NCG250000_Email from NC Fam Bureau with Comment Ltr_20200814

Lucas, Annette
From: Anne Coan <[e-mail]>
Sent: Friday, August 14, 2020 2:47 PM
To: Lucas, Annette
Subject: [External] Comments of NC Farm Bureau on Draft Stormwater Permit NCG25
Attachments: Comments of NC Farm Bureau on Draft Stormwater Permit NCG25 - 8-14-20.pdf
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To: Annette Lucas
Please find attached the comments of the NC Farm Bureau Federation on the Draft Permit NCG250000 titled
"Construction Activities that are not subject to the North Carolina Sedimentation Pollution Control Act of 1973."
If you have questions, please contact me. My contact information is below.
Best Wishes,
Anne Coan
Anne Coan
Director of Environmental Affairs
NC Farm Bureau Federation
Direct: 919-788-1005
Cell: 919-3o6-5602
Email: anne.coan(&ncfb.org

• NORTH CAROLINA
FARM BUREAU FEDERATION, INC.
PO Box 27766, Raleigh, NC 27611 Phone: [phone] Fax: [phone] www.ncfb.org
August 14, 2020
Annette Lucas
Stormwater Program
N.C. Division of Energy, Mineral, Delivered by email to: annette.lu_ca_skncdenr.gov
and Land Resources
1612 Mail Service Center
Raleigh, N.C. 27699-1612
Regarding: Draft Permit NCG250000 for "Construction Activities that are not subject to the
North Carolina Sedimentation Pollution Control Act of 1973"
Dear Ms. Lucas:
The North Carolina Farm Bureau Federation is North Carolina's largest general farm
organization, representing the interests of farm and rural people in our state. This letter is to
comment on the Draft Permit NCG250000 for "Construction Activities that are not subject to the
North Carolina Sedimentation Pollution Control Act of 1973" that was noticed in the NC
Register on July 15, 2020 (page 98). The draft permit and a Fact Sheet about the permit were
published on the North Carolina Division of Energy, Mineral, and Land Resources website at:
httns:;'ldeu.nc.p-ovinewslevents!'t ubli.c-comment-period-draft-n[)des-stonmwater-�eneral-nennit-
nos-nc020000-nciz 190000-and
As indicated in the July 15, 2020, NC Register Notice cited above, this proposed NCG250000
permit is "a new NPDES Industrial Stormwater General Permit." No comparable permit
currently exists.
It is our view that this proposed new general stormwater permit would not apply to agricultural
activities, including agricultural construction activities, and any associated nonpoint source
agricultural stormwater discharges from those activities. Under the federal Clean Water Act
"agricultural stormwater discharges" are specifically excluded from the definition of a point
source [33 U.S.C. § 1362 (14)] and therefore are nonpoint sources. Under 40 CFR 122.3(e), any
introduction of pollutants from nonpoint source agricultural and silvicultural activities does not
require National Pollutant Discharge Elimination System (NPDES) permits, including
stormwater permits.
Regarding this permit's applicability to farms, Alt v. U.S. E.P.A., 979 F. Supp. 2d 701 (N.D.W.
Va. 2013) is instructive. In that case, the U.S. District Court for the Northern District of West
Virginia found that a poultry farm classified as a concentrated animal feeding operation under 40
CFR 122.23 was not required to obtain an NPDES permit for agricultural stormwater runoff due
to the agricultural stormwater exemptions and exclusions in the Clean Water Act and in federal
regulations.
As Alt notes, when Congress created the Clean Water Act's industrial stormwater permitting
program in 1987 (Public Law 100-4, Section 405), Congress also amended the Act to exclude
Farm Bureau and Ag. icrtlture...
We keep North Carolina grrowingi

agricultural stormwater discharges from the definition of "point source" (Public Law 100-4,
Section 503). Alt, 979 F.Supp.2d at 714. In adding the exclusion for agricultural stormwater
discharges at the same time that it created the industrial stormwater permitting program,
Congress intended to make clear that agriculture was to be excluded from the stormwater
permitting program and requirements. Alt, 979 F. Supp. at 714. Therefore, the court concluded
that "stormwater discharges from [the poultry] farmyard" were "exempt from any NPDES permit
requirements, including industrial stormwater permit requirements." 979 F.Supp.2d at 714
(italics in original) (bold emphasis added).
Regarding construction stormwater permitting, the 1999 federal regulation that added
construction stormwater permitting for sites over one acre to the industrial stormwater permitting
program cites the 1987 Clean Water Act Amendments as its authority (Federal Register,
December 8, 1999, p. 68723.) Because of this reliance on the 1987 Amendments, the same
rationale that Alt articulates applies to construction stormwater permitting.
To obtain coverage under this proposed NPDES construction stormwater permit, the applicant
must prepare and seek approval of an Erosion and Sedimentation Pollution Control Plan.
However, under North Carolina's Sedimentation Pollution Control Act, in G.S. 113A-52.01, land
disturbing activities relating to or incidental to the production of plants and animals on
agricultural land are exempt from the Act's requirements. The statute also exempts activities
undertaken on forestland for the production and harvesting of timber that follow the Forest
Practice Guidelines Related to Water Quality from the requirements of the Sedimentation
Pollution Control Act.
It is therefore clear that the General Assembly did not intend that persons conducting land
disturbing activities on agricultural and silvicultural land, including construction activities for
agricultural and silvicultural purposes, be required to prepare, seek approval of, and implement
an Erosion and Sedimentation Pollution Control Plan. Further, due to the nature of agricultural
and forest product markets, farmers and forestland owners cannot pass on the cost of plan
preparation, engineering, design and implementation of such a Plan to their customers.
Based the analysis above, the representations to us and others by North Carolina Department of
Environmental Quality staff, and consistent with longstanding Departmental practice, it is our
view that this permit does not apply to agricultural and silvicultural activities, including
agricultural and silvicultural construction activities and any stormwater discharges associated
with those activities.
Thank you for the opportunity to submit these comments. Please contact us if you have any
questions or need more information.
Sincerely,
Anne Coan
Director of Environmental Affairs
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