Surface Water Quality Classification and Standards

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STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
REPORT OF PROCEEDINGS TO THE ENVIRONMENTAL MANAGEMENT COMMISSION
ON THE PROPOSED CHANGES TO THE SURFACE WATER QUALITY
CLASSIFICATIONS AND STANDARDS FOR THE PROTECTION OF SURFACE WATERS
REGULATIONS
TRIENNIAL REVIEW AND RULE READOPTION
15A NCAC 02B .0100-.0300
Environmental Management Commission
July 11, 2019
Public Hearings
Date: July 2, 2018
Location: Piedmont Triad Regional Council,
1398 Carrollton Crossing Drive,
Kernersville, NC 27284
Date: July 11, 2018
Location: Ground Floor Hearing Room,
Archdale Building,
512 North Salisbury Street,
Raleigh, NC 27604
NC Register: Publication of Notice of EMC Intention to Readopt Rules in accordance
with NCGS §150B-21.4 and NCGS §150B-21.3A
Proposed Text Volume 32, Issue 22, pp. 2411-2493
May 15, 2018
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Contents
INTRODUCTION ........................................................................................................................................................... 4
TABLE OF ABBREVIATIONS AND ACRONYMS .................................................................................................... 4
BACKGROUND ............................................................................................................................................................. 5
Reclassification Rulemaking Actions ....................................................................................................................... 8
Future Issues .............................................................................................................................................................10
FISCAL ANALYSIS PROCESS AND SUMMARY ....................................................................................................10
PUBLIC HEARINGS .....................................................................................................................................................11
RESPONSES TO PUBLIC COMMENTS .....................................................................................................................11
Ammonia Standards – Future Issue ............................................................................................................................12
Analytical Procedures .................................................................................................................................................12
Aquatic Life Protections – Future Issue .....................................................................................................................13
Attainable Uses Definition .........................................................................................................................................13
Automatic HQW Status Change for WS-I and WS-II Petitioned Waters and PNAs ..................................................14
Boat Slip Length in Outstanding Resource Waters ....................................................................................................16
Chlorophyll a/Nutrient Comments .............................................................................................................................16
Classification Comments on Hanging Dog Creek and Oconaluftee River – Future Issues ........................................18
Lower Cape Fear River Segment Swamp Classification (15A NCAC 02B .0311/.0227) ......................................19
Contaminants of Emerging Concern (CECs) – Future Issue ......................................................................................19
Cyanotoxin Criteria – Future Issue .............................................................................................................................22
Dissolved Metals ........................................................................................................................................................23
Dissolved Metals - Future Issues ................................................................................................................................26
E.coli as Bacterial Indicator – Future Issues ...............................................................................................................27
Endangered Species – Future Issue ............................................................................................................................28
Update of Human Health Water Quality Criteria /Default Assumptions - Future Issue .............................................28
US EPA Region 4’s Additional Comments ................................................................................................................30
Acute Toxicity Definition .......................................................................................................................................30
Chloride ..................................................................................................................................................................31
Existing Uses Terminology (15A NCAC 02B .0101) ............................................................................................31
40 Code of Federal Regulations (CFR) Part 131 Issues .........................................................................................31
40 CFR Part 131.10 References Within 15A NCAC 02B .0101(b)(2) and (3) .......................................................31
Native and Special Native Trout Waters Terminology (15A NCAC 02B .0224 and .0225) ..................................32
Nutrient Sensitive Waters (NSWs) Phrases [15A NCAC 02B .0223 (e)] ..............................................................32
Propagation [15A NCAC 02B .0211(1)] ................................................................................................................32
Sandy Creek Reservoir Classification (15A NCAC 02B .0311) ............................................................................32
Seasonal Dissolved Oxygen (DO) Exemption [15A NCAC 02B .0308(v)] - Future Issue ....................................34
Fiscal Note Comments ................................................................................................................................................34
Gen X Ban ..................................................................................................................................................................35
High Quality Water Treatment Requirements ............................................................................................................35
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Industrial Discharge Definition – Future Issue ...........................................................................................................35
Mean Annual Flow .....................................................................................................................................................36
Mixing Zones ..............................................................................................................................................................37
Mussel Population Protections ...................................................................................................................................37
Nonpoint Source Pollution Definition ........................................................................................................................37
Silver Standard ...........................................................................................................................................................38
Unnamed Tributaries to Trout Waters Classification .................................................................................................38
Variances ....................................................................................................................................................................39
Vulnerable Population Protection ...............................................................................................................................39
Water Supply Rules Terminology ..............................................................................................................................39
Watershed Definition ..................................................................................................................................................40
Water/River Flow Protections ....................................................................................................................................41
Wilmington Drinking Water .......................................................................................................................................42
HEARING OFFICER RECOMMENDATIONS ...........................................................................................................43
PROPOSED TEXT AMENDMENTS - 15A NCAC 02B .0100 (Embedded PDF) .......................................................44
PROPOSED TEXT AMENDMENTS - 15A NCAC 02B .0200 (Embedded PDF) .......................................................45
PROPOSED TEXT AMENDMENTS - 15A NCAC 02B .0300 (Embedded PDF) .......................................................46
SUPPORTING DOCUMENTATION ............................................................................................................................47
Attachment A: NC Register – Notice of Text/Public Hearings (Embedded PDF) .....................................................47
Attachment B: Proposed Draft Rules with Comments from DWR Staff (Embedded PDF) .......................................48
Attachment C: Modification of 15A NCAC 02B .0304 That Includes Enka Lake Reclassification (Embedded PDF) ....................................................................................................................................................................................49
Attachment D: EMC Certification of Adherence to NCGS §150B 19.1 (Embedded PDF) .......................................50
Attachment E: Hearing Officer’s Letter of Appointment (Embedded PDF) ..............................................................51
Attachment F: Hearing Officer’s Remarks .................................................................................................................52
Attachment G: List of Individuals Attending the Public Hearings .............................................................................55

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INTRODUCTION This report is the official record of proceedings related to the North Carolina Department of Environmental Quality, Division of Water Resources’ proposal to revise the water quality classifications and standards protections in Chapter 15A of the North Carolina Administrative Code 02B .0100 - .0300. These proposed amendments comprise the state’s Triennial Review of
Surface Water Quality Standards mandated by the Clean Water Act and the readoption of rules pursuant to North Carolina General Statute §150B-21.3A. The North Carolina Environmental Management Commission adopted updated aquatic life protective concentrations, effective January 1, 2015. In April 2016, DWR received notice from Region 4 of the Environmental Protection Agency that certain executing provisions were not approved for purposes under the
Clean Water Act. This disapproval created a situation where state rules conflicted with federal rules regarding North Carolina’s implementation of National Pollutant Discharge Elimination System permits for regulated parties within the state. This report includes background material, written comments received during the public comment period related to Rule Readoption and the Triennial Review, and relevant exhibits.
This report includes comments and actions to be undertaken by staff for the next Triennial Review. Lastly, it includes the final recommendation of the Hearing Officer as to the proposed revisions to the “Surface Water and Wetland Standards” for consideration by the Environmental Management Commission.

TABLE OF ABBREVIATIONS AND ACRONYMS The abbreviations and acronyms used in this report are defined as follows:
Abbreviation Meaning
APA Administrative Procedures Act
CA Critical Area
CEC Contaminant of Emerging Concern
CFR Code of Federal Regulations
CWA Clean Water Act
DEMLR Division of Energy, Mining, and Land Resources
Department Department of Environmental Quality
DEQ Department of Environmental Quality
Division Division of Water Resources
DWR Division of Water Resources
EMC Environmental Management Commission
EPA US Environmental Protection Agency
Future Issues Comments that address topics for consideration during the next Triennial Review
HHWQC EPA Human Health Water Quality Criteria
NC North Carolina
NCAC North Carolina Administrative Code
NCGA North Carolina General Assembly
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NCGS North Carolina General Statutes
NPDES National Pollution Discharge Elimination System
PFAS The family of per- and poly-fluorinated substances
PNA Primary Nursery Area
RRC Rules Review Commission
SL Session Law
SSAB NC DEQ Secretaries' Science Advisory Board
TMDL Total Maximum Daily Load
WQC Water Quality Committee
BACKGROUND The protections in 15A NCAC 02B have been reviewed by NC DWR staff, DEQ staff, the public, the EMC, and the EPA for several reasons. First, every three years the State is required by the Clean Water Act to review its surface water quality classifications and standards to determine if any amendments are needed and, if necessary, to enact those changes. This process is known as
the “Triennial Review.” In addition, as part of the Triennial Review, the CWA mandates an evaluation of any variances to surface water quality standards that have been issued by the state. The previous Triennial Review was completed, with EMC adoption, Rules Review Commission (RRC) approval and a NC effective date of January 1, 2015. For Clean Water Act purposes, adopted state classifications are not to be implemented until approval is granted by the EPA. In
April 2016, DWR received notification from Region 4 EPA that certain executing provisions were not approved. This disapproval created a situation where NC protections conflicted with implementing procedures used to regulate NPDES permittees with respect to metals discharges. Concurrently, NCGS §150B-21.3A1 (“Periodic Review and Expirations of Existing
Rules”) enacted in 2013 as Session Law 2013-413 (sometimes referred to as NC House Bill 74), required state agencies to review existing rules, and readopt as necessary, every 10 years. Under NCGS §143-214 and 215, the EMC establishes protections in 15A NCAC 02B and procedures for development of surface water quality classifications and standards. The 15A NCAC 02B rules, in accordance with NCGS §150B, were proposed for revision and readoption by
the Planning Section of the Division of Water Resources, and have proceeded through the required readoption rulemaking process. Pertinent dates are as follows:
Session Law 2013-413, August 23, 2013: Modifies NCGS §150B-21.4 by requiring changes to submission of materials related to fiscal notes on rules that require expenditure or distribution of funds subject to the State Budget Act (Chapter 143C of the NCGS)

1 https://www.ncleg.net/Sessions/2013/Bills/House/PDF/H74v5.pdf
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Modifies NCGS §150B-21.3A by requiring RRC to establish a process and schedule for agencies to comply with the law, and to require analysis and review of all active rules

Triennial Review for CWA purposes already underway:
Scoping Public meeting November 19, 2013
Comment period ends January 10, 2014
EMC is presented recommendations for proposed changes March 13, 2014
EMC approves package for Public Comment May 8, 2014
Triennial Review Revisions/ Fiscal Note is published in NC Register June 16, 2014
Public Hearings July 15 and 16, 2014 EMC approval of package November 13, 2014
Office of Administrative Hearings, RRC approval December 2014
State adoption effective January 1, 2015
Rules Readoption [NCGS §150B-21.3A(c)(1)]:
Rule Readoption Table2 Public Comment Period: March 17, 2014 – May 21, 2014
NCGS §150B-21.3A RRC Report for 15A NCAC 02B3 submitted to the Joint Legislative
Administrative Procedure Oversight Committee (APO) on October 20, 2014 NCGS §150A (c)(1) Agency Review of Rules completed by DWR in December 2014 and determined need to readopt some rules as “Necessary with substantive public interest” and
remaining rules as “Necessary without substantive public interest” [NCGS §150B-21.3A(a)(3) and (4)] Stakeholder Input: Raleigh, March 24, 2015 (Note: 15A NCAC 02B .0311 and .0315 were named in Session Law 2016-94 for
additional considerations. From that point forward these rules are a part of the Falls Lake and Jordan Lake rule readoption process.) The Report of Determinations, which designates each rule as being “necessary with substantive interest,” “necessary without substantive interest,” or “unnecessary,” was
approved by the RRC on November 19, 2015. Rules designated in the report as “necessary without substantive public interest” remain in the code unchanged, and rules designated as “necessary with substantive public interest” must be readopted by the appropriate agency by the deadline set by the RRC of October 31, 2019.

2 https://deq.nc.gov/about/divisions/water-resources/water-resources-regulations-guidance/dwr-classifications-standards/rule-readoption-process
3https://www.ncoah.com/rules/Final%20Reports%20Submitted%20to%20APO/15A%20NCAC%2002B%20Report%20with%20Comments%20and%20attachments.pdf
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DWR received the partial approval letter for the previous Triennial Review package from EPA Region 4 on April 19, 2016.

The subsequent Triennial Review proposed amendments to water quality standards, in accordance with Section 303(c) of the Clean Water Act, were initially presented to the Water Quality Committee (WQC) on January 11, 2017 with a request to obtain permission to address the EMC with a proposal to go to Public Hearing and Notice. The request included draft language to
correct portions of the 15A NCAC 02B protections disapproved by the EPA, other minor
clarifications, and an acknowledgement that these proposals and public hearings would bring the state in alignment with federal protections and with EPA recommendations to remove certain provisions (previously adopted by NC). These amendments also met the legislatively mandated Rules Review (SL 2013-413). After substantive discussion on the EPA disapprovals of several
portions of the previous Triennial Review package, the WQC postponed approval of the proposed
rule package and the request to proceed with formal rulemaking and public hearing to a future WQC meeting. The date of that future meeting was not established by the WQC, at that meeting, to allow for further evaluation.
On March 8, 2017, DWR staff provided an information item to the WQC on the SL 2013-
413 review which includes 15A NCAC 02B water quality classifications and standards protections. This information item identified numerous stakeholder sessions, internal review by NC DEQ, additional stakeholder sessions planned for April 2017, and the intention of DWR to return to the WQC in September 2017 with a second request to proceed to the EMC with the goal
of going out for public hearing and comments.
In April 2017, in accordance with NCGS §150B, the rule drafts were posted online, and additional stakeholder information sessions were held to provide an opportunity for interested parties to receive an update on the latest versions of the rules. These rule drafts are located in the
“Rule Readoption” spreadsheet4.
On September 13, 2017, DWR staff presented WQC action item documents as well as the request for approval to proceed to the EMC with amendments to the Water Quality Program Rules in 15A NCAC 02B. The WQC changed the proposed action item to an “information item,”
requesting additional stakeholder input on rules unrelated to the Triennial Review and surface
water quality standards and classifications. DWR staff presented information to the WQC on November 8, 2017 that included a presentation on the rule readoption requirements of Session Law 2013-413 and updates from
stakeholder meetings held in October 2017.
On January 10, 2018, DWR staff presented an overview of actions related to the Triennial Review including timelines of SL 2013-413 Rules Review (2014), the EPA-disapproved parts of 15A NCAC 02B (2016), and stakeholder review (2015 and 2017). The amendments presented to
the WQC proposed to address organizational issues, needed clarifications, and deletions of
unnecessary or outdated components. Amendments were proposed to address EPA’s disapprovals,

4 https://deq.nc.gov/about/divisions/water-resources/water-resources-regulations-guidance/dwr-classifications-standards/rule-readoption-process
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specifically regarding the use of “Action Level” NPDES implementation regulations for copper, silver, and zinc. Removal of these “Action Level” components created the necessity for a revision
to the Fiscal Note (required under NCGS §150B) previously approved by the EMC and the NC
Office of State Budget Management (OSBM). The action item included a statement that the NC
Register public notice would provide the community with the opportunity to comment on potential future revisions for toxic pollutants currently in state protections and any possible additions to state standards/classifications to align NC with EPA’s “National Recommended Water Quality
Criteria” published by the EPA. Additionally, the OAH “Notice of Text” would include a request
for comments on the state’s existing water quality variances. The request for agreement to move forward to the EMC with the rule amendments to request approval for Public Notice and Public Hearing was granted by the WQC.
On March 8, 2018, staff requested that the EMC grant consent to proceed to Public Notice
and Hearings for both the proposed above-mentioned Rule Readoption and the proposed Triennial Review amendments. Approval was granted, and the required (45-day-prior-to-public-hearing) public notice appeared in the NC Register5 on May 15, 2018 (Volume 32, Issue 22). The NC Register announcement provided two hearing dates, with two readily accessible locations within
the state. In accordance with state and federal rules, a 60 (+) day comment period was provided to
the public (from May 15, 2018 to July 16, 2018). Members of the public subsequently requested an extension of the “comment period,” noting that the hearings were scheduled during summer holiday timeframes. The EMC Chairman and the Hearing Officer extended the comment period to August 4, 2018 at the July 12, 2018 EMC meeting. This extension was noted on websites and
interested parties were contacted to assure additional timeframes were made public.

Reclassification Rulemaking Actions Additional rulemaking actions regarding reclassifications of specific waterbodies have
been taken by the EMC since January 1, 2015. The following three waterbodies have been
reclassified: Cape Fear River, Brunswick and New Hanover Counties, Cape Fear River Basin
o SC -> SC Sw with Water Quality Management Plan (effective 6-30-2017)

Catawba River, Burke and McDowell Counties, Catawba River Basin
o WS-V&B, C -> WS-IV CA, WS-IV CA&B, WS-IV (PA) (effective 7-1-2017) Bill Moore Creek (Enka Lake), Buncombe County, French Broad River Basin
o C -> B (effective 1-1-2019)
The Cape Fear reclassification added a supplemental classification designation and water quality management plan to surface waters resulting in allowable lower ambient levels for certain parameters if caused by natural conditions:

A segment of the lower Cape Fear River was reclassified from SC to SC Swamp (Sw) with a water quality management plan. The Sw reclassification allows, if caused by natural 5 https://www.oah.nc.gov/rules-division/north-carolina-register
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conditions, the pH of the subject waters to reach as low as 4.3 compared to the current requirement of 6.8 – 8.5, and the Dissolved Oxygen (DO) to be lower than the current
requirement of 5 mg/l. The water quality management plan helps to implement the current
permitting strategy for new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges to the subject waters. The reclassification and management plan provide a path forward for these discharges and guidance for future planning purposes in local communities.

After the public hearing on February 5, 2015, the EMC approved the Cape Fear proposal on September 10, 2015, and it was subsequently submitted to the RRC for approval. RRC legal staff submitted a written request to DWR for technical changes to 15A NCAC 02B .0227 that primarily addressed rule language in existence prior to rulemaking for the proposal. DWR
staff responded to this request and subsequent e-mailed technical change requests, which
culminated in rule revisions that addressed all RRC concerns. EMC legal counsel reviewed the responses from DWR, and requested that the RRC revisions should be submitted to the EMC for approval. EMC approved the RRC technical revisions to go out to public notice at their November 5, 2015 meeting, and the revised rule was publicly noticed with a 60-day comment
period. The opportunity to request a public hearing was included in the public notice, but no
hearing was requested. A citation correction noted by DWR and included in a comment letter was subsequently made to the published version of the rule. The revised 15A NCAC 02B .0227, including the citation correction, was approved by the
EMC on May 12, 2016. The proposed amendments to 02B .0227 for a Cape Fear River
segment water quality management plan and the proposed amendments to 02B .0311 for a reclassification of the same Cape Fear River segment to Class SC Sw were approved by the RRC during the summer of 2016. Sufficient objection letters requesting the proposal be sent to the 2017 legislative session were received. A bill was introduced regarding the proposal during
the 2017 legislative session, but was not passed, and the proposed rule amendments became
effective at the end of the legislative session (June 30, 2017). The rule amendments were submitted to EPA for final approval on April 9, 2018. The EPA Region 4 responded on July 24, 2018 with the disapproval of the reclassification and a portion of the water quality management plan.

DWR received a petition for rulemaking from the Cape Fear River Watch and Waterkeeper Alliance in care of the Southern Environmental Law Center (SELC) in January 2019. The petition requests that the EMC “…remove the supplemental swamp waters classification from the lower Cape Fear River,” which would result in the removal of (t) from 15A
NCAC 02B .0311 Cape Fear River Basin. After review by the EMC Chairman, DWR
staff, and EMC counsel, the petition for rulemaking was deemed to be complete and was referred to the Water Quality Committee (WQC) for review. DWR presented the petition at the May 2019 WQC meeting and the WQC voted to forward the petition to the EMC for its review at the July 2019 meeting. In the meantime, DWR plans to review the reasons
provided in the petition for repeal of the existing rule language for the Swamp designation,
and assess the impacts of repealing this language.
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The Catawba River reclassification provided additional protections for a drinking water supply (WS) source in Burke and McDowell Counties as follows:

A portion of a Catawba River segment was reclassified from Class C to Class WS-IV Critical Area (CA) and WS-IV (PA), and the remaining portion, Lake James, was reclassified from Class WS-V & B to Class WS-IV & B CA. This reclassification allows for a new drinking water supply intake to be constructed in Lake James and utilized by McDowell County. A
public hearing was held on January 5, 2017, and final action was taken on it by the EMC
on May 11, 2017, with an effective date of July 1, 2017. The rule amendments were submitted to EPA for final approval on August 25, 2017, and EPA responded with written approval of this reclassification on November 8, 2017.
The Class B reclassification provided additional protections for Enka Lake in Buncombe
County, French Broad River Basin (15A NCAC 02B .0304), as follows: A portion of Bill Moore Creek (Enka Lake) was reclassified from Class C to Class B (primary recreation) to protect the existing waters’ primary recreational uses. A public hearing was held
August 8, 2018, and final approval by the EMC occurred on November 8, 2018, with an
effective date of January 1, 2019. DWR will submit the Enka Lake reclassification to EPA for final approval in June 2019.

Future Issues
During this Triennial Review, DWR requested and accepted suggestions for topics to be considered in the next Triennial Review. Suggestions include but are not limited to: revisions or improvements to DWR policies, rules and guidance related to designated uses, water quality
criteria, antidegradation, and variances. These topics will be carefully reviewed and prioritized for inclusion in the next cycle of the Triennial Review. Comments regarding issues to be addressed in the next Triennial Review are referred to as “Future Issues.”
FISCAL ANALYSIS PROCESS AND SUMMARY A fiscal note, as well as a subsequent revision to the fiscal note to account for changes to proposed metals standards, were prepared in conjunction with this rulemaking per NCGS §150B-21.4. DWR staff conducted outreach activities to potentially affected parties, including members
of the regulated community, environmental groups and state agencies, and used that information in the fiscal analysis. The EMC approved publication of the draft fiscal note on March 8th, 2018. The fiscal note and its revision were approved by the NC Office of State Budget and Management (OSBM) on April 16, 2018.
As measured from the baseline conditions, it was conservatively estimated that the rule revisions will result in a total cost of $376.7 million over 30 years (Net Present Value). The largest share of the costs will be related to implementation of metals standards by wastewater treatment facilities. The largest benefits are expected in the form of improvements to water quality and protection of aquatic life. The total benefit could not be monetized, however, because the effect
size (amount of improvement in water quality) could not be determined with the available data. To
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give an idea of the potential magnitude of the benefits, it was estimated that the benefits of the rule revisions could be expected to exceed the costs if water quality improves in 0.5% or more of North
Carolina’s water bodies over 30 years. This equates to approximately 1,600 acres of lakes and 200
miles of river.
The finalized fiscal note can be viewed on the OSBM website6.
PUBLIC HEARINGS The first public hearing was held on July 2, 2018 at 6 pm at the Piedmont Triad Regional Council, 1398 Carrollton Crossing Drive, Kernersville, NC 27284. The second hearing occurred on July 11, 2018 at 6 pm in the Ground Floor Hearing Room of the Archdale Building, 512 N. Salisbury Street, Raleigh, NC 27604. Dr. A. Stanley Meiburg, the EMC-appointed Hearing
Officer, presided over both of these hearings. Additional information about this process and these hearings is available on the DWR Surface Water Standards Website7. This website also contains the audio recordings of the July 28 and July 119 public hearings.
RESPONSES TO PUBLIC COMMENTS
Between May 29, 2018 and August 4, 2018, DWR received 510 public comments which are posted on the 2017-2019 Triennial Review section of DWR’s Surface Water Standards10 website. Five-hundred and nine of these comments were submitted via email, and one was
submitted by hand. Most of these letters were one of three form letters. Many of the remaining
non-form letters contained some of the same content as the form letters, but, had additional information. Other letters went into more detail and consisted of scientific and/or technical
documentation including scientific studies, documents, diagrams and charts created by trade
groups, environmental groups, or other state agencies. Two letters requested “petitions” and had multiple signatories. These comments are organized into categories listed in alphabetical order. Each category
corresponds to a headline below. There was significant overlap between many of the comments, so
this report groups similar comments together, rather than addressing each comment individually. For each comment category, the category is identified as “Future Issue” where appropriate, the comments are summarized, and then DWR’s responses to the comments are listed in italics and indented.
6 https://files.nc.gov/ncosbm/documents/files/DEQ_2018-04-16.pdf
7 https://deq.nc.gov/about/divisions/water-resources/planning/classification-standards/surface-water-standards#TriennialReviewInfo
8https://files.nc.gov/ncdeq/csrrb/public_comments_2018/2017to2019_2b_tri_rev/Tri_Rev_15A_NCAC_02B_.0100_.0200_.0300_07.02.2018_Kernersville.MP3
9https://files.nc.gov/ncdeq/csrrb/public_comments_2018/2017to2019_2b_tri_rev/Tri_Rev_15A_NCAC_02B_.0100_.0200_.0300_07.11.2018_Archdale.MP3
10 https://deq.nc.gov/about/divisions/water-resources/planning/classification-standards/surface-water-standards#TriennialReviewInfo
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Ammonia Standards – Future Issue
These comments made statements for and against the DWR/EMC adoption of the EPA’s
ammonia standards, or otherwise requested protections against ammonia in water. Wake Up Wake County, a citizen advocacy group, requested the EMC adopt EPA’s 2013 Aquatic Life Ambient Water Quality Criteria for Ammonia – Freshwater (EPA 822-R-13-
001). Approximately 393 commenters, using various form letters, supported the adoption of a
standard for ammonia, indicating its toxicity to fish. The NC Water Quality Association (NCWQA), representing more than 50 public water, sewer, and stormwater utilities in NC, did not support the adoption of an ammonia criterion and
urged DEQ to identify where union [unionid] mussels are present. Additionally, it urged the state
to take advantage of reasonable implementation flexibility such as using the 50th percentile pH and temperature rather than a higher percentile value. The North Carolina Sierra Club, representing ~92,000 members and supporters,
submitted comments of support for the derivation of standards for ammonia to protect aquatic life.
NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation Voters, River Guardian Foundation, Sound Rivers, SELC, Toxic Free NC, Whiteoak-New
Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance comments were
submitted jointly related to the need to protect aquatic life by adopting an ammonia standard. DWR will consider the 2013 EPA aquatic life National Recommended Water Quality Criteria for Ammonia - Freshwater (EPA 822-R-13-001) for adoption into the state’s
standards. The EPA ammonia criteria is a “formula” based criterion which will involve
investigation of the state’s available water quality data for appropriate pH and
temperature variables to be included. Additionally, consultation with our aquatic biologists will provide assurance that our actions protect the designated use. This work has already begun, including discussions with NPDES permitting staff related to permit
implementation. DWR is committed to protecting the surface waters of the state in a
transparent manner. Analytical Procedures
NCWQA expressed the need to clarify that the Director of DWR could establish alternate
test procedures when determining compliance with standards. See 15A NCAC 02B .0103. 15A NCAC 02H .0800 gives the Director authority to establish procedures when the need to use additional methods is warranted.

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Aquatic Life Protections – Future Issue
Comments indicated that water quality standards enacted to protect aquatic life should be
set at levels that don’t impair and disrupt behaviors and lifecycle, as opposed to levels that are
lethal. John Wagner requested the EMC consider the cumulative and combined adverse effects of toxins when establishing surface water quality standards for the protection of aquatic life. He
refers to the increasing body of scientific knowledge in this area and cites a recent scientific paper
titled Severing Ties: Different Responses of Larval and Adult Aquatic Insects to Atrazine and
Selenium (Henry B. L. et al., Environmental Science & Technology, 2018, 52 (15)). Mr. Wagner stressed the importance of considering sub-lethal effects when establishing surface water standards for aquatic life and the protection of freshwater mussel populations.

NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation Voters, River Guardian Foundation, Sound Rivers, SELC, Toxic Free NC, Whiteoak-New
Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly submitted
comments of support for consideration of sub-lethal impacts and mixtures of pollutants. About 63 commenters, using a form letter titled “Water Quality Standards,” support the consideration of sub-lethal impacts when establishing standards for the protection of aquatic life.

Approximately 49 commenters, using a form letter titled “Improve and Set Standards for Toxic Pesticides,” support the consideration of sub-lethal impacts when establishing standards for the protection of aquatic life.
Wake Up Wake County requested that the EMC set water quality standards to prevent sub-
lethal effects in fish. Protecting against the combined effects of toxic substances in surface water is challenging because there is limited toxicological information for many chemical combinations. The
potential for these interactions to adversely impact the health of aquatic communities is
recognized and protective options to address this concern will continue to be investigated. Sub-lethal effects of toxic substances may currently be considered as part of existing state
surface water quality protections where appropriate toxicological information is available.
For example, the current water quality standard for selenium is based on the potential for
adverse effects to reproductive systems in fish as opposed to being based on mortality. DWR is investigating the need for additional language in rule to address this concern. Attainable Uses Definition NCWCA opined that the proposed definition of “Attainable Uses” is materially
inconsistent with the federal definition for this term and should be revised, also noting that DEQ’s
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process for determining best usage should take into consideration 40 CFR Part 131, but should not "follow" Part 131 (15A NCAC 02B .0101). NCWQA believes NC should “…retain as much
flexibility as possible when determining the best usages of its waters” and “…should ensure it
maximizes its authority under the (Clean Water) Act.” They objected to automatic incorporation by reference of federal reference changes without the ability to comment and review. EMC’s rules are a reflection of a state program, not just a federal program, and the
proposed rules do not add or remove authority to or from the state. The comments
provided by the commenter about best usage, which request flexibility, seem to contradict
the comments provided about attainable uses and the need to match federal definitions. NC is required to implement the CWA, which “federal regulations” is assumed to mean in their comment, including any future modifications. EPA did not provide comments on the
definition of attainable uses.
The EPA requested the 15A NCAC 02B .0202 (6) definition of “attainable uses” reflect that effluent limits can be either technology based (TBELs), or water quality-based limits (WQBELs).

This seems unnecessary, as WQBELS and TBELs are defined in the wastewater treatment
rules in the 02B .0403 rule as follows (Staff notes that this is the pre-RRC draft rule, and may be modified slightly due to technical corrections):
(13) "Technology-based effluent limitations (or limits)," or "TBELs," means those
effluent limits that are based on a required level of treatment performance.
(15) "Water quality-based effluent limitations (or limits)," or "WQBELs," means those effluent limits that are established to ensure that a discharge does not cause or contribute
to a contravention of state surface water quality standards.

In addition, 15A NCAC 2B .0404(a) reads: The basis of these water quality effluent limitations shall be maintenance of water quality standards.

Lastly, the EPA Permit Writer’s Handbook, implemented by the NPDES permitting
section, mentions ‘attainable uses’ once, in the Water Quality Standards: At a minimum, uses are deemed attainable if they can be achieved by the implementing effluent limits required under CWA sections 301(b) and 306 [TBELs, including BAT] and by
implementing cost effective and reasonable best management practices (BMPs) for
nonpoint source control.
Automatic HQW Status Change for WS-I and WS-II Petitioned Waters and PNAs North Carolina Conservation Network, American Rivers, Appalachian Voices, Cape Fear River Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast
Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation
Voters, River Guardian Foundation, Sound Rivers, SELC, Toxic Free NC, Whiteoak-New
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Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly submitted comments focused on specific aspects of the proposed amendments to 15A NCAC 02B .0224.
These commenters were against proposed language that “removes waters that have been petitioned
for reclassification to WS-I or WS-II from the list of automatic HQWs (High Quality Waters).” The commenters provided the following suggested language to the end of the published version of 02B .0224 (b): “When a water has been petitioned for reclassification as WS-I or WS-II, it shall temporarily, pending a final adoption or rejection of the petition by the Commission, be managed
under the provisions of this section.”
These commenters are concerned that proposed language “strips the self-executing designation of a PNA or “other functional nursery areas” as an HQW.” The commenters provided the following suggested language to the end of the first sentence of the published version of 02B
.0224 (b): “…and other functional nursery areas designated by the Marine Fisheries Commission
or the Wildlife Resources Commission…” The EPA expressed concerns about the impact of DWR’s proposed language regarding PNAs, asking about the impact of the proposed language on existing HQWs.
The NC Conservation Network was concerned that the fiscal note’s discussion of the changes related to PNAs (15A NCAC 02B .0224 (b)) is not adequate to satisfy the state’s requirements.

The goal of the proposed changes in 15A NCAC 02B .0224 is to make clarifications. As in
the past, waters rated excellent will need to go through rulemaking to receive the HQW classification. DWR is awaiting clarification from EPA that may affect these issues. Specifically, page 8 of the July 24, 2018 EPA disapproval of revisions to 15A NCAC 02B
.0311 and .0227 contains language that may affect future decisions. The sentence reads as
follows: “Criteria must apply for all purposes under the CWA, and cannot be implemented
for only some purposes under the CWA, such as NPDES permitting.”
Regarding WS-I and WS-II petitioned waters: The jointly submitted commenters’ language
recommends an approach that appears to exceed the EMC’s authority. The language
requested by commenters would create an effective reclassification to HQW before
rulemaking for an HQW designation is completed, potentially violating the state’s Administrative Procedures Act. While presumably the “temporary” status of the petitioned water would ultimately be resolved through the rulemaking process, the petitioners’
proposal would change the status of the petitioned water body during the status of the
rulemaking process, and this does not appear consistent with the intent of state law.
Regarding PNAs and other functional nursery areas: The intent of DWR’s proposed language is to make it clear that a newly designated PNA, meaning a PNA designated after the effective date of this rule readoption, will be required to go through the reclassification process, including a fiscal analysis, in order to receive
the HQW classification. DWR researched the rulemaking that established the existing
language, and the record revealed that HQWs were not to be automatically assigned to nursery areas but rather assigned through rulemaking. In recognition of past practice, PNAs that historically have been assigned the HQW designation automatically will have
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their HQW classification “grandfathered,” so that existing HQWs will not be stripped of their HQW status. Prospectively, however, newly designated PNAs will need to go through
the rulemaking process.
The proposed language does not impact existing HQWs, so the fiscal note for this
rulemaking will not be affected. Boat Slip Length in Outstanding Resource Waters Michael King submitted comments related to boat length limitations in the 15A NCAC 02B .0225 Outstanding Resource Water rule. Although he incorrectly referred to Subchapter
02O, he recommended that the maximum length of boats, as specified in (e)(7) of 15A NCAC 02B .0225, be increased from 21 to 24 feet, in order to be consistent with the Coastal Area Management Act (CAMA) and town ordinances. DWR staff had discussions with various DEQ staff, including CAMA and Division of
Marine Fisheries (DMF) staff, and all are agreeable to this recommendation. These staff
indicated that the inconsistency between the protections of these agencies pertaining to boat length for marinas in ORWs has led to confusion, and permits for marinas in ORWs have erroneously been issued for boats up to or equaling 24’ in length rather than up to or
equaling 21’ in length.

The current DMF protection allows, from its effective date of June 1, 1989 on, exemptions from shellfish closures for new marinas with boats equal or less than 24’. For marinas built prior to this rule, this rule states that boats 21’ or less in length would be exempt
from a shellfish closure. The ORW rule utilized the 21’ boat length perhaps to prevent
shellfish closures in ORW waters with marinas built before the June 1, 1989 effective date
of the DMF protection. This recommendation would likely not result in water quality issues due to the restriction
that the involved boats have no toilets (heads) that is included in the existing and proposed
ORW rules. Thus, DWR staff will propose that the Hearing Officer agree to modify the
“21” feet restriction to “24” feet in (e)(7) as well as (e)(8) of 15A NCAC 02B .0225. This modification will not necessitate a change to the fiscal note because, in accordance with NCGS §150B-21.A(d), a fiscal note is not required when a rule is amended to impose a
less stringent burden on regulated persons.
Chlorophyll a/Nutrient Comments These comments refer to modifications in 15A NCAC 02B .0211 (4) and .0220 (3) NCWQA expressed concerns with the proposed averaging period for chlorophyll a, and
the manner of statistical averaging, suggesting that DWR should await outcomes of the on-going NC Nutrient Criteria Development Plan process (NCDP). The City of Greensboro, the City of Burlington, and NC League of Municipalities concur with these comments.
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The North Carolina Farm Bureau Federation, Inc. (NCFBF) did not support proposed revisions to the chlorophyll a standard and indicated general support for awaiting the NCDP
process recommendations.
Mecklenburg County Storm Water Services did not support proposed revisions to the chlorophyll a standard but does support language that would clarify that samples should be taken as integrated composite samples from the photic zone (defined as twice the Secchi depth) to
standardize procedures among various sampling entities.
The Lower Neuse Basin Association/Neuse River Compliance Association (LNBA/NRCA), consisting of combined comments from 22 of its members, submitted concerns with respect to the proposed chlorophyll a language. These remarks ranged in scope from needing
clarity on the duration and frequency components of the proposal, recommending appropriate
statistical averaging, and comments reflecting the need to provide an opportunity to develop a site-specific standard. They offered examples related to judgements for Clean Water Act Section 303(d) impaired waters assessments.
The Upper Neuse River Basin Association (UNRBA) submitted comments supporting a
revision to the chlorophyll a standard but noted that the current proposal should be based upon an appropriate quantitative level and central tendency averaged over the entire growing season. They acknowledged the work of the NCDP process, support for development of site-specific standards, and suggestions for changes outside the scope of standard development related to Clean Water Act
Section 303(d) assessment methodology (Hereinafter referred to as 303(d)).
Approximately 63 commenters, using a form letter titled “Water Quality Standards,” supported the derivation of “algal bloom standards.”
American Rivers, NC Conservation Network, and Sound Rivers jointly submitted
comments on the need for nutrient criteria, recommendations for chlorophyll a criteria and comments on the NCDP process. They comment that the NCDP Scientific Advisory Council (SAC) has gotten off track and appears to be deadlocked. They request the EMC establish numeric nutrient criteria for nitrogen and phosphorous, a periphyton standard, and benthic nitrogen &
phosphorus criteria. It also states that the Dissolved Oxygen (DO) standard should apply to the
whole water column and that chlorophyll a should be established as state-wide rather that site-specific standards. This letter also discusses geometric averaging related to chlorophyll a standards.
EPA comments that the modification of the chlorophyll a standard to include language
regarding monthly averaging will require documentation that describes how the modification will support designated uses in surface waters. EPA states that it may be premature to make changes to the existing chlorophyll a language while the NCDP SAC process is ongoing.
DWR has long maintained water quality standards (chlorophyll a, turbidity, pH, DO, etc.)
for the purpose of eutrophication (nutrient) control. A seasonal duration component
appeared as part of the original chlorophyll a surface water standard adopted into rule on August 9, 1979. This language was removed effective October 1, 1989 for unknown
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reasons. The proposed language reintroduces a seasonal duration component to better align the existing chlorophyll a standard to the intent of the original chlorophyll-a
standard.

DWR staff agrees that this language may change in the future as a result of new information and/or recommendations resulting from the NC Nutrient Criteria Development Plan process. That said, the NCDP SAC has been focused on examination of one lake,
High Rock Lake. This examination may or may not lend itself to adoption of revised
standards for other lakes.
With respect to an opportunity to derive “site-specific standards,” current protections in 15A NCAC 02B .0226 provide for these exemptions on a case-by-case basis reviewed by
the EMC. This language is retained.

NC water quality standards do not include 303(d) assessment methodology. Section 303(d) assessment methodology is not the subject of this rulemaking. Implementation of the rules is considered by the EMC and OSBM in the development of all water quality standards.
The EMC reviews and approves the DWR assessment methodology to assure that proper
protections are in place. The EMC has the final authority as to the manner in which the
waters are assessed for surface water for impairment. Assessment discussions with EPA headquarters staff are on-going through the DEQ involvement with national associations. The Chlorophyll a standard is not written as measuring a central tendency, spatially or
temporally. The standard is “not to exceed” 40 ug/L. Therefore, the current assessment
method is appropriate. If the current standard were to be modified to address the
suggestions (geographical selection, limnologic conditions, water temperature, droughts, lake headwaters, back-coves, timing of sampling, water clarity) made by the commenters, the assessment methodology will change accordingly and will undergo review by the EMC.

Classification Comments on Hanging Dog Creek and Oconaluftee River – Future Issues
The Eastern Band of Cherokee Indians (EBCI) commented that the current NC
classification of a section of the Oconaluftee River located downstream from the Reservation
Boundary near Goose Creek should be Class C, and not include the existing Trout and HQW classifications. In addition, the EBCI comments that the Hanging Dog Creek arm of Hiwassee Lake near Bates Creek should be considered as a stream, not a lake, and if so, it is impaired.
Regarding Hanging Dog Creek: The last portion of Hanging Dog before it merges with
Hiwassee Lake is considered part of the lake based on the DWR classification description.

Regarding Oconaluftee River: Nearly all the waters of interest are backwaters to the
hydropower generator. To remove the Tr classification, evidence showing a lack of
presence of trout in these waters would need to be provided historically back to 1975 per
EPA. If such evidence can be provided, then DWR can proceed with further review of a
potential waterbody reclassification.

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Note: EBCI received EPA treatment in a manner similar to a state (TAS) approval on
January 26, 2015 and the EPA granted approval of the adopted standards and
classifications for that program on March 28, 2019.
Lower Cape Fear River Segment Swamp Classification (15A NCAC 02B .0311/.0227)
The NCFBF comments in support of the Swamp (Sw) designation of a segment of the Cape Fear River from the mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut.
The SELC, on behalf of Cape Fear River Watch and Waterkeeper Alliance, as well as the North Carolina Coastal Federation and the EPA urge removal of the Swamp designation from this portion of the Lower Cape Fear River. On January 16, 2019 DWR received a petition for rulemaking from the Cape Fear River
Watch and Waterkeeper Alliance in care of SELC. The petition requested that the EMC
“…remove the supplemental swamp waters classification from the lower Cape Fear River.” After review by the EMC Chairman, DWR staff, and EMC counsel in accordance with the criteria outlined in 15A NCAC 02I .0501, Form and Contents of Petition, the petition for rulemaking was deemed to be complete and was referred to the Water Quality
Committee (WQC) for review in accordance with 15A NCAC 02I .0502, Review by a
Committee of the Commission. 15A NCAC 02I .0502 requires the WQC to review the petition and recommend action to the EMC. DWR presented the petition at the May 2019 WQC, and the WQC voted to forward the petition to the EMC for its review at the July 2019 meeting.
Contaminants of Emerging Concern (CECs) – Future Issue NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation Voters, River Guardian Foundation, Sound Rivers, SELC, Toxic Free NC, Whiteoak-New Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly submitted
comments supporting the derivation of standards for the PFAS class of chemicals and pesticides (especially Chlorpyrifos, Atrazine, and Neonicotinoids). They also expressed concern over endocrine disrupting chemicals that may lead to physiological changes at dilute concentrations. {Staff Note: The term “PFAS” refers to the diverse and numerous per- and polyfluoroalkyl groups of man-made chemicals, including PFOS, PFOA and GenX.}
About 63 commenters, by form letter titled “Water Quality Standards,” supported the derivation of “Gen X standards” and “1,4-Dioxane protections.” Roughly 323 commenters, in a form letter entitled “It’s Time to Update NC Water
Protections,” supported the derivation of “Gen X standards” and “pesticide standards” (especially for atrazine and neonicotinoid pesticides).
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Approximately 49 commenters, by form letter titled “Improve and Set Standards for Toxic
Pesticides,” supported revised standards for pesticides and additions to the list of pesticides
included in 02B protections as follows: chlorpyrifos, glyphosate, neonicotinoids, and atrazine. NCWQA believes the State should develop interim criteria for four key unregulated contaminants including Gen X, bromide, 1,4-Dioxane, and PFOA/PFOS. They also urge the State
to establish a workgroup which includes stakeholder input to develop a regulatory approach to
address discharges of unregulated contaminants. The American Forest and Paper Association encourages DWR to not embark into the area of CECs because it claims there are prohibitive technical challenges and costs associated with such
an effort.
Individual commenters expressed concerns that pesticides and pharmaceuticals may bioaccumulate in the food chain and persist in the environment. Some also declared that neonicotinoid pesticides should be banned.

The NC Manufacturers Alliance (NCMA) offered thoughts regarding how to best manage CECs. In general, NCMA suggests that the EMC should follow the established rulemaking process, which includes public outreach, to develop scientifically supported water quality standards. In instances where quick action is required, the NCMA recommended DWR authorize
the EMC to undertake temporary rulemaking so that “public health goals” can proceed through the
established rulemaking process. NCMA also states that the EMC should never establish standards for CECs that lack certified analytical methods and that DWR should follow the provisions of NC Session Law 2018-5 which directs DWR’s focus on identification of per- and poly- fluoroalkyl substances.

The City of Greensboro provides an outline detailing a recommended framework for how the State could address CECs. The City recommends participating in or creating, if necessary, a national network of state regulators to address CECs. Concern is expressed regarding potential economic impacts related to protections against CECs.

Domtar, a manufacturing facility, encouraged DWR to not embark into the area of regulating CECs due to technical challenges and prohibitive costs of the effort. They expressed concern that the state will become economically uncompetitive compared to neighboring states and will create an anti-business environment. Domtar also requested that any action DWR takes
regarding CECs must be limited in scope to only PFAS and must be in accordance with current
law contained in the North Carolina Water Safety Act (Session Law 2018-5). John Wagner stressed the importance of considering protections against glyphosate containing substances to protect both human health and aquatic life. He expressed concern
regarding the application of glyphosate containing substances near creeks, rivers, and streams and
provided references to seven scientific journal articles regarding the toxicity of glyphosate pesticides to humans and aquatic life.
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Thomas Duckwell suggested that a valid and consistent strategy should be established to address CECs.

Mara Frank supports the adoption of vigorous protections for NC’s water resources for Gen X and pesticides. Wake Up Wake County requested the EMC adopt water quality standards for 1,4-Dioxane
and for the class of chemicals that includes Gen X.
The Haw River Assembly, representing approximately 1,000 members in the watershed, and about 60 individual commenters, spoke of the need to add 1,4-Dioxane to the surface water quality standards. Of major concern was appropriate protection for water supplies and recreational
exposure.

Contaminants of Emerging Concern (CECs), including: pharmaceuticals, personal care products (PPCPs), pesticides, herbicides, PFAS, and a growing number of organic pollutants are increasingly being detected in surface water and in drinking water.
Therefore, there is a concern that these compounds, alone or in combination, may have an
impact on aquatic life and human health. Staff of DWR are currently serving on numerous
national workgroups, as participants and chairmen, to assure that the concerns faced by NC citizens, regulated parties, and regulators are heard.
The EMC and DWR have the authority to control toxins in surface water where no water
quality standard has been adopted under NCGS § 143-211, 15A NCAC 02B .0208, and the
Clean Water Act, 40 CFR Part 131.11. DWR will consider establishing criteria for additional compounds, substances and other contaminants of emerging concern where the appropriate toxicological and supporting information exists.

The DEQ, in conjunction with the Department of Health and Human Services, recognizing
the limitations and need for additional research in several areas, has established a Secretaries’ Science Advisory Board (SSAB)11 to aid and assist with recommendations on protective values to be incorporated into water quality control measures. The SSAB has
already begun work to address the PFAS family of substances. “Gen X” is the name of the
manufacturing process, but is commonly used, and is used here, to refer to the chemical:
2,3,3,3-tetrafluoro-2-(1,1,2,2,3,3,3-heptafluoropropoxy)-propanoic acid (CAS 13252-13-6). Gen X” is one of numerous PFAS that the SSAB, the NC Collaboratory, environmental activists, EPA and research scientists are investigating to derive suitable health
recommendations. This body of work will enable additional measures to be incorporated
into 15A NCAC 02B protections.
In October 2014, DWR initiated studies on the occurrence of 1,4-Dioxane in the Cape Fear River Basin with the objective of understanding changes in concentrations,
identifying potential sources, and collecting data to aid in the development of a rulemaking
strategy. DWR conducted outreach to affected facilities and continues to examine the Cape
Fear (and two additional basins). That work continues and additional information on those
11 https://deq.nc.gov/news/hot-topics/genx-investigation/secretaries-science-advisory-board
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efforts can be found here12.
The 15A NCAC 02B protections do not provide the authority for DWR to ban specific
substances. As noted above, they do provide the mechanism, where appropriate toxicity
data exists, for protective instream values to be calculated and applied to evaluations of surface water.
DWR remains dedicated to a transparent process of handling the derivation of surface
water quality standards, including stakeholder input, coordination with the EMC, and
outreach to EPA and our research partners. Examinations of bioaccumulation potential, endocrine disruption, carcinogenic potential, and teratogenic and mutagenetic effects are included in these reviews. Under NC General Statutes, the costs and benefits of
implementation of any revised standard or any new standard must be prepared for
review/approval by the Office of State Budget Management. This requires an examination
of acceptable analytical methods and technical feasibility. Cyanotoxin Criteria – Future Issue These comments relate to EPA’s Draft Human Health Water Quality Criteria13.

NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation Voters, River Guardian Foundation, Sound Rivers, SELC, Toxic Free NC, Whiteoak-New
Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly supported the
derivation of numeric criteria for algal toxins such as microcystins and cylindrospermopsin in drinking water (to protect from exposure through consumption), as well as surface waters (to protect recreational swimmers and incidental ingestion). Several comments were related to the challenges with maintaining an ambient program to enable the state to notify citizens of potential
exposures to algal toxins.
Wake Up Wake County supported adoption of standards to prevent algal toxins. Roughly 63 form letters entitled “Water Quality Standards,” supported the derivation of
“algal bloom standards.”
NWQA stated that DWR should defer to the ongoing NCDP process rather than adopt a finalized version of the EPA 2016 Draft Human Health Recreational Ambient Water Quality Criteria and/or Swimming Advisories for Microcystins and Cylindrospermopsin.

The NC Manufacturers Alliance (NCMA) supported and agreed with the EMC’s decision to defer consideration of the 2016 Draft Human Health Recreational Ambient Water Quality Criteria and/or Swimming Advisories for Microcystins and Cylindrospermopsin for the future triennial review cycle.

12 https://deq.nc.gov/about/divisions/water-resources/water-resources-data/water-sciences-home-page/1-4-dioxane 13 https://www.epa.gov/wqc/draft-human-health-water-quality-criteria-and-technical-support-documents
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The American Forest and Paper Association (AFPA) commented that DWR should await
final publication of the Human Health Recreational Ambient Water Quality Criteria and/or
Swimming Advisories for Microcystins and Cylindrospermopsin before moving to adopt in NC citing “significant technical issues” that the EPA has not addressed. Domtar recommended that DWR defer consideration of the Human Health Recreational
Ambient Water Quality Criteria and/or Swimming Advisories for Microcystins and
Cylindrospermopsin until a final version is published and technical concerns are addressed. The North Carolina Sierra Club supported the derivation of standards for algal toxins to protect drinking water sources, as well as standards to protect fish and recreational swimmers.

DWR recognizes that examination of recreational beaches and water supplies for the
effects of cyanotoxins is an important effort. It has been actively involved in discussions on the national level with respect to the Draft Human Health Recreational Ambient Water Quality Criteria or Swimming Advisories for Microcystins and Cylindrospermopsin. (EPA
822-P16-002; Dec. 19, 2016), and a companion document (yet to be released) relating to
implementation of this draft proposed criteria. DWR staff have also worked with
colleagues in the Public Water Supply Section on the issues related to drinking water protections and the public health advisories issued by EPA in June of 2015 (EPA 820-R-15101 and EPA 820-R-15100). These Safe Drinking Water Act (SDWA) protections are not
the subject of this rule making effort. However, as noted by the commenters, multiple
agencies/divisions have numerous responsibilities and capabilities. DWR’s Water Sciences
Section now has the capability to analyze for algal toxins and perform cell counts. DWR staff is currently working with EPA and the Association of Clean Water
Administrators (ACWA) to address monetary challenges, laboratory issues, staffing issues,
and how to establish a meaningful ambient program across the numerous water bodies in
the state. DWR will commit to prepare this review for EMC review for the next Triennial Review.
The NCDP SAC has also considered the utility of adopting a cyanobacteria criterion for
High Rock Lake. Dissolved Metals
These comments relate to proposed language in 15A NCAC 02B .0211 and .0220
NCWQA, Greensboro, and the League of Municipalities made comments related to maintaining existing language with respect to metals standards. Additionally, NCWQA made statements requesting removal of certain provisions.
The AFPA supported DWR’s use of a weight of evidence “bioconfirmation approach” when metal criteria were exceeded. Domtar supports retaining the bioconfirmation language in rule on a similar basis.
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The NCMA noted support for maintaining the EMC adopted “biological confirmation
approach” that allowed the Commission and DEQ to utilize biological confirmation when certain
metals criteria were found to be exceeded. The EPA disapproved language in 15A NCAC 02B .0211 and .0220 based on a determination that the language is not compliant with the Clean Water Act. The language,
contained in: 15A NCAC 02B .0211(c)(ii) regarding application of a lower bound of 25
mg/L CaCO3 for calculation of hardness-dependent metal water quality standards; 02B
.0211(11)(f) and .0220 (9)(c), requires biological confirmation for the impairment of surface waters due to metals; and 02B .0211(22) and .0220 (20) allowing for the use of “action levels” implementation policies in NPDES permits for certain metals.

One of the goals of the NC 2018 Triennial Review is to update the language in 15A NCAC
02B .0211 and .0220 so that there is agreement between the NC Administrative Code and the EPA decisions on CWA requirements. NC must align itself with the manner in which EPA is approving/reviewing NPDES permit limits for transparency.

Three commenters requested that the EMC remove the option to calculate a Copper
criterion using the Biotic Ligand Model (BLM). The current regulation does not require the use of a BLM to replace the examination of water hardness effects. The current protections allow for the use of a BLM as a choice, where data is available, to replace the
National Recommended Water Quality Criteria (NRWQC) hardness-based formula. Like
the allowed use of the Water Effects Ratio (WER), DWR believes that the two options
provide flexibility to a permit holder or an interested party for the assessments of potential adverse effects.
NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River
Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation Voters, River Guardian Foundation, Sound Rivers, SELC, Toxic Free NC, Whiteoak-New Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly submitted
comments of concern that this Triennial Review was not a comprehensive review of all water
quality standards, but was primarily related to clearing up inconsistences with EPA disapprovals and accomplishing the legislatively mandated rules readoption. They continued with general support of the proposed changes to the metals criteria but requested more attention to be focused on the adoption of EPA proposed additional criteria for aluminum, selenium, copper and
cadmium. They made comments related to support (with caution) of the Copper Biotic Ligand
Model (BLM) to develop acute standards but opposed the use of the BLM for development of chronic standards, citing the need for further development of the BLM by EPA. DWR acknowledges that it faced challenges in satisfying the numerous CWA and
legislative obligations. Staff has continued to pursue examination of the metals noted
above and has worked with the Association of Clean Water Administrators (ACWA) and
EPA headquarters staff on questions related to the draft aluminum criteria, the selenium criteria and the cadmium criteria. This work will continue, as will an effort to determine
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costs and benefits associated with adoptions of additional aquatic life protective criteria. DWR has not had any requests for a recalculation of the Copper standard using the
BLM. DWR will keep the concerns related to its implementation in mind should the request
be submitted. Approximately 65 commenters had concerns that “NC has failed to meet minimum standards required by EPA … for dissolved metals....” “...and the EMC should adopt all changes
required by EPA....” Additionally, many of these comments requested standards that “...prevent
levels of pollution (for aquatic life protection) at sublethal concentrations....” North Carolina, in the previous rulemaking package, adopted numerous dissolved metals surface water quality standards for the protection of aquatic life in fresh and tidal waters.
These water quality protections can be found in 15A NCAC 02B .0211 and .0220. The
Division will consider new and updated EPA dissolved metals recommended water quality
criteria as they are published by the EPA. DWR will consider all recently published EPA NRWQC updates as part of the next Triennial Review. To date, these metals criteria include: Aquatic Life Ambient Water Quality Final Criterion for Selenium - Freshwater
2016, and 2016 Aquatic Life Ambient Water Quality Criteria for Cadmium, and Aquatic
Life Ambient Water Quality Criteria for Aluminum 2018.
The Clean Water Act (CWA), established in 1972, requires that states develop and adopt water quality standards for surface waters that will protect aquatic life. North Carolina
has incorporated protections to maintain the integrity of aquatic life through its Surface
Water Quality Standards program as found in the 15A NCAC 02B .0200 rules. Sub-lethal
impacts are addressed in these rules. NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River
Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast
Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation Voters, River Guardian Foundation, Sound Rivers, SELC, Toxic Free NC, Whiteoak-New Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly submitted comments of concern that the current water quality standard for mercury is not in line with
recommendations for methylmercury at 0.3 mg/kg of fish tissue issued by EPA in 2001, with
subsequent implementation guidance provided in 2010. The Division of Water Quality (DWR’s predecessor) completed, and the EPA approved, a Total Maximum Daily Load (TMDL) under Section 303(d) of the Clean Water Act for
mercury applicable to all counties/watersheds in NC. That work was initiated in 2010.
EPA approval was received October 12, 2012. The EPA and Food and Drug
Administration recommended fish tissue water quality criterion of 0.3 mg/kg methylmercury (mg meHg/kg) fish was selected as the target level for this TMDL. Since fish tissues were monitored for total mercury in NC, and studies show that most mercury
concentrations in fish tissues are in the form of methylmercury, the 0.3 mg meHg/kg fish
tissue mercury target was applied to total mercury in fish tissues in the TMDL. To protect
water bodies from impairment, the 90th percentile standardized-length Largemouth Bass fish tissue total mercury concentration was selected to meet the target level. The goal of
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this action was to reduce loading of Hg to the systems and to remove the fish advisories. Reduction efforts were also implemented through the NPDES permitting program.
Dissolved Metals - Future Issues
NCWQA, representing more than 50 public water, sewer, and stormwater utilities in NC,
supports updating the current cadmium and selenium criteria but recommends the State evaluate
the selenium criteria adopted by West Virginia. NCWQA strongly objects to the State adopting EPA’s Marine Biotic Ligand Model. A single commenter expressed a desire that standards should be set for selenium and
cadmium that protect human and aquatic life.
Approximately 65 single comments were received addressing concerns that “NC has failed to meet minimum standards required by EPA … for dissolved metals...” and “...the EMC should adopt all changes required by EPA....” Additionally, most of these comments requested standards
that “...prevent levels of pollution (for aquatic life protection) at sublethal concentrations....”

NC has existing cadmium and selenium standards for the protection of aquatic life in fresh surface waters (15A NCAC 02B .0211) and tidal surface waters (15A NCAC 02B .0220). In 2016, EPA released updated NRWQC for cadmium and selenium for the protection of
aquatic life. DWR has examined these updated aquatic life criteria for potential adoption
as part of the next Triennial Review. Regarding human health criteria, because fish are
more sensitive to selenium than humans, the current surface water standard is protective of both aquatic life and human health. EPA does not currently have human health specific NRWQC for cadmium in surface waters, however an existing National Primary Drinking
Water Regulation Maximum Contaminant Level (MCL) of 5 ug/L may be applied to
surface waters classified as water supplies per 15A NCAC 02B .0208, .0212, .0214, .0215,
.0216, and .0218. Although no specific metals were mentioned in the comment, in the previous rule making
package, North Carolina adopted numerous dissolved metals surface water quality
standards for the protection of aquatic life in fresh and tidal waters. In accordance with
State regulation and 40 CFR Part 131 revisions (2015) DWR will consider all new and updated recommended water quality criteria as they are published by the EPA. To date, these metals criteria include: Aquatic Life Ambient Water Quality Final Criterion for
Selenium - Freshwater 2016, 2016 Aquatic Life Ambient Water Quality Criteria for
Cadmium, and Aquatic Life Ambient Water Quality Criteria for Aluminum 2018. John Wagner requests the EMC consider the cumulative and combined adverse effects of toxins when establishing surface water quality standards for the protection of aquatic life. He
refers to the increasing body of scientific knowledge in this area and cites a recent scientific paper titled Severing Ties: Different Responses of Larval and Adult Aquatic Insects to Atrazine and
Selenium [Henry B. L. et al. Environmental Science & Technology. 2018. 52 (15)]. Wagner stresses the importance of considering sub-lethal effects when establishing surface water standards for aquatic life and the protection of freshwater mussel populations.
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Protecting against the combined effects of toxic substances in surface water is challenging
due to the lack of toxicological information for many chemical combinations. However, the
potential for these interactions to adversely impact the health of aquatic communities is
acknowledged and protective options to address this concern will be investigated further. Sub-lethal effects of toxic substances may be considered as part of the State surface water
quality protections where appropriate information is available. For example, the current
water quality standard for selenium is based on the potential for adverse effects to
reproductive systems in fish. DWR will investigate the need for additional language to address this issue.
DWR acknowledges that freshwater mussels are critical to aquatic ecosystems and plans
to propose adoption of EPA’s 2013 Aquatic Life Ambient Water Quality Criteria for
Ammonia – Freshwater (EPA 822-R-18-002).
E.coli as Bacterial Indicator – Future Issues These comments relate to EPA’s Recreational Water Quality Criteria14.

The Haw River Assembly spoke of the need to address bacterial contamination using e.
coli as the indicator species at “a geometric mean (GM) of 35 colony forming units (CFU)/100 milliliters(mL).” Comments referred to issues discovered downstream of food processing plants.
NCWQA urged that the EMC adopt EPA’s updated bacteria criteria for recreational
waters. While the 90-day instream averaging period is appropriate, NCWQA’s support is conditioned on no changes to the monthly and weekly geometric mean-based limits for municipal NPDES permits.
Idexx Laboratories, Inc. requests the EMC amend the bacterial indicators within the
Surface Water Quality Standards for freshwater (specifically Classes C, B, WS-I, WS-II, & WS-III listed within 15A NCAC 02B .0100) from fecal coliform and total coliform to Escherichia coli (E. coli). Idexx wants these indicators applied statewide and to allow any EPA analytical test method listed at 40 CFR Part 136.3 for bacteria monitoring requirements. The rational for this
amendment is that E. coli are better indicators for fecal contamination versus fecal or total
coliforms and analytical test methods listed within 40 CFR Part 136.3 have been identified by the EPA as scientifically valid methods. DWR has reviewed the EPA 2012 Recreational Water Quality Criteria (EPA 820-F-058)
(Enterococci or Escherichia coli) for addition to existing standards, and will propose
adoption during the next review. The revised Recreational Water Quality Criteria
document is designed specifically for the protection “of the primary contact recreational use.” In 15A NCAC 02B protections, the primary contact recreational use is captured under a supplemental classification of “Class B” waters.

14 https://www.epa.gov/wqc/2012-recreational-water-quality-criteria-documents
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The EPA recommended values for e.coli in fresh waters is a geometric mean value of between 100 and 126 cfu/100 mL in primary contact waters (see P. 6, Table 1 of EPA 820-
F-058). DWR staff could not identify the source of the “35 cfu/100 mL” noted by the Haw
River Assembly comment.
Revisions to the standard would necessitate revisions to NPDES permit limits to implement the rule.

Laboratory method choices are covered under 15A NCAC 02H .0800 protections and
include references to the use of federally approved methods. Endangered Species – Future Issue The NC Wildlife Resources Commission (WRC), working with the US Fish and Wildlife Service (USFWS), is working to draft an aquatic species Safe Harbor Agreement (SHA) and Candidate Conservation Agreement with Assurances (CCAA), which will allow stocking of captive grown and translocated, federally listed species into currently unoccupied streams. WRC and USFWS request discussions with DWR staff to better understand the impact of these
decisions on DWR programs and potential CWA issues. DWR staff recognizes the efforts of the WRC/USFWS to reestablish populations of federally listed species in North Carolina waters. We understand the concern that components of the SHA/CCAA agreement may conflict with the aquatic life protections
required by the Clean Water Act and implemented by the NC water quality standards and
classifications program. Future discussions with EPA regarding the components of concern are warranted. Update of Human Health Water Quality Criteria /Default Assumptions - Future Issue
These comments relate to EPA’s Human Health Water Quality Criteria15. NCWQA offered comments on the revisions to EPA Human Health Ambient Water Quality Criteria (HHAWQC) indicating concerns relating to: implementation cost to NPDES
permit holders, a potential lack of analytical methods capable of demonstrating compliance, and a particular concern relating to “bis,” noting its presence in plastic sampling tubing used for composite sampling. The City of Greensboro concurs with these comments. Presumably, “bis” refers to bis(2-ethylhexyl) phthalate, CAS # 117817.
The NC Manufacturers Alliance fully supported and agreed with the EMC’s decision to defer consideration of the HHAWQC for the future Triennial Review cycle, indicating its consistency with actions taken by several other states. NCMA urged DEQ to work to develop criteria that are directly applicable to waters in our state, citing that the EPA’s proposals were developed using data generated in the Great Lakes Region and may not be transferrable to North
Carolina surface waters.
15 https://www.epa.gov/wqc/human-health-water-quality-criteria-and-methods-toxics
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About 63 commenters, using a form letter titled “Water Quality Standards,” supported the
derivation of criteria affording additional protections for vulnerable populations.
Approximately 49 commenters, in a form letter titled “Improve and Set Standards for Toxic Pesticides,” supported revised standards for pesticides and additions to the list of pesticides included in 15A NCAC 02B protections as follows: chlorpyrifos, glyphosate, neonicotinoids, and
atrazine. They also supported the derivation of criteria affording additional protections for
vulnerable populations such as infants, developing fetuses, and children in puberty. NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast
Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation
Voters, River Guardian Foundation , Sound Rivers, SELC, Toxic Free NC, Whiteoak-New Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly submitted comments related to the need to protect vulnerable populations at different life-stages, to examine age dependent factors, sex related endpoints, and genetic factors when establishing criteria. They
also requested evaluation of the effects of “mixtures of pollutants” and a plea for standards
established for surface water be mindful of the downstream use as a potential public water supply. The National Council for Air and Stream Improvement, Inc. (NCASI) submitted detailed
comments with respect to the need for the Division to carefully examine the revised “Human
Health Ambient Water Quality Criteria: 2015 Update” (EPA 820-F-15-001). NCASI noted an attached document (“Derivation of HHAWQC: Review of Key Assumptions and Approaches” - May 2018) with extensive technical materials that support the State of NC taking a cautious approach in its criteria derivation process. State specific science-based “default” parameter choices
were highlighted as follows:

o Choices of acceptable risk range for carcinogens
o Choices in Fish Consumption Rates (FCR)
o Choices of Relative Source Contribution (RSC)
o Choices of the inclusion of a Bioaccumulation Factor (BAF) or a Bioconcentration Factor
(BCF)
o Choices of a Water Consumption Rate (WCR) or Water Intake Rate
o Choices related to the “combined conservatism” that may occur when a selection of
conservatism is made for each of the above choices. The American Forest and Paper Association (AFPA) incorporated by reference the NCASI comments listed above. Additionally, it commented in detail about the flexibilities afforded states
by the Clean Water Act and 40 CFR protections relating to choices in derivations of standards.
AFPA also listed deep concerns with implementation costs to NPDES permit holders should all the revisions proposed by the 2015 EPA updates be adopted.
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Domtar supports the language submitted by AFPA and NCASI. Domtar supports delaying
decision making on the updated EPA human health criteria and recommends the State carefully
review the NCASI comments. The NC Conservation Network submitted a petition, signed by 1,028 NC residents, requesting the EMC to adopt standards that protect the health of vulnerable populations, not just
healthy adults.
Wake Up Wake County requests the EMC consider infants and children when setting water quality standards.
The NRWQC “Human Health Ambient Water Quality Criteria: 2015 Update” (EPA 820-
F-15-001) will be considered for inclusion, in part or in selected elements, in the next
Triennial Review. The review of available EPA guidance documents and the materials submitted by NCASI will be completed and information items will be provided to the EMC as details are evaluated. Discussions with other states that have, or are planning to, adopt
these criteria as state water quality standards will be scheduled through our involvement
with national councils on water quality management (Environmental Council of the States,
Association of Clean Water Administrators (ACWA)). DWR recognizes that adoption of any, or all, of these revised “default” parameters into water quality criteria used to derive State standards can be an opportunity to improve the protections for the citizens of the
State. Staff will document the implementation costs in accordance with NC General
Statutes.
Because of limitations in available data, the EPA doesn’t currently apply the body weights of infants and children in deriving HHAWQC, nor does it apply exposure
scenarios to pregnant women, or women who may become pregnant. The same holds true
for assumptions related to water ingestion rates of bottle-fed infants. While some of these
evaluations have been performed for a few Safe Drinking Water Act Health Advisories, none have been adopted into the federal regulations for Public Water Supplies as Maximum Contaminant Levels (MCLs). The current 15A NCAC 02B rules provide the
EMC the ability to use information, when it is available, to examine effects on sensitive
populations and includes criteria for applications to protect children. DWR staff will
continue to track toxicity information to address protections for vulnerable populations.
US EPA Region 4’s Additional Comments

Acute Toxicity Definition

EPA requested an explanation of proposed text amending the “acute toxicity” definition. (15A NCAC 02B .0202(1)(c)). The Hearing Officer recommends that the text be removed until further inquiry can be completed.

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Chloride EPA noted that chloride remains the only parameter listed as an “action level” and reiterates the request to remove the language. DWR continues to evaluate chloride with respect its non-priority pollutant status. The
Division recognizes competing priorities to manage wastewater applications and public
water supply processes where, by necessity, chlorides may become concentrated due to
required treatment procedures.
Existing Uses Terminology (15A NCAC 02B .0101)
EPA noted that “and all existing uses as defined by 15 NCAC 02B .0202” is not included in proposed 15A NCAC 02B .0101(b)(2), and it was previously located at 02B .0101(f). EPA
asked if this change in language was intentional or if language regarding consideration of existing
uses is located elsewhere. This language is located in a different location in the proposed rules. It is provided in the proposed published version of 02B .0101(b)(1).

40 Code of Federal Regulations (CFR) Part 131 Issues
EPA requires that the State respond to revisions to 40 CFR Part 131 (effective 2015) with
respect to explanatory language for any 304(a) criteria not adopted in this Triennial Review.

Throughout the “Response to Comments” sections of this Hearing Officer’s report, DWR
acknowledges that additional EPA Section 304 (a) criteria have been published as final or have been issued as draft for public review. As noted by EPA in their letter of July 31, 2018, this rule package was designed under competing priorities of both state General Statute requirements and the federal 2016 EPA disapprovals. Due to resource constraints
related to the mandated timeframes, our review of the 304(a) criteria is underway, and
comments on these criteria, and any other additional compounds were requested during the published public comment period. DWR will take these comments and continue to review any additional or finalized criteria for potential inclusion in the next revision to 15A NCAC 02B protections including recommendations published as follows:

• New federal or state protections or guidance
• Legal decisions involving water quality standards
• New or updated 304(a) criteria
• Input from members of the public
• Section 305(b) reports
• Attainability assessments
• Additional classifications, reclassifications as appropriate
40 CFR Part 131.10 References Within 15A NCAC 02B .0101(b)(2) and (3)

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The EPA asked why parts, and not all, of 40 CFR 131.10 are referenced in 15 NCAC 02B .0101(b)(2) and (3) and suggests that 40 CFR 131.10 in its entirety be referenced in those two
parts of 02B .0101.

The references to 40 CFR 131.10 cited in the proposed rules are not based on the most current version of 40 CFR 131.10. DWR reviewed the most recent 40 CFR 131.10 version and proposes changing the references in the cited rules to 40 CFR 131.10.

Native and Special Native Trout Waters Terminology (15A NCAC 02B .0224 and .0225) The EPA noted that the phrase “native and special native trout waters” has been proposed to be removed from 02B .0224 and .0225. It asked about any impact(s) that removal of this phrase
would have on waters historically designated as HQW or ORW on the basis of being native or
special native trout waters.
The revisions are a clean-up of terminology that is no longer utilized in North Carolina; there no longer exists a list of native and special native trout waters in the state. These
revisions do not impact HQW or ORW existing classifications for waters that were
identified in the past based on the utilization of the language that is proposed to be
removed, and those classifications are “grandfathered in.”

Nutrient Sensitive Waters (NSWs) Phrases [15A NCAC 02B .0223 (e)]
The EPA noted that in an effort to consolidate NSW language, the proposed rules left out the phrases “requiring limitations on nutrient impacts” and “in order to limit the discharge of nutrients (usually nitrogen and phosphorus).” EPA noted that 02B .0223 (e) addresses controlling
excessive growth, but still suggests keeping the cited phrases in the rules.

DWR proposes to add language to 02B .0223(e) to address this concern. More specifically, the phrase “to limit nutrients” is proposed to be added between “Commission” and “to control” in 02B .0223(e).

Propagation [15A NCAC 02B .0211(1)]
EPA stated that the term “propagation” was removed from the Class C waters description
in 02B .0211(1) and recommended it be placed back in the description. EPA noted that this language originally was in 02B .0101(c). DWR inadvertently left the term “propagation” out of 02B .0211 (1). Thus, it proposes to
add the term “propagation” to 02B .0211(1) after the phrase “aquatic life.”

Sandy Creek Reservoir Classification (15A NCAC 02B .0311) EPA stated that the record will have to include documentation with regard to a 02B .0311 proposed addition. This addition addresses a change to the classification of Sandy Creek.
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The following is documentation of the change to the classification of Sandy Creek within 15A NCAC 02B .0311:

A segment of Sandy Creek, which is located in Randolph County (Cape Fear River Basin),
is to be reclassified from Class WS-III (Balance of the Watershed or BW) to Class WS-III Critical Area (CA). This proposed reclassification affects a portion of the Sandy Creek water supply watershed, including Sandy Creek reservoir.

Randolph County informed state staff that DWR’s water supply watershed boundary
information for the reservoir is different than the county’s water supply watershed boundary information for the reservoir. Based on available historical and current data, DWR staff agree with the county staff. The proposed reclassification will result in an
updated representation of the water supply watershed for the reservoir; thus, this proposal
serves the public interest per Executive Order #70 and complies with NCGS 150B. Per Winston Salem Regional Office (WSRO) DWR staff, the Town of Ramseur switched from using a run-of-river intake in the creek to an intake built within a reservoir on the
creek in the 1990s. A map of a Water Supply classified watershed is based primarily on the
location of an intake within a reservoir or a river, and the rule language pertaining to a
water supply watershed results from the map. For a run-of-river intake, a CA is measured as the area ½ mile and draining to the intake whereas for an intake in a reservoir, the CA is the area measured as ½ mile and draining to the normal pool elevation of the reservoir.
The remainder of the area protected as a WS-III for a reservoir intake or run-of-river
intake is the rest of the watershed (beyond the CA) draining to the normal pool elevation of
the reservoir or the run-of-river intake, respectively, and is called the Balance of the Watershed (BW). The proposed reclassification would result in the CA and BW for the reservoir totaling nearly 2,618 acres and 38,027 acres, respectively. There are no named
tributaries affected by this reclassification proposal.

In a WS-III watershed, water supply water quality standards apply throughout the watershed. Other requirements within a WS-III watershed are no new landfills, no new residual or septage land application sites, and the allowance of only general NPDES
wastewater discharges in the CA. In the BW, domestic and non-process industrial
individual NPDES wastewater discharges are also allowed. There are no permitted or
planned NPDES wastewater discharges that would be impacted by the proposal, and there are not any planned septage or residual land application sites or landfills in the proposed CA, according to WSRO and Central Office DEQ staff.

Guilford and Randolph Counties are the only local governments with jurisdiction in the
proposed water supply watershed, and the current water supply watershed ordinances of these two local governments already meet the requirements of the proposed reclassification. Thus, these local governments would not need to modify their water
supply watershed protection ordinances as a result of the proposal. A regulatory impact
analysis for this proposal shows a one-time cost of approximately $2,265 to the state.
These costs to the state are to be incurred for notifying staff of local governments in the proposed water supply watershed, reviewing and approving local ordinances and maps for
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compliance, and updating the DEMLR interactive stormwater map and website once the proposal becomes effective.

Seasonal Dissolved Oxygen (DO) Exemption [15A NCAC 02B .0308(v)] - Future Issue The EPA noted that in its February 27, 2009 correspondence to the state, it disapproved of an exemption regarding seasonal DO in 15A NCAC 02B .0308(v). EPA stated the sentence
starting with “Between the last day of May and the first day of November, the water quality
standard for Dissolved Oxygen…” should be deleted from 02B .0308(v) to address its disapproval.
The Hearing Officer recommends that this issue be revisited during the next Triennial Review. Changing the language would require public notification and require completion
of a fiscal note, as it may have fiscal impacts to impacted parties by increasing compliance
costs.
Fiscal Note Comments (the Fiscal Note is available here16)
The NC Conservation Network comments that there would be no fiscal impact due to the EMC keeping or removing the changes to the metals standards language as this language has been implemented since its adoption into rule. NCCN also states that estimation of any potential
cost/savings regarding these changes is not required to satisfy the APA. NCCN indicates that the
fiscal note’s discussion of the changes in 15A NCAC 02B .0224 isn’t adequate to satisfy the state’s requirements. Additional comments concerning how the DEQ and the EMC approach fiscal analysis address the use of Willingness to Accept (WTA) estimation to replace Willingness to Pay (WTP) for estimating costs/rewards and the choice of discount rate.

DWR agrees that using Willingness to Accept (WTA) can be an appropriate measure in
some cases. However, due to a lack of WTA studies that can be adapted to this setting, DWR cannot estimate WTA with reasonable certainty. Although DWR doesn’t have an estimate of WTA, research would support the presumption that WTA would likely be higher
than Willingness to Pay (WTP). Using WTA in DWR’s analysis would potentially result in
the benefits exceeding costs after water quality improvements are achieved in a smaller
percentage of the state’s water bodies. DWR recognizes that different analyses call for different (or possibly no) discount rates.
Although DWR is bound to use the 7% discount rate required by statute, DWR considered
it important to present different discount rates in our sensitivity analysis. DWR will
incorporate additional discussion on this topic in future analyses, as appropriate. The amendments to this rule proposing that the PNAs require a reclassification process
prior to applying the HQW designation will apply only to areas that are designated as
PNAs after the effective date of this readoption. As such, existing PNAs will not be stripped
of their HQW status, and the fiscal note will not be affected. After the effective date of the
16 https://files.nc.gov/ncosbm/documents/files/DEQ_2018-04-16.pdf
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readoption, a newly-designated PNA will be required to go through the rulemaking process, including fiscal analysis, to be designated as HQW.

Gen X Ban One commenter indicated that Gen X should be banned and that the companies who dumped it should pay the cost of cleanup.
DEQ has undertaken numerous actions with respect to the issues in the New Hanover
County/Cape Fear River basin area. DEQ maintains a website17 to keep the public
informed about actions to abate these problems.
High Quality Water Treatment Requirements

North Carolina Water Quality Association (NCWQA) requests numerous changes to requirements for protection of High Quality Waters. NCWQA states that NC include “…applicable average with respect to the treatment required for wastewater discharges to High Quality Waters.” NCWQA also feel that dischargers should not be required to maintain instream
levels greater than a standard that goes above natural background levels. Lastly, NCWQA
provides revised language for Oxygen Consuming Wastes, Total Suspended Solids, Volume, Nutrients, and Toxic Substances. The language suggested in these comments contradicts the purpose of the HQW
classification, which is to protect waters with quality higher than the state’s standards.
Removal of HQW protections could also cause degradation of these waters.
Industrial Discharge Definition – Future Issue NCWQA stated that several definitions in 02B .0202 should mirror CWA language to
prevent confusion. NCWQA disagrees that development of a pretreatment program “transforms
the discharge from a municipal wastewater treatment plant into an industrial discharge” and notes that the usage of the term “industrial” in the 02B rules does not support this definition either. NCWQA suggested revision to the definition of the term “industrial discharge” in .0202 as follows: Industrial discharge includes: . . . (c) wastewater discharged from a municipal wastewater
treatment plant requiring a pretreatment program
DWR staff will examine this request further, as there is concern that removal or alteration may cause unintended consequences related to 15A NCAC 02B .0400 (wastewater), 15A NCAC 02H .0900 (pretreatment), 15A NCAC 02H .0100 and .1000 (stormwater) and any
other protections currently under review, revision and readoption.

17 https://deq.nc.gov/news/key-issues/genx-investigation
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Mean Annual Flow NCWQA requested DEQ to adopt the “mean annual” flow for standards to protect human
health from non-carcinogens under 02B .0206(a)(4). DEQ uses the “mean annual” flow to protect
human health from carcinogens, unless site-specific concerns dictate the use of an alternative design flow. NCWQA recommended using the same flow for non-carcinogens. This recommendation noted that human health criteria are based on an acceptable daily exposure over a lifetime, and it is consistent with EPA practice that matches the criteria with the longest stream
flow averaging period. See, e.g., 65 Fed. Reg. 31682 (May 18, 2000). Accordingly, NCWQA suggests the following revision to .0206(a)(4)(A): The mean 7Q10 flow for standards to protect human health through the consumption of water, fish, and shellfish from noncarcinogens…

The NCWQA cited reference is to the California Toxics Rule which states that the “EPA is requiring that the harmonic mean flow (emphasis added) be applied with human health criteria...” (p. 31701), not the “mean annual flow.” As noted previously, the “Human Health Ambient Water Quality Criteria: 2015 Update” will be considered for inclusion, in
part or in selected elements, in the next Triennial Review. The review of impacts to these
modifications will include an examination of the applicable flow. Like the California Toxics Rules, the EPA also recommended in the 2015 updates to 40 CFR:

“G. What Design Stream Flow Should Be Used to Implement Human Health Criteria? Human health criteria represent ambient pollutant concentrations that are acceptable based on a lifetime (70 years) of exposure. Accordingly, discharges of pollutants should be regulated such that criteria will not be exceeded under stream conditions
that represent long-term average conditions... With today’s Human Health
Methodology, EPA is revising its guidance to recommend harmonic mean flow (emphasis added) be used to implement both carcinogen and noncarcinogen human health criteria. Harmonic mean flow should be used to implement human health criteria because, by and large, human health criteria are designed to protect an
individual over a lifetime of exposure.” (Federal Register /Vol. 65, No. 214/ November
3, 2000). DWR recognizes that adoption of any, or all, of these revised “default” parameters into water quality state standards can be an opportunity to improve the protections for citizens.
DWR staff will examine the risks involved and the implementation costs in accordance with
NC General Statutes.

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Mixing Zones NCWQA requested that Mixing Zones include a Zone of Initial dilution (15A NCAC 02B
.0204).

DEQ NPDES permitting applies guidance from the EPA’s Technical Support for Water-Quality Based Toxics Control (TSD) (located here)18 to help determine mixing zones. Mixing zones are discussed in Section 2.2.2 (page 33) and Section 4.3 (page 69), and the
sizing criteria for acute mixing zones is found in section 4.3.3. There are no size criteria
for chronic mixing zones in the TSD nor by 15A NCAC 02B rules. The TSD’s goal with respect to the acute mixing zone sizing criteria is to prevent lethality to passing organisms. No definition in the current or proposed rule for “zone of initial dilution” exists, nor is that term defined in the TSD. The term, as proposed, would be the near-field mixing effects
where jet and buoyant plume forces dominate the mixing. Further examination is needed to
ensure that any modification is protective of the designated uses.
Mussel Population Protections John Wagner states that the state should assess the reduced habitat and declining quality of
water that are being faced by all of the state’s mussels. He mentions the potentially devastating impact of activities such as construction, trenching, river crossings, and stream crossings on various mussels. He also states that the state, when considering erosions and sedimentation, needs to include declining mussel populations in its work, and when considering surface water standards, needs to recognize the significance of current mussel populations.

There are existing protections in place, for instance 15A NCAC 02B .0110 as currently
written, implemented and proposed, that allow for site specific strategies for threatened and endangered aquatic species. This protection has been used in Goose Creek in the Yadkin-Pee Dee River Basin. EMC established a site specific strategy in this waterbody to
protect for the Carolina heelsplitter, a federally-listed endangered mussel species.
Nonpoint Source Pollution Definition NCWQA states that the term “nonpoint source pollution” as defined in 02B .0202(40) includes surface water runoff from undisturbed land, meaning land that human activities have not
disturbed, e.g. forest land. Thus, NCWQA states that the definition of this term should have
“which have been disturbed by man’s activities” removed from it. DWR believes the commenter’s inference that nonpoint source pollution includes runoff from undisturbed lands overlooks the role of the word “pollution” in the phrase. DWR
does not view runoff inputs resulting from natural conditions as pollution. DWR believes
the human activity element in this definition serves an appropriate function and should be
retained.
18 https://www3.epa.gov/npdes/pubs/owm0264.pdf
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Silver Standard The City of Greensboro requested the Silver chronic standard to be removed from the rule,
as there are no Federal chronic recommended criteria for Silver. It further stated that this had been
developed as a Site-Specific standard for an industrial discharger. The silver standard for a chronic water quality standard is calculated in accordance with 15A NCAC 02B .0208. The commenter is correct that there is no federal counterpart for
chronic silver. However, NC has protections in place against silver pollution.
Federal requirements in 40 C.F.R. §122.44 (d)(1)(vi)19 direct states to adopt additional water quality standards as needed to protect their waters. Therefore, while DWR acknowledges that there is currently no federal recommended chronic criterion for silver,
NC developed and adopted one to address silver in wastewater effluents that could harm
the aquatic ecosystem. The chronic NC water quality standard for silver was adopted in 1984. Public records indicate that the silver standard was adopted due to the state’s concerns with the presence of silver in wastewater discharges. The standard was updated in 1989 to the current standard of 0.06 ug/L. It appears from public records that the 1989
revisions to the silver criterion were driven by 1987 Clean Water Act amendments
requiring states to adopt numeric standards for any pollutant with a national criterion, including silver. Chronic and acute criteria are derived to protect aquatic organisms from different toxic
impacts. Chronic criteria are meant to protect aquatic organisms from impacts such as
reduced growth or reproduction due to long term exposure to low levels of a chemical while acute criteria establish the levels necessary to protect organisms from lethality due to an exposure to higher levels of a toxicant. The adoption of only an acute standard for silver would hinder the state in its efforts to protect against, and assess the potential for,
harm to aquatic populations from the more sensitive and long-term exposure scenarios.
NC must have EPA approval for all standards changes, including the deletion of water quality standards. For the EPA to approve the subsequent removal of this standard from NC protections, the state would have to show that the standard was either incorrectly
calculated or no longer needed. Neither of these situations has occurred. NC’s silver
chronic standard is in line with Florida’s (another EPA Region 4 state) adopted chronic standard as well as other states around the country that have chosen to calculate their own silver chronic standard. Florida’s chronic total silver standard of 0.07 ug/L has been challenged in court by the Florida Environmental Action Committee/The Silver Coalition,
which consisted of silver dischargers. Florida’s silver chronic standard was upheld.
Unnamed Tributaries to Trout Waters Classification North Carolina Farm Bureau Federation, Inc. (NCFBF) states that there are many unnamed
tributaries to Trout waters that are not able to support trout populations due to size, and 02B

19 https://gov.ecfr.io/cgi-bin/text-idx?SID=aa6ab5702caebea6a08f8013edf0027f&mc=true&node=se40.24.122_144&rgn=div8
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.0301(f)(1) states that unnamed tributaries to waters classified as Trout carry that same classification. The NCFBF indicates that the “EMC should remove the automatic Trout
classification from these unnamed tributaries” and add the Trout classification back to unnamed
tributaries that can support trout through the reclassification process or adopt a rule that would establish a process allowing a landowner to get the Trout designation removed from an unnamed tributary without having to go through a separate rulemaking.
Uses of waters downstream of unnamed waters must be taken into consideration and
protected in addition to the uses of the unnamed waters. While an unnamed tributary
upstream of a Trout classified water body may not itself support trout, the protection of the
downstream habitat is critical for trout survival. 15A NCAC 02B .0203, entitled Protection
of Waters Downstream of Receiving Waters, describes this approach as follows: “Water
quality based effluent limitations or management practices for direct or indirect
discharges of waste or for other sources of water pollution will be developed by DWR such
that the water quality standards and best usage of receiving waters and all downstream
waters will not be impacted.” The practice of assigning a classification to an unnamed
waterbody of the same classification as that assigned to the water to which it is tributary
allows for protection of downstream waters.
Variances
NCFBF submitted support for continuing the two chloride variances and the color variance. NCFBF recognized the pickle processing plants as important to the NC agricultural community and local economies.
These comments will be included in the review of the variance renewals for each facility,
as required for NPDES permitting purposes.
Vulnerable Population Protection
These comments stated that when creating water quality standards for drinking and recreational waters, the EMC should consider the most vulnerable people, such as infants and children, as opposed to only considering healthy adults.
DWR response to this comment is located in: EPA 2015 Update for 94 Human Health
Water Quality Criteria (HHWQC) and Default Assumptions.
Water Supply Rules Terminology
NCFBF expressed two concerns about language in 15A NCAC 02B .0200 rules regarding water supply watersheds:
02B .0212(1): NCFBF states that land in WS-I watersheds must be publicly owned
according to the existing rule and is concerned that proposed language may lead to the
interpretation that undeveloped land can be either public or privately owned. NCFBF
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requests the language be clarified to make sure that it is clear that undeveloped land under
consideration must be publicly owned as is currently stated in the rule. NCFBF suggests
the following language: “The proposed rule should be revised to specify that land in
“undeveloped watersheds” must be publicly owned.”
The last phrase in the published version of 02B .0212(1) states “…waters located on land
in public ownership and in undeveloped watershed,” therefore, both conditions must be
met in WS-I watersheds. 02B .0212 (5), .0214(5)(a), .0215(5)(a), .0216 (5)(a), and .0218(5): NCFBF disagrees with
the use of “adverse impact” relating to nonpoint sources in these rules, and these rules
incorporate the definition of this term in 15A NCAC 02H .1002. NCFBF indicates that this
term “…could be interpreted to preclude any impact on water quality, even if water quality
standards are met, and existing used are maintained.” NCFBF suggests replacing the
language proposed with the existing language in 02B .0212 (3)(b) of “Nonpoint Source
Pollution: none shall be allowed that would adversely impact the waters for use as a water
supply or any other designated uses.”
The language in 02B .0212 (3)(b) of “Nonpoint Source Pollution: none shall be allowed that
would adversely impact the waters for use as a water supply or any other designated uses”
was compared to the language in the areas of the commenter’s rules of concern (see rules
listed at the beginning of the paragraph directly above). The results of this comparison are as follows:
In part (5) of the water supply rules cited above except for 02B .0212(5) “…for use as a
water supply or any other designated use” does appear in existing and proposed language
regarding nonpoint source pollution. However, in 02B .0212(5), the last phrase after “…adverse impact, as defined in 15A NCA 02H. 1002, …” should have read “…for use as a water supply or any other designated use” rather than “…on waters within this class.”
DWR staff will make this modification, as this proposed language did not match the similar
language in 02B .0212 (3)(b).
DWR examined language in 02H .1002 (2): “adverse impact" means a “…detrimental effect upon water quality or best usages…” and “…including a violation of water quality
standards, caused by or contributed to by a discharge or loading of a pollutant or
pollutants.” With the technical change mentioned in the paragraph above, each of the five
proposed water supply rules applies 02H .1002’s definition of adverse impact to “use as a water supply or any other designated use,” therefore meeting the spirit of the commenter’s suggested language.

Watershed Definition NCFBF expressed concerns about the definition of “watershed” within 15A NCAC 02B .0202 (60). NCFBF recommends adding the references to land area and surface drainage back into the proposed published watershed definition (from the existing definition), or changing the revised
definition to “Watershed means a natural land area of surface drainage…”
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The definition of “watershed” as proposed and published is identical to the statutory
definition. Thus, DWR’s position is that the proposed/published language remains
unchanged.
Water/River Flow Protections
NC Conservation Network, American Rivers, Appalachian Voices, Cape Fear River Watch, Carolina Wetlands Association, Catawba Riverkeeper Foundation, Crystal Coast Waterkeeper, Dan River Basin Association, Haw River Assembly, NC League of Conservation
Voters, River Guardian Foundation, Sound Rivers, SELC Environmental Law Center, Toxic Free
NC, Whiteoak-New Riverkeeper Alliance, Winyah Rivers Foundation and Waterkeeper Alliance jointly supported the establishment of a water quality standard to ensure the necessary stream flow to protect ecological integrity.
The NC Sierra Club supported protections to ensure sufficient flow in rivers for recreation
uses. Wake Up Wake County requests the EMC adopt water quality standards to address the critical relationship between flow and water quality in rivers.

About 63 commenters in their “Water Quality Standards” form letter and about 323 commenters in their “It’s Time to Update NC Water Protections” form letter supported the derivation of “River Flow Protections.”
In 2010, the NC General Assembly directed the creation of an Ecological Flows Science
Advisory Board (EFSAB) to assist the NC Department of Environment and Natural
Resources, now the Department of Environment Quality, in characterizing the ecology of
the state's river basins and identifying the flows necessary to maintain ecological
integrity. In 2013, after three years of work, the EFSAB produced a comprehensive
report20 that advised DEQ about the state of ecological flows in NC.

DEQ is still endeavoring to address ecological flows in the planning realm, as directed
and defined in NCGS § 143-355(o). The statute directed the Department to “characterize
the ecology in the different river basins and identify the flow necessary to maintain
ecological integrity.” The statute defines “ecological flow” as “stream flow necessary to
protect ecological integrity.” “Ecological integrity” is defined as “the ability of an
aquatic system to support and maintain a balanced, integrated, adaptive community of
organisms having a species composition, diversity, and functional organization
comparable to prevailing ecological conditions and, when subject to disruption, to recover
and continue to provide the natural goods and services that normally accrue from the
system.” The term “prevailing ecological conditions” is defined as “the ecological
20 https://deq.nc.gov/about/divisions/water-resources/water-planning/basin-planning/ecological-flows
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conditions determined by reference to the applicable period of record of the United States
Geological Survey stream gage data, including data reflecting the ecological conditions
that exist after the construction and operation of existing flow modification devices, such
as dams, but excluding data collected when stream flow is temporarily affected by in-
stream construction activity.” Being in the planning realm and associated with hydrologic
modeling, the statute states: “Nothing in this subsection shall be construed to vary any
existing, or impose any additional regulatory requirements, related to water quality or
water resources.” As written, if this effort were to apply to the permitting and regulatory
realm, stakeholder participation and legislative action would be required.

DWR will continue to investigate the potential for establishing stream flow criteria for NC
surface waters and will bring those recommendations to the EMC. According to NCGS §
143-214.1(d)(4), when revising existing or adopting new water quality classifications or
standards, the “…Commission shall consider the use and value of State waters for public
water supply, propagation of fish and wildlife, recreation, agriculture, industrial and other
purposes, use and value for navigation…” All these considerations could include
examination of flow. Some of the complicating factors, or obstacles, towards the
establishment of an ecological flow standard are hydrological and ecological variability
across the state’s physiographic regions, establishing the nexus between quality and
quantity, pre-existing conditions and uses, individual riparian rights, essential uses, and
natural variability and perturbations associated with changes in weather patterns and
climatic conditions, e.g. droughts and floods. Other state and federal programs are
involved, such as: DEQ’s DEMLR Stormwater Program and the Dam Safety Program.
Opportunities for partnerships through the National Environmental Policy Act, the
Endangered Species Act, other agencies such as the National Marine Fisheries Service,
the Federal Energy Regulatory Commission and the US Army Corp of Engineers exist and
can be utilized.

Wilmington Drinking Water A citizen stated that the drinking water in Wilmington, NC causes skin damage and bladder pain. Also, the commenter stated that her doctor ordered her not to drink that water.
DEQ has undertaken numerous actions with respect to the issues in the New Hanover
County / Cape Fear River basin area. DEQ maintains a website21 to keep the public
informed about actions to abate these problems.

21 https://deq.nc.gov/news/key-issues/genx-investigation
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HEARING OFFICER RECOMMENDATIONS
It is the recommendation of the Environmental Management Commission-appointed
Hearing Officer, Dr. A. Stanley Meiburg, that the public-noticed revisions to rules 15A NCAC
02B .0100, .0200 and .0300, as necessitated by the State’s Triennial Review of Surface Water
Quality Standards mandated by the Clean Water Act, the readoption of rules pursuant to North
Carolina General Statute (NCGS) §150B-21.3A , and the EPA’s prior disapproval regarding
provisions related to metal standards, as proposed herein, be approved by the EMC with
modifications noted below and shown in the attached updated rule drafts. In making this
recommendation, the Hearing Officer has considered the requirements of applicable general
statutes and rules. All written and oral comments received by DWR were considered.
In taking this action, the following rules will show that the Environmental Management
Commission has made revisions since these rules were public noticed:
• 02B .0101 (b) (2): DWR proposes to change the 40 CFR 131.10 (b) (c) (d) and (g) to 40
CFR 131.10.
• 02B .0101 (b) (3): DWR proposes to change the 40 CFR 131.10 (j) to 40 CFR 131.10.
• 02B .0201 (f): a typographical error was made to a federal citation relating to 33 USC
1344. A correction is proposed to read “33 USC 1341.”
• 02B .0202 (1) (c): DWR proposes to withdraw the text related to the acute toxicity
definition for further consideration.
• 02B .0211 (1): DWR inadvertently struck the term “propagation.” DWR proposes to
reinstate the term “propagation” to 02B .0211(1) after the phrase “aquatic life.”
• 02B .0211 (4) and .0220 (3): DWR proposes to withdraw proposed text relating to the
chlorophyll a water quality standard and await further discussion from the SAC and NCDP
process.
• 02B .0212 (5): The last phrase after “…adverse impact, as defined in 15A NCAC 02H
.1002, …” should have read “…for use as a water supply or any other designated use”
rather than “…on waters within this class.” DWR staff will make this modification to
.0212.
• 02B .0223 (e): DWR proposes to add “to limit nutrients” between “Commission” and “to
control” in 02B .0223 (e).
• 02B .0225 (e) (7) and (e) (8): DWR proposes to change the boat length restriction from
“21” feet to “24” feet.
• 02B .0304: Enka Lake reclassification and minor technical corrections became effective
January 1, 2019. Updated rule draft submitted to NC Rules Review Commission will
include this previously amended and codified changes.
• Numerous minor editorial changes requested by the NC Rules Review Commission to
rules in Sections 02B .0100 and .0200. These editorial changes are shown on the attached
updated rule drafts.

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PROPOSED TEXT AMENDMENTS - 15A NCAC 02B .0100 (Embedded PDF)

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PROPOSED TEXT AMENDMENTS - 15A NCAC 02B .0200 (Embedded PDF)

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PROPOSED TEXT AMENDMENTS - 15A NCAC 02B .0300 (Embedded PDF)

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SUPPORTING DOCUMENTATION Attachment A: NC Register – Notice of Text/Public Hearings (Embedded PDF)

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Attachment B: Proposed Draft Rules with Comments from DWR Staff (Embedded PDF)

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Attachment C: Modification of 15A NCAC 02B .0304 That Includes Enka Lake Reclassification (Embedded PDF)

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Attachment D: EMC Certification of Adherence to NCGS §150B 19.1 (Embedded PDF)

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Attachment E: Hearing Officer’s Letter of Appointment (Embedded PDF)

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Attachment F: Hearing Officer’s Remarks

Triennial Review of Surface Water Quality Classifications and Standards; Rule Readoptions

Public Hearing: July 2, 2018 6:00 PM
Piedmont Triad Regional Council, 1398 Carrollton Crossing Dr, Kernersville, NC 27284

Public Hearing: July 11, 2018 6:00 PM
Ground Floor Hearing Room, Archdale Building, Raleigh, NC 27604

Hearing Officer: Dr. Stan Meiburg, Water Quality Committee, EMC

Good afternoon. This public hearing is now officially called to order.

My name is Dr. Stan Meiburg, I have been appointed by the Chairman of the Environmental
Management Commission of the Department of Environmental Quality as the presiding officer for
today’s hearing.

This public hearing and comment period are being held in accordance with the federal Water
Pollution Control Act (the Clean Water Act) which requires States, at least every three years, to
review and revise water quality standards to protect aquatic life and human health.

This hearing is also being conducted under the authority of North Carolina General Statutes,
Chapter 143-214.1 and 143-215.3(a). In accordance with General Statute 150B, a public notice,
containing the proposed changes and the accompanying fiscal note, was published in the NC
Register: Volume 32, Issue 22, pp 2411-2493 on May 15, 2018. Additionally, amendments subject
to comment are mandated under G.S. §150B-21.3A.

Notices were sent to those who have requested to be placed on the Division of Water Resources’
rulemaking e-mail notification list. Notice to the public was also provided through the Department
and Division’s websites and a press release was issued by the Department of Environmental
Quality.

A written record of this hearing will be prepared for the Environmental Management Commission.
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For this reason, the hearing is being tape-recorded.

If you have not already done so, and you would like to speak, please sign in at the registration
table.
Only those registered to speak will be provided this opportunity.

Written comments received by July 16th, 2018 will also be included in the hearing record.

Recognitions >>>>>>>>>>>>>>>>>>>
EMC members identified

Now, Christopher Venaloro and Elizabeth Kountis, of the Classifications and Standards, Rule
Review Branch, will present a brief overview of the proposed changes to the NC water quality
standards.

Staff presentation

If you have not already done so, and you would like to speak, please sign in at the registration
table.
Only those registered to speak will be provided this opportunity.
>>>> staff will bring you a list of all registered speakers in the order that they
register
We will now accept comments from the audience. Based upon the number of persons requesting a
chance to present; a limit on the amount of time available will be made. If you have written copies
of your comments, please provide staff an electronic or written copy. When your name is called,
please come up to the microphone and state your name and any business or group affiliation.

# People who wish to speak **Time limit per speaker
1-10 7 -8 minutes
10-30 4 minutes
31+ 3 minutes
If needed:
Because a large number of people have requested to speak, it will be necessary to impose a time
limit of _____minutes per speaker. A member of the Division of Water Resources staff will be
timing the comments and will hold up a sign indicating when you have one minute remaining to
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speak. We appreciate your cooperation with this time limit so that everyone who wishes to speak is
able to do so.

Please remember that this hearing is being recorded. I will now call on the first registered speaker.

Speakers

Thank you for attending today’s public hearing, the hearing record will remain open until July
16th, 2018. Comments received by US Mail/ e-mail during this time period will be made a part of
the public record.

In making any final decision, the EMC considers the written public comments record, the
suggestions of the Hearing Officer and any concerns of the commission members. Based upon
careful consideration by myself and the Water Resources staff, I will make recommendations for
action to the Environmental Management Commission.

We thank everyone for being here today. Staff will be around for a few minutes to answer any
additional questions you might have.

I now declare this public hearing closed.

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Attachment G: List of Individuals Attending the Public Hearings
List of Attendees: July 2, 2018 Public Hearing
Will Hendrick Waterkeeper Alliance Brian Fannon Yadkin River Keeper Beth Thompson Shealy Consulting, LLC Cameron Colvin Piedmont Triad Regional Council Jay Sauber Consultant Michael Bolt Eastern Band of Cherokee Indians
List of Attendees: July 11, 2018 Public Hearing Christine Ellis Winyah Rivers Jay Sauber Upper Neuse River Basin Association Cassie Gavin NC Sierra Club Emily Sutton Haw River Assembly Michelle Woolfolk City of Durham Grady McCallie NC Conservation Network Forrest English Pamlico-Tar Riverkeeper; Sound Rivers John Wagner NC Citizen Hwa Huang Student
Katy Langley Lower Neuse Riverkeeper; Sound Rivers Kevin J. Campbell Mt. Olive Pickle Company Stefan Nowicki Domtar Andy McDaniel NC DOT Lauren Petter US EPA Region 4 J.V. Loperfido City of Durham
Sarah Ludwig Citizen Lisa Sorg NC Policy Watch Joe Pearce Aqua Haywood Phthisic LNBA/NRCA Ryke Longest Duke University Will Hendrick WaterKeeper Alliance Jimmy Carter NC Manufacturer’s Alliance NCMA Amanda Owens Aqua -NC

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