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Haw River Assembly comments on NC strategy to protect Jordan Lake

By Elaine Chiosso
Posted Thursday, July 7, 2005

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HRA's Comments on Jordan Lake TMDL

Haw River Assembly
P.O. Box 187 Bynum, NC 27228
(919) 542-5790

May 31, 2005

Michelle Woolfolk
NC Dept. of Environment and Natural Resources
Water Quality Planning
1617 Mail Service Center
Raleigh NC 27699-1617

Comments on Jordan Lake Nutrient Management Strategy and TMDL DWQ Public Review Draft (April 2005)

Dear Ms. Woolfolk:

The Haw River Assembly, and the co-signers to this letter (NC PIRG, the Southern Environmental Law Center, Environmental Defense, and NC Conservation Network) support the "B. Everett Jordan Reservoir, North Carolina Nutrient Management Strategy and Total Maximum Daily Load" Public Review Draft (April 2005), developed by the NC Division of Water Quality. We believe that the state must act now to protect Jordan Lake from excess nitrogen and phosphorus loading from wastewater treatment plants and run-off. We offer the following comments and suggestions to support and strengthen the report.

Need for Nutrient Management Strategy and TMDL:

"The Jordan Lake Nutrient Response Model shows that increases in point and nonpoint source nutrient loads will further degrade lake water quality. If not managed properly, the population and economic growth that are projected to occur in the watershed over the coming decades will further threaten the ability of the lake to support its designated uses as a major regional drinking water supply, recreational resource, and aquatic habitat." (from Jordan Lake Stakeholder Project Website)

1. State and Federal requirements:

Jordan Lake has historically been one of the most eutrophic lakes in North Carolina, and it was declared Nutrient Sensitive Water soon after it was completed in 1983. In 1997 the state Clean Water Responsibility Act set nitrogen and phosphorus limits for wastewater into NSW including Jordan Lake. All major dischargers into the Jordan lake watershed requested a 5 year extended compliance period (including development of a model) except for Durham City and Durham County WTTPs. In 2002, the nutrient response model was approved for Jordan Lake, and as a result the Upper New Hope arm was placed on the 303(d) List of Impaired Waters.

Since this process to develop a TMDL and Nutrient Management Strategy began in 2002, all of Jordan Lake - including the entire New Hope Arm and the Haw River Arm - is now "Impaired", according to the NC DWQ Draft Cape Fear Basinwide Water Quality Plan, March 2005. We are losing ground on water quality.

The federal Clean Water Act requires the development of a TMDL for "impaired waters" just as the NSW status of Jordan lake requires a nutrient management strategy to be implemented. As your report states:

* U.S. Environmental Protection Agency rules require water quality models to be utilized as a basis for 303(d) listing (p. 3)

* Nutrient controls (TN and TP) are the most common focus of management schemes for reducing excessive algal growth and chlorophyll a concentrations in TMDL s for reducing algae (p. 10)

We support the state's timetable and plan to clean up Jordan Lake. There has been large population growth and conversion of lands to impervious surface since the model was completed. We must act quickly to restore and protect this important regional drinking water reservoir and recreation lake, before we are faced with a water quality crisis that could threaten public health.

2. Need for uniform standards across the three management areas:

We believe that the strategies to reduce non-point source nutrient pollution should be uniform for all three watershed management areas. The current draft goes much further in protecting the entire lake, even more important now that all of the Lake is about to be listed as impaired on the 303(d) EPA list. Many tributaries in this watershed are newly listed as impaired in the 2005 Cape Fear Basinwide Plan.

One area of management that is still not proposed as basinwide is for agriculture. We believe the very reasonable approach to reducing nutrient loading from agriculture that is described in the strategy for the Upper New Hope and Haw River arms should apply to the "Lower New Hope" watershed as well.

We would like to see clarified exactly what is the process by which DWQ will measure the "capping" of the nutrient load in the Lower New Hope Arm? The language in the Draft says "Provides a loading cap equal to 1997- 2001 baseline nutrient loads" (p iv, Executive Summary) Will DWQ run the model again to show the loading predicted by new development that has been built in that area? If it shows a loading that would correlate with increased nutrients, does that trigger some kind of action? Adaptive management should address increases in the loadings from ongoing development. Increased loadings should trigger requirements for stronger controls.

3. Point source strategy allocating all available loading to the existing facilities:

This is consistent with strategies for the Neuse and Tar-Pamlico, but means no new nitrogen or phosphorus loads will be permitted in the entire watershed. A cap on current nutrient loads into Jordan Lake would seem like an important and reasonable action that should be part of this strategy. There should be no new discharge permits issued until DWQ/EMC release the final allocation reductions later this year.

The lack of a withheld allocation for future growth and development gives the system virtually no flexibility. If there is no reserve allocation, it becomes particularly important that the allocated reductions be stringent and effective, because there will be no margin of safety left (in unused allocation) if it turns out the reductions were not steep enough.

4. We support the science behind this Nutrient Reduction Strategy and TMDL:

* Nutrient limitations: This is a very complex and varying system at Jordan Lake where phosphorus and nitrogen alternate as the limiting nutrient depending on reasonability and regions of the lake. We believe that the current nutrient reduction targets reflect the true complexities of this system.

* Use of 8%, not 10% exceedance (of chlorophyll a standard): The TMDL recognizes the uncertainty inherent in modeling to connect nutrient loading to predicted frequency of chlorophyll a violations. We concur with DWQ's decision to utilize an explicit margin of safety by reducing the frequency of allowable exceedance of the 40ug/L from 10% to 8%.

* Need for Management Strategy: We agree with the statement (p. 43) that Lake model uncertainty "does not preclude decision to pursue reasonable management strategy". Much time, funding and technical resources have gone into this model for Jordan Lake for its use as a tool to predict long-term spatial and temporal trends necessary for management of nutrient loading in an already impaired lake. We agree that post-implementation monitoring will provide feedback for appropriate adaptive management.

* Blue green algae dominance issue: We commend DWQ's excellent summary of this important issue (Section 7.6 pp 45-46) . The fact that both N and P will be reduced at Jordan Lake, and that the proposed total N to P loading ratio will continue to remain above the level that would promote blue green algae dominance are in accordance with current lake management science. New studies were cited that "cast considerable doubt on the use of N:P ratios as sole predictors of blue "green algae dominance." We agree that the low N:P ratio hypothesis is not a good reason for inaction, and that post-implementation monitoring will enable adaptive management decisions to be made.

5. Additional Comments on Non-Point Source strategies:

* Impervious Surface limits: We believe that you should consider current scientific guidelines on impervious surface that show that more than a 10% built upon area is the trigger for a decline in water quality. The North Carolina Wildlife Resources Commission documentNorth Carolina Wildlife Resources Commission, "Guidance Memorandum to Address and Mitigate Secondary and Cumulative Impacts to Aquatic and Terrestrial Wildlife Resources and Water Quality," August 2002, pg. 8. The current Phase II Stormwater requirements utilize a 24% density trigger for structural stormwater control. Because water quality declines at much lower density levels, we recommend that the Environmental Management Commission require lower density triggers for local governments subject to the nutrient management strategy.

* Sediment Erosion Control: The issue of proper sediment erosion control practices and how they are enforced is also very important, especially with phosphorus. As citizen watchdogs of the Haw River watershed we have long been dismayed by the failure of the current system " where local and state regulators have come to view post- rain muddy streams as an unavoidable condition. We believe that with better sediment erosion control regulations and enforcement we can avoid filling our streams with sediment, and the accompanying pollutants, after each rain. Stricter time limits for temporary cover on exposed land in developments and roadways under construction is one suggestion. Identification and remediation of ongoing sediment sources for all activities, including forestry and agriculture, should be strengthened as well.

* Stormwater Retrofit: We recommend that the EMC require the local governments to develop and implement comprehensive watershed restoration programs. Done properly, comprehensive watershed restoration in a developed landscape includes some of the features of stormwater retrofits. However, emphasis is on actual stream work in order to provide the water quality improvements being sought (in this case for Jordan Lake loading) while at the same time benefiting problems in the local tributaries "many of which are also on (or about to be listed on) the 303(d) list of impaired waters. Another advantage to watershed restoration is that it may be possible to form more funding partnerships for the work including sources such as EEP, Section 319, watershed restoration grants from CWMTF etc, as long as some is also paid for by stormwater authority fees or local taxes. This approach focuses on what we really care about" stream health and water quality throughout the watershed. We believe that reasonable but effective timelines should be set for this restoration to be designed and implemented.

* Fertilizer Application Limits: We would like to see a recommendation that the EMC require local governments to issue ordinances limiting fertilizer application, at least in the residential context. Agribusiness has introduced legislation in the NC Senate to preempt all local government ordinances from regulating fertilizer application in any way. This would undermine one of the cheapest, fastest ways local governments can address nonpoint runoff from existing development. The fact that the legislation exists is also a reason for the EMC to mandate this as a local government strategy, because if the legislation passes, the only way the local governments can keep access to this particular tool is if the EMC mandates it.

* On-Site Wastewater: We support the staff recommendation that DWQ work with DEH to get control of pollution from on-site wastewater. We believe that this is within DWQ"s area of responsibility because it is another form of pollution running into waters and affecting nutrient loads.

* Pre-harvest notification for forestry; Again we believe that this is within DWQ"s need for adequate tools to reduce nutrient loads under a TMDL. We are particularly concerned that there is legislation that would make it impossible for local governments to pass ordinances requirement PHN on their own in the absence of a state mandate. We believe it is within the EMC"s authority to issue such a mandate.

6. Nutrient Trading:

Uniform language for all three subwatersheds should include some specific conditions and restrictions if any trading is to be allowed. The recent experience in the Neuse River watershed (Butner) shows that we have to be very careful that there are not unintended negative consequences from nutrient trading. In general we are opposed to pollution trading because we feel each local jurisdiction should be responsible for meeting its nutrient targets. We do realize it is a tool that many of the local governments wish to have available.

* The Environmental Protection Agency (EPA) Trading Guidance recognizes the need for site specific evaluation of trades. If trading is allowed, there need to be strong protections to avoid "hot spots" or localized effects.

* Trades should be transacted with a ratio such that each trade results in a higher amount of reduction than credit generated. The credit ratio should be higher for NPS, but even PS to PS trades should have a portion retired to achieve greater reduction.

* Because NPS reductions are difficult to quantify, the EMC should consider the problems that can arise from NPS to PS trading.

* Without proper restrictions, NPDES Compliance Groups provide a safe-haven for bad actors allowing facilities that do not make reductions to utilize the nutrient reduction achievements made by forward thinking facilities. Therefore, if there are structures set up like the Neuse River Compliance Association, individual dischargers should be still be held to their individual permit limits and the Division of Water Quality should retain the ability to enforce against dischargers that do not meet their individual nutrient permit limits.

* In order to preserve federal and state requirements for public notice for permit modifications, we recommend that any NPDES Compliance Group permit provide public notice for any major modification, including any change in an individual's nutrient allocation. We also would like to see a recommendation that ensures that there is public notice when a trade is proposed among members or outside of the NPDES Compliance Group.

In Closing

Again we would like to express our appreciation for the excellent and very time-consuming work that was done by DWQ staff throughout the Jordan Lake Stakeholder Project and in development of this Jordan Lake TMDL and Nutrient Management Strategy. We recognize that many of the local governments in the Jordan Lake watershed have developed and implemented technologies and ordinances to try and better protect water quality during the years that this excess algae and nutrient problem has been studied. Unfortunately the tremendous growth and development in this region has meant that we have not yet solved the problem either for Jordan Lake or many of the tributaries that flow into it.

We believe that adequate study and discussion has taken place concerning the nutrient pollution in Jordan Lake, a process that began in 1997. It is now time to move forward with the process of putting the strategy in place that will protect and improve this very important public resource. We ask you to consider the points we have raised that would make this an even stronger and more effective TMDL and strategy, and to recommend approval of the final document to the EMC.


Elaine Chiosso
Executive Director
Haw River Assembly

Christine Wunsche
Environmental Attorney
112 S. Blount Street
Raleigh, NC 27601

Amy Pickle
Staff Attorney
Southern Environmental Law Center
200 West Franklin Street, Suite 330
Chapel Hill, NC 27516-2559
Grady McCallie
Policy Analyst
NC Conservation Network
112 S. Blount St
Raleigh, NC 27601

Joe Rudek
Senior Scientist
Environmental Defense
2500 Blue Ridge Rd, Ste 330
Raleigh, NC 27607

Alan Clark, DWQ
Coleen Sullins, DWQ
Alan Klimek, DWQ
Rich Gannon, DWQ
Robin Smith, DENR
Secretary Bill Ross, DENR
Dr. David Moreau, Chair, EMC
Sydney Miller, TJCOG

Related info:
Haw River Assembly
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Haw River Assembly comments on NC strategy to protect Jordan Lake
The Haw River Assembly is a non-profit citizens' group founded in 1982 to restore and protect the Haw River and Jordan Lake.

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Haw River Assembly