Proposed Amendments to Neuse and Tar-Pamlico Nutrient Strategy Rules

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HEARING OFFICERS’ REPORT
PROPOSED AMENDMENTS TO THE NEUSE & TAR-
PAMLICO NUTRIENT STRATEGY RULES
SEPTEMBER 12, 2019 MEETING OF THE NC ENVIRONMENTAL MANAGEMENT COMMISSION
DEQ Division: Division of Water Resources
Hearing Officers: Commissioners J.D. Solomon and Steven P. Keen
Staff Contacts: John Huisman, Environmental Program Consultant, DWR
[e-mail] [phone]
Jim Hawhee, Environmental Program Consultant, DWR
[e-mail] [phone]
Rich Gannon, NPS Planning Branch Supervisor, DWR
[e-mail] [phone]
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Table of Contents
Chapter 1 HEARING OFFICERS’ SUMMARY LETTER ............................................................................................ 3
Chapter 2 PUBLIC HEARING & COMMENT PERIOD ............................................................................................ 6
Chapter 3 SUMMARY OF PUBLIC COMMENTS & HEARING OFFICERS’ RESPONSES ............................................ 7

Appendix A: TEXT OF PROPOSED RULES .............................................................................................................. 75
Appendix B: UPDATED FISCAL NOTE .................................................................................................................... 75
Appendix C: PUBLIC COMMENTS RECEIVED ......................................................................................................... 75
Appendix D: PROPOSED STORMWATER COMMUNITY POPULATION DATA ......................................................... 75
Appendix E: NOTICE OF TEXT ............................................................................................................................... 75

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CHAPTER 1 HEARING OFFICERS’ SUMMARY LETTER
Hearing Officer’s Report following Public Hearings
and Comment Period on the rules cited as 15A NCAC 02B .0701 and
.0703 and readopt with substantive changes the rules cited as 15A
NCAC 02B .0229, .0232, .0234-.0240 and .0255-.0258.
(Neuse and Tar-Pamlico Nutrient Strategy Rules)

In accordance with G.S. 150B-21.2 and G.S. 150B-21.3A(c)(2)g, the Environmental Management Commission intends
to adopt the rules cited as 15A NCAC 02B .0701 and .0703 and readopt with substantive changes the rules cited as
15A NCAC 02B .0229, .0232, .0234-.0240 and .0255-.0258. This package of rules has been proposed by the
Environmental Management Commission to meet the requirements of G.S. 150B-21.3A “Periodic Review and
Expiration of Existing Rules.” N.C. G.S. 150B-21.3A, adopted in 2013, requires state agencies to review existing rules
every 10 years.
In developing this report and recommendations, the Hearing Officers have considered the principles of rulemaking
required by the North Carolina Administrative Procedures Act, and specifically those requirements contained in
N.C.G.S. 150B-19.1(a). In pertinent part, N.C.G.S. 150B-19.1(a) provides:
In developing and drafting rules for adoption in accordance with this Article, agencies shall adhere to the following
principles:
1) An agency may adopt only rules that are expressly authorized by federal or State law and that are necessary
to serve the public interest.
2) An agency shall seek to reduce the burden upon those persons or entities who must comply with the rule.
3) Rules shall be written in a clear and unambiguous manner and must be reasonably necessary to implement
or interpret federal or State law.
4) An agency shall consider the cumulative effect of all rules adopted by the agency related to the specific
purpose for which the rule is proposed. The agency shall not adopt a rule that is unnecessary or redundant.
5) When appropriate, rules shall be based on sound, reasonably available scientific, technical, economic, and
other relevant information. Agencies shall include a reference to this information in the notice of text
required by G.S. 150B-21.2(c).
6) Rules shall be designed to achieve the regulatory objective in a cost-effective and timely manner.
A public comment period for the proposed rules was observed between February 15 and April 16, 2019. Two
public hearings were also conducted; the first being held on March 26, 2019, at the Administration Building
Auditorium, Lenoir Community College, 231 North Carolina Hwy 58, Kinston, NC 28504. The second public
hearing was held on March 28, 2019, at the Council Chambers, Clayton Town Hall, 111 E 2nd Street, Clayton, NC
27520.
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DEQ staff assembled the information obtained during the public comment period into 123 comments that
potentially required further action or modification of the proposed rules. The most comments were provided by
the NC DEQ Division of Mitigation Services and the NC DEQ Division of Finance – Stewardship Program (30 of
123 comments, or 24%). The Hearing Officers have proposed modifications associated with 65 of the 123
comments (53%). It is noted that some of the proposed modifications address more than one comment.
Among the comments received, the Hearings Officers observed at least two major themes; one related to the
Fiscal Note, and another related to the proposed credit trading ratio. With regard to the Fiscal Note, the Hearing
Officers noted that several comments pertained to analyses and statements contained in the Fiscal Note. The
Hearing Officers note that a fiscal note must reviewed and approved by the Office of State Budget and
Management (OSBM) prior to proposed rules being published in the North Carolina Register, and it must also be
approved by the EMC at the time the rules are approved for final adoption. Based on the public comments, the
Hearing Officers recommended that the Fiscal Note be updated. The recommended updates address three
aspects: consideration of the memorandum entitled “Updating the Environmental Protection Agency’s (EPA)
Water Quality Trading Policy to Promote Market-Based Mechanisms for Improving Water Quality” issued by the
EPA on February 6, 2019; acknowledgement of the expressed concern by the regulated community that credit
trading within the Neuse River Compliance Association was not effectively occurring; and recognition of
proposed changes in the draft rules that addressed concerns from the NC Division of Mitigation Services and the
NC Stewardship Program related to the Fiscal Note.
A second comment theme related to the credit trading ratio. The regulated community has asked for relief with
respect to the magnitude of credit ratios currently stated for use in point to non-point nutrient offset credit
trading. The Hearing Officers support this request and recommend the EMC adopt the 1.1:1 credit ratio that
was approved by the EMC for public comment.
The Hearing Officers cite four primary reasons collectively for this recommendation. First, the current credit
trading ratio has been in place for twenty years and has never been used as a matter of routine practice.
Second, the Hearing Officers found no direct support that a reduced (or increased) credit ratio and associated
payments will result in lessened (or improved) water quality in the subject basins. Third, there is quantifiable
evidence that the current ratio creates a meaningful burden on public wastewater system ratepayers and,
finally, the EPA does not require a specific credit trading ratio.
One citizen provided a written comment stating that a margin of safety should be used and a 1.1:1 credit ratio is
“on low end of what should be considered but is an improvement over what’s currently being used.” In
recommending the 1.1:1, the Hearing Officers also cite their general agreement with this comment.
The Hearing Officers acknowledge DWR staff’s continued support of the 2:1 credit ratio. We simply disagree
that it is the appropriate ratio for future use in the Neuse and Tar-Pamlico Basins and/or by adoption in the
Nutrient Offset Rule for other basins across North Carolina.
While the Fiscal Note and the credit ratio received numerous comments, the proposed rules address a wide
range of important issues related to point source dischargers, stormwater, agriculture, mitigation banking, fiscal
responsibility, and environmental compliance that also received meaningful comments. And, it is noted that
proposed rule 15A NCAC 02B .0703 is intended to apply statewide, not just in the Neuse and Tar-Pamlico basins.
The Hearing Officers appreciate the comments provided by the public and the efforts provided by many
individuals and entities over the past several years in the review and readoption of these rules. Consistent with
of N.C.G.S. 150B-21.3A and 150B-19.1(a), we provide these proposed rules and Hearing Officer’s report to the
full EMC for their consideration.
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This is the day of , 2019.

____________________________________________

Steve Keen, Hearing Officer
North Carolina Environmental Management Commission

____________________________________________

J. D. Solomon, Hearing Officer
North Carolina Environmental Management Commission

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CHAPTER 2 PUBLIC HEARING & COMMENT PERIOD

The formal rulemaking process began January 2019 when Division staff presented the draft rules to the EMC and
received the Commission’s approval to take the draft rules to public comment. At that time, two Commission
members were designated as Hearing Officers for the public hearings. These designees were J.D. Solomon and
Steven P. Keen.
The Notice of Text for public hearings and comment was published on the NC Office of Administrative Hearings
website on February 15, 2019 and distributed through DWR stakeholder lists. The 60-day public comment period
was open from February 15 through April 16, 2019. Two public hearings were held in March 2019. There were a
total of 47 registered participants and 7 speakers at the two public hearings (Table 2-1).
TABLE 2-1. PUBLIC HEARINGS FOR NEUSE / TAR-PAMLICO RULES READOPTION
Hearing Location Date/Time Attendees Speakers
1 Lenoir Community College – Kinston NC March 26, 2019 @ 6pm 16 3
2 Clayton Town Hall – Clayton, NC March 28, 2019 @ 6pm 31 4
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A total of 40 comment letters with approximately 123 comments were received during the comment period. A list
of each party submitting comments and a copy of the comment letters along with a record of the public hearing
meeting notes is provided in Appendix (C). More than half of the comment letters received were submitted by
local governments subject to the Neuse and Tar-Pamlico wastewater rules. Joint comments were submitted by
both the Neuse River Compliance Association and the Tar-Pamlico Basin Association in addition to several the
individual member local governments. A list of the members of these discharger associations is provided in
Appendix (C). Six hearing officer meetings were held with DWR staff between May and August 2019 to deliberate
the public comments. The Hearing Officers’ responses to comments are provided in Chapter 3.
TABLE 2-2 SUMMARY OF COMMENT LETTERS RECEIVED BY TYPE
Category Number of Comment Letters
Wastewater Dischargers 21
Agriculture Interests 7
Stormwater Local Governments 5
Nutrient Offset / Bankers 4
Environmental Groups 1
Private Citizens 2
Total 40

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CHAPTER 3 SUMMARY OF PUBLIC COMMENTS & HEARING OFFICERS’ RESPONSES

15A NCAC 02B .0713 Neuse Wastewater Rule
Comment ID: 1
Comment: Unlike the other point sources listed in (5)(ii)-(iv), the point sources with permitted
flows less than 0.5 MGD are not assigned an individual discharge allocation in their
NPDES permits. These sources exceed their collective annual discharge allocation of
138,000 pounds and have become an important source of nitrogen loading as well as
creating a substantial inequity for the customers of the NRCA. The NRCA urges the
hearing officer to address that inequity by rule amendment as DEQ is unwilling to
enforce the current Rule.

Response: The original strategy deferred regulating the small dischargers. Additional regulation of
these dischargers is not recommended as part of this rules package.
Commenters
Neuse River Compliance Association

Comment ID: 2
Comment: The limits for regulation of point source discharges should be dropped below the
current 0.5 mgd amount. Often these smaller operators are the ones that have the
highest concentrations of nutrients in their effluent and are least capable of managing
their system due to limited resources. The rules should develop a path for bringing all
permitted point source dischargers into the regulatory framework. This will improve
nutrient inputs into the estuary and will have additional watershed wide benefits for the
river systems as a whole.

Response: The original strategy deferred regulating the small dischargers. Additional regulation of
these dischargers is not recommended as part of this rules package.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

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Comment ID: 3
Comment: Industrial dischargers should not be exempt from the conditions of .0733(5) based
on a demonstration that their waste stream only has nitrogen and phosphorus at
or below background levels. Current levels are too high, adding at that background
level may exacerbate impairment.

Response: The current exemption provisions for the Tar-Pam are considered adequate. No
changes are recommended on this comment.
However, the relevant language has been restructured for clarity. The exemption
language reads as follows:

(h) Existing wastewater dischargers expanding to greater than 0.5 MGD design
capacity may petition the Commission or its designee for an exemption from
Sub-Items (a) through (d) and (f) of this Item upon meeting and maintaining
all of the following conditions:
(i) The facility has reduced its annual average TN and TP loading by 30 percent
from its annual average 1991 TN and TP loading. Industrial facilities may
alternatively demonstrate that nitrogen and phosphorus are not part of the
waste stream above background levels.
(ii) The expansion does not result in annual average TN or TP loading greater
than 70 percent of the 1991 annual average TN or TP load. Permit limits may
be established to ensure that the 70 percent load is not exceeded.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 4
Comment: Considering the similarities between watersheds, EMC and the Department should
clarify the rationale behind the differing mass load equivalent concentration
requirements for new dischargers. The Neuse identifies a 3.5 mg/L nitrogen monthly
average limit for new municipal sources, and 3.0 mg/L for the Tar.

Response: We agree that this inconsistency should be reconciled. We have reconciled the provisions
using 3.5 mg/L in both rules.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance Mike
Herrmann

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Comment ID: 5
Comment: Request revision of 15A NCAC 02B.0713(7)(d)(ii) to provide clarity on the requirements
to determine total nitrogen effluent limits for new industrial dischargers. We request
DEQ provide clear guidelines on how to demonstrate the best available technology
economically achievable in order to clarify the permit application requirements and
streamline the permitting process for new industrial dischargers.

Response: We recommend revising the industrial discharger limits to remove the 3.2 mg/L standard
and rely entirely on the BAT provisions. We also recommend making an analogous
change in the proposed Tar-Pamlico wastewater rule. We recommend the following
language:

(7)(f)(ii) For facilities treating industrial wastewaters, the mass load equivalent to either
the best available technology economically achievable or a discharge
concentration of 3.2 mg/L achievable, calculated at the monthly average flow
limit in the facility's NPDES permit.
Commenters
Grifols

Comment ID: 6
Comment: Currently, new and expanding dischargers must purchase 30 years of offsets prior to
obtaining NPDES permit coverage. The draft rule proposes to reduce the requirements
for up front securing of credits from 30 years to 10 years. The 30-year requirement
should remain in place. The facilities seeking these types of offsets are not designed
around a 10-year time frame of operation. Moreover, DEQ would likely not reject a
permit application something like a municipal sewage treatment plant if after 2 NPDES
permit renewal cycles there was some delay in securing credits for the next 10 years.
We urge the EMC to require the type of longer term thinking that operating these types
of facilities requires and retain the original 30-year requirement.

Response: The commenter’s underlying interest in ensuring long-term offsets is further addressed
by the proposed allowance of permanent credits in the nutrient offset rule (15A NCAC
02B .0703). When permanent credits are secured for the subsequent ten-year period,
they will by definition last forever while allowing dischargers to iteratively increase their
permit limits as demand increases. Therefore, this approach reduces the cost of offsets
while maintaining key environmental protections.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

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Comment ID: 7
Comment: We would particularly like to highlight and commend the proposed changes in proposed
rule 02B .0713(7)(b) and request that NCDEQ finalize these changes without further
alteration. We believe the proposed rule promotes sustainable economic growth.

Response: Thank you. No response needed.
Commenters
Grifols

15A NCAC 02B .0733 Tar-Pam Wastewater Rule
Comment ID: 8
Comment: This rule modification inappropriately modifies the Phase IV TP NSW Agreement by
seeking to impose facility specific limitations upon expansion of members facilities.
Under the Agreement, no such individual limitation is authorized unless and until the
existing load cap allocated to the Association is exceeded. Therefore, the proposed
revision should not be adopted as it violates a number of express provisions of the 2015
TP NSW Agreement that is binding between the parties.

Response: We recommend that the concern be addressed by amending subparagraph 5(b) to
ensure limits are the greater of 1) existing allocation plus offset credits or 2) the mass
equivalent to technology-based concentration limits. This will prevent individual limits
from being reduced for an expanding discharger. It will continue to be the case that a
TPBA member facility will not be subject to enforcement of individual nutrient limits if
TPBA is beneath its group nutrient caps. The TPBA agreement (page 17) and the TPBA
permit (pages 2-3) would remain in force, and no language in these rules contravenes
these sources of authority. We recommend the language below. We also recommend
analogous changes for expanding dischargers in Rule .0713(8)(f), which do not change
the application of that rule but promotes consistency between basins.

The nitrogen and phosphorus discharge limits for an expanding facility shall not exceed
the greater of loads equivalent to its active allocation and offset credit, or the following
technology-based mass limits:
(i)For facilities treating municipal or domestic wastewaters, the mass equivalent
to a concentration of 3.5 mg/L TN and 0.5 mg/L TP at the monthly average flow
limit in the NPDES permit; and
(ii)For facilities treating industrial wastewater, the mass load equivalent to the
best available technology economically achievable, calculated at the monthly
average flow limit in the facility’s NPDES permit.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount
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Comment ID: 9
Comment: The proposed regulatory action fundamentally alters and undercuts the basic program
structure that was established to control nutrients in the Tar-Pamlico Basin by the
consent of all parties 28 years ago. The TPBA objects to the inclusion of TBPA members
under the proposed rule’s permitting procedures for imposing specific effluent
limitations on new and expanding dischargers.

Response: To synchronize with the Phase IV TPBA Agreement (2015), we propose to modify the rule
to delay applicability of the provisions for TPBA members. The TPBA agreement is
scheduled to expire on June 1, 2025. We recommend adding the following language to
paragraph (2):

“The rule applies to Tar-Pamlico Basin Association member facilities on or after June 1,
2025. The rule applies to other facilities upon this rule’s effective date.”

Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 10
Comment: The proposed provisions directly violate the Association’s agreement with NCDEQ with
respect to new and expanding TPBA members that was signed in July 2015.

Response: To synchronize with the Phase IV TPBA Agreement (2015), we propose to modify the rule
to delay applicability of the provisions for TPBA members. The TPBA agreement is
scheduled to expire on June 1, 2025. We recommend adding the following language to
paragraph (2):

“The rule applies to Tar-Pamlico Basin Association member facilities on or after June 1,
2025. The rule applies to other facilities upon this rule’s effective date.”

Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

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Comment ID: 11
Comment: The Association has a long-standing Nutrient Sensitive Waters Implementation Strategy
that serves as a contractual agreement between NCDEQ and the TPBA regarding
multiple aspects of how and whether nutrient reductions apply to Association
members. Phase IV of this agreement was signed in July 2015 and ratified by the
Environmental Management Commission (EMC). That agreement provides for a
“group” TN loading cap applicable to the entire Association and does not establish any
individual permit requirements for any Association members new or expanding
facilities. That is why the existing regulation found at 15A NCAC 02B .0229.0733 only
applies to non-association dischargers in the Basin.

Response: We concur that the Agreement does not set individual requirements for new and
expanding Association facilities. Thus, the rule has been revised to include them due to
this lack of a clear regulatory pathway in the current Agreement. The rule is now revised
to become effective for Association members following expiration of the current
Agreement.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 12
Comment: Page 19 of the Agreement specifically addressed the intended requirements for “new
and expanding” Non-Association facilities. It noted that the rules at issue would be
modified to reflect this Phase IV agreement and only apply to non-Association facilities.
(”Any new requirements adopted through the rules re-adoption will be applied to non-
Association facilities at that time.”) TP NSW Agreement at 19. For reasons that are not
explained anywhere in the rule proposal, the proposed rule modification violated this
express understanding and expanded the requirements to Association members as well.

Response: DWR does not agree that the Phase IV TPBA Agreement (2015) requires that new rules
“only apply to non-Association facilities.” The excerpt from the agreement simply
reflects the State’s intent in relation to non-TPBA members.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

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Comment ID: 13
Comment: There are specific provisions that govern the addition of new facilities to the
Association’s membership (See, TP NSW Agreement at 10, 14 and 19). These provisions
do not specify that specific concentration limitations shall be met for any member
added to the Association. Association members are only governed by the load reduction
caps contained in the agreement, as adopted in the 1991 TMDL (absent some
demonstration of localized impacts). So long as these load reduction requirements are
met, the Association and its members are in full compliance with water quality-based
limitations (See, TP NSW Agreement at 18).

Response: Delayed implementation of this rule for TPBA members will address any interpretive
conflict between this rule and the Phase IV TPBA Agreement (2015).

We recommend adding the following language to paragraph (2):

“The rule applies to Tar-Pamlico Basin Association member facilities on or after June 1,
2025. The rule applies to other facilities upon this rule’s effective date.”
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 14
Comment: By adding new “antidegradation” based requirements, and, in particular, individual
facility specific nutrient concentration limitations that apply regardless of load cap
compliance, this rule violates the basic terms of the Agreement.

Response: Delayed implementation of this rule for TPBA members will address any interpretive
conflict between this rule and the Phase IV TPBA Agreement (2015). A TPBA member
facility will not be subject to enforcement of individual nutrient limits if TPBA is under its
group nutrient caps. The TPBA agreement (page 17) and the TPBA permit (pages 2-3)
would remain in force, and no language in these rules contravenes these sources of
authority.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

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Comment ID: 15
Comment: Moreover, such “antidegradation” implementation is improper where the facility is
under an existing limitation (in this case, a group limitation) and the action (plant
expansion) will not result in exceedance of that limitation. So long as a facility is not
seeking to increase a load beyond an already authorized permit limitation (which is a
specific approval for a level of degradation) then antidegradation rule application is not
triggered.

Response: We address this comment by amending subparagraphs 4(b) and 5(b) to ensure limits are
the greater of 1) existing allocation plus offset credits or 2) the mass equivalent to
technology-based concentration limits. This will ensure that individual limits will not be
reduced for an expanding discharger. A TPBA member facility will not be subject to
enforcement of individual nutrient limits if TPBA is under its group nutrient caps. The
TPBA agreement (page 17) and the TPBA permit (pages 2-3) would remain in force, and
no language in these rules contravenes these sources of authority.

We recommend the following language for subparagraph 5(b):

The nitrogen and phosphorus discharge limits for an expanding facility shall not exceed
the greater of loads equivalent to its active allocation and offset credit, or the following
technology-based mass limits:
(i)For facilities treating municipal or domestic wastewaters, the mass equivalent
to a concentration of 3.5 mg/L TN and 0.5 mg/L TP at the monthly average flow
limit in the NPDES permit; and
(ii)For facilities treating industrial wastewater, the mass load equivalent to the
best available technology economically achievable, calculated at the monthly
average flow limit in the facility’s NPDES permit.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 16
Comment: The Division should not seek to adopt a rule that precludes the benefit of being an
Association member (no specific NSW-related effluent limitation) or the benefit to the
TPBA of allowing a new member (fees that may be received for allowing a new member
into the Association).

Response: Responses and recommended rule changes associated with comments 8 (ensuring
individual mass limits will not be reduced for an expanding discharger) and 9 (delayed
implementation of the rules for TPBA members) will preclude any conflict with the Phase
IV TPBA agreement (2015). Association members will retain the benefit of the group cap
and other provisions of the Phase IV TPBA agreement (2015) until its scheduled

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expiration.

We recommend the following language for subparagraphs 4(b) and 5(b):
The nitrogen and phosphorus discharge limits for a [(4)(b): new/(5)(b): expanding facility
shall not exceed the greater of loads equivalent to its active allocation and offset credit,
or the following technology-based mass limits:
(i)For facilities treating municipal or domestic wastewaters, the mass equivalent
to a concentration of 3.5 mg/L TN and 0.5 mg/L TP at the monthly average flow
limit in the NPDES permit; and
(ii)For facilities treating industrial wastewater, the mass load equivalent to the
best available technology economically achievable, calculated at the monthly
average flow limit in the facility’s NPDES permit.

We also recommend adding the following language to paragraph (2):

“The rule applies to Tar-Pamlico Basin Association member facilities on or after June 1,
2025. The rule applies to other facilities upon this rule’s effective date.”
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 17
Comment: The provisions are contrary to Phase IV NPDES permits negotiated with the
Department over a one-year period, issued in December 2015. The Division and EMC
agreed that these individual NPDES permit requirements (load allocations) were only
applicable if the Association, as a whole, exceeded the nutrient load granted to the
Association via the approved 1992 TMDL.

Response: Individual limits are enforceable for TPBA members only if the group limit is exceeded.
Responses and recommended rule changes associated with comment 8 ensure that
individual limits will not be reduced for an expanding discharger.

We recommend the following language for subparagraph 5(b):

The nitrogen and phosphorus discharge limits for an expanding facility shall not
exceed the greater of loads equivalent to its active allocation and offset credit, or the
following technology-based mass limits:
(i)For facilities treating municipal or domestic wastewaters, the mass
equivalent to a concentration of 3.5 mg/L TN and 0.5 mg/L TP at the monthly
average flow limit in the NPDES permit; and
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(ii)For facilities treating industrial wastewater, the mass load equivalent to the
best available technology economically achievable, calculated at the monthly
average flow limit in the facility’s NPDES permit.

Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 18
Comment: Any and all individual loads and facility specific requirements, by definition, only
become applicable upon a specific occurrence – a violation of the group load cap,
without offset BMP payments sufficient to cure the load exceedance.

Response: Individual nutrient limits are enforceable for TPBA members only if the group nutrient
limit is exceeded.
Commenters
Tar-Pamlico Basin Association

Comment ID: 19
Comment: The proposed automatic position of new, more restrictive facility specific limitations
(concentration or load), upon plant expansion, is therefore, also contrary to the NPDES
permit presently applicable to the individual association members. Per federal
regulation, water quality-based limitations must be demonstrated “necessary” to meet
“applicable water quality standards.” 40 CFR 122.44(d). Moreover, permit limitations
must be consistent with any approved TMDL. 40 CFR 122.44(d)(1)(vii)(B). The proposed
rule revisions, as applicable to Association members that already have a specific water
quality-based limitation for the nutrient pollutants, are more restrictive than necessary
to comply with the approved effluent limitations. Therefore, these provisions exceed
authority to impose such limitations under federal and state law.

Response: An expanding TPBA member facility would not be subject to enforcement of individual
nutrient limits when TPBA is under its group nutrient caps. The Phase IV TPBA
Agreement (2015) (page 17) and the TPBA permit (pages 2-3) would remain in force
upon expansion, and no language in these rules contravenes these sources of authority.
Along with the clarifications offered in response to comment 5, this approach conforms
to the federal rules cited by commenter.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount
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Comment ID: 20
Comment: The provisions violate basic principles of the 1991 TPBA Agreement by imposing
individual limits on Association members.

Response: The 1991 TPBA agreement is no longer in force and has been superseded by the Phase IV
TPBA Agreement, signed in 2015. Table 3 on page 19 of the Phase IV Agreement lists
individual allocations and limits for TPBA members. Delayed implementation of this rule
for TPBA members will address any interpretive conflict between this rule and the Phase
IV agreement.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 21
Comment: By only establishing a single load cap applicable for the entire Association (as opposed
to a “doling out” of the cap to each Association member) this allowed smaller
communities to avoid high cost improvements that have no demonstrable benefit to
system compliance. If any community expanding was automatically forced to provide
nutrient removal, the small communities would be forced, over time, into new
construction and thereby lose a major benefit of being within the Association.
Presently, the program works as “trading” within the group, without the need for
monetary compensation. As the load cap approaches, the TPBA will need to make a
decision on how to compensate members who treat to higher levels, when others have
not. If all members are simply forced to construct additional treatment, this will create
a disincentive to having a group at all, and will prevent the implementation of internal
trading, which can help the small communities maintain compliance in the most cost-
effective manner.

Response: An expanding TPBA member facility would not be subject to enforcement of individual
nutrient limits when TPBA is under its group nutrient caps. The Phase IV TPBA
Agreement (2015, page 17) and the TPBA permit (pages 2-3) would remain in force upon
expansion.

As a point of clarification, what is described as “trading” in the comment is better
characterized as “joint compliance” or “group compliance.” This regulatory
arrangement allows for but does not require allocation “trades” between group
members. We agree that this approach provides beneficial operational and financial
flexibility for group members while addressing TMDL requirements.

Commenters
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Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 22
Comment: The provisions constitute illegal amendment of the 1992 TMDL by establishing
individual effluent limitations more restrictive than necessary to meet the TMDL waste
load allocation granted to the TPBA. The TP NSW Agreement recognizes that a nutrient
TMDL was established for the basin in 1992.

Response: We do not agree that these provisions constitute an amendment of the TMDL.
Responses and recommended rule changes associated with comment 8 ensure that
individual limits will not be reduced for an expanding discharger. This change should
address the concern about effluent limitations being “more restrictive than necessary.”

We recommend the following language for subparagraph 5(b):

The nitrogen and phosphorus discharge limits for an expanding facility shall not exceed
the greater of loads equivalent to its active allocation and offset credit, or the following
technology-based mass limits:
(i)For facilities treating municipal or domestic wastewaters, the mass equivalent
to a concentration of 3.5 mg/L TN and 0.5 mg/L TP at the monthly average flow
limit in the NPDES permit; and
(ii)For facilities treating industrial wastewater, the mass load equivalent to the
best available technology economically achievable, calculated at the monthly
average flow limit in the facility’s NPDES permit.

Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 23
Comment: The TMDL has yet to be modified to establish any more restrictive limitations. However,
since its adoption, the EMC has adopted a series of provisions to promote both point
and non-point source reduction. At this point, there is no evidence showing that a more
restrictive approach to point source control is necessary to achieve the TMDL load
reductions and compliance with the State’s applicable criteria for nutrients. Therefore,
the proposed rule, which will effectively place more restrictive requirements on
individual members of the Association (e.g., 3.0 mg/l TN for expanding facilities), is a
more restrictive requirement and not consistent with the approved TMDL. Because this
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new requirement has no demonstrable water quality basis required to attain
compliance with the TMDL, it exceeds the requirements of the Clean Water Act, is not
consistent with existing state rules and, therefore, should not be adopted.

Response: Prior comment responses should clarify that no increased restrictions will apply to TPBA
members as a result of this rulemaking. Responses and recommended rule changes
associated with comment 8 ensure that individual limits will not be reduced for an
expanding discharger.

We recommend the following language for subparagraph 5(b):

The nitrogen and phosphorus discharge limits for an expanding facility shall not exceed
the greater of loads equivalent to its active allocation and offset credit, or the following
technology-based mass limits:
(i)For facilities treating municipal or domestic wastewaters, the mass equivalent
to a concentration of 3.5 mg/L TN and 0.5 mg/L TP at the monthly average flow
limit in the NPDES permit; and
(ii)For facilities treating industrial wastewater, the mass load equivalent to the
best available technology economically achievable, calculated at the monthly
average flow limit in the facility’s NPDES permit.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID: 24
Comment: Economic Cost of the Proposal is Not Presented and Benefit Is Negligible. As part of the
rule amendment an economic evaluation of the cost and benefit of increased nutrient
removal from non-point and stormwater sources was noted. However, there is no
apparent evaluation of the cost of forcing all (new or expanding) Association members
to implement a 3 mg/l TN reduction requirement. The costs of this requirement would
be rather extreme for the smaller communities that presently lack nutrient reduction
facilities and considerable for the larger facilities that would have to significantly
enhance their operations. Because the TMDL already sets the required target for point
sources, and the Association is meeting that target, there is no additional ecological
“benefit” achieved for this considerable cost. Therefore, the imposition of this
additional cost cannot be justified.

Response: The economic evaluation proposed by the commenter was not included because a more
stringent application of the rule was not intended. Responses and recommended rule
changes associated with comment 8 ensure that individual limits will not be reduced for
an expanding discharger. A cost scenario for a new discharger under this rule was
included in the fiscal note.

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We recommend the following language for subparagraph 5(b):

The nitrogen and phosphorus discharge limits for an expanding facility shall not exceed
the greater of loads equivalent to its active allocation and offset credit, or the following
technology-based mass limits:
(i)For facilities treating municipal or domestic wastewaters, the mass equivalent
to a concentration of 3.5 mg/L TN and 0.5 mg/L TP at the monthly average flow
limit in the NPDES permit; and
(ii)For facilities treating industrial wastewater, the mass load equivalent to the
best available technology economically achievable, calculated at the monthly
average flow limit in the facility’s NPDES permit.
Commenters
Tar-Pamlico Basin Association
Greenville Utilities
Town of Pinetops
Town of Robersonville
Town of Tarboro
City of Oxford
Town of Louisburg
City of Rocky Mount

Comment ID:

25
Comment: NCWQA questions why Rule .0733 removes all references to the Tar-Pamlico Basin
Association, or why the section does not include the same language as in .0713 that
grants a facility’s nutrient allocation to another facility that accepts all of the first
facilities wastewater? We assume the allocation would be dealt with by contract
between the two entities and then the contractual reallocation addressed in both
entities respective NPDES permits.

Response: References to the Association in rule .0733 are removed to provide a clear regulatory
pathway for any facility in the Tar-Pamlico basin to expand. A rule is not necessary to
permit a transfer of allocation associated with regionalization.
Commenters
North Carolina Water Quality Association

Comment ID: 26
Comment: Rule .0733 requires 1.1:1 credit purchase for unmonitored nonpoint sources for new
facilities but omits the same requirement for expanding facilities. It is unclear what this
omission means, given that Rule .0703(j)(4) generally requires 1.1:1 ratio for credits
obtained from unmonitored nonpoint sources. Although it is preferable that this
particular discrepancy be corrected for the same of clarity, discrepancies like these only
emphasize that the nutrient strategy rules for the different basins could use
consolidation to facilitate consistency.

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Response: We agree that consolidation of the rules makes them easier to understand and
implement, and we have sought to do so where appropriate. The point-to-nonpoint
source trading ratio was used as an example of potential consolidation. The nutrient
offset rule already applies to all nutrient strategies in the state with respect to the
generation and transaction of nutrient offset credits. Therefore, we proposed a single
point-to-nonpoint source trading ratio that applies across all strategies, and for both
new and expanding facilities, by referencing the nutrient offset rule (.0703) where
appropriate.
Commenters
North Carolina Water Quality Association

Comment ID: 27
Comment: Discrepancy between .0713 and .0733 where .0733 allocates to “facilities treating
industrial waste waters the lesser of its allocation and offset credits, the BAT, or 3.2
mg/L N and .5 Mg/L P.

Response: We recommend removing the 3.2 mg/L standard and relying entirely on the BAT
provisions for industrial dischargers. We also recommend making an analogous change
in the proposed Tar-Pamlico wastewater rule. We recommend the following language in
(7)(f)(ii) of the Neuse Wastewater Rule and (4)(b)(ii) and (5)(b)(ii) of the Tar-Pamlico
Wastewater Rule:

For facilities treating industrial wastewater, the mass load equivalent to the best
available technology economically achievable, calculated at the monthly average
flow limit in the facility's NPDES permit.
Commenters
North Carolina Water Quality Association

Comment ID: 28
Comment: This comment was consolidated with comment #26 above.

Response: No response needed
Commenters
N/A

Comment ID:

29
Comment: We are glad to see that the Director shall now “establish more stringent limits for
nitrogen or phosphorus upon finding that such limits are necessary to protect water
quality standards in localized areas” for both existing and new dischargers in both the
Neuse and Tar-Pamlico. Should the rules on a whole leave gaps where localized water
quality impairments exist, this backstop is a critical tool to addressing those potential
problems.
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Response: Thank you. No response necessary.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

15A NCAC 02B .0703 – Nutrient Offset Rule (Trading Ratio Comments)
Comment ID: 30
Comment: We support the revisions to offset requirement for new and expanding facilities of 1.1
to 1.0 ratio and the 10-year planning window. Wastewater facilities in the NRCA have
demonstrated, through state-of-the-art biological nutrient removal facilities, its
commitment to complying with the objective of the strategy and economic growth. In
addition, EPA has recently stated its strong support for this type of nutrient
management strategy through a memo issued on February 6, 2019 “Updating The
Environmental Protection Agency’s (EPA) Water Quality Trading Policy to Promote
Market-Based Mechanisms for Improving Water Quality”.

Response: Thank you for your comment. The 1.1:1 ratio and 10-year window is recommended by
the hearing Officers.
Commenters
Neuse River Compliance Association
City of Apex
Town of Clayton
CMSD
Johnston County

City of Goldsboro
Grifols
City of New Bern
City of Wilson

Comment ID: 31
Comment: DEQ has adopted a number of nutrient reduction practices related to non-point source
reduction requirements and those are allowed at a 1 to 1 basis. The non-point to point
ratio of 1.1 to 1 is appropriate. These credits are essential to providing wastewater
service in the future while still achieving reduction in nutrients.

Response: Thank you for your comment. 1.1:1 is recommended by the Hearing Officers.

Commenters
Upper Neuse River Basin Association
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Comment ID: 32
Comment: Research shows agricultural conservation practice effectiveness ranges from negative to
100%. The Agriculture community uses a margin of safety factor for calculation of
expected results and have consistently dropped agriculture’s reduction percentage
based on updated scientifically available information. The proposed 1:1 Nutrient credit
trading ratio will fail to account for this uncertainty and will over-credit conservation
practices and reduce real-world water quality protection.

Response: Thank you for your comment. The Hearing Officers recommend a 1.1:1 credit ratio, and
not 1:1.

Commenters
Division of Soil & Water Conservation

Comment ID: 33
Comment: Item (j)(4) – I support the inclusion of a margin of safety the rules. To my knowledge,
there’s no commonly accepted number. The 10% used here is on the low end of what
should be considered but is an improvement over what’s currently being used.

Response: Thank you for your comment. The Hearing Officers agree.
Commenters
Private Citizen: Mike Herrmann

Comment ID: 34
Comment: We are asking the EMC to retain the trading ratios incorporated into the existing
markets created under the Neuse and Tar-Pamlico nutrient management strategies. The
current Neuse rules effectively incorporate a 2:1 point-nonpoint source trading ratio.
The Tar-Pamlico rules effectively incorporate a 2.1:1 trading ratio. We are concerned
that by drastically relaxing the trading ratios, the EMC is disregarding laws designed to
protect against the weakening of existing water quality protections, especially when
those protections are part of a federally-approved strategy to restore designated uses.

Trading ratios must be designed to ensure that the level of reductions required from a
point source are offset with a commensurate level of reductions from nonpoint source
practices. EPA cautions that, “In developing point source–nonpoint source trading
programs and associated NPDES permits, extra care should be taken to ensure that
nonpoint source load reduction uncertainty is addressed.” Appropriate trading ratios
account for the variability in effectiveness of practices used to generate offsets as well
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as the uncertainty regarding whether and when such practices will result in water
quality benefits. According to the EPA’s National Center for Environmental Economics,
“the most common trading ratio for programs that are trading nutrients between point
and non-point sources is 2 to 1.” Indeed, the vast majority of jurisdictions with
established trading ratios for point-nonpoint source nutrient trading ratios have set
them at or above 2:1, with multiple jurisdictions setting the ratio at 3:1.

Response: Water quality data has not been provided to support that lowering (or raising) the credit
ratio will harm (or benefit) basin water quality. USEPA does not require a specific credit
trading ratio. More current information related to USEPA’s credit trading policy is
provided in their February 2019 memorandum.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 35
Comment: In environmental markets where buyers want to minimize the price of purchasing an
offset credit, and sellers want to minimize the cost of producing them, the likelihood
that a transaction improves water quality depends on the design and enforcement of
trading rules by the regulating agency. In contrast to the measurable, technological
reductions achieved by point sources, there is a considerable risk of overestimating
nonpoint source reductions when authorizing a trade. Trading ratios provide a
mechanism to manage uncertainty associated with the effectiveness of nonpoint source
controls.

Response: Thank you for your comment.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

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Comment ID: 36
Comment: The ratios proposed in this rule package will have impact on other nutrient impaired
waterways that are or may be subject to trading including Jordan Lake and potentially
other future waterbodies. The restructuring of the rules so that .0703 is now explicitly
inclusive and is designed to create a single reference for trading programs for any North
Carolina waterbody raises the stakes for getting this right.
Response: The rule has been returned, in part, to its original form by specifically naming the
waterways that are specifically part of .0703. Inclusion of future waterbodies will
require a rule modification to ,0703, and specific public discussion, in order for the rule
to be applicable to another specific waterbody. The Hearing Officers were also
concerned that the Fiscal Note was titled and directed only to the Neuse and Tar-
Pamlico Basins, and did not consider fiscal impacts related to .0703 related to other
waterbodies.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 37
Comment: The EMC proposes a 1.1:1 ratio if the nonpoint source reductions are not monitored
and 1:1 ratio when using “monitored nonpoint source reductions” to generate offsets.
These low ratios not only represent a sharp departure from the national norm; they
inadequately account for the uncertainty associated with practices intended to reduce
nonpoint source pollution, and threaten the ultimate effectiveness of North Carolina’s
nutrient management strategies.

The EMC’s proposed ratios place far too much faith in the effectiveness of nonpoint
source monitoring to confirm loading reductions. It is often difficult to evaluate the
effectiveness of nonpoint sources controls through monitoring. For instance, nonpoint
source pollution is highly weather-driven.18 Yet, the proposed rules make no attempt to
address this seasonality through monitoring requirements.19 Nonpoint source pollution
reductions can also take years to manifest as changes in instream water quality,
cautioning against over-reliance on monitoring to confirm effective implementation.20

We recommend use of at least a 2:1 trading ratio.

Response: Thank you for your comment. The Hearing Officers recommend a 1.1:1 ratio.
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Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 38
Comment: For Rule .0713, NCWQA supports DEQ’s decision to allow monitored nonpoint source
reductions to be purchased at a 1:1 ratio, and to allow unmonitored nonpoint source
reductions to be purchased at a 1.1:1 (10% premium) to address uncertainty. This
approach is consistent with EPA’s latest trading recommendations.

Response: Thank you for your comment. The Hearing Officers recommend a 1.1:1 ratio.
Commenters
North Carolina Water Quality Association

Comment ID: 39
Comment: There are members of the NRCA (due to issuance of nitrogen allocations in 1997), that
are now presented with the inability to project growth because of exceeding their
allocation with no other owner of allocations willing to make long term leases or sell
nitrogen allocations.

Response: In response to this comment, we have supplemented the Fiscal Note with the following
additional information regarding the liquidity of the allocation trading market:

“This update is also provided in reponse to commenters’ concerns regarding the
liquidity of the allocation trading market, particularly in the Neuse River Basin. As noted
in comments, some wastewater permittees have actively sought to purchase nutrient
allocation from other parties, have not been successful, and have concluded that none
is available. While conceptually, room for allocation trading would appear to exist
within the basin as indicated by the consistent magnitude of group performance below
the group cap, the choice to sell or lease allocation in the nutrient market would always
be made by individual facilities in relation to their individually-permitted nutrient limits
based on their assessments of risk and benefit. Whether privately owned or
government operated, individual facilities have expressed that their future growth
needs would need to be assured before selling credit permanently. In particular,
domestic (local government) facilities have a host of complex socioeconomic factors to
take into account including population growth, economic recruitment, and political
considerations.

Several factors suggest to DWR that potential for allocation trading may yet exist within
the Neuse basin. First, several classes of dischargers appear to have substantial
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unneeded allocation relative to any foreseeable projections, and would thus be well-
positioned to potentially sell or lease allocation. These classes include Falls Lake
dischargers with presently unusable Neuse allocation, industrial dischargers operating
well below caps, and municipalities with low or zero growth population projections.
The Neuse River Compliance Association also holds allocation not associated with any
individual facility, which might be assigned or sold to individual members to enable
wastewater expansions.

The analysis in the preceding chapter suggests that nutrient allocation could be priced
much higher than done to date and yet remain more competitive than nutrient offset
credits. DWR understands that a recent auction with multiple bidders valued
permanent allocation at $500 per pound, a price well below that necessary to secure
offset credits. It is possible that higher offers could induce new allocation sellers to
enter the market. However, oral comments associated with this rule package also
suggest that some jurisdictions would not consider a credit sale at any cost,
representing a potential market failure.

This evaluation demonstrates that both allocation trading and offset credit trading bring
about a host of specific market considerations, including practical challenges like the
ones described above. To the extent that nutrient offset credits are secured using the
proposed 1.1 to 1 point-to-nonpoint trading ratio, both cost savings for wastewater
facilities and relative nutrient loading increases would occur in comparison to the
nutrient offset rule as it currently exists.”

Commenters
Neuse River Compliance Association
City of Apex
Town of Clayton
CMSD
Johnston County

City of Goldsboro
City of New Bern
City of Wilson

Comment ID: 40
Comment: Given the ongoing changes to the agriculture community’s reporting requirements and
the proposed transition to a 1:1 credit trading ratio, we recommend a reassessment of
the nutrient credit being granted for buffer practices on agricultural lands.

Response: Thank you for this comment. While nutrient credit for restored buffers is not established
in this rule package or any rule, this is an issue we have identified for further review in
the future.
Commenters
Division of Soil & Water Conservation

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Comment ID: 41
Comment: The EMC’s proposed ratios place far too much faith in the effectiveness of nonpoint
source monitoring to confirm loading reductions. It is often difficult to evaluate the
effectiveness of nonpoint sources controls through monitoring. For instance, nonpoint
source pollution is highly weather-driven. Yet, the proposed rules make no attempt to
address this seasonality through monitoring requirements. Nonpoint source pollution
reductions can also take years to manifest as changes in instream water quality,
cautioning against over-reliance on monitoring to confirm effective implementation.

Relying on monitoring is particularly unjustified when the relevant rules fail to clarify
the nature of monitoring that is required. We are concerned that, although the
proposed rule refers to “monitored nonpoint source controls” the use of which can
reduce the trading ratio, they are silent as to the requisite monitoring frequency,
location, and duration. The rules also do not specify monitoring standards. Ultimately,
this creates considerable confusion regarding the type of monitoring sufficient to relax
the trading ratio. The EMC cannot confidently assert that monitoring accounts for
uncertainty when the rules fail to articulate the requisite monitoring.

Response: The hearing officers recommend a 1.1:1 ratio with no reduction in the ratio for
monitoring.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 42
Comment: When authorizing water quality trades, uncertainty is not the only factor that can or
should inform trading ratios. For instance, we recommend consideration, particularly in
the context of point-nonpoint source trading, of equivalency ratios adjusting for the fact
that the composition of point and nonpoint sources discharges can differ with respect
to the forms of the nutrients discharged.

As observed by EPA, for nutrients, the effect on water quality is related to the percent
of the nutrient that is biologically available in the source’s discharge. Biologically
available nutrients are readily available for uptake by the biota. Nutrients can be
present in forms that are immediately biologically available and in forms that are less
accessible to the biota. Excess biologically available nutrients contribute to
eutrophication and degradation of water quality. Those forms of nutrients that are not
immediately biologically available can become accessible to the biota (biologically
available) through different biological and chemical cycling mechanisms. Hence,
nutrients can be present as readily biologically available or bound to sediment, and
depending on environmental factors, such as climate, apparent geology, residence time,
and so on, have different effects on the waterbody of concern. The relative biological
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availability of nutrients in the trading sources’ discharges should be incorporated into
the equivalency ratio.
Response: TMDLs and TMDL alternatives in North Carolina are presently established for total
nitrogen or total phosphorus rather than for specific nitrogen or phosphorus compounds.
Changes that incorporate various species of nutrients are not recommended as part of
the rules review and readoption.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

15A NCAC 02B .0703 Nutrient Offset Rule – Credit Stacking Options

Comment ID: 43
Comment: Of the options proposed in this rulemaking, we would support option 1. In other words,
we do not support any caveats to the requirement that “reductions shall not include
those already implemented to satisfy other requirements under the same nutrient
strategy; other local, state or federal requirements; or those resulting from state or
federal compensatory mitigation requirements. “The ability to essentially double dip for
credit generation on the same spatial area would undermine the full ecosystem benefits
intended for various credit and mitigation schemes. The consequence of any such
caveat would be to limit the net loading reduction required under these rules.
Moreover, were the EMC to permit such credit stacking, it would exacerbate our
concerns about the failure to account for uncertainty in proposed point-nonpoint
source trading ratios. Various types of mitigation and offset credits should be generated
by practices and areas dedicated solely to a single program.

Response: After consideration of these comments and the analysis contained in the fiscal note, we
recommend the use of option 2, the current policy, which allows stacking of stream and
nutrient credits in overlapping areas.

The following language is proposed for subparagraph (d)(3):
Unless specifically excepted in Rule, reductions shall not include those already
implemented to satisfy other requirements under the same nutrient strategy; other
local, state or federal requirements; or those resulting from state or federal
compensatory mitigation requirements. Specifically, a nutrient reduction project shall
not generate nutrient offset credits and buffer or wetland mitigation credits in spatially
overlapping areas. However, restored forest buffer areas associated with stream
mitigation projects may generate both stream and nutrient offset credits in spatially
overlapping areas within 50 feet from the top of the stream bank.
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Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 44
Comment: The NRCA supports Option 2 in .0703(d)(3). Restored forest riparian buffers are
identified as one of the most cost effective and enduring forms of nutrient control and
removal from loading. In the Fiscal Note, the practice is the example given of the form
of SCM which does not need to be replaced if damaged once mature. The EMC should
incentivize this important recovery technique for the nutrient impaired waters of the
State.

Response: After consideration of these comments and the analysis contained in the fiscal note, we
recommend the use of option 2, the current policy, which allows stacking of stream and
nutrient credits in overlapping areas.

The following language is proposed for subparagraph (d)(3):
Unless specifically excepted in Rule, reductions shall not include those already
implemented to satisfy other requirements under the same nutrient strategy; other
local, state or federal requirements; or those resulting from state or federal
compensatory mitigation requirements. Specifically, a nutrient reduction project shall
not generate nutrient offset credits and buffer or wetland mitigation credits in spatially
overlapping areas. However, restored forest buffer areas associated with stream
mitigation projects may generate both stream and nutrient offset credits in spatially
overlapping areas within 50 feet from the top of the stream bank.

Commenters
Neuse River Compliance Association

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Comment ID: 45
Comment: For Rule .0703, NCWQA appreciates the option for temporary credits. NCWQA also
believes that forest buffer areas associated with stream mitigation projects should be
allowed to generate both stream and nutrient offset credits in spatially overlapping
areas. This position is also supported by the 2019 Ross Memo, which encourages
allowing a single project to generate credits for multiple markets.

Response: After consideration of these comments and the analysis contained in the fiscal note, we
recommend the use of option 2, the current policy, which allows stacking of stream and
nutrient credits in overlapping areas.

The following language is proposed for subparagraph (d)(3):
Unless specifically excepted in Rule, reductions shall not include those already
implemented to satisfy other requirements under the same nutrient strategy; other
local, state or federal requirements; or those resulting from state or federal
compensatory mitigation requirements. Specifically, a nutrient reduction project shall
not generate nutrient offset credits and buffer or wetland mitigation credits in spatially
overlapping areas. However, restored forest buffer areas associated with stream
mitigation projects may generate both stream and nutrient offset credits in spatially
overlapping areas within 50 feet from the top of the stream bank.
Commenters
North Carolina Water Quality Association

Comment ID: 46
Comment: Regarding (d)(3) and the generation of nutrient offset credits and stream, buffer, or
wetland mitigation credits in spatially overlapping areas we support Option 1 as
described in the proposed rule. It makes sense to be able to use a restored forest buffer
to generate an environmental credit that can be applied as stream mitigation or
nutrient offset. The conflict is when the environmental credit for a specific unit of buffer
restoration is sold twice. It is currently possible in NC to restore a buffer and do no
other restoration work and literally sell that buffer restoration unit twice, once as
stream mitigation and once as nutrient offset under two different environmental
permitting programs.

Response: After consideration of these comments and the analysis contained in the fiscal note, we
recommend the use of option 2, the current policy, which allows stacking of stream and
nutrient credits in overlapping areas.

The following language is proposed for subparagraph (d)(3):
Unless specifically excepted in Rule, reductions shall not include those already
implemented to satisfy other requirements under the same nutrient strategy; other
local, state or federal requirements; or those resulting from state or federal
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compensatory mitigation requirements. Specifically, a nutrient reduction project shall
not generate nutrient offset credits and buffer or wetland mitigation credits in spatially
overlapping areas. However, restored forest buffer areas associated with stream
mitigation projects may generate both stream and nutrient offset credits in spatially
overlapping areas within 50 feet from the top of the stream bank.
Commenters
Restoration Systems

Comment ID: 47
Comment: Regarding (d)(3) and the generation of nutrient offset credits and stream, buffer, or
wetland mitigation credits in spatially overlapping areas we support Option 1 as
described in the proposed rule. This allows nutrient or buffer credits to be generated in
the first 50 feet of a stream restoration project, which is what DWR and the USACE have
allowed/approved in the past due to 404/401 permitting process and overlapping
impacts.

Response: After consideration of these comments and the analysis contained in the fiscal note, we
recommend the use of option 2, the current policy, which allows stacking of stream and
nutrient credits in overlapping areas.

The following language is proposed for subparagraph (d)(3):
Unless specifically excepted in Rule, reductions shall not include those already
implemented to satisfy other requirements under the same nutrient strategy; other
local, state or federal requirements; or those resulting from state or federal
compensatory mitigation requirements. Specifically, a nutrient reduction project shall
not generate nutrient offset credits and buffer or wetland mitigation credits in spatially
overlapping areas. However, restored forest buffer areas associated with stream
mitigation projects may generate both stream and nutrient offset credits in spatially
overlapping areas within 50 feet from the top of the stream bank.

Commenters
Water & Land Solutions

Comment ID: 48
Comment: Regarding (d)(3) and the generation of nutrient offset credits and stream, buffer, or
wetland mitigation credits in spatially overlapping areas prefer Option 1 as described in
the proposed rule. Most compensatory mitigation projects are designed beyond federal
requirements and credit generation should be allowed for the portion of compensatory
mitigation projects that exceed minimum Federal project criteria. For example, buffers
may extend beyond the required 50 feet from stream channel. In such cases where
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projects exceed requirements, nutrient reductions credits should be allowed but not
when overlapping with buffer.

Response: After consideration of these comments and the analysis contained in the fiscal note, we
recommend the use of option 2, the current policy, which allows stacking of stream and
nutrient credits in overlapping areas.

The following language is proposed for subparagraph (d)(3):
Unless specifically excepted in Rule, reductions shall not include those already
implemented to satisfy other requirements under the same nutrient strategy; other
local, state or federal requirements; or those resulting from state or federal
compensatory mitigation requirements. Specifically, a nutrient reduction project shall
not generate nutrient offset credits and buffer or wetland mitigation credits in spatially
overlapping areas. However, restored forest buffer areas associated with stream
mitigation projects may generate both stream and nutrient offset credits in spatially
overlapping areas within 50 feet from the top of the stream bank.
Commenters
Private Citizen: Mike Hermann

15A NCAC 02B .0703 Nutrient Offset Trading Rule - Other
Comment ID: 49
Comment: The NRCA is concerned that the proposed rules create an obstacle which will make it
impossible for any of its members, other than the City of Raleigh, to be able to use the
nutrient credit opportunity provided in 15A NCAC 2B .0240 .0703(l). By that addition to
the Nutrient Offset Credit Trading rule, WWTPs are supposed to be able to generate
their own nutrient credits for use in expanding existing plants or adding new plants.
This problem arises from two sources; (1) N.C. Gen. Stat. 143-214.26 is the sole statute
setting forth authority of the EMC to regulate nutrient offset projects for the purpose of
generating nutrient offset credits and (2) the proposed rule, as explained in the current
fiscal note will require the WWTPs to establish a nutrient bank.

Response: We agree with the premise that local government members of the NRCA should be able
to generate nutrient offset credits to offset increasing wastewater dischargers. DWR’s
interpretation of relevant statutes and regulations allows local governments to establish
nutrient offset banks for this purpose.

NRCA expresses concern that statutes might be read to prohibit local governments from
creating offset banks. They propose that they meet fewer regulatory requirements (no
instrument or financial assurances) when self-generating credits to avoid meeting the
definition of a bank that would become subject to G.S. 143-214.26. However, the
nutrient offset statute provides only two avenues to generate nutrient offset credits:
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“participation in a nutrient offset bank” or “payment of a nutrient offset fee”. The option
proposed by the commenter does not exist.
Commenters
Neuse River Compliance Association
Upper Neuse River Basin Association

Comment ID: 50
Comment: Request that the EMC allow for documentation of the site conditions with the best
available information to show the baseline conditions. In 15A NCAC 2B .0240
.0703(e)(2)(D), an applicant for a nutrient credit project is required to provide
“Documentation of the condition of the site during the baseline period of the applicable
nutrient strategy.” The ability to establish the site conditions for the Neuse Estuary in
the early 1990s is very limited. To the extent that records existed, they are being
regularly retired or destroyed. The rule should be amended to allow the use of best
professional judgment based on the available information.

Response: The burden should rest with the party seeking certification of nutrient offset credits to
ensure compliance with baseline conditions. DWR staff has confirmed that state
orthoimagery files are available as far back as 1993, which can be used to evaluate land
use characteristics. However, we appreciate the need for flexibility and propose the
following language for subparagraph (e)(2)(D):

“Documentation of the condition of the site during the baseline period of the applicable
nutrient strategy unless excepted by subparagraph (d)(1). The Division may accept
more recent documentation if it determines such documentation establishes the
probable loading condition of the site during the baseline period.”
Commenters
Neuse River Compliance Association

Comment ID: 51
Comment: We also are concerned with the requirement in (e)(2)(D) to provide “Documentation of
the condition of the site during the baseline period of the applicable nutrient
strategy.” While this may be a slightly easier task in Falls than in the Lower Estuary
area, both are high hurdle. There needs to be some language allowing latitude on this
factor.

Response: The burden should rest with the party seeking certification of nutrient offset credits to
ensure compliance with baseline conditions. DWR staff have confirmed that state
orthoimagery files are available as far back as 1993, which can be used to evaluate land
use characteristics. However, we appreciate the need for flexibility and propose the
following language for subparagraph (e)(2)(D):
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“Documentation of the condition of the site during the baseline period of the applicable
nutrient strategy unless excepted by subparagraph (d)(1). The Division may accept
more recent documentation if it determines such documentation establishes the
probable loading condition of the site during the baseline period.”
Commenters
Neuse River Compliance Association

Comment ID: 52
Comment: What temporal criteria should be used for allowing qualified reductions? Consider
adding an Item on to clarify the temporal criteria used to qualify sites. For example,
should farmland created after the baseline of a strategy be eligible for land conversion
to a lower loading land use? I would suggest that it should as long as it has been in that
use for a nominal period of time (e.g., 10 years). This temporal criterion can become
restrictive if qualified reductions are based on the baseline period and the strategy is 30
years old. You would not, however, want to encourage deforesting sites to make them
immediately eligible for increased nutrient offset reductions.

Response: A shorter look-back period like the one proposed could serve to protect important
baseline requirements while limiting market gamesmanship and reducing administrative
burdens. Draft versions of this concept proposed by DWR were not approved to move
forward by the Water Quality Committee, and in deference to their review we do not
propose to renew them here. However, the proposed revisions to (e)(2)(D) provide some
flexibility in recognition of this comment.

“Documentation of the condition of the site during the baseline period of the applicable
nutrient strategy unless excepted by subparagraph (d)(1). The Division may accept
more recent documentation if it determines such documentation establishes the
probable loading condition of the site during the baseline period.”
Commenters
Private Citizen: Mike Herrmann

Comment ID: 53
Comment: In (g)(5), a SCM can be replaced by natural ecological processes under certain
circumstances. This brings forward a couple of questions. How will the nutrient credit
values be established for compliance purposes when that change occurs and is allowed
to stay in place instead of being replaced by a SCM? Will the funds put into the non-
wasting endowment be allowed to be adjusted to the new needs for protection vs the
cost of replacement of the SCM that was destroyed? The Fiscal Note comments on this
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issue and addresses a narrow set of SCMs but allows all SCMs to avoid replacement.
This provision should be revised.

Response: Subparagraph (g)(5) does not apply to stormwater SCMs, it applies to “Projects
designed to restore a natural ecological community”.
Commenters
Neuse River Compliance Association
Upper Neuse River Basin Association

Comment ID: 54
Comment: We believe that the revised language provided in the last two sentences of .0703(a)
provides protection of the nutrient trading and compliance provisions of the Falls Lake
Rules. The UNRBA generally supports the inclusion of this language and believes it
preserves the provision in session law that delays changes in the Falls Lake Rule until the
UNRBA has completed its Falls Lake Nutrient Management Strategy reexamination.
Response: Thank you. No response necessary.

Commenters
Neuse River Compliance Association

Comment ID: 55
Comment: Recommend Item (4) be amended to read as “Nutrient offset credits may be used to
satisfy regulatory obligations in the Neuse 01 8-digit cataloging unit, as designated by
the U.S. Geologic Survey, outside of the Falls Lake watershed only if they were
generated by a nutrient reduction project located outside of the Falls Lake watershed”.
This language follows the intent of the rules while allowing the statute to govern. If the
statute is changed with the intent to provide relief for the Neuse 01 wastewater
dischargers there will be no conflict with the related rules. If the statute does not
change there will be no conflict with the rules.

Response: S.L. 2019-86 amended the nutrient offset statute, G.S. 143-214.26, to expand the
allowable trading area for NPDES-permitted wastewater discharges. We agree with this
comment and recommend the following change from the proposed rule text:

(4) Nutrient offset credits may be used to satisfy regulatory obligations incurred in
the Neuse 01 8-digit cataloguing unit, as designated by the U.S. Geological Survey,
below outside of the Falls Lake watershed only if they were generated by a nutrient
reduction project within that same geographic area located outside of the Falls Lake
watershed.
Commenters
Upper Neuse River Basin Association

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Comment ID: 56
Comment: Item (b)(5) – While it may be desirable to allow sub-items (A) and (B), it’s unclear what
constitutes an “assessment unit” and the area draining to it.

Response: The term “assessment unit” is not presently defined in rule or legislation, but it is a
common working term used in the water quality standards and assessment context. We
recommend against defining this term in rule in this rulemaking package because the
implications of that definition should be considered within the primary context of water
quality standards and assessments. To preclude the need for definition, we propose
replacing the term “assessment unit” with “surface waters.” The phrase “surface
waters” is further described in the rule in a manner that allows delineation of a
geographic trading area both within the estuary and on lands draining to the estuary.
We recommend the following change from the proposed rule text:

(5)(A) an assessment unit surface waters identified for restoration under the applicable
nutrient-related TMDL or nutrient strategy, or
Commenters
Private Citizen: Mike Herrmann

Comment ID: 57
Comment: Item (f)(2) – Consider alternative language to “until they are exhausted” for when
ledgers are required to be submitted to DEQ. Maybe “until bank closure”. I could
foresee providers closing a bank prior to exhausting credits. For instance, if nutrient
offset requirements are stripped by legislative action and the provider no longer wants
to maintain its ledgers in disgust.

Response: We can accommodate this proposed rule change and recommend the following changes
from the proposed rule as suggested by commenter. Note this language also includes
recommended changes in response to other comments.

(f)(2) Once credits are released for a project nutrient offset bank and until they are
exhausted bank closure, nutrient offset bank providers except for DMS shall provide a
credit/debit ledger to the Division at regular intervals no less frequently than quarterly.
Commenters
Private Citizen: Mike Herrmann

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Comment ID: 58
Comment: Item (f)(3) – Restrictions under this item seem like they could be overly broad.
Would existing Ag cost-share funding of exclusionary fencing (i.e., state funding)
preclude a streamside reforestation project from being eligible for offset credit
generation? Could a similarly funded 20-ft buffer be expanded to 100-ft? Maybe
changing the wording to “The Division shall not release any credits for a project if those
credits were generated …..”

Response: In each of the proposed examples, two different projects would occur. In the first
example, nutrient reductions associated with exclusionary fencing supported by state
funds would be attributed to agricultural producers under the applicable agriculture
rules. A subsequent and adjacent streamside reforestation project would be eligible to
generate nutrient offset credits for further nutrient reductions achieved.

In the second buffer example, two different projects would occur again. First would be
the twenty-foot buffer supported by cost share funds, with reductions attributed to
agricultural producers. The second would be an enhanced buffer, from 21-100 feet,
which would be eligible to generate nutrient offset credits.
Commenters
Private Citizen: Mike Herrmann

Comment ID: 59
Comment: Item (j)(5) – Specific to the Jordan Strategy, I believe the use of delivery factors does not
to enhance the strategy and I support their elimination. Generally, they encourage
offsets to be generated closer to the reservoir at the expense of watershed investments
upstream closer to where the impacts may have occurred. This deprives upstream
communities of much of the nutrient strategy benefits. The factors also add complexity
to the offset transaction and accounting process. Further, existing factors used in Jordan
have been contradicted in subsequent studies raising the question over whether they
are accurate.

Response: Thank you for your comment. Delivery factors associated with the Jordan Lake Strategy
are not presently under review in this rule package.
Commenters
Private Citizen: Mike Herrmann

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Comment ID: 60
Comment: Throughout this section and the rules, “DMS” should be replaced by “nutrient offset in-
lieu fee programs.”

Response: By the nutrient offset statute, the Division of Mitigation Services is the only in-lieu fee
program to which these rules apply because it is the administrator of the Riparian Buffer
Restoration Fund. We believe it is important to retain this language. Use of the more
direct and succinct term “DMS” promotes clarity and understanding for those not well-
versed in this regulatory area. To address the concern for greater program specificity
within DMS, the requested specification will be added as a definition for the purposes of
this rule. We recommend the following change from the proposed rule text for the
definition of DMS in Rule .0701:

(15) "DMS" means the N.C. Division of Mitigation Services or its successor. DMS, as
administrator of the Riparian Buffer Restoration Fund, is the only in-lieu fee
program to which rules of this section apply.

Commenters
Division of Mitigation Services

Comment ID: 61
Comment: The terms “Estuarine nutrient strategy” is not defined in the rule

Response: We recommend the term be defined as follows:

“Estuarine Nutrient Strategy” means the Neuse Nutrient Strategy as enumerated in Rule
.0710 of this Section and the Tar-Pamlico Nutrient Strategy as enumerated in Rule .0730
of this Section.
Commenters
Division of Mitigation Services

Comment ID: 62
Comment: Geographic Restrictions: Language in (b)(5) is unclear as written. As currently written
the rules appears to create new mitigation service areas in Neuse 03020204 and the
Tar-Pamlico 03020104 and 03020105 cataloging units. Recommend the entire
paragraph of (b)(5) be rewritten to convey the intent of the language is to address
mitigation projects located in estuarine waters rather than land-based projects.

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Response: In comparison to the current rule, the language limits the installation of nutrient offset
projects in portions of the coastal cataloguing units referenced but it does not create
“new and separate service areas.” A map of allowable project areas was included in the
fiscal note on page 72, and upon rule passage maps and associated geographic
information files will be distributed to providers and published on the DEQ website.
Commenters
Division of Mitigation Services

Comment ID: 63
Comment: Quantifying Nutrient Offset Credits: Language in (d)(6) should be modified to state the
term and permanent credits be tracked “separately” as opposed to “separate ledgers”
since it may be necessary to show conversion transactions and all sites credits in a single
form.

Response: DMS tracks projects using databases while nutrient offset bank credits are tracked using
ledgers. We agree with this comment and recommend the following text change:

Permanent nutrient reduction credits and term nutrient reduction credits shall be
maintained on separate ledgers separately, even if associated with the same nutrient
offset bank or project.

Commenters
Division of Mitigation Services

Comment ID: 64
Comment: Nutrient Offset Banking Instrument: DMS reference is unnecessary as edits to .0701 (33)
will adequately define who seeks approval for nutrient offset banks. As a result the
language in (e)(1) should be modified to read as “Providers except DMS seeking
approval of a nutrient offset bank…”
Response: We agree with this comment. Recommended changes to the term “nutrient offset bank”
in comment 83 make this reference unnecessary. We recommend the following change
from the proposed language in (e)(1):

Providers except DMS seeking approval of a nutrient offset bank shall submit their draft
nutrient offset banking instrument to the Division prior to seeking approval of project
plans.
Commenters
Division of Mitigation Services
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Comment ID: 65
Comment: Financial Assurances: There are supplementation requirements specific to in-lie fee
requirements in another section and DMS is not a provider with a mitigation bank
instrument. The Language in (e)(3) should be modified to say “Providers with mitigation
instruments except DMS shall provide the financial assurance…”

Response: We agree that this language could be improved but do not recommend the exact
language proposed. To create analogous language to the related requirements in (e)(1),
DWR recommends the following language to begin subparagraph (e)(3):

Providers except DMS seeking approval of a nutrient offset bank shall provide the
financial assurance...

Commenters
Division of Mitigation Services

Comment ID: 66
Comment: Release and Accounting For Nutrient Offset Credits: Since only providers with mitigation
bank instruments have buffer and nutrient credit releases: Replace “providers” with
“with mitigation banking instruments” in (f)(1). Delete reference to DMS and replace
“providers” with “providers with mitigation banking instruments” in (f)(2). Revise the
following sentence to read “The Division shall release nutrient offset credits from an
approved project nutrient offset bank in the following manner”

Response: Upon rule adoption, DMS and nutrient offset banks will both be subject to credit
releases. However, the implications of those releases are different because DMS
operates an in-lieu fee program. Unlike nutrient offset banks, DMS may receive
payment to generate nutrient offset credits before credits are released. We recommend
defining the term “release” in 15A NCAC 02B .0701 as follows:

“Release” of nutrient offset credits means the Division of Water Resources approves and
acknowledges the generation of nutrient offset credits. Nutrient offset bank providers
may sell, transfer, or use credits upon release. DMS may debit credits upon project
institution but will still be subject to final approval and release of credits by DWR.
Commenters
Division of Mitigation Services

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Comment ID: 67
Comment: An endowment historically has been purposed for long-term monitoring and to ensure
that the appropriate conservation easements are protected and enforced. The
language here implies that the primary purpose of the endowment is to create future
funds to perform maintenance activities. This type of endowment should be limited to
project types that require perpetual maintenance. Nearly every nutrient reduction
project implemented to date has been to riparian buffer systems that do not require
maintenance.

Response: It is appropriate to require permanent stewardship and a stewardship endowment for
permanent offset projects regardless of whether periodic project maintenance will be
required. Stewards agree to perform monitoring in perpetuity and, if necessary, initiate
corrective actions with the responsible party. No changes are recommended in response
to this comment.
Commenters
Division of Mitigation Services

Comment ID: 68
Comment: DMS recommends that this section be split into two parts with each having language
directly focused on the long-term requirements of each type separately. By having them
mixed together, the rule is confusing as to what is required for each type. DMS
recognizes that subparagraph (5) in this section partly addresses these issues, but the
rule language is misleading by implying that the maintenance standards are universal
when they are not.

Response: We agree that the distinction between “active” and “passive” nutrient offset practices is
meaningful, i.e., the distinction between projects that require periodic maintenance and
restoration in perpetuity versus those that do not. In response to this and other
comments, we have made recommendations to clarify roles and responsibilities of
providers, stewards, easement holders and land owners. However, a rule is not
necessary to address the distinction between active and passive practices. We
recommend the following change from the proposed rule text:

(g) MAINTAINING PERMANENT NUTRIENT OFFSET CREDITS. All permanent nutrient
offset projects shall comply with the following requirements:
(1) A provider shall transfer responsibility for oversight of a completed
permanent project to a perpetual steward in accordance with this
Paragraph and the approved project plan. A perpetual steward may also
transfer responsibility to another perpetual steward in accordance with
the terms of this Paragraph, subject to DWR approval. Perpetual
stewards may not assume project maintenance or restoration
responsibilities. The provider shall ensure that the following mechanisms
are in place to ensure that load reductions are sustained in perpetuity:
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(2) The provider shall create and transfer to the perpetual steward a non-
wasting endowment or other dedicated financial surety to provide for
the oversight of the completed permanent project. The endowment
amount shall be proportionate to the duties accepted by the perpetual
steward.
(3) For projects utilizing conservation easements, the provider shall acquire
and then transfer a conservation easement to a perpetual steward in
accordance with 16 U.S.C. 170(h) and the Conservation and Historic
Preservation Agreements Act, G.S. 121-34 et seq. The terms of the
conservation easement shall be consistent with a Division-approved
template or be approved by the Division. Non-governmental perpetual
stewards shall be accredited by the Land Trust Accreditation Commission
or approved by the Division.

Commenters
Division of Mitigation Services

Comment ID: 69
Comment:

(g) (1) Clarify that the endowment amount paid to the steward is based on the duties
accepted by the steward and not the landowner, who may ultimately be responsible.
(g)(1) “The provider shall create and transfer to the perpetual steward a non-wasting
endowment or other dedicated financial surety to provide for the oversight of the
project’s load reductions. The endowment amount shall be proportionate to the duties
accepted by the steward.”

Response: We agree with this comment and recommend the change as suggested.
Commenters
Division of Mitigation Services

Comment ID: 70
Comment: (4) DMS recommends that DWR speak with the DEQ Stewardship program regarding the
significant increase in liability the rules will force upon the Department’s stewardship
program. The Department’s stewardship program is not a maintenance and restoration
operation. As currently written, there may be a significant increase in the costs of
endowments to ensure that maintenance and possible project replacement costs are
covered. Also, the significant risk this language imposes upon a potential steward will
greatly limit stewards that will accept such obligations. This will in-turn negatively
impact a provider’s ability to protect the mitigation assets. If stewardship entities refuse
to take on such liability, it is likely that providers may also be unwilling to take on these
liabilities.

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Response: Comments have been received from the DEQ Stewardship Program and are addressed
herein. We recommend the inclusion of the following language to subparagraph (g)(1)
to clarify the role of the permanent steward and their associated responsibilities:

Perpetual stewards serve a monitoring and enforcement role and may not assume
project maintenance or restoration responsibilities.
Commenters
Division of Mitigation Services

Comment ID: 71
Comment: (4) – Impacts to an approved nutrient offset project should result in the impactor paying
fees sufficient to cover the costs of replacing lost functions. These actions are either a
permitted activity which would require mitigation or a regulatory action against an
impactor.

Response: We agree with this statement. In addition to the scenarios provided, project
degradation could occur for some project types due to a lack of maintenance. While
invalidating credits would likely be a last course of action, the Clean Water Act does not
allow for the complete transfer of liability from NPDES wastewater permittees to
providers in the same way it does for stream and wetland impacts (See 2003 EPA Water
Quality Trading Policy at p 10).

This rule seeks to mitigate against risks that projects will not be sustained over time, but
it cannot completely eliminate them. Therefore, if damaged or degraded offset projects
are not restored, offset credits may be suspended. No change in rule language was
suggested in response to this comment and no changes are recommended.
Commenters
Division of Mitigation Services

Comment ID: 72
Comment: (h) RENEWING TERM NUTRIENT OFFSET CREDITS - DMS recommends replacing “proof”
with “documentation.”

Response: The word “documentation” was used in the public comment version of this rule.
Therefore, no change is necessary to address this comment.

Commenters
Division of Mitigation Services

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Comment ID: 73
Comment: Additional Provisions Regarding The Division of Mitigation Services - The section should
be relabeled as “Provisions Regarding Nutrient Offset In-Lieu Fee Programs.” The rules
are directed to the operation of in-lieu fee programs. Although DMS currently operates
the only nutrient offset in-lieu fee program, there are no assurances there will not be
additional ones in the future nor that DMS will remain as the agency tasked with
operation of the existing state program.

Response: If DMS’s name is changed, this rule could be amended to reflect that change pursuant to
G.S. 150B-21.5(a)(2) without the need for notice or hearing. If more substantive
legislatives changes arise in the future, they will be addressed at that time.
Commenters
Division of Mitigation Services

Comment ID: 74
Comment: (i)(2). Remove clause “the requirement due date,” as it is synonymous with the
preceding clause.
Response: We agree with this comment and recommend the following change from the proposed
rule language:

The requirement ledger shall include all nutrient offset credit requirements paid by 8-
digit service area or for each geographic area identified in Paragraph (b), the date by
which the requirement shall be satisfied by a project, the requirement due date, and the
projects and credits that have been applied to all requirements.
Commenters
Division of Mitigation Services

Comment ID: 75
Comment: In (1) Replace “project’s load reductions” with “project conservation easement”. The
language in the rule switches from oversight of a completed permanent project in the
preceding paragraph to oversight of the projects load reductions in this subparagraph.
This is confusing and conflates the role of the perpetual steward with the role of the
project owner. The oversight of a project’s load reductions is the responsibility of the
project owner and the regulatory agency; these responsibilities are not conveyed in a
conservation easement.

Response: We agree with this comment to the extent that it should not imply a steward’s
responsibility for attaining or maintaining a monitored water quality result. However, as
described in (g)(3), permanent projects are envisioned that do not require a
“conservation easement.” We propose addressing this change as follows:

provide for the oversight of the project's load reductions completed permanent project.
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Commenters
Division of Mitigation Services

Comment ID: 76
Comment: In (3) Delete “or easement holder”. In this context the drainage easement holder does
not operate or maintain the SCM. The SCM is operated and maintained by a property
owner. In fact, the current DWR-approved conservation easement specifically states the
easement holder “…shall not be responsible for any costs or liability of any kind related
to the ownership, operation, insurance, upkeep, or maintenance of the property…”
(DWR conservation easement template Article VI Miscellaneous E. Obligations of
Ownership).

Response: The sentence from which this phrase is excerpted is unnecessary because “Division
approval” of all parties necessary to sustain permanent projects is already required in
(e)(2)(g). Therefore, we propose deleting this entire sentence:

Structure operation and maintenance shall be the responsibility of the landowner or
easement holder unless the Division gives written approval for another person or entity.
Commenters
Financial Services Division - Stewardship Program

Comment ID: 77
Comment: In (4) This deviates from the current understanding and practice of mitigation
credits/assets delivery and management. Upon the closeout of a mitigation project the
mitigation credits are fully released, the provider is released from credit maintenance
responsibilities, and the easement holder initiates long-term oversight of the
conservation easement terms, conditions, and restrictions. The easement holder has no
legal obligation to maintain the mitigation credits.

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Response: The referenced language does not specify who would be held “responsible” in this
situation; legal obligations would be determined by the various documents listed in this
subparagraph (“an associated project plan, nutrient offset banking instrument,
easement, maintenance agreement, or other protective agreement”).

We recommend the following change to (g)(2) to ensure the easement holder is not
obligated to maintain nutrient offset credits:

The provider shall create and transfer to the perpetual steward a non-wasting
endowment or other dedicated financial surety to provide for the oversight of the
project’s load reductions completed permanent project.

Commenters
Financial Services Division - Stewardship Program

Comment ID: 78
Comment: In (5) Delete items (A) and (B). These qualifiers are inconsistent with current
understanding and practice of mitigation credits/assets delivery and management. If a
completed project is restored passively then, by definition, the site is being maintained
by natural ecological processes. A landowner should not be obligated to “exercise
foresight or caution” in preventing site damage caused natural ecological processes.

Response: We agree with this comment. We recommend rephrasing this subparagraph to read as
follows:

Projects designed to restore a natural ecological community at the project site, which
are completed and then damaged by natural causes, may be passively restored
exclusively through natural ecological processes.
Commenters
Financial Services Division - Stewardship Program

15A NCAC 02B .0701 Definitions
Comment ID: 79
Comment: Regarding Rule .0701, the proposed rule contains definitions for the chapter that refer
to the definitions made in Rule .0202. We object to Rule .0701, which refers to Rule
.0202 for the definition of “industrial discharge(s),” which incorrectly includes
“wastewater discharged from a municipal wastewater treatment plant requiring a
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pretreatment program.” NCWQA believes that the definitions in .0701 should be
defined separately .0202.

Response: We recommend a definition of industrial discharge that only applies to the nutrient
strategy rules in the .0700 Section be defined in .0701 as follows:

For the purpose of the nutrient strategy rules of this Section, industrial discharge means
the discharge of industrial process treated wastewater or wastewater other than
sewage. Stormwater shall not be considered to be an industrial wastewater unless it is
contaminated with industrial wastewater. Industrial discharge includes:

(a) wastewater resulting from any process of industry or manufacture, or from the
development of any natural resource; or

(b) wastewater resulting from processes of trade or business, including wastewater from
laundromats and car washes, but not wastewater from restaurants.

Commenters
North Carolina Water Quality Association

Comment ID: 80
Comment: Suggest revising the definition of “Nutrient Offset Bank” to mean a site at which a
nutrient reduction project that is implemented by a provider except DMS and approved
by the Division for the purpose of generating nutrient offset credit. through execution
of a nutrient offset banking instrument.

Response: We agree that this term should be redefined to better reflect both common and legal
usage. We recommend the following changes, which are similar to those suggested by
the commenter:

15A NCAC 02B .0701 (31) “Nutrient Offset Bank” is a nutrient reduction project
that is implemented by a provider except DMS and approved by the Division for the
purpose of generating nutrient offset credit. is a site at which a nutrient offset project is
implemented by a provider and approved for nutrient offset credit by the Division
through execution of a nutrient offset banking instrument. This term does not include
nutrient offset projects associated with an in-lieu fee program.
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Commenters
Division of Mitigation Services

Comment ID: 81
Comment: Suggest revising the definition of “Nutrient Offset Project” to mean a nutrient reduction
project that is implemented by DMS and approved by the Division for the purpose of
generating nutrient offset credit. for the purpose of generating nutrient offset credit.

Response: We agree with this comment.

In response to comments 80 and 81, we agree these related terms should be redefined
to better reflect both common and legal usage. However, the redefinition of these terms
must also be reconciled with the nutrient offset rule language using these terms.
Therefore, we recommend the following rule amendments to proposed 15A NCAC 02B
.0703:

• (d)(6) “… nutrient offset bank or project”
• (d)(8) “The Division shall approve the application of any bank associated with
any nutrient offset project to reclassify credits as permanent which…”
• (e)(1) Providers except DMS seeking approval… (language not necessary because
an in-lieu fee program is not a bank as redefined above).
• (f)(2) “Once credits are released for a project nutrient offset bank and until they
are exhausted bank closure, nutrient offset bank providers shall provide a
credit/debit ledger to the Division at regular intervals no less frequently than
quarterly.
• (g)(4) “… if it determines that the bank or nutrient offset project has been
impacted…”

Commenters
Division of Mitigation Services

Comment ID: 82
Comment: Clarify definition of “Nutrient reduction practice” so it more clearly states that it
includes all nutrient offset projects and any “type of programmatic effort…”

Response: The definition includes the phrase “type of programmatic effort.”

Commenters
Division of Mitigation Services

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Comment ID: 83
Comment: Remove definition of “Nutrient reduction project”. This definition is unnecessary and
can be deleted. All nutrient offset projects are site-specific.

Response: For clarity, it is important to distinguish between projects that are done to generate
nutrient offset credits (offset projects) and those of the same type that may be done to
satisfy requirements of other nutrient rules. Both nutrient offset projects and projects
done in direct compliance with other nutrient strategy rules are nutrient reduction
projects.
Commenters
Division of Mitigation Services

Comment ID: 84
Comment: Suggest revising the definition of “Provider” to mean public or private person or entity
that implements a nutrient reduction project and seeks nutrient offset credit for sale,
lease, or conveyance in exchange for remuneration, including in-lieu fee programs DMS.
Persons or entities other than DMS All providers other than in-lieu fee programs that
seek to become a provider of nutrient offset credits become so upon approval of a must
have an approved nutrient offset banking instrument by the Division.

Response: We recommend retaining the first sentence without the proposed changes to promote
rule clarity. With the amended definitions to “nutrient offset bank,” the second sentence
is no longer necessary because this requirement is addressed in .0703(e)(1) and (e)(4).
Therefore, we recommend the following rule amendments to proposed 15A NCAC 02B
.0701:

(39) "Provider" means any public or private person or entity that implements a
nutrient reduction project and seeks nutrient offset credit for sale, lease, or
conveyance in exchange for remuneration, including DMS. Persons or entities
other than DMS that seek to become a provider of nutrient offset credits become
so upon approval of a nutrient offset banking instrument by the Division.

Commenters
Division of Mitigation Services

Comment ID: 85
Comment: The proposed definition of a “Non-wasting endowment” does not conform with the
current definition of and practice associated with non-wasting endowments for these
types of projects. The current use of stewardship endowments is to fund regular
monitoring and enforcement of easement terms and conditions. As currently practiced
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the stewardship of an easement does not include the perpetual maintenance, repair
and/or renovation of a conservation easement or the project protected by that
easement. Suggest revising the definition of “Non-wasting endowment”. Historically,
the definition of stewardship did not require the perpetual repair and renovation of a
nutrient reduction project. The rule specifies that naturally sustaining systems do not
require perpetual repair and renovation, but that is missing from this definition and
should be included. Repair and renovation are specific to non-sustaining systems such
as stormwater BMPs.

Response: We recommend the following amendments to the proposed rule:

"Non-wasting endowment" is a fund that generates enough interest to cover the cost of
perpetual monitoring and enforcement monitoring, maintenance, repair and renovation
of a nutrient reduction project. project by a perpetual steward.

Commenters
Division of Mitigation Services
Financial Services Division - Stewardship Program

Comment ID: 86
Comment: No definition is provided for “Perpetual Steward”. As proposed in (g) the rule does not
define “oversight” or “perpetual steward”. It is commonly understood that a perpetual
steward (a.k.a. conservation easement holder) is responsible for the oversight and
enforcement of conservation easement terms and conditions.

Response: To clearly differentiate between the responsibilities of perpetual stewards and other
parties responsible for sustaining nutrient offset projects, we propose to define the term
perpetual steward in 15A NCAC 02B .0701 as follows:
“Perpetual Steward” means an entity that provides oversight for a permanent nutrient
offset project. Oversight in this context includes monitoring and enforcement
responsibilities assumed by the steward and approved by the Division as a condition of
granting permanent nutrient offset credit.

We also propose adding the following substantive restriction in paragraph (g) to
preclude potential or apparent conflicts of interest for perpetual stewards with
enforcement responsibilities:
Perpetual stewards may not assume project maintenance or restoration responsibilities.

Commenters
Financial Services Division - Stewardship Program
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Comment ID: 87
Comment: No definition is provided for “Site Stewardship”

Response: The phrase “site stewardship” does not appear in the proposed rule text.
Commenters
Financial Services Division - Stewardship Program

15A NCAC 02B .0710 & .0730 Purpose & Scope Rules

Comment ID: 88
Comment: NRCA Supports the addition to the Purpose & Scope rule for the Neuse Estuary of and
Adaptive Management Strategy.

Response: Thank you. No response needed.
Commenters
Neuse River Compliance Association

Comment ID: 89
Comment: It may be appropriate to address the difference in loading between organic and
inorganic sources of nitrogen in this iteration of the TMDL strategy.

Response: TMDLs and TMDL alternatives in North Carolina are presently established for total
nitrogen or total phosphorus rather than for specific nitrogen or phosphorus compounds.
Changes that incorporate various species of nutrients are not recommended as part of
the rules review and readoption.

Commenters
Neuse River Compliance Association

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Comment ID: 90
Comment: We’re pleased to see several things in this rules package that we support and hope will
help put the implementation of these rules on the path towards improving conditions in
the Neuse and Tar-Pamlico basins.

Response: Thank you. No response necessary.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 91
Comment: The biggest improvement in this rules package is the upfront acknowledgement of the
failure of these rules to achieve the nutrient reductions needed to restore the health of
both basins, and the discussion of steps towards fixing that through adaptive
management identified in .0730(4) and .0710(e). We strongly support the recognition
that the rules as currently implemented aren’t doing what is needed to see true lasting
water quality improvement in the basins, and support the Department in doing
sufficient analysis to determine what management changes can be made to get there.

Response: Comment received. No response necessary.

Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 92
Comment: Since Department staff and the rule language already acknowledge that there is an
ongoing problem and that current modeling does not forecast meeting nutrient
reduction levels, we urge the EMC to shorten the time frame for delivery of analysis and
recommendations by the Department from 3 years to a sooner date, and change “shall
seek to complete” to “shall complete” on page 4 line 10 and page 34 line 38 of the
proposed rule package to ensure that the analysis and recommendations are
completed. The nutrient rules went into effect in 1997, it is now 22 years later and it is
urgent that we get things on track to fix the problem.

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Response: We agree with the second recommended change and propose revising the language to
“shall complete.” However, a three-year period is necessary to provide time for an initial
in-depth study of these issues and develop management options for the EMC’s
consideration. Subsequent biannual reports proposed for both Neuse and Tar-Pamlico
strategies will ensure continuous iterative and adaptive study of these issues.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

15A NCAC 02B .0711 & .0731 New Development Stormwater Rules

Comment ID: 93
Comment: Regarding Rule .0711, the proposed rule would require municipalities to implement
stormwater management programs “throughout their corporate limits and
extraterritorial jurisdictions within the basin.” Similarly, counties must manage
stormwater “throughout their territorial jurisdictions within the basin.” Although such
municipality-wide requirements may be acceptable for stormwater management
programs addressing development projects (assuming they can be governed by
applicable building codes), any requirement of a municipality or county to take actions
relating to or otherwise regulate stormwater outside of their respective municipal
separate storm sewer system (MS4) areas goes beyond federal requirements.

Response: This rule includes state stormwater regulation in areas not within the geographic scope
of federal stormwater requirements and is predicated on the EMC’s authority and duty
to establish state stormwater rules pursuant to G.S. 143-214.7.

Commenters
North Carolina Water Quality Association

Comment ID: 94
Comment: To further delineate between the requirements for the agriculture community and
the stormwater requirements, the language in the applicability section of these
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rules .0711(2) and .0731(b) should be revised to include the statement that lands
subject to the agriculture rule are excepted from the stormwater rules.

Response: We agree and an explicit exclusion for activities subject to the strategy agriculture
rules is added in a reorganized Item (4), Development Excluded, which captures and
adds to exemptions previously found in several locations in the rule, and reads in
part:

(4) DEVELOPMENT EXCLUDED. The Following development activities shall not be
subject to this rule:
(f) Activities subject to requirements of the Neuse Agriculture rule 15A NCAC 02B
.0712
Commenters

North Carolina Farm Bureau

Comment ID: 95
Comment: It appears the exemption provided in Item (3) on the Neuse Stormwater Rule is to
exempt very low density individual single-family developments, but it doesn’t exclude
the possibility of multiple homes on the same 5-acre parcel (think “extended family
compound” or main owner’s home with additional rental homes).

Response: The content of Sub-Item (3)(b) has been revised to address the issue identified in this
comment. The revised content of Sub-Item (3)(b) has been relocated to a new Sub-Item
(4)(b) in the Neuse Rule. This language change has also been made to the Tar-Pam rule.

(4) DEVELOPMENT EXCLUDED. The following development activities shall not be subject
to this rule:
(b) Development of an individual single-family or duplex residential lot that;
(i) Is not part of a larger common plan of development or sale; and
(ii) Does not result in greater than five percent built upon area of the lot;

Commenters
City of Durham

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Comment ID: 96
Comment: In Sub-Item (5)(f) of Development Project Requirements the term “preexisting” is used
in reference to built-upon area. Where is this term defined?

Response: The term “preexisting” has been removed from the rule. The language in former Sub-
Item (5)(f) has been clarified to refer to “existing built-upon area” and moved to the new
Sub-Item (5)(a). We recommend the following language:

(5)(a) The project, as defined in state stormwater rule 15A NCAC 02H .1002, shall meet
either a nitrogen loading rate target of 3.6 pounds/acre/year or the definition of runoff
volume match found in that rule. Proposed development projects that would replace or
expand existing structures and would result in a net increase in built-upon area shall
meet one of these options for the project less any existing built-upon area.
Commenters
City of Durham

Comment ID: 97
Comment: Why is the one-year peak flow requirement being eliminated? The City will be left
without a stream bank protection standard as a result.

Response: The change reflects recommendations of the DEMLR Stormwater Permitting Unit, which
provided input that evidence has grown indicating that the 1 yr. 24 hr. peak match
requirement can result in bankful flows being sustained for longer time intervals than
those that occurred under pre-development conditions, counterintuitively hastening
streambank degradation rather than protecting streambanks.

The State Stormwater Rules codify minimum design criteria (MDCs) for SCMs and include
erosion protection standards for all SCMs in rule 15A NCAC 02H .1050, which states that
“The outlets of SCMs shall be designed so that they do not cause erosion downslope of
the discharge point during peak flow from the 10-year storm event as shown by
engineering calculations.” There are also additional receiving stream protection
standards for individual SCMs. The MDCs for wet ponds and dry ponds (15A NCAC 02H
.1053 and .1062) require that they “shall discharge the runoff from the one-year, 24-
hour storm in a manner that minimizes hydrologic impacts to the receiving channel.”
NCDEMLR is working with researchers at NCSU to develop more technical guidance on
this subject to be included in future updates to the Stormwater Design Manual.
Commenters
City of Durham

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Comment ID: 98
Comment: In Sub-Item (5)(c) of Development Project Requirements the rule is not as clear as past
iterations regarding requiring every project over 24% impervious area requiring an
primary SCM before an offsite nutrient buydown payment can be used.

Response: To address this clarity concern, requirements for onsite treatment are now found in a
wholly reorganized Sub-Item (5)(b), and explanatory descriptions of referenced rules
have been added:

(5)(b) Regarding stormwater treatment and other onsite post-construction elements,
projects not subject to more stringent standards under one of the following state
stormwater rules or a local ordinance shall meet state stormwater rule 15A NCAC
2H .1003, which includes specifications for low- and high-density designs,
vegetated setbacks and stormwater outlets for all projects. Such projects shall use
a high density treatment threshold of twenty four percent and greater built-upon
area, and a storm depth of one inch for SCM design:
(i) Water Supply Watershed Protection rules, 15A NCAC 02B .0620 - .0624;
(ii) Coastal Counties stormwater rule 02H .1019; or
(iii) Non-Coastal County HWQs and ORWs rule 02H .1021.
Commenters
City of Raleigh

Comment ID: 99
Comment: In Sub-Item (5)(d) of Development Project Requirements the section states that projects
must submit loading calculations for phosphorus removal even though the Neuse NSW
rules only require treatment for nitrogen.

Response: The comment is valid, and the reference to phosphorus in the tool criteria has been
removed. The revised language now reads:

(i) Provides site-scale estimates of annual precipitation-driven total nitrogen load;

Commenters
City of Raleigh

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Comment ID: 100
Comment: In Sub-Item (5)(d) of Development Project Requirements clarity is needed to know
whether all projects above 24% impervious are now subject regardless of exemption
status. Specifically, are projects under the one-acre disturbance threshold now subject
to the NSW rules in the states view.

Response: Item (4) has been reworked to clarify, among other things, that projects below the
disturbance thresholds are not subject to the rule with the exception of below-threshold
disturbances that result in cumulatively exceeding 24% impervious cover for the lot.

(4) DEVELOPMENT EXCLUDED. The following development activities shall not be subject
to this Rule:
(a) Projects disturbing less than:
(i) one acre for single family and duplex residential property and recreational
facilities; and
(ii) one-half acre for commercial, industrial, institutional, multifamily residential, or
local government land uses with the following exception. Such below half-acre
projects that would replace or expand existing structures on a parcel, resulting in
a cumulative built-upon area for the parcel exceeding twenty-four percent,
would be subject to the requirements of Item (5) of this Rule;

Commenters
City of Raleigh

Comment ID: 101
Comment: Shouldn’t Lenoir County should be a listed County in the Neuse Stormwater Rule? OSBM
estimates 2020 Greene County population at 21,301 while Lenoir is 57,004. The former
is included as subject to this rule while the latter isn’t.

Response: Lenoir County does not meet the annual population growth rate criteria that was used,
and on that basis was not added to the rule.
Commenters
Private Citizen: Mike Hermann

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Comment ID: 102
Comment: Granville County meets neither the total population nor the population growth criteria
within the Tar-Pamlico Basin and should not be subject to the Stormwater Rule. The
Fiscal Note appears to use the population of the entire jurisdiction as of 2010 rather
than the population within the Tar-Pamlico Basin. It is not appropriate to consider
population or other characteristics of the County outside the basin of interest in
determining application of the Tar-Pamlico Stormwater Rule. DWR does not disclose its
methodology for determining the population within the basin for Granville County. Text
is not explicit on whether population growth is limited within the basin. DWRs analysis
represents a decade of quite abnormal from those preceding and following it. The
population growth experienced in 2010 is not ongoing. Actual development permit data
prove that only a small amount of growth is occurring within the Tar-Pam basin; not
enough to trigger the population growth thresholds.

Response: We agree and have removed Granville County from the proposed rule revisions to the
Tar- Pamlico New Development Stormwater Rule.
Commenters
Granville County

Comment ID: 103
Comment: As a tier 1, rural, economically challenged county, we feel inclusion into the stringent
stormwater rules will have a significant impact on out development., will create a
substantial unfunded mandate on the county, and will create cost barriers for
development in our county. If the analysis looked at the growth rate beyond 2010, it
would indicate a negative growth rate as overall population of the county has declined
since 2010. We do not have stormwater staff for the purpose of implementing the rule.

Response: We agree and have removed Vance County from the proposed rule revisions to the Tar-
Pamlico New Development Stormwater Rule.
Commenters
Vance County

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Comment ID: 104
Comment: The proposed rule does away with the 6- & 10-pound offsite threshold requirement for
nitrogen loading and replace it with the 24% BUA rule, where if site is over 3.6lb/ac but
under 24% BUA then they can buy down the nitrogen. If over the 24% and over 3.6 lb/ac
then a primary SCM would be required. Under the old 6/10 rule if over the 6/10 then an
SCM was required and sized so that it would treat enough nitrogen to bring it back
under the threshold and the rest could be bought down. Under this new proposed rule,
how would the pond be sized? Big enough to treat down to whatever the loading would
be for 24% of the site, and then buy down the rest to 3.6?

Response: For clarification SCM design and sizing requirements are identified in Sub-Item (5)(b),
which points to state stormwater rule 15A NCAC 02H .1003 and the Minimum Design
Criteria for SCMs incorporated by reference through 15A NCAC 02H .1050 through
.1062.

According to sizing requirements of Rule 02H .1050, SCMs should be sized to take into
account runoff at build out from all surfaces draining to the system, and the combined
design volume of all SCMs on the project shall be sufficient to handle the required storm
depth. If the SCM does not treat the site down to the required export rate of
3.6/lbs/acre/year, the remainder of the reduction need can be achieved through either
additional treatment via oversizing or adding SCMs, or by obtaining nutrient offsets
through an offset bank or in lieu fee payment to DMS.
Commenters
City of Wilson

Comment ID: 105
Comment: When looking at the peak flow portion of a site it is proposed to do away with the site
not exceeding the predevelopment runoff of a 1yr/24hr storm. There are currently two
exemptions to peak flow which are: less than 10% increase from pre-post development
or less than 15% BUA. If either of these apply then the site is exempt from peak flow. Is
the BUA changing to 24% or staying at 15% under the new rule?

Response: The 1 year 24-hour peak rate match requirement has been removed from both Neuse &
Tar-Pamlico Stormwater Rules. The change reflects recommendations of the DEMLR
Stormwater Permitting Unit, which provided input that evidence has grown indicating
that the 1 yr. 24 hr. peak match requirement can result in bankful flows being sustained
for longer time intervals than those that occurred under pre-development conditions,
counterintuitively hastening streambank degradation rather than protecting
streambanks. Exemptions from the peak rate match requirements will no longer be
needed and local programs will need to be updated to reflect this and other rule
changes.
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.
Commenters
City of Wilson

Comment ID: 106
Comment: (5)(f) Why are local linear projects not treated the same as NCDOT linear projects, we
would prefer to have using NCDOT’s BMP toolbox as a compliance option. Also, it
appears this would allow future city streets built by private developers to utilize this as
well. It may be worth clarifying whether privately built streets that will be taken over by
a local government for maintenance are able to comply with the rules through just an
offsite mitigation buydown.

Response: There are no requirements specific to DOT projects in this rule. Also, the DOT Toolbox
does not address nutrients and would provide no basis for judging compliance with this
rule. With respect to private development streets, the provision in Sub-Item (5)(e) only
applies to new development undertaken by a local government developing public road
expansions or public sidewalks and projects subject to the Jurisdiction of the Surface
Transportation Board. We believe the language is sufficiently clear that it does not apply
to streets built by private developers or privately developed roads that are eventually
taken over by local governments for maintenance, where more latitude exists to design
in treatment for roads as well as the development they serve.

Commenters
City of Raleigh

Comment ID: 107
Comment: Sub-Item (5)(e), this section is unclear on how sites with existing impervious can be
permitted. Can this section be clarified, City Staff believes the language will lead to
inconsistent interpretation without clarification. The city has been utilizing a state
approved method for dealing with sites with existing impervious being developed, this
method is the “Apportioning Method”. We are happy to provide the state with some
examples of this method if that is needed.

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Response: The language in Item (5) has been reorganized to improve clarity regarding how existing
impervious area is addressed. The Model program that will be developed to provide
guidance for implementing the stormwater rule requirements will be updated to address
apportioning methods approaches used by local governments. We recommend the
following rule language:

(5) DEVELOPMENT PROJECT REQUIREMENTS. A proposed development project not
excluded under Item (4) of this Rule shall be approved by a subject local
government for the purpose of this Rule when the applicable requirements of Item
(3) of this Rule and the following criteria are met.
(a)The project, as defined in state stormwater rule 15A NCAC 02H .1002,
shall meet either a nitrogen loading rate target of 3.6 pounds/acre/year
or the definition of runoff volume match found in that rule. Proposed
development projects that would replace or expand existing structures
and would result in a net increase in built-upon area shall meet one of
these options for the project less any existing built-upon area.

Commenters
City of Raleigh

Comment ID: 108
Comment: A continuing oversight of the rule is its ability to address existing development’s
stormwater impact. At a minimum the Local Program should require that incentives be
developed for implementing projects in already developed areas on both public and
private property that would reduce contributions of stormwater pollution from those
landscapes

Response: This rule revision did not attempt to regulate existing developed lands through
requirements on local governments, nor to provide an incentive structure for local
programs to offer to developers, and state statute Chapter 143-214.7(a2) prohibits state
stormwater rules from requiring stormwater controls on existing impervious during
redevelopment of existing developed lands.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

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15A NCAC 02B .0712 & .0732 Agriculture Rules
Comment ID: 109
Comment: Request removing the words “a county or” from .0712(1)(a) and .0732(a)(1). The
requirements of the collective compliance approach outlined in these rules applies to
the basins as a whole, not individual counties. These items should be revised to reflect
the rule requirements.

Response: We have revised the rule language in both .0712(1)(a) and .0732(a)(1) to remove the
reference to “a county”. While the proposed revision in addresses compliance, the
accounting method requirements in both rules still include accounting at the county level
which is aggregated in the annual reports to show compliance at the basin scale. We
recommend the following language:

(1)(a) PROCESS. This Rule requires farmers in the Basin to implement land management
practices that collectively, on a county or watershed basis, will achieve the nutrient
goals.

(5)(a) The nitrogen method shall estimate baseline and annual total nitrogen losses from
agricultural operations in each county and for the entire Neuse Basin.

Commenters
Division of Soil & Water Conservation
North Carolina Farm Bureau

Comment ID: 110
Comment: Under the rules the Agriculture Sector does not get credit for DMS or private mitigation
bank practices implemented on agriculture lands but those lands are still reported
under the collective compliance strategy which aggregates data at the county level.

Response: The collective compliance approach provides agriculture 100% reduction credit for any
lands that go out of production. In addition to lands lost to development, or taken out of
rotation and left fallow, lands taken out of production, whether for purposes of entering
into a private voluntary contract or agreement with DMS or a private bank, or placed
into a conservation practice by a producer, are reflected as reductions in crop acres in
subsequent annual agricultural accounting.

Commenters
Division of Soil & Water Conservation
North Carolina Farm Bureau

Comment ID: 111
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Comment: Annual recalculation of agriculture’s baseline will impact agriculture’s ability to meet
and maintain its nitrogen loss reductions and result in increased workload for the BOC,
WOC, LAC and DSWC for little or no environmental benefit. This ongoing uncertainty
will also indefinitely complicate or even preclude nutrient trading opportunities with
other regulated entities. There is not an accurate way to calculate exactly which lands
should be removed from baseline totals. Without an agreed upon standardized method
to accurately calculate land that is actively under production, we do not know what
implications this change will have and we cannot predict the impact of such a reporting
change on our ability to meet our nitrogen loss reduction goals in the future. A moving
baseline is almost impossible to calculate due to the amount of agricultural land lost
each year. By enforcing a moving baseline, the requirements would implement
unproportionable restrictions on the remaining producers. At time of establishing the
baseline, County LA’s and field staff were committed to ensure that the baseline figures
of each report were as accurate as possible, and this rule change requires that we revisit
those figures and revise our target each year. Local staff will not have the time or the
resources to provide this information yearly.

Response: The proposed rule language “Baseline losses and relative loss reduction progress shall be
adjusted as frequently as can be supported by available data to account for lands
permanently removed from agricultural control through development” has been
removed and is not intended to change the current practice. The proposed language
now reads as follows in both basin’s agriculture rules:

(a) The nitrogen method shall estimate baseline and annual total nitrogen losses from
agricultural operations in each county and for the entire Neuse Basin
Commenters
Division of Soil & Water Conservation
North Carolina Farm Bureau
Wake County Soil & Water
Orange County Local Advisory Committee
Franklin County Local Advisory Committee

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Comment ID: 112
Comment: Additional BMPs should be added to the calculation of nutrient reduction. There are
many nitrogen and phosphorus reducing BPS that are not given credit in the current
reporting system such as field borders, grass waterways, nutrient management etc…

Response: We agree that additional Ag BMPs should be considered where sufficient studies and
scientific data support their inclusion. The process of adding BMPs is addressed by an
established panel of university and other experts, the NLEW subcommittee of the Basin
Oversight Committee. No revisions were made to the rules to prevent or limit that
collaborative process.

Commenters
Wake County Soil & Water
North Carolina Farm Bureau

Comment ID: 113
Comment: Fully support proposed method for submitting the annual report to DWR versus having
to be the only stakeholders required to present a report to the EMC each year.

Response: Annual reporting remains an important component of this rule, and as proposed in the
Neuse and Tar-Pam Purpose and Scope Rules (.0710 & .0730) the Division plans to
provide biannual reports to the WQC on implementation progress from all sectors under
the respective nutrient management strategies to better inform the adaptive
implementation of the rules.
Commenters
Wake County Soil & Water

Comment ID: 114
Comment: The animal thresholds in the Tar-Pamlico Agriculture Rule come directly from SL 2001-
235 and therefore cannot be removed or revised.

Response: The animal thresholds in the Tar-Pamlico Agriculture rule will remain as provided for in
SL 2001-355.
Commenters
Division of Soil & Water Conservation
North Carolina Farm Bureau

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Comment ID: 115
Comment: Collectively, agriculture should achieve a 30% reduction of the N loading from existing
agricultural operations. Conversion of agriculture land to urban development shouldn’t
be sufficient for meeting reduction goals. Research supports this comment. A USGS
study of nutrient flows to the Neuse River found that Bear Creek, a largely agricultural
waters in Green, Wayne, and Lenoir counties contributed disproportionately to nitrogen
loads to the estuary (Spruill et al., 2004). A separate study published in by Lebo and
Paerl in 2012 found the Trent River, a largely agricultural watershed in Jones County to
disproportionately contribute nutrient pollution to the Neuse Estuary with an increasing
trend. If ag sources of pollution continue under the status quo, it will be difficult to
achieve nutrient load reduction goals.

Response: The proposed rule language “Baseline losses and relative loss reduction progress shall be
adjusted as frequently as can be supported by available data to account for lands
permanently removed from agricultural control through development” has been
removed and is not intended to change the current practice. The proposed language
now reads as follows in both basin’s agriculture rules:

(a) The nitrogen method shall estimate baseline and annual total nitrogen losses from
agricultural operations in each county and for the entire Neuse Basin
Commenters
Private Citizen: Mike Hermann

Comment ID: 116
Comment: Although rules in both the Neuse and the Tar-Pamlico nutrient management strategies
purport to address contributions from various types of agriculture, in practice their
application is limited to cropland agriculture, meaning they fail to account for the
proliferation of industrial animal agriculture and the resulting water quality impacts.
The EMC’s failure to effectively regulate large sources of nutrients dooms nutrient
management strategies in the Neuse and Tar-Pamlico to failure. We cannot expect the
targeted improvements in water quality to be achieved until the agency gets serious
about targeting these sources of nutrient loading.

Response: Comment noted.
Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

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Comment ID: 117
Comment: A substantial and growing body of scientific evidence demonstrates that animal feeding
operations contribute significant nutrient loads to water bodies in Eastern North
Carolina. Indeed, DWR basin planners have consistently observed that industrial animal
operations “are having a significant negative impact on the Neuse River water quality”
and repeatedly noted the adverse impact of these operations on water quality in the
Tar-Pamlico watershed. A nutrient management strategy has no hope of reducing
loading that is effectively ignored. We urge the EMC to conduct a long overdue analysis
of the contributions of industrial swine and poultry operations to nutrient loading in the
Neuse and Tar-Pamlico watersheds.

The EMC cannot improve water quality in the Neuse or the Tar-Pamlico basis without
meaningful evaluation and reduction of pollution from industrial animal agriculture. We
urge the agency to acknowledge its failure to do so, and to take steps to collect and
evaluate data to inform overdue action on that front rather than continue to rely on a
paper exercise focused solely on row crop agriculture.

Response: Comment noted.

Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network
Water Keepers Alliance

Comment ID: 118
Comment: Ignoring animal agriculture compounds the inherent limitation stemming from the
failure to consider atmospheric deposition of nitrogen when developing these nutrient
management strategies. Approximately 80% of ammonia emissions in the country
originate from livestock waste. Nutrients from animal waste can enter surface waters
through atmospheric deposition following manure spraying or spreading. Yet, despite a
sizable number of large hog and poultry operations in both the Neuse and Tar-Pamlico
watersheds, there is no attempt to evaluate, much less regulate, ammonia emissions or
their impacts on chlorophyll-a levels.

Response: Comment noted.

Commenters
Sound Rivers
American Rivers
Haw River Assembly
NC Conservation Network

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Water Keepers Alliance

Fiscal Note Comments
Comment ID: 119
Comment: The Fiscal note should be amended to incorporate and address the 2019 EPA Trading
Policy Memo.

Response: The 2019 EPA Trading Policy Memorandum was released after the EMC and OSBM
approval of the fiscal note. The fiscal note has been supplemented to discuss the 2019
EPA Trading Memo. The referenced memorandum can be found at the following link:
https://www.epa.gov/nutrient-policy-data/water-quality-trading-memos.

Commenters
Neuse River Compliance Association
City of Apex
Town of Clayton
CMSD
Johnston County

City of Goldsboro
Grifols
City of New Bern
City of Wilson

Comment ID: 120
Comment: The Fiscal Note went to great lengths to undermine the EMC’s proposed rule change for
the nutrient credit ratio to be applied when new or expanding WWTPs rely on nutrient
credits. That information should be deleted.

Response: Comment noted.
Commenters
Neuse River Compliance Association

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Comment ID: 121
Comment: The Fiscal Note asserts that adequate capacity exists in the basin from nutrient
allocations to support the growth needs of the upper basin jurisdictions. Despite a
showing by NRCA members that there is no capacity available for sale or lease to
support these needs, the EMC approved the Fiscal Note. This inaccurate information
should be removed or, at a minimum amended to show that multiple jurisdictions have
been unsuccessful in finding capacity to meet their needs for the expansion or addition
of NPDES facilities.

Response: The fiscal note has been amended to describe that multiple jurisdictions have been
unsuccessful in finding capacity to meet their needs for the expansion or addition of
NPDES facilities.

Commenters
Neuse River Compliance Association
City of Apex
Town of Clayton
CMSD
Johnston County

Private Citizen: Steve Tedder

City of Goldsboro
Grifols
City of New Bern
City of Wilson

Comment ID: 122
Comment: The success of the proposed Nutrient Offset Rule (.0703) is dependent upon the
establishment and effective financial management of a non-wasting endowment for
every permanent credit project installed under the proposed rule. The Fiscal Note does
not discuss the criteria for establishing an endowment nor does it analyze the factors
influencing the calculation of an endowment for any of the potential project types.

Response: No changes to endowment requirements were intentionally proposed in this rule, and
therefore this analysis was not provided. Revisions to the Offset Rule and Definitions
Rule clarify that no new responsibilities are required of permanent steward and
therefore no additional endowment costs will be incurred. These recommended rule
revisions include:

Adding the following substantive restriction in .0703 paragraph (g) to preclude potential
or apparent conflicts of interest for perpetual stewards with enforcement
responsibilities:
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Perpetual stewards may not assume project maintenance or restoration
responsibilities.

Revise to .0703 (g)(2) to ensure the easement holder is not obligated to maintain
nutrient offset credits:

The provider shall create and transfer to the perpetual steward a non-wasting
endowment or other dedicated financial surety to provide for the oversight of
the project’s load reductions completed permanent project.

And delete this sentence in .0703 (g)(4)
Structure operation and maintenance shall be the responsibility of the
landowner or easement holder unless the Division gives written approval for
another person or entity.

Define the terms “Perpetual Steward” and “Non-wasting endowment” in Items (29) and
(39) of .0701 as follows to clearly differentiate between the responsibilities of perpetual
stewards and other parties responsible for sustaining nutrient offset projects, we
propose to

“Perpetual Steward” means an entity that provides oversight for a permanent
nutrient offset project. Oversight in this context includes monitoring and
enforcement responsibilities assumed by the steward and approved by the
Division as a condition of granting permanent nutrient offset credit.

"Non-wasting endowment" is a fund that generates enough interest to cover the
cost of perpetual monitoring and enforcement monitoring, maintenance, repair
and renovation of a nutrient reduction project. project by a perpetual steward.

Commenters
Financial Services Division - Stewardship Program

Comment ID: 123
Comment: The Fiscal Note references a previously published fiscal note entitled Fiscal Analysis for
Proposed Nutrient Strategy for Falls of Neuse Reservoir dated June 14, 2010. The costs
of planning, design, and construction of select SCMs are presented however no cost
data is provided for the operation, maintenance, repair, or renovation of these
measures. If a non-wasting endowment is intended to cover the full costs of
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construction, operation, maintenance and renovation of a measure for perpetuity then
it stands to reason that the financial impact would be analyzed for this proposed rule.
The Fiscal Note does not adequately analyze all financial impacts of the rule, leaving all
parties, developer, owner, and perpetual steward, at significant financial and legal risk if
an inadequate endowment is established for a permanent offset project.

Response: No changes to endowment requirements were intentionally proposed in this rule, and
therefore this analysis was not provided.

Nutrient stormwater rules have always required permanent maintenance of onsite
SCMs. Proposed amendments to those rules will require permanent nutrient offsets
rather than thirty years’ worth. The fiscal note briefly addressed this issue in section
6.3.6 and concluded that no costs are projected. The fiscal note has been updated to
supplement and clarify this analysis.

Revisions to the Offset Rule and Definitions Rule clarify that no new responsibilities are
required of permanent steward and therefore no additional endowment costs will be
incurred. These recommended rule revisions include:

Adding the following substantive restriction in .0703 paragraph (g) to preclude potential
or apparent conflicts of interest for perpetual stewards with enforcement
responsibilities:

Perpetual stewards may not assume project maintenance or restoration
responsibilities.

Revise to .0703 (g)(2) to ensure the easement holder is not obligated to maintain
nutrient offset credits:

The provider shall create and transfer to the perpetual steward a non-wasting
endowment or other dedicated financial surety to provide for the oversight of
the project’s load reductions completed permanent project.

And delete this sentence in .0703 (g)(4)
Structure operation and maintenance shall be the responsibility of the
landowner or easement holder unless the Division gives written approval for
another person or entity.

Define the terms “Perpetual Steward” and “Non-wasting endowment” in Items (29) and
(39) of .0701 as follows to clearly differentiate between the responsibilities of perpetual
stewards and other parties responsible for sustaining nutrient offset projects, we
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propose to

“Perpetual Steward” means an entity that provides oversight for a permanent
nutrient offset project. Oversight in this context includes monitoring and
enforcement responsibilities assumed by the steward and approved by the
Division as a condition of granting permanent nutrient offset credit.

"Non-wasting endowment" is a fund that generates enough interest to cover the
cost of perpetual monitoring and enforcement monitoring, maintenance, repair
and renovation of a nutrient reduction project. project by a perpetual steward.

Commenters
Financial Services Division - Stewardship Program

Comment ID: 124
Comment: The Fiscal Analysis for Proposed Nutrient Strategy for Falls of Neuse Reservoir dated
June 14, 2010 specifically states BMPs (SCMs) require maintenance to continue to work
effectively, including establishing desired vegetation, removing undesirable species,
removing accumulated sediment, repairing control structures, repairing erosion and
other activities. BMP types discussed in the Fiscal Note include:

• Stormwater wetland
• Bioretention
• Wet Detention
• Extended Dry Detention
• Grassed Swale
• Filter Strip/Level Spreader
• Infiltration Devices
• Buffer w/ Level Spreader
• Sand Filter

The note goes on to say developers would not be responsible for maintenance, rather
maintenance would be the responsibility of the property owner. This is in direct conflict
with the proposed rule language where it suggests operation and maintenance of the
BMP would be the responsibility of the perpetual steward.

Response: No changes to endowment requirements were intentionally proposed in this rule, and
therefore this analysis was not provided. Revisions to the Offset Rule and Definitions
Rule clarify that no new responsibilities are required of permanent steward and
therefore no additional endowment costs will be incurred. These recommended rule
revisions include:

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Adding the following substantive restriction in .0703 paragraph (g) to preclude potential
or apparent conflicts of interest for perpetual stewards with enforcement
responsibilities:

Perpetual stewards may not assume project maintenance or restoration
responsibilities.

Revise to .0703 (g)(2) to ensure the easement holder is not obligated to maintain
nutrient offset credits:

The provider shall create and transfer to the perpetual steward a non-wasting
endowment or other dedicated financial surety to provide for the oversight of
the project’s load reductions completed permanent project.

And delete this sentence in .0703 (g)(4)
Structure operation and maintenance shall be the responsibility of the
landowner or easement holder unless the Division gives written approval for
another person or entity.

Define the terms “Perpetual Steward” and “Non-wasting endowment” in Items (29) and
(39) of .0701 as follows to clearly differentiate between the responsibilities of perpetual
stewards and other parties responsible for sustaining nutrient offset projects, we
propose to

“Perpetual Steward” means an entity that provides oversight for a permanent
nutrient offset project. Oversight in this context includes monitoring and
enforcement responsibilities assumed by the steward and approved by the
Division as a condition of granting permanent nutrient offset credit.

"Non-wasting endowment" is a fund that generates enough interest to cover the
cost of perpetual monitoring and enforcement monitoring, maintenance, repair
and renovation of a nutrient reduction project. project by a perpetual steward.

Commenters
Financial Services Division - Stewardship Program

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Comment ID: 125

Comment: The word “endowment” appears once in the Fiscal Note, on page 74, where it is
suggested the amount of funding necessary for a non-wasting endowment by the
provider is somehow reduced because DWR will not require a buffer to be replanted in
the event of damage sustained by a natural disaster. The Fiscal Note does not discuss
this same scenario in the context of engineered SCMs.

Response: The fiscal note did not evaluate engineered SCMs associated with the provisions of
.0703(g)(5)(B) because they are not included in the suite of practices that are “designed
to restore a natural ecological community,” the context referenced above. The fiscal
note did not evaluate replacement costs for SCMs because their use for offset purposes
was not projected by DWR to be a viable option within a foreseeable time horizon under
this rule.

Commenters
Financial Services Division - Stewardship Program

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APPENDIX A: TEXT OF PROPOSED RULES

APPENDIX B: UPDATED FISCAL NOTE

APPENDIX C: PUBLIC COMMENTS RECEIVED

APPENDIX D: PROPOSED STORMWATER COMMUNITY POPULATION DATA

APPENDIX E: NOTICE OF TEXT

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