Letter_SWANC NCDEQ Regulatory Program Issues_20210719

Stormwater Association of North Carolina
434 Fayetteville Street, Suite 1900, Raleigh, NC 27601
www.swanc.org
a
July 19, 2021 Jeanette Powell NCDEQ - DEMLR
Sent via email RE: NCDEQ Regulatory Programs Dear Jeanette, The Stormwater Association of North Carolina (“SWANC”) is a membership association of over 40 North Carolina local governments and organizations that hold Municipal Separate Storm Sewer System (“MS4”) permits as well as other professional organizations and private consultants interested in fostering professional stormwater management in North Carolina. SWANC exists to leverage its members’ collective experience and expertise to respond to legislative and regulatory proposals affecting stormwater management in the state. On behalf of those members, the SWANC Board of Directors and Policy Committee has areas of concern it wishes to express and discuss with NCDEQ regarding the implementation of certain regulatory programs. Below is a list of issues we are hoping SWANC and DEMLR staff can discuss in order to reach a fair and speedy resolution, and we very much appreciate your attention to these issues.
1. Short Cycling of Permits. DEQ issued a list of MS4 permit expiration dates and short cycling in an effort to spread out the State’s permit renewal workload. When reviewing the MS4 permit language, very specific criteria have been established for the revocation or modification of an existing MS4 permit. The permits that are being short cycled are being revoked and reissued because of deficiencies found during permit audits. These deficiencies align with the short cycling list developed prior to the State conducting any audits, which has caused mistrust in the audit process. It feels “preordained” to the MS4 permit holders, that regardless of the effectiveness of a MS4 program, a non-compliance issue would be found. MS4 permits are valid for 5 years. At the end of that 5-year period, the permit requirements and SWMP can be modified.
2. Training of State staff performing audits. The State is using regional office staff to perform MS4 permit audits, and they are not trained on MS4 program expectations. Significant inconsistencies between audits were noticed in reviewing audit findings. Examples of inconsistencies include the understanding of a written standard operating procedure (SOP). Some auditors felt that a SOP was a PowerPoint program or a “how to” document, while other auditors felt that a SOP was a

Stormwater Association of North Carolina
434 Fayetteville Street, Suite 1900, Raleigh, NC 27601
www.swanc.org series of checklists and guidance manuals. In addition, audits must be based upon the approved SWMP, not upon the auditor’s current understanding of best practices, which may not be included in the SWMP. We recommend engaging the NC APWA Stormwater Division and SWANC to develop training that will be beneficial for state auditors and local program managers.
3. Appeals process. The audit findings should not be finalized and published until identified inconsistencies are resolved. If SWMPs are approved based upon the permit requirements at the time, then audit findings should be tied to the SWMP specifically and not to the auditor’s current understanding of the permit. There should be an appeals process created for MS4 permit holders to initiate with the Central Office staff when the community disagrees with the findings of an audit.
4. DEMLR’s implementation of NCG01 DEMLR’s implementation of NCG01 should be considered a QAP or the program be fully delegated to local MS4s (if requested by the MS4). While it may seem logical for MS4s to incorporate NCG01 into their existing E&SC programs, meshing E&SC and NCG01 together will require process changes at the local level for permit issuance (overall development permit versus lot level development) and close outs (closing out a lot level plan versus closing out a permit) as examples. In addition, we understand that other states in EPA Region 4 allow primary and secondary permittees, which could help to align permit issuance and close out processes for residential subdivisions. Of note, Tennessee has a Qualified Local Program (QLP) designation for MS4 communities to delegate implementation of TN’s Construction Stormwater General Permit, so there is evidence that EPA would approve of a similar program in NC.
5. Requests and requirements. DEMLR needs to clearly distinguish between requests and requirements. For example, DEMLR has requested that local E&SC programs ensure that new development sites are covered by NCG01. However, there is no requirement stating that delegated programs have to ensure that coverage. Thank you for your consideration of these issues. If you have any questions, please don’t hesitate to contact me. Sincerely,
Wendi Hartup President, Stormwater Association of North Carolina