NC0070408_Comments on Draft Permit_20171023

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] PATTON AVENUE. SUITE 304 Facsimile 828-258-2024
ASHEVILLE, NC 28801-3321
October 23, 2017
RECE1\1ED/NCD Q/D',NR
Via Email and US Mail
OCT 2 7 2017
Mr. Derek Denard
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Environmental Specialist '�Vvaic°c gtu eii�'96tCin section
Division of Water Resources
N.C. Department of Environmental Quality
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
[e-mail]
Re: Draft NPDES Permit # NCO070408 (Clevon Woods — Art Plaza WWTP)
Dear Mr. Denard,
Please accept these comments on behalf of MountainTrue, the Watauga Riverkeeper, and
the Southern Environmental Law Center. MountainTrue is a grassroots environmental
organization working to protect the environment across Western North Carolina with members in
Watauga County who use and enjoy the Watauga River. MountainTrue is also home to the
Watauga Riverkeeper program, which works to preserve the Watauga River watershed, including
the areas in and around the proposed Art Plaza wastewater treatment plant. While we generally
support improving wastewater treatment via properly regulated treatment facilities, we have
identified the following concerns with the proposed Art Plaza wastewater treatment plant that
DEQ must address before moving forward with this draft permit.
• Permit renewal appears improper.
Based on the available records, it appears that this application must be processed as a new
permit, not a renewal. As stated in the application, although the applicant previously obtained an
NPDES permit, no wastewater treatment facility was constructed during the permit term. No
Authorization to Construct permit or application appears in DEQ's digital file for the permit, and
the application suggests that detailed construction plans will not be submitted for some time.
North Carolina's regulations provide that "[i]f an Authorization to Construct has not been
applied for in accordance with the requirements of the NPDES permit during the term of the
permit, the permit will be considered void upon expiration and future actions will be considered
as a new application." 15A N.C. Admin. Code 2H .0138(a); see also id. 2H .0103(11) & (16)
(defining "new" and "existing" for purposes of NPDES permitting program). Assuming the
available public records correctly reflect that the applicant did not seek an Authorization to
Construct permit during the last permit term, then the NPDES permit became void upon
expiration, renewal is improper, and both the applicant and NCDEQ must restart this process,
following the laws, regulations, and policies for a new NPDES permit, not a renewal.
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• New permit limits should reflect discharge point's sensitive location.
The proposed wastewater treatment plant's discharge point is near the Watauga River's
headwaters. The draft permit correctly recognizes that this area is designated as both a High
Quality Water and Trout Water. But the draft permit does not recognize that the proposed
discharge point is on a particularly sensitive area of the Watauga River. Being near the
headwaters, any pollution allowed in this area has the potential to negatively affect nearly the
entire, vibrant river, and countless downstream communities and users. It thus warrants extra
scrutiny and limits beyond the basics limits set forth in North Carolina's regulations. The
headwaters' location also means that the flow rate in this area is below average for the Watauga,
and so it is unclear whether this stretch of the river will be able to adequately assimilate the
proposed pollution and wastewater volumes. Pursuant to North Carolina's antidegradation
policy for High Quality Waters, we urge DEQ to reduce the authorized pollution limits and
discharge volumes to account for this sensitive location. See 15A N.C. Admin. Code 2B
.0201(d).
• New permit process must consider floodplain implications.
In the site plan associated with the applicant's 2015 Conditional Use Permit from the
Town of Seven Devils, the proposed wastewater treatment plant was to be housed in a 50' x 150'
building entirely in the Watauga River's floodway. Although we are pleased to see that in the
site plan for the more recent 2017 Conditional Use Permit from Watauga County the project's
footprint has shrunk to a 2,200 square foot building that is outside of the floodway, part of the
building still appears to extend into the river's 100 -year floodplain. In a sensitive, high-quality
watershed, and on a portion of the Watauga River that is flashy and frequently interacts with the
floodplain, any development in the 100 -year floodplain is ill-advised and should be avoided,
both for the health of this segment of the river and to avoid downstream impacts. Precluding
incursions into floodplains is even more crucial in light of a recent trend towards more frequent
and more severe storms and flooding, which is projected to remain the new -normal due to
climate change. '
Floodplain concerns are relevant to the NPDES process because, assuming the applicant
obtains an NPDES permit, it will have to seek an Authorization to Construct permit from DEQ
before building the facility. 15A N.C. Admin. Code 2H.0138. Facilities requiring such permits
"shall be designed following good engineering practice and comply with the minimum design
requirements specified in Rule 2H .0219 of this Subchapter." Id 2H .0139. While 2H .0219 has
been repealed, it previously referred to requirements for facilities that do not discharge to surface
waters, requirements now found in the 2T rules. Revisions to the 2H rules under consideration
indicate that the cross-reference to 2H .0219 will be updated accordingly to reference the
minimum design requirements in 2T .0105 and .0114.
' Proposed revisions to the 2H rules are available at:
https://files.nc.gov/ncdeq/Environmental%2OManagement%2OCommission/Rule-Readoption-
2H/Webpage/2H%20Rules%20all%20wrth%20comments pdf.
2

These 2T provisions require, among other things, that "[a]pplication packages for new
and expanding facilities shall include ... [d]ocumentation of compliance with Article 21 Part 6
(Floodway Regulations) of Chapter 143 of the General Statutes." 15A N.C. Admin. Code 2T
.0105(c)(8). The referenced statute authorizes local governments to enact ordinances to regulate
uses in flood hazard areas. N.C. Gen. Stat. § 143-215.54. Pursuant to this authority, Watauga
County enacted a Flood Damage Prevention Ordinance, which sets forth several requirements for
and restrictions on development in the 100 -year floodplain, including facilities like the one
proposed here.2 It will thus be incumbent on DEQ to ensure that the facility complies with this
ordinance. We therefore urge DEQ to work with the applicant to eliminate impacts to the
floodway and floodplain in this project.
In closing, based on the available records, it appears that the applicant's former NPDES
permit became void upon expiration and is no longer eligible for renewal, and DEQ must
withdraw the draft permit renewal. If the applicant applies for a new permit, DEQ should
include limits that reflect the proposal's sensitive location in the river, watershed, and floodplain.
Associate Attorney
Southern Environmental Law Center
Andy Hill
Watauga Riverkeeper
High Country Regional Director
MountainTrue
2 Indeed, in the Conditional Use Permit for the site, Watauga County expressly required the applicant to obtain a
floodplain development permit before beginning construction