NCG250000_Response to Comments_20200928

DEMLR Response to Public Comments on the Draft NCG250000 Permit
The NCG250000 is a new NPDES Stormwater Industrial General Permit that has a planned effective date
of October 1, 2020. This permit applies to point source conveyance of stormwater runoff from
construction activities including clearing, grading, and excavation activities that that meet all three of
the following criteria:
• result in the disturbance of land greater than or equal to one acre, or that are part of a common
plan of development of that size or greater;
• are not subject to the North Carolina Sedimentation Pollution Control Act of 1973 (SPCA); and
• are subject to the Clean Water Act (i.e., activities that meet the definition of point source under
40 CFR 122.2 and are not excluded from the Clean Water Act under 40 CFR 122.3.)
For example, activities that could be subject to the NCG25 permit include, but are not limited to,
industrial mulching operations and federal projects subject to North Carolina's NPDES Industrial
Stormwater Program under the Clean Water Act. This permit does not cover exempt agricultural
stormwater runoff under 40 CFR 122.2 and 122.3.
The draft NCG250000 permit has been out to public notice twice. The first public notice was from
September 4, 2018 to October 5, 2018. The comments that DEMLR received resulted in changes that
the agency believed were significant enough to merit a public notice of the second draft of the permit.
The second public notice rant from July 15, 2020 to August 14, 2020.
A summary of the comments received and DEMLR's responses appears below. The NCG250000 permit
has been signed and will go into effect on October 1, 2020.
Comment: Under the Clean Water Act, "agricultural stormwater discharges" are not "point
sources," and thus runoff that is agricultural does not require an NPDES Stormwater
permit.
Response: Under 40 CFR 122.2, the definition of "point source" specifically excludes "agricultural
storm water runoff' as described in 40 CFR 122.3(e).
Comment: Based on the long-standing practice of NCDEQ to maintain exemptions from permitting
for stormwater runoff from agricultural activities, we understand that this practice will
continue.
Response: DEQ has no intention of changing its past practices with respect to the agricultural exemption.

Comment: It would be helpful if the Department would provide written confirmation that poultry
production is exempt from the NPDES Construction Permit requirement.
Response: It is DEMLR's intent that this response to comments document will provide written
confirmation that agricultural stormwater runoff, including that from poultry
operations, will continue to be interpreted as exempt from the NPDES Construction
Permit requirement so long as the operations are exempt under the Clean Water Act.
Comment: The NC General Assembly made it clear in G.S. 113A-52.01 that they 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 and Erosion and Sedimentation Pollution
Control Plan.
Response: The NPDES permitting program is required to meet the requirements of the federal
Clean Water Act, not state laws and rules. The purpose of this new permit is to address
construction projects that are subject to the Clean Water Act but not subject to the NC
Sedimentation Pollution Control Act. However, based on the NC DEQ's current legal
interpretation of the Clean Water Act, certain land disturbing activities on agricultural
and silvicultural land, including construction activities for agricultural and silvicultural
purposes are not subject to NPDES stormwater permitting requirements.
Comment: DEMLR should adhere to the plain text definition of "silvicultural point source" in 40 CFR
122.27(b)(1) and avoid expanding or interpreting this term into other activities that are
not specifically delineated in the federal rule's language.
Response: DEMLR intends to adhere to the language in 40 CFR 122.27(b)(1) in its determination of
which silvicultural point sources are subject to the NCG250000 permit.
Comment: It is recommended that DEMLR develop an approved easy -to -prepare template for an
acceptable Erosion & Sedimentation Control / Stormwater Pollution Prevention Plan.
This template could be used for stormwater permits if the project meets certain criteria,
such as acreage thresholds, distance to water features, limited slopes, certain soil types,
etc. Requiring that every E&SC/SWPPP be prepared by a Professional Engineer could
dramatically increase the timeline and costs beyond the scope of a small project.
Response: As the reviewing agency, DEMLR only has the authority to review and approve E&SC
Plans, not to design them. However, DEMLR staff are available to answer questions and
provide technical support. In addition, DEMLR offers a number of publications to assist
with E&SC Plan design and maintenance, which are available at:
https:Hdeg.nc.gov/about/divisions/energy-mineral-land-resources/energy-mineral-
land-permit-guidance/demlr-publications. Please note that there is not a requirement in
the NC250000 permit for E&SC/SWPPPs to be prepared by a Professional Engineer.