currently offers BMP Inspection and Maintenance Training and that this training will be updated with the updates to BMP design standards. EMC Chairman Hutson said he is concerned about the tight rule-making schedule and the language in the Session Law that requires the MDC Team to establish a process for liability of a professional and ensuring compliance.

Motion Not Applicable 4. Update on 15A NCAC 02B .0295 Rulemaking Process - (Information Item) (Sue Homewood) Description Temporary Rule 15A NCAC 02B .0295 was approved by the Rules Review Commission (RRC) on October 16, 2014 and becomes effective on October 24, 2014. The temporary rule will expire on August 14, 2015, unless the permanent rule adopted by the EMC to replace the temporary rule has been submitted to the Rules Review Commission. The Division is actively working on the permanent rule and a draft permanent rule will be presented to the WQC in January 2015. During the RRC review of Rule .0295, substantial changes to the text were requested by the RRC. Due to legislative mandates, many of technical change requests were allowed to be delayed until permanent rule making. The Division would like to immediately start working with the RRC counsel to address the technical change requests in detail and to provide the WQC with a proposed permanent rule in January that is based on the RRC requests. Staff provided an update of the RRC technical change requests. Discussion EMC Chairman Hutson asked if it is the Division’s understanding per the Session Law that the EMC is not bound to adopt the temporary rules as permanent and it put these rules back into play for adoption. Ms. Homewood said yes. Mr. Hutson also asked the Division to send a notice to the people who filed objections with the RRC to advise them that a permanent rule-making process is about to be undertaking with regards to these rules. Motion Not Applicable 5. Annual Progress Reports on the Neuse and Tar-Pamlico Agriculture Rules – (Information Item) (John Huisman)

3 Description The Neuse and Tar-Pamlico Rules (15A NCAC 2B .0238 and .0256, respectively) require that the Basin Oversight Committees (BOCs) report to the EMC each year on implementation progress. For crop year 2013, the BOCs received and approved annual reports from the 17 Local Advisory Committees (LACs) in the Neuse basin and the 14 Tar-Pamlico LACs. The reports showed cumulative nitrogen loss reductions of 38% and 43% from baseline through 2013 from agriculture in the Neuse and Tar-Pamlico, respectively. Relative to reductions reported last year, this equates to a 7% decrease in nitrogen loss reduction in the Neuse and a 3% decrease in reduction in the Tar-Pamlico Basin. These decreases in nitrogen loss reduction are primarily the result of cropping shifts to crops with higher nitrogen demands and increased nitrogen application rates. Separate report documents were provided for each basin from the respective BOCs. Discussion Mr. Anderson asked how the fertilization rates used for the nitrogen calculation are obtained. Mr. Huisman said the information comes from the Farm Service Agency and agriculture databases and interviews with local farmers. Mr. Anderson also asked how the animal waste phosphorus values are arrived at. Mr. Huisman said that they use the agriculture census to get the life stocking numbers and then apply factors about how much wasted is generated per unit of the life stock. Mr. Anderson asked how is the Soil test P median calculated. Mr. Husiman said that the Division works with the Department of Agriculture and soil samples and the department provides all data for the soil test p numbers based on the samples. Mr. Anderson asked for estimates of agriculture nutrient runoff on streams versus point discharges. This was provided to the WQC members on November 13, 2014. Motion Not Applicable 6. Report on Comprehensive, Integrated Water Quality/Quantity Plan – (Information Item) (Ian McMillian) Description General Statute 143-215(b) and General Statute 143-355(m) mandates the development of a basinwide water quality management plan for each of the seventeen river basins in the State and a State water supply plan, respectively. The Division has developed a new approach for integrating water quality and water quantity plans. Staff explained why comprehensive basin planning is the prudent path and preferable to separate water quality and water quantity planning and a draft timeline for completing a basin plan. Discussion None Motion Not Applicable There were no closing arguments from the chairman. This summary was prepared by Jennifer Burdette (DWR), Sue Homewood (DWR), Kelly Williams (EEP), John Huisman (DWR), Ian McMillian (DWR), and Adriene Weaver(DWR).