NCS000245_Raleigh NSW Urban Ag Inquiry_20210806

From:Powell, Jeanette
To:McLawhorn, Dan; D"Arconte, Trish
Cc:Williams, Bradford; [e-mail]; Cooper, Kathryn; York, David; Brown, Ben; Witherspoon,
Lauren; Annette Lucas ([e-mail])
Subject:RE: [External] FW: Urban Agriculture
Date:Friday, August 6, 2021 2:04:00 PM
Hi Dan,

Q: If such urban farms occur in TMDL watersheds such as Pigeon House Branch and Perry Creek,
does the City have a duty under its MS4 NPDES permit to control them despite the exclusion from
coverage by the Neuse Stormwater rule?

A: Because the Neuse NSW stormwater program is a qualifying alternative program for the entire
NPDES MS4 post construction minimum control measure, and is also an approved program for the
TMDL and waste load allocation, the city need only comply with the Neuse NSW stormwater
program requirements [Ref. 15A NCAC 02H .1017(2)(g)]. In layman’s terms, DEQ replaces the NPDES
MS4 permit post construction section and TMDL section with the NSW program.

Have a great weekend,
J

Jeanette Powell
MS4 Program Coordinator
919-707-3620
[e-mail]

North Carolina Department of Environmental Quality
Division of Energy, Mineral & Land Resources Stormwater Program
512 N. Salisbury Street, 6th Floor
1612 Mail Service Center
Raleigh, NC 27699-1612

Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be
disclosed to third parties.

https://deq.nc.gov/sw

From: McLawhorn, Dan <[e-mail]>
Sent: Tuesday, August 3, 2021 7:59 AM
To: D'Arconte, Trish <[e-mail]>; Powell, Jeanette <[e-mail]>
Cc: Williams, Bradford <[e-mail]>; [e-mail]; Cooper,
Kathryn <[e-mail]>; York, David <[e-mail]>; Brown, Ben
<[e-mail]>; Witherspoon, Lauren <[e-mail]>
Subject: [External] FW: Urban Agriculture

CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an
attachment to Report Spam.

Trish and Jeanette,

Raleigh Stormwater and our City Council recently received that attached petition regarding the
current regulatory regime in place for certain agricultural operations in the City. The City regulates
these operations based on whether the operation is distribution of the crops to the community, or
among the participants, or whether they are used by other categories of users. The term “financial
profit” is not in our present definitions. Instead we use the classifications “urban farms” and
“community gardens.” Responding to the petition was tasked as we started to review our
stormwater program in light of the recent amendments to the Neuse Estuary rules and the Model
Ordinance. From our internal discussion the question arose as to whether DWR considers “urban
farms” operated for financial profit as excluded from the 2B .0711 and instead controlled by the
Neuse Agricultural Rule at 2B .0712. If so, will those urban farms become part of the Ag rule
reporting and compliance program and they will be reporting based on edge of field modeling? If
such urban farms occur in TMDL watersheds such as Pigeon House Branch and Perry Creek, does the
City have a duty under its MS4 NPDES permit to control them despite the exclusion from coverage
by the Neuse Stormwater rule?

Here are the parts of the rules that prompt our questions.

From 15A NCAC 2B .0711

(4) DEVELOPMENT EXCLUDED. The following development activities shall not be subject to this Rule:
(a) Projects disturbing less than:
(i) one acre for single family and duplex residential property and recreational facilities; and
(ii) one-half acre for commercial, industrial, institutional, multifamily residential, or local government land uses
with the following exception: Projects below one-half acre that would replace or expand existing structures on a
parcel, resulting in a cumulative built-upon area for the parcel exceeding twenty-four percent, shall be subject to
Item (5) of this Rule;
(b) Development of an individual single-family or duplex residential lot that:
(i) Is not part of a larger common plan of development or sale as defined in 15A NCAC 02H .1002; and
(ii) Does not result in greater than five percent built upon area on the lot;
(c) Projects subject to requirements of the Falls Nutrient Strategy New Development Stormwater rule, 15A NCAC
02B .0277;
(d) Existing development as defined in 15A NCAC 02H .1002;
(e) Redevelopment as defined in G.S. 143-214.7(a1)(2); and
(f) Activities subject to requirements of the Neuse Agriculture rule, 15A NCAC 02B .0712.

From 15A NCAC 2B .0712

(2) AGRICULTURAL OPERATIONS DEFINED. For the purposes of this Rule, "agricultural operations," are
activities, and "agricultural producers" are persons engaging in those activities, that relate to any of the following
pursuits:
(a) The commercial production of crops or horticultural products other than trees. As used in this Rule,
"commercial" shall mean activities conducted primarily for financial profit.

The petition focuses on the Raleigh UDO and its stormwater requirements now in place for “urban
farms” and “community gardens.” As I read the definition of “agricultural operations” in the .712,
there is no minimum size for the operation, but it must be for financial profit. Currently, our
definition for urban farms does not require the financial profit criterion. However, our definition of
“community gardens” does bar financial profit operations.

We do not know of any agricultural operations in the City which can meet the minimum number of
animals for those operations and we do not anticipate any.

Based on the recently adopted Model Ordinance, we are required to amend our current UDO in
many regards including the addition of the agricultural exemption.

xx-105 APPLICABILITY AND JURISDICTION
(A) General
Beginning with and subsequent to its effective date, this ordinance shall be applicable to all development
and expansion of development throughout the corporate limitsand extraterritorial jurisdiction of Name of
City within the Name of Watershed | territorial jurisdiction of Name of County within the Name of
Watershed watershed, including, but not limited to, site plan applications, subdivision applications, and
grading applications, unless exempt pursuant to this ordinance.
(B) Exemptions
(8) Activities subject to requirements of the Name of Watershed Agriculture Rule, 15A NCAC 02B
.0712 | .0732 is exempt from the provisions of this ordinance.

As I understand, the petitioners are especially interested in year round hoop houses (season
extending operations) and want to be exempted from stormwater requirements arising from that
runoff.

Under our MS4 NPDES permit, I think that we will still have to regulate them if their runoff is
resulting in violations of WQS. Given the complexity of the chlorophyll-a standard, it seems unlikely
that violation will occur. We also have additional requirements in our MS4 permit for TMDL parts of
the City. Pigeon House Creek and Perry Creek, near 540 and US 1 intersection, are both TMDLs with
the entire basin in the City.

Thanks to both of you for your assistance,

Dan McLawhorn
Attorney
Raleigh City Attorney’s Office
919-996-6623 (desk)
919-621-8195 (cell)
[e-mail]