Cape Fear Swamp

STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
REPORT OF PROCEEDINGS
ON THE REMOVAL OF THE SWAMP CLASSIFICATION AND REMOVAL OF A PART OF A WATER QUALITY MANAGEMENT PLAN FOR A CAPE FEAR RIVER SEGMENT IN BRUNSWICK AND NEW HANOVER COUNTIES (CAPE FEAR RIVER BASIN)
ONLINE PUBLIC HEARING OCTOBER 20, 2020
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Table of Contents
Page
SUMMARY AND RECOMMENDATION ....................................................................................1
SUMMARY ...................................................................................................................................1
Implications of the Proposed Reclassification and Water Quality Management Plan .................5
Public Hearing Process and Comments Received ........................................................................7
RECOMMENDATION .................................................................................................................8
APPENDICES ........................................................................................................................ App-1
July 2018 EPA Letter ........................................................................................................... App-2
15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters .............. App-14
15A NCAC 2B .0227 Water Quality Management Plans .................................................. App-17
Report of Proceedings and Addendum on the Proposed Reclassification of a Cape
Fear River Segment in Brunswick and New Hanover Counties From SC to SC Sw
with a Water Quality Management Plan ............................................................................ App-18
Regulatory Impact Analysis with Addendum .................................................................. App-293
Proposed Amendment to 15A NCAC 2B .0227 Water Quality Management Plans ...... App-298
Proposed Amendment to 15A NCAC 2B .0311 Cape Fear River Basin ........................ App-299
Public Announcement ...................................................................................................... App-300
Press Releases .................................................................................................................. App-302
Hearing Officer Designation ............................................................................................ App-308
List of Public Hearing Attendees and Registered Person ................................................ App-309
Summary of Verbal Comments ....................................................................................... App-310
Public Comments ............................................................................................................. App-311
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SUMMARY AND RECOMMENDATION
SUMMARY
The Hearing Officer recommends the removal of the Swamp (Sw) classification and removal of
a part of a water quality management plan for a Cape Fear River segment in Brunswick and New Hanover Counties. The federal Clean Water Act requires that water quality standards, including classifications, that are adopted by states must be approved by EPA. The proposed removal of the Swamp classification and part of a water quality management plan is due to EPA action taken
in a July 2018 letter to disapprove the classification and part of the management plan based on
inadequate justification (letter attached as pages App-2 through App-13). In addition, this proposal is the result of the Environmental Management Commission (EMC) in July 2019 granting a petition for rulemaking from the Cape Fear River Watch and Waterkeeper Alliance in care of the Southern Environmental Law Center. The petition requested that the EMC
“…remove the supplemental swamp waters classification from the lower Cape Fear River.” At
its July 2019 meeting, EMC approved the initiation of rulemaking to remove the EPA disapproved Sw designation and to remove the EPA disapproved portion of the management plan from the subject waters (July 2019 EMC agenda item and attachments, including the petition, located at https://deq.nc.gov/about/divisions/water-resources/water-resources-
commissions/environmental-management-commission-9). At its January 2020 meeting, EMC
approved proceeding to public notice and comment with the proposed rulemaking (January 2020 EMC agenda item and attachments, including proposed rule amendments, located at https://deq.nc.gov/about/divisions/water-resources/water-resources-commissions/environmental-management-commission-26).
In 2014, the Lower Cape Fear River Program requested that a segment of the lower Cape Fear River below Lock & Dam 1 in New Hanover and Brunswick Counties be reclassified from Class SC to Class SC Sw. The SC classification is a primary classification whereas the Sw classification is a supplemental classification that can accompany a primary classification.
Standards applicable to Class SC waters provide a base of protection to all of the state’s tidal salt
waters. Standard allowable range for pH in Class SC waters is from 6.8 – 8.5, and the dissolved oxygen (DO) standard in Class SC waters is 5.0 mg/l. The Sw classification allows, if caused by natural conditions, the pH of the subject waters to reach as low as 4.3 and the DO to be lower than 5 mg/l. The standards for tidal salt waters classified as SC and the standards for tidal salt
waters classified as Sw are outlined in Rule 15A NCAC 2B .0220, Tidal Salt Water Quality
Standards for Class SC Waters (rule attached as pages App-14 through App-16). The 2014 reclassification request stated that “…the DO standard of 5 mg/l for the Lower Cape Fear River Estuary is not appropriate since it is not achieved a significant portion of the time as a result of natural drainage from riverine wetlands and salt marshes.”
In addition, a water quality management plan associated with the Swamp classification helps to implement the current permitting policy for new wastewater discharges and expansions of existing wastewater discharges to the subject waters, with effluent limits for oxygen consuming wastes that are similar to the limits for High Quality Waters given portions of the subject waters
carry this designation. Conditions applicable to waters with a water quality management plan are outlined in Rule 15A NCAC 02B .0227, Water Quality Management Plans (rule attached as page
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App-17). 15A NCAC 02B .0227 states that “In implementing the water quality standards to protect the existing uses…of the waters of the state or the water quality which supports those
uses, the Commission shall develop water quality management plans on a priority basis to attain, maintain or enhance water quality throughout the state. Additional specific actions deemed necessary by the Commission to protect the water quality or the existing uses of the waters of the state shall be specified in…this Rule. These actions may include anything within the powers of the Commission.” The actions within 15A NCAC 02B .0227 for the subject waters help
implement the current permitting policy already in place for new individual NPDES wastewater discharges and expansion of existing individual NPDES wastewater discharges to the subject waters, which is designed to address water quality and existing uses of these waters.
The Swamp classification and management plan became effective in 2017 in the North Carolina
Administrative Code, providing a pathway for communities’ planning efforts with rules for future or expanded discharges (report of proceedings and associated addendum, including the reclassification request, attached as pages App-18 through App-292). The removal of the Swamp (Sw) classification and a part of a water quality management plan for the subject waters is now proposed.
The current proposal concerns the portion of the Cape Fear River from the upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut, where the Intracoastal Waterway (ICW) meets the river (figure on Page 3 and Table 1 on Page 4). This river segment flows along the border of Brunswick and New Hanover counties. In these waters,
there are several tidal salt water species, including the federally endangered Shortnose Sturgeon and Atlantic Sturgeon, and the related Marine Fisheries Commission designation of Primary Nursery Area, or PNA, for these species; these PNA waters also received the designation of High Quality Waters, or HQW. In addition, the types of land cover occurring adjacent to the proposed river segment are comprised of wetlands mixed with developed lands, other open waters, forest
lands, and shrub/scrub lands. Furthermore, the segments of the Cape Fear River directly above and below the subject waters are classified C Sw and SC, respectively. The named tributaries flowing to this river segment are currently classified either SC Sw, SC, Water Supply-IV Critical Area, or C Sw, and the majority of these tributaries carry the Sw designation. No tributaries to
this section of the river are to be affected by the proposal.
During the rulemaking for the reclassification and water quality management plan, there were eight NPDES permitted wastewater discharges, no known planned new NPDES wastewater discharges, and one planned expansion of an existing NPDES wastewater discharge that met the
requirements of the classification and management plan but had not been permitted; since then,
the one planned expansion got permitted, and currently there are eight NPDES permitted wastewater discharges and no known planned new NPDES wastewater discharges to these waters. Lastly, there are no known plans for expansions of existing NPDES wastewater discharges that require permitting.
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TABLE 1. PROPOSED AMENDMENT TO THE CAPE FEAR RIVER BASIN SCHEDULE OF CLASSIFICATIONS
AS REFERENCED IN TITLE 15A NORTH CAROLINA ADMINISTRATIVE CODE 02B .0311
Name of
Stream
Description of Proposed
Segment
Proposed
Class
Description of Existing Segment Existing
Class
Cape Fear
River
From upstream mouth of
Toomers Creek to a line across
the river between Lilliput Creek
and Snows Cut
SC From upstream mouth of
Toomers Creek to a line across
the river between Lilliput Creek
and Snows Cut
SC Sw
A regulatory impact analysis for the rulemaking resulting in the Swamp designation and management plan was prepared and there was no quantifiable cost or benefit determined to be a result of the proposal. There would be no quantifiable cost or benefit from removing the Sw
classification or associated portion of the management plan for these waters, as reflected by an addendum to the regulatory impact analysis, due to EPA’s disapproval of the Swamp designation and a portion of the management plan, and the EPA requirement that water quality standards including classifications that are adopted by states must be approved by EPA. The regulatory
impact analysis and associated addendum are attached as pages App-293 through App-297.
The purpose of the proposal is to comply with the requirements of the federal Clean Water Act. If removal of the Sw classification from these waters becomes effective, then the allowable pH and DO standards for Sw waters under natural conditions, of as low as 4.3 and lower than 5.0 mg/l, respectively, would be removed from the North Carolina Administrative Code for the
subject waters. Furthermore, the DO standard of 5 mg/l, and the pH standard range of between 6.8-8.5, which are associated with the primary salt water (SC) classification of these waters, would not be affected by the proposal. In addition, if removal of the proposed part of the water quality management plan for these waters becomes effective, then for new individual NPDES
wastewater facilities and expansions of existing individual NPDES wastewater discharges to the
subject waters, the following stipulation would be removed from the North Carolina Administrative Code: Any new or expanded permitted pollutant discharge of oxygen-consuming waste shall not cause the DO of the receiving water to drop more than 0.1 mg/l below the modeled in-stream DO at total permitted capacity. There are no known planned new individual NPDES wastewater discharges to these waters, and no known planned expansions of existing
individual NPDES wastewater discharges that require permitting. The proposed rules are attached as pages App-298 and App-299.
The estimated effective date of this reclassification is July 1, 2021.
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Implications of the Proposed Reclassification and Water Quality Management Plan
Water quality standards for tidal salt waters classified as SC and tidal salt waters classified as Sw, as well as specific waters with water quality management plans, are outlined in the following two rules (pages App-14 through App-17):
•15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters
•15A NCAC 2B .0227 Water Quality Management Plans
Rule 15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters, describes regulations pertaining to Class SC waters as well as tidal salt waters carrying the Class Swamp
designation (rule attached as pages App-14 through App-16). This rule features regulations
regarding the best usage of these waters, conditions related to best usage, quality standards applicable to all tidal salt waters (for parameters such as radioactive substances, salinity, temperature and turbidity) and action levels for toxic substances (such as copper, silver, and zinc). This rule also includes DO as well as pH standards for Class SC waters, and allows for
deviation from those standards for those two parameters if caused by natural conditions in Class
Swamp tidal salt waters. Currently the dissolved oxygen standard is 5 mg/l, and the pH standard is a range of 6.8-8.5 for Class SC waters. The standards associated with the Sw designation are narrative standards, which supplement the SC numeric standards.
The result of removing the Sw classification for the Cape Fear segment of interest, per the
portions of this rule that address standards in Sw tidal salt waters, will be the removal of the
allowance for the pH of the subject waters to reach as low as 4.3 if caused by natural conditions and the removal of the allowance for the DO to be lower than 5 mg/l if caused by natural conditions. Thus, if the Swamp classification is removed from these waters, the inclusion of natural conditions in the standards for DO & pH attributable to the Sw designation will be
removed from the North Carolina Administrative Code for the subject waters. The DO standard
of 5 mg/l and the pH standard range of between 6.8-8.5, which are associated with the primary salt water (SC) classification of these waters, would not be affected by the proposal. Table 2 summarizes and compares the requirements of the existing and proposed classifications.
TABLE 2. SUMMARY AND COMPARISON OF EXISTING AND PROPOSED CLASSIFICATIONS’ STANDARDS
Classification pH Dissolved Oxygen (DO)
Class SC
(Proposed Rule) 6.8 – 8.5 5.0 mg/l
Class SC Sw (Existing Rule) 6.8 – 8.5, but as low as 4.3 if result of natural conditions 5.0 mg/l, but lower than 5.0 mg/l if caused by natural conditions
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Rule 15A NCAC 2B .0227 Water Quality Management Plans allows the Environmental Management Commission to develop water quality management plans tailored to protection of
existing uses or quality of waters in specific waters (rule attached as page App-17). Specific additional actions that the EMC considers necessary to protect the existing quality or uses of specific waterbodies are described in this rule, and can include any actions within the Commission’s powers. Currently there are two management plans within this rule, one plan for the Lockwoods Folly River Area within the Lumber River Basin and one plan for the subject
waters.
The management plan for a section of the Cape Fear River contains effluent limits that new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges within the river segment have to meet regarding oxygen consuming
wastes. These limits are more stringent than the standards regarding oxygen consuming wastes for Class SC or Class Sw waters, and in fact, are very similar to the limits for one of the state’s most restrictive supplemental classifications, High Quality Waters, because as mentioned above, portions of the subject waters are HQW by virtue of having been designated as a Primary Nursery Area.
For non-industrial facilities, effluent limits of 5 mg/l for Biological Oxygen Demand (BOD)5, 1 mg/l for Ammonia, and 6 mg/l for dissolved oxygen apply according to the current management plan. For industrial discharges, the management plan calls for site-specific best available technology on a case-by-case basis to be utilized to determine the limits for BOD5, Ammonia
and DO according to 15A NCAC 02B .0404 and .0406.
For new and expanded individual NPDES wastewater facilities, the management plan includes consideration of seasonal effluent limits on a case-by-case basis. Lastly, the management plan includes the following stipulation: Any new or expanded permitted pollutant discharge of oxygen
consuming waste shall not cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream dissolved oxygen at total permitted capacity.
The purpose of the management plan is to help implement the current permitting policy already
in place for new individual NPDES wastewater discharges and expansions of existing individual
NPDES wastewater discharges to the subject waters, which is designed to address water quality and existing uses of these waters. Existing & future communities in this area and above-mentioned facilities are helped by the regulations in place for these waters because these regulations provide a pathway to aid them in their planning efforts for future or expanded
discharges.
If removal of the proposed part of the water quality management plan for these waters becomes effective, then for new individual NPDES wastewater facilities and expansions of existing individual NPDES wastewater discharges, the last condition of the management plan cited above
would no longer appear in the North Carolina Administrative Code. In other words, the
following regulation for new individual NPDES wastewater facilities and expansions of existing individual NPDES wastewater discharges to the subject waters would be removed from the North Carolina Administrative Code: Any new or expanded permitted pollutant discharge of
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oxygen-consuming waste shall not cause the DO of the receiving water to drop more than 0.1 mg/l below the modeled in-stream DO at total permitted capacity.
There are currently no known planned new individual NPDES wastewater discharges and no known plans for expansions of existing NPDES wastewater discharges that require permitting. In addition, the proposal would not impact the following activities: forestry practices, docks and other water dependent structures, development activities, recreational use, agricultural activities,
animal operations, land application activities, landfill operations, and dam and water resource projects.
Public Hearing Process and Comments Received
In accordance with North Carolina General Statutes, a public hearing was held on October 20th, 2020. An in-person hearing was originally proposed for May 5th, 2020, but was rescheduled in order for it to be held online via WebEx in the abundance of caution and to address protective measures to help prevent the spread of COVID-19 as well as per Executive Order 169. Notice of the proposal and hearing, including the proposed rule amendments, was published in the
September 1, 2020, North Carolina Register (Volume 35, Issue 5) (proposed amendments for rules attached as pages App-298 and App-299).
Announcements of the public hearing (announcement attached as pages App-300 and App-301) were sent to the Water Resources Rule-Making Announcements mailing list, the Division of Water Resources Rules e-mail list, staff of the local governments with jurisdiction over land
adjacent to the subject waters, county library staff, wastewater facilities discharging directly to the subject waters, and to other persons potentially interested in the proposal, including staff of interest groups such as The Nature Conservancy, Cape Fear River Watch, Waterkeeper Alliance, and Cape Fear River Assembly; staff of federal and state agencies; and legislators within North Carolina. In addition, press releases about the hearing were distributed in early September 2020
and mid-October 2020 (press releases attached as pages App-302 through App-307).
Margaret Monast, a member of the Environmental Management Commission, served as hearing officer (hearing officer designation letter attached as page App-308). Twenty-one people registered online to attend the public hearing and 18 people attended the hearing (list of attendees
and registered persons attached as page App-309). Attendees at the hearing who provided
information regarding their affiliation represented entities ranging from NC General Assembly District 9 (Senator) and District 44 (Representative), Southern Environmental Law Center, Waterkeeper Alliance, Cape Fear River Watch, NC State Parks, StarNews, International Paper, and NC Farm Bureau to universities and consulting firms.
General information about the hearing and proposal was provided by the hearing officer
followed by a DWR staff presentation with detailed information about the proposal, and subsequently public comments on the proposal were taken. Five individuals registered to present comments and four of those individuals did provide oral comments. The speakers stated that they represented NC General Assembly District 44 (Representative), Cape Fear River Watch,
Southern Environmental Law Center, and Waterkeeper Alliance. The four speakers supported
the proposal (summary of verbal comments attached as page App-310).
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Written comments were accepted for the proposal from September 1, 2020 through November 2, 2020, and 17 written comments were received. The majority of the comments were received
from residents albeit comments were also received from representatives with the City of Wilmington, NC Farm Bureau, League of Women Voters, and UNC-Wilmington (comments attached as pages App-311 through App-342). Southern Environmental Law Center staff also submitted a written comment in addition to making verbal comments at the hearing.
RECOMMENDATION
It is the recommendation of the Hearing Officer that the removal of the Swamp (Sw) classification and the removal of a part of a management plan for a Cape Fear River segment in Brunswick and New Hanover Counties, as proposed herein, be approved by the Environmental Management Commission. In making this recommendation, the Hearing Officer has considered
the requirements of General Statutes 150B-21.2, 143-214.1, 143-215, and 143-215.3(a)(1), and Rules 15A NCAC 2B .0100 Procedures for Assignment of Water Quality Standards, 15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters, and 15A NCAC 2B .0227 Water Quality Management Plans. In addition, the Hearing Officer considered the actions of the Environmental Management Commission (EMC) in July 2019 granting a petition for rulemaking
to remove the Swamp classification as well as approving the initiation of rulemaking to remove the Sw designation and a portion of the management plan from the subject waters. Furthermore, all comments received during the comment period for this proposal were considered by the Hearing Officer. Lastly, the Hearing Officer considered the EPA July 2018 disapproval of the Swamp classification and a portion of the management plan for the subject waters, as well as the
federal Clean Water Act requirement that water quality standards, including classifications, which are adopted by states must be approved by EPA.
In taking this action, Rule 15A NCAC 2B .0311, which references the Schedule of Classifications for the Cape Fear River Basin, will show that the Environmental Management
Commission has revised the schedule to remove the Sw reclassification from a section of the Cape Fear River as shown by the yellow highlighted language below:
(t) The Classification Fear River Basin Schedule was amended effective June 30, 2017 with the
reclassification of a section of 18-(71) from upstream mouth of Toomers Creek to a line across
the river between Lilliput Creek and Snows Cut from Class SC to Class SC Sw. A site-specificmanagement strategy is outlined in 15A NCAC 02B .0227.(u)(t) The Cape Fear River Basin Classification Schedule was amended effective September 1,2018 with the reclassification of a portion of Sandy Creek [Index No. 17-16-(1)] (including
tributaries) from a point 0.4 mile upstream of SR-2481 to a point 0.6 mile upstream of N.C. Hwy
22 from WS-III to WS-III CA. The reclassification resulted in an updated representation of thewater supply watershed for the Sandy Creek reservoir.
In addition, in taking this action, Rule 15A NCAC 2B .0227, which references Water Quality
Management Plans, will show that the Environmental Management Commission has revised this
rule to remove a portion of a site-specific management plan for a part of the Cape Fear River as shown by the yellow highlighted language below:
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(b)(2) A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of Index
No.18-(71) from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut shall be protected by the Class SC Sw standards as well as the following site-specific action: All new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges shall be required to provide treatment for oxygen consuming wastes as described in Parts (A) through (C) and (B) of this Subparagraph.
(A) Effluent limitations shall be as follows: BOD5 = 5 mg/l, NH3-N = 1 mg/l and DO = 6 mg/l,or utilize site-specific best available technology on a case-by-case basis for industrial dischargesin accordance with Rule .0406 (e) of this Subchapter.(B) Seasonal effluent limits for oxygen consuming wastes shall be considered in accordancewith Rule .0404 of this Subchapter.
(C) Any new or expanded permitted pollutant discharge of oxygen consuming waste shall notcause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeledin-stream dissolved oxygen at total permitted capacity for all discharges.
The proposed effective date of this proposal is July 1, 2021.
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APPENDICES
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A certification letter from the Senior Deputy Attorney General, dated March 28, 2018, was included in
the submission from North Carolina and concludes that the revision was duly adopted pursuant to State
law and is valid and enforceable in the State of North Carolina. In accordance with 40 CFR section
131.21 ( c ), new and revised state and tribal water quality standards are not effective for CW A purposes
until approved by the EPA. Since the revision added a designated use for this waterbody which was not
supported by the record, the revisions were determined to be inconsistent with the goals of section
l 0l(a) of the CWA and the implementing regulations at 40 CFR part 131.
In general, the EPA is supportive of states developing and utilizing site-specific criteria to support
designated uses, and will approve site-specific criteria for specific designated uses if found to be
protective of such designated uses. If the State would like to pursue the development of a use
attainability analysis or site-specific criteria, the Region 4 EPA staff welcomes the opportunity to work
closely with the State to ensure consistency with the current regulations and develop a path forward.
If you have any questions, please feel free to contact me at ( 404) 562-83 5 7, or have your staff contact
Ms. Lauren Petter at [phone].
Enclosure
cc: Ms. Julie A Grzyb, NC DWR NPDES
Mr. Jeff Manning, NC DWR WQS
Sincerely,
~l~~
Onis "Trey" Glenn, Ill
Regional Administrator
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Executive Summary of Regulatorv Decision
On April 19, 2018, the North Carolina Department of Environmental Quality transmitted several
revisions to the state's water quality standards including a supplemental Swamp classification to a
po11ion of the Lower Cape Fear River (LCFR), and a companion water quality management strategy. As
described more fully below, the Environmental Protection Agency (EPA) has reviewed and is
disapproving three specific revisions pursuant to section 303(c) of the Clean Water Act (CW A).
Two of the three provisions identify the subject segment of the LCFR as having a Swamp classifi cation,
which results in a modification to the state's designated use for this segment. For its review, the EPA
considered the available information that North Carolina provided to support the designated use
revision. Based on the documentation provided by the state, the record was ins ufficient in two ways.
First, it did not provide adequate justificati on that the segment meets the state's definition of "swamp
waters." Second, as part of the 2015 regulatory revisions to Part 131, the regulations clarify that a
structured scientific assessment is required and since the state did not provide such an assessment, the
Swamp designated use change is not appropriate. Therefore, the Agency concludes that the requirements
at 40 CFR § 13 I. IO and section 303(c)(2)(A) have not been met and the revisions to include a Swamp
classification for the LCFR are disapproved. Because the EPA 's disapproval removes a supplemental
classification, no furt her action is required by the EPA, since the default tidal salt water designation
remains in place.
The third provision, which is part o f the companion water qua lity management strategy, provides for a
deviation from the dissolved oxygen criterion when ce11ain conditions are met. The state did not provide
the necessary documentation to show that the provision protects the designated uses and therefore, the
requirements at 40 CFR § 13 1.11 and section 303(c)(2)(A) have not been met and the provision is
disapproved. As with the other provisions, the EPA 's disapproval removes a supplemental component to
the previously existi ng regulatory requirements so n? further action is required by the EPA.
The remainder of this document outlines the full detail of the EPA's review of the revisions received on
April 19, 2018.
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Decision Doc ument of th e United St-ates Environmental Protection Agency
Determination Under Section 303(c) of the Clean Water Act Review of North Carolin a's
Reclassification for Lower Cape Fear River
Introduction
Section 303 of the Clean Water Act (CWA) requires states to establish water quality standards (WQS)
and to submit an y new or revised WQS to the EPA for approval or disapproval. In a letter dated
April 9, 2018, from Linda Culpepper, Interim Director for the Division of Water Resources for the
North Carolina Department of Environmental Quality (NCDEQ), to Trey Glenn, Regional Administrator
of the EPA's Region 4 Office, NCDEQ subm itted new and revised WQS for review by the EPA
pursuant to section 303(c) of the CWA. In a March 28, 2018, letter, 101th Carolina's Senior Deputy
Attorney General certified that the WQS revisions were duly adopted pursuant to North Carolina law.
These materials were received by the EPA on April 19, 2018.
orth Carolina's April 9, 2018, letter transmitted several revisions of the state's regulatory text to
incorporate the addition of a supplemental Swamp (Sw) classification to the already existing
classifications associated with a 15-mile long section of the Lower Cape Fear River (LCFR), as well as
provi de details on a companion water quality management strategy. As described more fully below,
where the EPA has determined that the amendments to 15A NCAC 02B are themselves, new or revised
WQS,1 the EPA has reviewed and is disapproving those WQS pursuant to section 303(c) of the CWA.
Clean Water Act Req uirements
In addition to the requirements of section 303 of the CWA, 33 U.S.C. § 131 3, that states establish WQS
and submit any new or revised standards to the EPA for review and approval or disapproval, the EPA 's
implementing regulations require states to specify appropriate water uses to be achieved and protected
and to adopt water qual ity criteria that protect the designated use. See 40 CFR §§ 131.1 0(a) and
l 3 l .11 (a). Such criteria must be based on a sound scientific rationale and must contain sufficient
parameters or constituents to protect the designated use. Id. For waters with multiple use designations,
the criteria shall suppo11 the most sensitive use. Id. In addition, the EPA 's regulations require that in
establishing criteria, a state shall consider WQS of downstream waters and shall ensure that its WQS
provide for the attainment and maintenance of WQS of downstream waters. See 40 CFR § 131.1 0(b).
A state's submission of water quality criteria must include ( 1) the methods used and analyses conducted
to support WQS revisions, (2) water quality criteria sufficient to protect the designated uses and (3) a
certification by the State Attorney General or other appropriate legal authority within the state that the
WQ were dul y adopted pursuant to state law. See 40 CFR § 131.6.
As defi ned in 40 CFR I 3 I .3(g), a use attainability analysis (UAA) is a structured scientific assessment
of the factors affecting the attainment of the use which may include physical, chemical, biological, and
economic factors as described in § I. 31.1 0(g). States may designate a use, or remove a use that is not an
existing use, if the state conducts a UAA as specified in 40 CFR 131.1 0G) that demonstrates attaining
the use is not feasible because of one of the factors in § 131.1 0(g). A state must conduct a UAA as
described in § 131.3(g) and § 131.1 0(g) whenever the state wishes to designate a sub-category of such a
1 The EPA has provided FAQs on "\'-/hat is a 1ew or Revised Water Quality tandard Under CWA 303(c)(3 )'> .. at
ht1p://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm. The link provides detailed infonnation of such analysis.
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use that requires criteria less stringent than previously applicable. See 40 CFR 131.1 0(j)(2). A state is
not required to conduct a UAA whenever the state designates a sub-category of a use specified in section
IO 1 (a)(2) of the Act that requires criteria at least as stringent as previously applicable. See 40 CFR
13 1.1 0(k)(2).
State Regulatory Process and the Revisions
The revisions addressed in this document were discussed in a public hearing on February 5, 2015 , and
approved for adoption by the Nmih Carolina Environmental Management Commission on September
10, 2015 and May 12, 2016. The first adoption date relates to the addition of 15A NCAC 02B .0311 (t)
and 15A NCAC 02B .0227, which were public noticed on January 2, 20 15 , and associated with the
hearing on February 5, 20 I 5. The second adoption date relates to the revisions to 15A NCAC 02B
.0227, which were requested by the Rule Review Committee counsel, and were subsequently public
noticed on December 15, 2015. No hearing was requested for the 15A NCAC 02B .0227 revisions,
although a 60-day comment period was provided. In general, the revisions incorporate the supplemental
Sw classification to the existing SC (salt water Class C) classification for the segment described below.
The language specifically adopted in 15A NCAC 02B .03 11 (t) states:
(t) The Schedule of Classifications and Water Quality Standards fo r the Catawba River was
amended effective [NoYember L 2015] August I, 2016 with the reclassification of a section of
18-(71) from upstream mouth ofToomers Creek to a line across the river between Lilliput Creek
and Snows Cut from Class SC to Class SC Sw. A site-specific management strategy is outlined
in 15A NCAC 02B .0227 .
The above revision became effective on August 1, 2016, and is further described below.
As noted in I SA NCAC 02B .03 11 (t), there is a management strategy that corresponds to this section.
The language specifically adopted in 15A NCAC 02B .0227(2) states:
(2) A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of Index
No.18-(71) from upstream mouth ofToomers Creek to a line across the river between Lilliput
Creek and Snows Cut shall be protected by the Class SC Sw standards as we ll as the following
site-specific action: All new individual NPDES wastewater discharges and expansions of
existing individual NPDES wastewater discharges shall be required to provide treatment for
oxygen consuming wastes as described in Parts {A) through (C) of this Subparagraph.
(A) Effluent limitations shall be as follows: BODs = 5 mg/L NH3-N = 1 mg/1 and DO= 6
mg/I, or utilize site-specific best available technology on a case-by-case basis for
industrial discharges. discharges in accordance with Rule .0406 {e) of this Subchapter.
(B) Seasonal effluent limits for oxygen consuming wastes fwttij shall be considered oo a
case by case basis in accordance with Rule .0404 of this Subchapter. ·
(C) Anv new or expanded pennitted pollutant discharge of oxygen consuming waste shall
not cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/1 below
the modeled in-stream dissolved oxygen at total pennitted capacity for all discharges.
The original revision becan1e effective November I, 2015, with the final language, indicated with the
tracked changes shown above, becoming effective on July I, 2016.
2
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Background
ln North Carolina, all tidal salt waters are at least covered by the designated use of Class SC. Class SC
waters are protected for aq uatic li fe propagation and mai ntenance of biological integrity (including
fishing and fi sh), wildlife, secondary recreation and any other usages except for primary recreation or
shellfishing. The SC classification is also considered a primary classification. In this instance, the state
has added the Sw label as a supplemental classification to the primary classification. The term "swamp
waters," which is already part o f North Carolina's regulations, is defined as ·· ... those waters which are
classified by the Environmental Management Commission and which are topographically located so as
to generally have very low velocities and other characteristics which are different from adjacent streams
draining steeper topography." They are designated by "Sw" following the water classification.
Revising the designated use of the LCFR to add the Sw supplemental classificatio n to the existing SC
primary c lassification allows lower dissolved oxygen and pH criteria than allowed under the SC
classification, where lower dissolved oxygen o r pH concentrations are caused by natural conditions. In
this rulemaking, the state d id not simultaneously establish the natural cond itions in the river. However,
the ability to have lower concentration limits than the previously applicable numeric criteria fo r pH and
dissolved oxygen also results in a potential fo r lowering of the ambient water quality condition. This
ability to have lower criteria is the component that ties the EPA 's review to 131.1 0U)(2). The following
table summarizes the differences associated with the applicable pH and dissolved oxygen criteria before
and after the revisions.
Classification pH Dissolved Oxygen (DO)
Class SC 6.8 -8.5 5.0 mg/I
Class SC Sw 6.8 -8.5, but as low as 4.3 if 5.0 mg/I, but lower than 5.0 mg/I if
result of natural conditions caused by natural conditions
In addition to the additional criteria that can be applied to this segment, the state has adopted a water
quality management plan to accompany the revisio1is to the designated uses fo r this waterbody. As part
of the documentation in Enclosure 1, North Carolina indicates that a "water quality management plan is
a strategy tailored to protect existing uses or quali ty of waters in specific waters" and 15A NCAC 02B
.0227 specifically provides that: "In implementing the water quality standards to protect the existing
uses ... of the waters of the state or the water quality which supports those uses, the Commission sha ll
develop water quality management plans o n a priority basis to attain, maintain or enhance water quality
throughout the state."
In the submission materials, the state provided the following map, which highlights the location
associated with the revision, and fo r additional infom1ation, shows which adjacent segments have
previously been designated as swamp waters.
3
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15A NCAC 02B .031l(t)
(t) The Schedule of Classifications and Water Quali ty Standards for the Catawba River was
amended effective [November L 2015] August I, 201 6 with the reclassification of a section of
18-(71) from upstream mouth of Toomers Creek to a line across the ri ver between Lilliput Creek
and Snows Cut from Class SC to Class SC Sw. A site-specific management strategy is outlined
in I SA NCAC 028 .0227.
The revision at 15A NCAC 02B .031 1 (t) includes two sentences. The fi rst sentence is the primary
regulatory location where the state added a Sw supplemental classificati on to the specifi ed segment of
the LCFR and is further discussed below. The EPA determ ined that the second sentence is not a new or
revised WQS and therefore is not subject to review under section 303( c) of the CW A.
Since North Carolina's Sw supplemental classification is considered a designated use change, the
requ irements at 40 CFR § 131. l 0(a) ("each stale must specify appropriate water uses to be achieved and
protected") and section 303(c)(2)(A) ("such standards shall be established taking into consideration their
use and value for. .. propagation of fi sh and wildlife ... ") were considered fo r this provision. Pursuant to
40 CFR § I 3 I .6(b), a state's WQS submission must include "methods used and analyses conducted to
support water quality standards revisions." In addition, 40 CFR 13 1.1 0(j)(2) requires a state to conduct a
UAA as described in § I 3 l .3(g) and § 131. l 0(g) whenever the state wishes to designate a sub-category of
such a use that requires criteria less stringent than previously applicable. The following summarizes the
EPA 's review of the first sentence of I SA NCAC 02B .03 11 (t) relative to these regulatory and statutory
requirements.
For its review of the first sentence, the EPA considered the available info rmation that North Carolina
provided to support the designated use revision. A signifi cant consideration was whether the record
suppo11ed the designated use change, the sub-category of swamp waters, as defined by the state. Based
on the documentation provided by the state, the record does not provide adequate justification that thi s
segment meets the state's definition of "swamp waters." The state did not provide documentation
ind icating that the velocities and other characteristics associated with the Sw classification apply to the
LCFR. Nor did North Carolina submit any velocity infonnation showing that the LCFR segment is
different from adjacent streams. The EPA's comment letter dated March 2, 201 5, suggested that the state
provide this additional documentation to support North Carolina's determination that the Sw
classifi cation is appropriate fo r this segment of the LCFR.
A Southern Enviro nmental Law Center comment letter, dated February 12, 2016, included a quote fro m
a representative of the National Oceanographic and Atmospheric Adm inistration indicating DO levels
be low 5.0 mg/L and pH of 4.3 "would be problematic for sturgeons of either species" in the ri ver
because "[fJundarnentally, sturgeons are adapted for life in big, well-flowing rivers ... " This statement,
which speaks to both the presence of sturgeon and their habitat requirements, serves to further hi ghlight
that identify ing this segment as swamp waters is inconsistent with both the common interpretation of
swa·mp and the state's own definiti on of swamp waters. Additionall y, while the state has indicated that
the surrounding tributaries are also designated as swamp waters and therefore influe ncing the water
quali ty in th e 15-mile segment affected by this revision, the state has not sufficiently demonstrated that
this riverine stretch of the LCFR exhibits the same swamp water characteristi cs of these smaller
tributaries. Therefore, fo r the reasons described above the EPA concludes that North Carolina has not
demonstrated that the subject water is '"topographically located so as to generall y have very low
velocities and other characteristics whic h are different from adjacent streams draining steeper
topography."
5
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Further, the Agency considered w hether the state met the requirements of 40 CFR § 131 .10. As part of
the 2015 regulatory revisions to Part 13 1, the regulations clarify that a UAA is required when a state
redesignates a use to one with criteria less stringent than the previously applicable use. S ince the criteria
for pH and DO can be lowered in the case of natural conditions, the addition of the Sw water designated
use does not require criteria at least as stringent as the previously applicable SC use. Given the lack of
support in the record for a structured scientific assessment of the § 131.1 0(g) factors affecting the
attainment of the use, the Sw designated use change is not appropriate.
Based on the EPA's analysis, the Agency concludes that the requirements at 40 CFR § 131 .10 and
section 303(c)(2)(A) have not been met and the revision to include a Sw classification for the LCFR is
disapproved. Because the EPA's disapproval removes a supplemental classification, no further action is
required by the EPA, since the default Class SC designation remains in place. Therefore, North Carolina
sho uld continue to utilize the criteria associated with the Class SC designated use for all CWA purposes.
In general, the EPA is supportive of states developing and utilizi ng site-specific criteria to support
designated uses, and will approve site-specific criteria for specific designated uses if the criteria are
found lo protect such designated uses. lf the state would like to pursue the development of a UAA or
site-specific criteria, the Region 4 EPA staff would be happy to work closely with the state to ensure
consistency with the current regulations and a path forward.
lSA NCAC 02B .0227(b)(2)
(2) A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of Index
No. 18-(71) from upstream mouth of Toomers Creek to a line across the river between Lilliput
Creek and Snows Cut shall be protected by the Class SC Sw standards as well as the following
site-specific action: All new individual NPDES wastewater discharges and expansions of
existing individual NPDES wastewater discharges shall be required to provide treatment for
oxygen consuming wastes as described in Parts (A) through (C) of this Subparagraph.
The revision at I SA NCAC 02B .0227(b )(2) includes two sentences. The first sentence is the secondary
regulatory location where the state added a Sw supplemental classification to the specified segment of
the LCFR and is further discussed below. The EPA determined that the second sentence is not a new or
revised WQS and therefore is not subject to review under sectio n 303(c) of the CWA.
For the same reasons described in the analysis of the first sentence of 15A NCAC 02B .031 1 (t), the first
sentence of I SA NCAC 02B .0227(b)(2) is disapproved and no further action is required by the EPA,
si nce the default Class SC remains in place. Therefore, North Carolina should continue to utilize the
criteria associated with the Class SC designated use for all CW A purposes.
lSA NCAC 02B .0227(b)(2)(A)
(A) Effluent limitations shall be as follows: BODs = 5 mg/I, NI--13-N = I mg/1 and DO= 6
mg/I. or utilize site-specific best available technology on a case-by-case basis for
industrial discharges. discharges in accordance with Rule .0406 (e) of this Subchapter.
The EPA determined that the sentence at 15A NCAC 02B .0227(b)(2)(A) is not a new or revised WQS
and therefore is not subject to review under section 303(c) of the CW A.
6
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ISA NCAC 028 .0227(b)(2)(B)
(B) Seasonal effluent limits for oxygen consuming wastes fwtl+)-shall be considered ett a
case by case basis in accordance with Rule .0404 of this Subchapter.
The EPA determined that the sentence at 15A NCAC 02B .0227(b)(2)(B) is not a new or revised WQS
and therefore is not subject to review under section 303(c) of the CWA.
15A NCAC 02B .0227(b)(2)(C)
(C) Any new or expanded permitted pollutant discharge of oxygen consuming waste shall
not cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/1 below
the modeled in-stream dissolved oxygen at total permitted capacity fo r al) discharges.
The revision at 15A NCAC 02B .0227(6 )(2)(C) allows a lowering of 0.1 mg/I from the specified
condition of "the modeled in-stream dissolved oxygen at total permitting capacity for a ll discharges."
Since this revision impacts the allowable DO concentration in the waterbody, it is a new or revised water
quality standard subject to the EPA's review.
Several other states in Region 4 have adopted provisions which allow a very limited ("O. l mg/L")
lowering of ambient DO concentration fro m a natural background condition. These provisions have
typically been adopted by states because of the variable nature of DO and require a demonstratio n of a
natural dissolved oxygen concentration before allowing the deviation of 0.1 mg/L to occur. In this
instance, the provision allows DO to deviate from a conditio n associated with the total permitted
capacity for all d ischarges. The technical documents used by the EPA 2 to support 0.1 mg/L lowering
provisions in other states is very speci fie to natural conditions, not to total permitted capacity. The
EPA's comment letter to North Carolina, dated March 2, 2015, suggested that the state provide
additional documentation to support this provision. Pages 12-13 of North Carolina's Report of
Proceedings Document provides the following response to comments from the state related to this
prov1s1on:
Point Sources
i. The petition seems to indicate that point sources will have waste load allocati ons developed for
them.
ii. The management plan should include the means by which the 0.1 mg/L cap on lowered DO
will be determined. Important deta ils to establish and get reviewed by stakeholders include the
model to be used, input parameters. season to be modeled. location of compliance, and w hether
compliance is to be based on instantaneous versus average conditions.
iii. How will prohibition against causing DO decreases be enforced it at all ?
iv. Replace "Any" with "All" (at the start of the last sentence of the proposed
management plan) so that the cumulative impact of all additional permitted oxygen consuming
waste is a dimi nishment of less than 0.1 mg/L.
v. Shouldn't allow any discharges to drop the DO levels; require whatever
necessary to prevent that. 10 discharges could drop it 1 mg/I.
2 U.S. Environmental Protection Agency's Ambient Water Quality Criteria for Dissolved Oxygen. EPA 440/5-86-003. {April
1986).
Section 4, Precision and Bias, of the Membrane Electrode Method in Standard Methods for the Examination of Water and
Wastenvater
7
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vi. Need to set limits on industrial faci lities' discharges as with non-industrial
discharges.
• Response: The language within the following response is not proposed to be
incorporated into the rule, but to provide information on how the dissolved oxygen impact from
new or expanding discharges will most likely be assessed by the Division.
The model to be used will be the most currently available three dimensional water
quality model, which at this time, is the Lower Cape Fear dissolved oxygen model,
http://portal.ncdenr.org/c/document_library/get_file?uuid=a84477db-4d83-4cc0-a9b9-
t7da7a6a51 f9&groupld=38364. The model was finalized on October 2009 by the Division of
Water Quality (now known as the Division of Water Resources). The model is calibrated to 2004
observed data and meteorological conditions. Model inputs are described in the report. The most
critical season when dissolved oxygen is expected to be impacted is April-October, and thi s
season will be the focus for model comparison.
The model will first be run with all existing discharges at full permitted capacity.
This run will establish a baseline model for comparison. The baseline model will
then be run with the addition of the proposed new or expanding discharge. Results
from the two model runs will then be evaluated to detem1ine the impact of a new
or expanding discharge, and the entire area that is impacted by the discharge will
be evaluated. If at any time there is a difference between these two model runs
greater than 0.1 mg/L, the discharge will not be allowed. So, this approach will
basically be a time-series comparison based on model output, and prohibition
against causing DO decreases will be enforced via pem1it requirements stated in
the proposed water quality management plan.
When modeling is conducted for a new or expanded discharge (as described directly above), the
term "total permitted capacity" as stated in the proposed water quality management plan is to
include all existing discharges as operating at their full pennit limits plus the new or expanded
discharge operating at its full permit limits. Rather than making the suggested language
replacement as noted in the above fourth comment regarding point sources, DWR proposes to
provide clarity to this issue by adding the following phrase to the end of the last sentence of the
management plan: "for all discharges." Thus, the final sentence of the management plan would
read as follows: "Any new or expanded permitted pollutant discharge of oxygen consuming
waste shall not cause the DO of the receiving water to drop more than 0.1 mg/I below the
modeled in-stream DO at total permitted capacity for all discharges."
The provision adopted by North Carolina raises both technical and legal concerns. Technically, the state
also has not documented how allowing a deviation of 0 .1 mg/L from the condition described in the
provision (modeled in-stream DO at total permitted capacity for all discharges) protects the designated
uses. Independent of that, the provision does not appear to be consistent with past provisions adopted in
other Region 4 states, which allow deviations of DO up to 0.1 mg/L from natural background conditions
as recommended in EPA guidance. Legally, as written, the provision allows a different DO criterion
expectation for National Pollutant Discharge Elimination System (NPDES) faci lities which are new or
expanding. Criteria must apply for all purposes under the CW A, and cannot be implemented for only
some purposes under the CW A, such as NP DES permitting. Because of these concerns, the Agency
concludes that the requirements of40 CFR § 131.11 and section 303(c)(2)(A) have not been met.
8
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15A NCAC 02B .0220 TIDAL SALT WATER QUALITY STANDARDS FOR CLASS SC WATERS In addition to the standards set forth in Rule .0208 of this Section, the following water quality standards shall apply to all Class SC waters. Additional standards applicable to other tidal salt water classifications are specified in Rules .0221 and .0222 of this Section. (1) The best usage of waters classified as SC shall be aquatic life propagation, survival, and maintenance of biological integrity (including fishing, fish, and Primary Nursery Areas (PNAs)); wildlife; secondary contact recreation as defined in Rule .0202 in this Section; and any usage except primary contact recreation or shellfishing for market purposes. All saltwaters shall be classified to protect these uses at a minimum. (2) The best usage of waters classified as SC shall be maintained as specified in this Rule. Any source of water pollution that precludes any of these uses on either a short-term or a long-term basis shall be deemed to violate a water quality standard; (3) Chlorophyll a (corrected): not greater than 40 ug/l in sounds, estuaries, and other waters subject to growths of macroscopic or microscopic vegetation. The Commission or its designee may prohibit or limit any discharge of waste into surface waters if the Director determines that the surface waters experience or the discharge would result in growths of microscopic or macroscopic vegetation such that the standards established pursuant to this Rule would be violated or the intended best usage of the waters would be impaired; (4) Cyanide: 1 ug/l; (5) Dissolved oxygen: not less than 5.0 mg/l, except that swamp waters, poorly flushed tidally influenced streams or embayments, or estuarine bottom waters may have lower values if caused by natural conditions; (6) Enterococcus, including Enterococcus faecalis, Enterococcus faecium, Enterococcus avium and Enterococcus gallinarium: not exceed a geometric mean of 35 enterococci per 100 ml based upon a minimum of five samples taken over a 30-day period. For the purposes of beach monitoring and notification, "Coastal Recreational Waters Monitoring, Evaluation and Notification" regulations (15A NCAC 18A .3400), available free of charge at: http://www.ncoah.com/, are incorporated by reference including subsequent amendments and editions; (7) Floating solids, settleable solids, or sludge deposits: only such amounts attributable to sewage, industrial wastes, or other wastes as shall not make the waters unsafe or unsuitable for aquatic life and wildlife, or impair the waters for any designated uses; (8) Gases, total dissolved: not greater than 110 percent of saturation; (9) Metals: (a) With the exception of mercury and selenium, acute and chronic tidal salt water quality standards for metals shall be based upon measurement of the dissolved fraction of the metals. Mercury and selenium shall be based upon measurement of the total recoverable metal; (b) With the exception of mercury and selenium, acute and chronic tidal saltwater quality aquatic life standards for metals listed in this Sub-Item shall apply as a function of the pollutant's water effect ratio (WER). The WER shall be assigned a value equal to one unless any person demonstrates to the Division in a permit proceeding that another value is developed in accordance with the "Water Quality Standards Handbook: Second Edition" published by the US Environmental Protection Agency (EPA-823-B-12-002). Alternative site-specific standards may also be developed when any person submits values that demonstrate to the Commission that they were derived in accordance with the "Water Quality Standards Handbook: Second Edition, Recalculation Procedure or the Resident Species Procedure." (c) Acute and chronic tidal salt water quality metals standards shall be as follows: (i) Arsenic, acute: WER∙ 69 ug/l; (ii) Arsenic, chronic: WER∙ 36 ug/l; (iii) Cadmium, acute: WER∙ 40 ug/l; (iv) Cadmium, chronic: WER∙ 8.8 ug/l; (v) Chromium VI, acute: WER∙ 1100 ug/l; (vi) Chromium VI, chronic: WER∙ 50 ug/l; (vii) Copper, acute: WER∙ 4.8 ug/l; (viii) Copper, chronic: WER∙ 3.1 ug/l;
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(ix) Lead, acute: WER∙ 210 ug/l; (x) Lead, chronic: WER∙ 8.1 ug/l; (xi) Mercury, total recoverable, chronic: 0.025 ug/l; (xii) Nickel, acute: WER∙ 74 ug/l; (xiii) Nickel, chronic: WER∙ 8.2 ug/l; (xiv) Selenium, total recoverable, chronic: 71 ug/l; (xv) Silver, acute: WER∙ 1.9 ug/l; (xvi) Silver, chronic: WER∙ 0.1 ug/l; (xvii) Zinc, acute: WER∙ 90 ug/l; and (xviii) Zinc, chronic: WER∙ 81 ug/l; (d) Compliance with acute instream metals standards shall only be evaluated using an average of two or more samples collected within one hour. Compliance with chronic instream metals standards shall only be evaluated using averages of a minimum of four samples taken on consecutive days, or as a 96-hour average; (10) Oils, deleterious substances, or colored or other wastes: only such amounts as shall not render the waters injurious to public health, secondary recreation, aquatic life, and wildlife or adversely affect the palatability of fish, aesthetic quality, or impair the waters for any designated uses. For the purpose of implementing this Rule, oils, deleterious substances, or colored or other wastes shall include substances that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, as described in 40 CFR 110.3, incorporated by reference including any subsequent amendments and editions. This material is available free of charge at https://www.govinfo.gov. (11) Pesticides: (a) Aldrin: 0.003 ug/l; (b) Chlordane: 0.004 ug/l; (c) DDT: 0.001 ug/l; (d) Demeton: 0.1 ug/l; (e) Dieldrin: 0.002 ug/l; (f) Endosulfan: 0.009 ug/l; (g) Endrin: 0.002 ug/l; (h) Guthion: 0.01 ug/l; (i) Heptachlor: 0.004 ug/l; (j) Lindane: 0.004 ug/l; (k) Methoxychlor: 0.03 ug/l; (l) Mirex: 0.001 ug/l; (m) Parathion: 0.178 ug/l; and (n) Toxaphene: 0.0002 ug/l; (12) pH: shall be between 6.8 and 8.5, except that swamp waters may have a pH as low as 4.3 if it is the result of natural conditions; (13) Phenolic compounds: only such levels as shall not result in fish-flesh tainting or impairment of other best usage; (14) Polychlorinated biphenyls: (total of all PCBs and congeners identified) 0.001 ug/l; (15) Radioactive substances, based on at least one sample collected per quarter: (a) Combined radium-226 and radium-228: the average annual activity level for combined radium-226, and radium-228 shall not exceed five picoCuries per liter; (b) Alpha Emitters: the average annual gross alpha particle activity (including radium-226, but excluding radon and uranium) shall not exceed 15 picoCuries per liter; (c) Beta Emitters: the average annual activity level for strontium-90 shall not exceed eight picoCuries per liter, nor shall the average annual gross beta particle activity (excluding potassium-40 and other naturally occurring radionuclides exceed 50 picoCuries per liter, nor shall the average annual activity level for tritium exceed 20,000 picoCuries per liter; (16) Salinity: changes in salinity due to hydrological modifications shall not result in removal of the functions of a PNA. Projects that are determined by the Director to result in modifications of salinity such that functions of a PNA are impaired shall employ water management practices to mitigate salinity impacts;
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(17) Temperature: shall not be increased above the natural water temperature by more than 0.8 degrees C (1.44 degrees F) during the months of June, July, and August, shall not be increased by more than 2.2 degrees C (3.96 degrees F) during other months, and shall in no case exceed 32 degrees C (89.6 degrees F) due to the discharge of heated liquids; (18) Trialkyltin compounds: 0.007 ug/l expressed as tributyltin; (19) Turbidity: the turbidity in the receiving water shall not exceed 25 Nephelometric Turbidity Units (NTU); if turbidity exceeds this level due to natural background conditions, the existing turbidity level shall not be increased. Compliance with this turbidity standard shall be deemed met when land management activities employ Best Management Practices (BMPs), defined by Rule .0202 of this Section, recommended by the Designated Nonpoint Source Agency, as defined by Rule .0202 of this Section.
History Note: Authority G.S. 143-214.1; 143-215.3(a)(1);
Eff. October 1, 1995;
Amended Eff. January 1, 2015; May 1, 2007; August 1, 2000;
Readopted Eff. November 1, 2019.
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15A NCAC 02B .0227 WATER QUALITY MANAGEMENT PLANS (a) In implementing the water quality standards to protect the "existing uses" [as defined by Rule .0202 of this Section] of the waters of the State or the water quality that supports those uses, the Commission shall develop water quality management plans on a priority basis to attain, maintain or enhance water quality throughout the State. Additional specific actions deemed necessary by the Commission to protect the water quality or the existing uses of the waters of the State shall be specified in Paragraph (b) of this Rule. These actions may include anything within the powers of the Commission, as set forth in G.S. 143-21 and G.S. 143B-282. The Commission may also consider local actions that have been taken to protect a waterbody in determining the appropriate protection options to be incorporated into the water quality management plan. (b) All waters determined by the Commission to be protected by a water quality management plan are listed with specific actions either in Rules .0601 - .0608 of this Subchapter that address the Goose Creek watershed (Yadkin Pee-Dee River Basin) or as follows: (1) The Lockwoods Folly River Area (Lumber River Basin), which includes all waters of the lower Lockwoods Folly River in an area extending north from the Intracoastal Waterway to a line extending from Genoes Point to Mullet Creek, shall be protected by the specific actions described in Parts (A) through (D) of this Subparagraph. (A) New development activities within 575' of the mean high water line that require a Sedimentation Erosion Control Plan or a CAMA major development permit shall comply with the low density option of the coastal stormwater requirements as specified in 15A NCAC 02H .1005(3)(a). (B) New or expanded NPDES permits shall be issued only for non-domestic, non-industrial process type discharges, such as non-industrial process cooling or seafood processing discharges. Pursuant to 15A NCAC 02H .0111, a public hearing shall be mandatory for any proposed (new or expanded) NPDES permit to this protected area. (C) New or expanded marinas shall be located in upland basin areas. (D) No dredge or fill activities shall be allowed if those activities would result in a reduction of the beds of "submerged aquatic vegetation habitat" or "shellfish producing habitat" that are defined in 15A NCAC 03I .0101, except for maintenance dredging, such as that required to maintain access to existing channels and facilities located within the protected area or maintenance dredging for activities such as agriculture. (2) A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of Index No.18-(71) from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut shall be protected by the Class SC Sw standards as well as the following site-specific action: All new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges shall be required to provide treatment for oxygen consuming wastes as described in Parts (A) through (C) of this Subparagraph. (A) Effluent limitations shall be as follows: BOD5 = 5 mg/l, NH3-N = 1 mg/l and DO = 6 mg/l, or utilize site-specific best available technology on a case-by-case basis for industrial discharges in accordance with Rule .0406 (e) of this Subchapter. (B) Seasonal effluent limits for oxygen consuming wastes shall be considered in accordance with Rule .0404 of this Subchapter. (C) Any new or expanded permitted pollutant discharge of oxygen consuming waste shall not cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream dissolved oxygen at total permitted capacity for all discharges.
History Note: Authority G.S. 143-214.1; 143-215.8A;
Eff. October 1, 1995;
Amended Eff. June 30, 2017; January 1, 1996;
Readopted Eff. November 1, 2019.
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STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

REPORT OF PROCEEDINGS ON THE PROPOSED RECLASSIFICATION
OF A CAPE FEAR RIVER SEGMENT, IN BRUNSWICK AND NEW HANOVER COUNTIES (BROAD RIVER BASIN) FROM SC TO SC Sw
WITH A WATER QUALITY MANAGEMENT PLAN

PUBLIC HEARING FEBRUARY 5, 2015 WILMINGTON, NORTH CAROLINA
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Table of Contents

Page
SUMMARY AND RECOMMENDATION ....................................................................................1
SUMMARY ...................................................................................................................................1
Implications of the Proposed Reclassification and Water Quality Management Plan .................4
Public Hearing Process and Comments Received ........................................................................5
RECOMMENDATION ...............................................................................................................13

APPENDICES ............................................................................................................................. a-1
Request for Reclassification ..................................................................................................... a-2
15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters ................... a-65
15A NCAC 2B .0227 Water Quality Management Plans....................................................... a-68
Fiscal Analysis ........................................................................................................................ a-69
Public Announcement ............................................................................................................. a-78
Request for Publication (Regarding Public Announcement) Sent to Newspapers ................. a-80
Hearing Officer Designation ................................................................................................... a-81
List of Public Hearing Attendees ............................................................................................ a-82
Letters Providing Positive Stance on Proposal ....................................................................... a-83
Letters Providing Neutral Stance on Proposal ........................................................................ a-99
Letters Providing Negative Stance on Proposal.................................................................... a-104

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1
SUMMARY AND RECOMMENDATION
SUMMARY
The Lower Cape Fear River Program requested that a Cape Fear River segment in Brunswick and New Hanover Counties be reclassified in order to receive the supplemental Class Swamp (Sw) designation (request package attached as pages a-2 through a-64). The reclassification request for these waters states that “… the DO standard of 5 mg/L for the LCFRE [Lower Cape
Fear River Estuary] is not appropriate since it is not achieved a significant portion of the time as
a result of natural drainage from riverine wetlands and salt marshes.” In addition, the request states that “from a regulatory standpoint, a straightforward way to deal with this issue is to reclassify the area with the supplemental Sw classification.”
The subject waters are proposed to be reclassified from Class SC to Class SC Sw with a water
quality management plan. The SC classification is a primary classification whereas the Sw classification is a supplemental classification that can accompany a primary classification. The standards that must be met before tidal salt waters can be classified to Sw are outlined in Rule 15A NCAC 2B .0220, Tidal Salt Water Quality Standards for Class SC Waters (rule attached as
pages a-65 through a-67). These standards include, for Sw waters, dissolved oxygen levels of
less than 5.0 mg/l if caused by natural conditions and pH levels of as low as 4.3 if resulting from natural conditions. The conditions to be met before waters can receive a water quality management plan are outlined in Rule 15A NCAC 02B .0227, Water Quality Management Plans (rule attached as page a-68). 15A NCAC 02B .0227 states that “In implementing the water
quality standards to protect the existing uses…of the waters of the state or the water quality
which supports those uses, the Commission shall develop water quality management plans on a priority basis to attain, maintain or enhance water quality throughout the state. Additional specific actions deemed necessary by the Commission to protect the water quality or the existing uses of the waters of the state shall be specified in…this Rule. These actions may include
anything within the powers of the Commission.” The actions proposed within 15A NCAC 02B
.0227 for the subject waters codify the current permitting policy already in place for new individual NPDES wastewater discharges and expansion of existing individual NPDES wastewater discharges to the subject waters, which is designed to address water quality and existing uses of these waters.

This proposal concerns the portion of the Cape Fear River from the mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut, where the Intracoastal Waterway (ICW) meets the river (Figure 1 on Page 2 and Table 1 on Page 3). In these waters as well as adjacent waters, there are several tidal saltwater species, including the federally endangered
Shortnose Sturgeon and Atlantic Sturgeon, and the related Marine Fisheries Commission
designations of Primary Nursery Area, or PNA, for these species; PNA waters are by definition High Quality Waters, or HQW, per 15A 2B .0101. In addition, the types of land cover occurring adjacent to the proposed river segment are comprised of wetlands, some developed lands, other open waters, forest lands, and shrub/scrub lands. Furthermore, the segments of the Cape Fear
River directly above and below the river segment to be reclassified are classified C Sw and SC,
respectively. The named tributaries flowing to this river segment are currently classified either SC Sw, SC, Water Supply-IV Critical Area, or C Sw, and the majority of these tributaries carry
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the Sw designation. Within the subject waters, there are eight existing individual NPDES
wastewater discharges. Lastly, according to the 2014 North Carolina 303(d) list, the most recently EPA approved list, the river segment has been determined to be impaired for water quality parameters including dissolved oxygen and pH.

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TABLE 1. PROPOSED AMENDMENT TO THE CAPE FEAR RIVER BASIN SCHEDULE OF CLASSIFICATIONS
AS REFERENCED IN TITLE 15A NORTH CAROLINA ADMINISTRATIVE CODE 02B .0311
Name of
Stream
Description Existing
Class
Description of Recommended Segment Recommended
Class
Cape Fear
River
From upstream
mouth of
Toomers Creek
to a line across
the river from
Snows Point
(through Snows
Marsh) to
Federal Point
SC From upstream mouth of Toomers Creek to
a line across the river between Lilliput
Creek and Snows Cut

From a line across the river between
Lilliput Creek and Snows Cut to a line
across the river from Snows Point (through
Snows Marsh) to Federal Point
SC Sw

SC

Standards applicable to Class SC waters, which include the subject segment, provide a base of protection to all of the state’s tidal salt waters. The supplemental Sw classification allows lower DO levels, where such levels result from natural conditions, below the 5 mg/l standard for Class SC waters. The Sw supplemental classification also allows pH to reach as low as 4.3, provided it
is the result of natural conditions. Standard allowable range for pH in Class SC waters is from 6.8 – 8.5. The proposed management plan to accompany the proposed Sw designation contains effluent limits that new individual NPDES wastewater discharges and expansions of existing individual
NPDES wastewater discharges within the river segment would have to meet regarding oxygen consuming wastes. These limits are similar to the limits for High Quality Waters, because as mentioned above, the subject waters are HQW by virtue of being designated as a Primary Nursery Area. The proposed water quality management plan is consistent with and codifies the current permitting policy already in place for new individual NPDES wastewater discharges and
expansions of existing individual NPDES wastewater discharges to the subject waters. The proposed reclassification in partnership with the proposed management plan provides a path forward for these discharges and enables the community to plan accordingly. There are currently no known planned new individual NPDES wastewater discharges and one
planned expansion of an existing individual NPDES wastewater discharge in the subject waters, which already meets the proposal’s requirements for expansions of existing individual NPDES wastewater discharges. A fiscal analysis for this proposal was prepared and there was no quantifiable cost or benefit determined to be a result of the proposal. The fiscal analysis with the proposed rules is attached as pages a-69 through a-77.

The estimated effective date of this reclassification is November 1, 2015.

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Implications of the Proposed Reclassification and Water Quality Management Plan Water quality standards for Class Sw waters as well as specific waters with water quality management plans are outlined in the following rules (pages a-65 through a-68):
 15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters
 15A NCAC 2B .0227 Water Quality Management Plans
Rule 15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters, describes regulations pertaining to Class SC waters (rule attached as pages a-65 through a-67). This rule
features regulations regarding the best usage of these waters, conditions related to best usage,
quality standards applicable to all tidal salt waters (for parameters such as radioactive substances, salinity, temperature and turbidity) and action levels for toxic substances (such as copper, silver, and zinc). This rule also includes DO as well as pH standards for Class SC waters, and allows for deviation from those standards for those two parameters if caused by natural conditions in Class
Sw waters. Currently the dissolved oxygen standard is 5 mg/l, and the pH standard is a range of
6.8-8.5 for Class SC waters. The standards associated with the Sw designation are narrative standards, which supplement the SC numeric standards.
The result of a Sw reclassification for the Lower Cape Fear segment of interest, per the portions of this rule that address standards in Sw waters, will be the allowance, if caused by natural
conditions, for the pH of the subject waters to reach as low as 4.3 and, if caused by natural
conditions, the DO to be lower than 5 mg/l. Thus, if reclassified, additional ambient DO & pH standards will apply in the subject waters under natural conditions. Table 2 summarizes and compares the requirements of the existing and proposed classifications. TABLE 2. SUMMARY AND COMPARISON OF EXISTING AND PROPOSED CLASSIFICATIONS’ STANDARDS
Classification pH Dissolved Oxygen (DO)
Class SC (Existing) 6.8 – 8.5 5.0 mg/l
Class SC Sw (Proposed) 6.8 – 8.5, but as low as 4.3 if result of natural conditions 5.0 mg/l, but lower than 5.0 mg/l if caused by natural conditions

Rule 15A NCAC 2B .0227 Water Quality Management Plans, allows the Environmental Management Commission to develop water quality management plans tailored to protection of existing uses or quality of waters in specific waters (rule attached as page a-68). Specific additional actions that the EMC considers necessary to protect the existing quality or uses of
specific waterbodies are described in this rule, and can include any actions within the
Commission’s powers. Currently there is one management plan within this rule, and it is for the Lockwoods Folly River Area within the Lumber River Basin.
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The proposed management plan to accompany the proposed Sw supplemental classification
contains effluent limits that new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges within the river segment would have to meet regarding oxygen consuming wastes. These limits are more stringent than the standards regarding oxygen consuming wastes for Class SC or Class Sw waters, and in fact, are very similar to the limits for one of the state’s most restrictive supplemental classifications, High
Quality Waters, because as mentioned above, the subject waters are HQW by virtue of being designated as a Primary Nursery Area. For non-industrial facilities, effluent limits of 5 mg/l for Biological Oxygen Demand (BOD)5, 1 mg/l for Ammonia, and 6 mg/l for dissolved oxygen would apply according to the proposed
management plan. For industrial discharges, site-specific best available technology on a case-by-case basis would be utilized to determine the limits for BOD5, Ammonia and DO according to 15A NCAC 02B .0404 and .0406. For new and expanded individual NPDES wastewater facilities, the management plan includes
consideration of seasonal effluent limits on a case-by-case basis, and also includes the following stipulation: Any new or expanded permitted pollutant discharge of oxygen consuming waste shall not cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream dissolved oxygen at total permitted capacity.
Please note that the proposed management plan just described is consistent with and codifies the current permitting policy already in place for new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges to the subject waters. Furthermore, there are currently no known planned new individual NPDES wastewater discharges and one planned expansion of an existing individual NPDES wastewater discharge in
the subject waters, which already meets the proposal’s requirements. Existing & future communities in this area and above-mentioned facilities also would be affected by this proposal from the perspective that the proposal would aid them in planning for the future, because it would let them know what to expect in terms of permitting.
The proposed reclassification and water quality management plan would not impact the following activities: forestry practices, docks and other water dependent structures, development activities, recreational use, agricultural activities, animal operations, land application activities, landfill operations, and dam and water resource projects. Lastly, it is unknown if and/or to what extent the Sw supplemental standards and water quality management plan would affect the
subject water’s ambient dissolved oxygen and pH levels; future water quality monitoring and analysis would help address this issue.
Public Hearing Process and Comments Received
In accordance with North Carolina General Statutes, a public hearing was held on February 5th,
2015, in Wilmington, North Carolina (New Hanover County). Notice of the proposal and hearing, including the proposed rule amendment, was published in the January 2nd, 2015, North Carolina Register (Volume 29, Issue 13) (proposed rule amendment attached as pages a-73 through a-77).
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Announcements of the public hearing (announcement attached as pages a-78 and a-79) were sent
to the Water Resources Rule-Making Announcements mailing list, the Division of Water Resources Rules e-mail list, staff (including library staff) of the local governments with jurisdiction over land adjacent to the subject waters, wastewater facilities discharging directly to the subject waters, and to other persons potentially interested in the proposal, including staff of interest groups such as The Nature Conservancy, Cape Fear River Watch, Waterkeeper Alliance,
and Cape Fear River Assembly, staff of federal and state agencies, and legislators within North Carolina. The public announcement and request for publication were submitted on January 9, 2015 to five local newspapers, Coastal Review Online, Brunswick Beacon, Star News, Wilmington Journal, and Port City Daily (newspaper request for publication attached as page a-80).
Julie Wilsey, a member of the Environmental Management Commission, served as hearing officer (hearing officer designation letter attached as page a-81).Twenty-four people registered at the public hearing (list of attendees attached as page a-82). Of those 24 people, all but two people were representing themselves or provided the organization they were representing on their registration forms: Aqua NC, Cape Fear River Partnership, Cape Fear River Watch, Cape
Fear Public Utility Authority (CFPUA), CH2M Hill, City of Wilmington, Duke Environmental Policy Clinic, General Electric Company, International Paper, New Hanover County, University of North Carolina – Wilmington and Vopak Terminals.
Opening comments and slides were presented by DWR staff to provide a brief overview of the DWR classification program and detailed information about the proposed reclassification and
water quality management plan. Then public comments on the proposal were taken.
Ten individuals registered to make comments at the hearing and all 10 people did provide oral comments. The speakers stated that they represented Cape Fear River Watch, CFPUA, Cape Fear Riverkeeper, CH2M Hill, Duke Environmental Policy Clinic, Lower Cape Fear River Program (LCFRP), themselves, and Waterkeeper Alliance. Four of the 10 speakers supported the
proposal, and the remaining speakers were against the proposal.
Written comments were accepted for the proposal from January 2, 2015 through March 3, 2015, and a total of 312 written comments were received. Seven distinct letters providing a positive position were received from representatives of the CFPUA, LCFRP, City of Wilmington, and NC Farm Bureau Federation, Inc. (letters providing a positive position attached as pages a-83
through a-98). Two of these positive comments were written by one person who, along with three others who provided a positive position in their written comments, spoke at the hearing. In addition, two letters providing a neutral position from the U.S. EPA and U.S. Fish and Wildlife Service were received (letters providing a neutral stance attached as pages a-99 through a-103). Lastly, 303 letters providing a negative position were received (letters providing a negative
stance attached as pages a-104 through a-217). Within the 303 letters were four template letters
utilized by citizens. More specifically, 69 copies of one template letter and eight variations of it, 55 copies of a second template letter and 13 variations of it, 71 copies of a third template letter and 12 variations of it, and 66 copies of a fourth template letter and three variations of it were received for a total of 297 letters; 12 people each submitted two of these letters, and one person
submitted four of these letters. The remaining six distinct letters providing a negative position
were received from parties representing Waterkeeper Alliance, Cape Fear River Watch, Cape Fear Riverkeeper, NC Conservation Network, American Rivers, NC Division of Coastal Management, and two citizens; two of these comments were from people who spoke at the
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hearing. (The six distinct letters are attached as pages a-104 through a-176, one copy of the first
template letter is attached as page a-177 followed by the eight variations of it on pages a-178 through a-186, one copy of the second template letter is attached as page a-187 followed by the 13 variations of it on pages a-188 through a-200, one copy of the third template letter is attached as page a-201 followed by the 12 variations of it on page a-202 through a-213, and one copy of the fourth template is attached as page a-214 followed by three variations of it on page a-215
through a-217.) DWR has retained and will continue to retain all comment letters received during the comment period. Summary of Concerns & Staff Responses The comments received did contain several issues of concern. Each issue of concern (in italics), with a few comments demonstrating that concern, is provided below, and is followed by a DWR response:
1. Concern: Purpose of proposal is flawed
 Proposal is trying to sweep away the acts of big corporations.
 DWR is proposing to reclassify because its efforts to control pollution from point sources will not allow segment to meet present DO standard.
 Petitioners do not want to implement pollution controls.
 Proposal is attempt to save money and factory farms.
Response: The purpose of the reclassification and water quality management plan is
three-fold: (1) to add ambient DO and pH standards applicable under natural conditions to the subject waters, (2) to codify current permitting policy already in existence for new individual NPDES wastewater discharges and expansions of individual NPDES wastewater discharges; and (3) to provide a path forward for dischargers’ and communities’ planning efforts.

2. Concern: Request lacks scientific support to show low DO due to natural conditions
 Major sources of oxygen-demanding materials are due to pollution from human activities consisting of point sources including CAFOs, especially swine livestock
waste.
 Non-Point Sources of oxygen-demanding materials are large & reduce DO levels.
 Bowen Model does not support that natural conditions cause low DO, & shows 70% load reduction of oxygen-demanding materials leads to 1% summer DO
violations.
Response: The following DWR comments are based on a model sensitivity test described in the Lower Cape Fear Modeling Report* that reduced both river loading and sediment oxygen demand (SOD) by the same percentage (70%). It is important to note that SOD is
not predicted by the model, but rather is set by the user based on limited data. The report recognizes that “reductions in river loading would probably also reduce sediment oxygen demand in the long-term but with prescribed SOD there was no way to predict the
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magnitude of the changes in SOD, or the time scale of those changes.” Therefore, the
model is not an appropriate tool to evaluate the impact of upstream load reduction on SOD. The DWR Modeling and Assessment Branch has run model scenarios reducing only loading from the upstream boundary conditions as well as wastewater treatment plants
(WWTPs) within the model domain to evaluate the impact of loading without changing SOD. Results are included in the figure below. As can be seen in the figure, reducing upstream loading by 95% or even 99% and turning loading from WWTPs within the model domain completely off, there is still more than a
10% exceedance in the DO standard of 5 mg/L. This underscores the significant impact SOD has on DO in this system. * Development and Use of a Three-Dimensional Water Quality Model to Predict Dissolved Oxygen Concentrations in the Lower Cape Fear River Estuary, North Carolina.
James D. Bowen, et al. Oct 2009.

Percentile Plot of Model Predicted Dissolved Oxygen Concentrations During the Summer2004 for the Base Case and Four River Load Reduction Scenarios. The y-axis indicates the fraction of
values below the corresponding DO concentration (mg/L) indicated on the x-axis.
3. Concern: Not meeting regulatory requirements to reclassify
 Waters are not swamp waters per state’s definition (velocity, pH, and adjacent stream characteristics).
 Best uses will not be attained via the proposal and required UAA (Use Attainability Analysis) would show uses can be met.
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 Proposal will reduce water quality standards, leading to discharges eliminating
protections, and more pollution, water quality standard violations, degradation, and jeopardization of uses.
 Fiscal Analysis contains inaccuracies and does not address all costs and benefits.
 Commission has not considered all pertinent matters prior to granting
reclassification request.
 Proposal does not fulfill duties entrusted to Commission by the state’s laws and violates those laws to protect and conserve waters.
Response: It is important to note that the majority of the tributaries to the subject waters as well as the part of the Cape Fear River upstream and adjacent to the subject waters
carry the Sw supplemental classification, and that other segments of large rivers in
coastal North Carolina and the tributaries associated with those river segments carry the Sw supplemental classification. Just because these waters carry the Sw classification does not mean that the pH of these waters is 4.3 or that the DO is less than 5.0 mg/l. As a reminder, in Sw waters, dissolved oxygen levels of less than 5.0 mg/l are only allowed if
caused by natural conditions and pH levels as low as 4.3 are only allowed if caused by
natural conditions. A UAA is required when a state proposes to remove a use and associated protections, including standards, from a waterbody. This proposal will not remove a use or associated
protections from the subject waters; it will provide supplemental water quality standards
that will be applicable if caused by natural conditions. Therefore, a UAA is not required for this proposal, the proposal is not violating state laws that govern the duties of the Commission regarding protection of waters, and the Commission has been provided all needed information that is typically provided for reclassification rule-making requests.
This information includes a fiscal analysis, which was completed according to state
requirements using available fiscal information to assess costs and benefits to potentially impacted parties using the subject waters.
4. Concern: Proposal does not correct or reduce pollution
 Proposal is an attempt to evade CWA charge to correct water quality problems through TMDL.
 Proposal fails to correct water pollution created by upstream animal operations
causing the DO impairments and does not address hogs in upper watershed and
manure that’s been brought here.
 Reclassification would cover failure of DENR regarding animal farms.
 The reclassification does not adequately address non-point contributions of BOD
or nutrients; the plan does not address non-point sources. Any reclassification
must include language aimed at reducing non-point pollution sources.
 It would be helpful if the management plan included a path forward on how to improve lower Cape Fear River DO concentrations through watershed-wide
waste load modeling, land use planning, and permitting.
 The plan includes no reduction of the effects of pollutant loading by existing point sources or nonpoint sources.
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Response: There are on-going efforts in the Cape Fear River Basin to assess pollution sources and investigate ways to address pollution sources, i.e. as discussed in the Cape Fear Basinwide Plan and Nutrient Criteria Development Plan (NCDP). The proposed reclassification and water quality management plan are designed to add supplemental ambient DO and pH standards that will be applicable if caused by natural conditions, and
codify permitting requirements for new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges to the subject waters for planning purposes, respectively. The proposal does not include language about correcting or reducing pollution as it is not designed to be a water quality restoration plan. 5. Concern: Dredging may impact DO conditions
 The reclassification request mentions that further channel dredging “also showed a significant impact [on DO conditions.]” Can the State provide additional
information on this analysis and how it was considered?
Response: The statement cited in the request was a typo and should have stated that the impact of further channel dredging on DO conditions was evaluated and considered insignificant. Furthermore, the proposed Sw reclassification and water quality
management plan would have no impact on dredging.

6. Concern: Removal of Sw reclassification in 1980’s was done correctly
 The state removed the Sw class as it was immediately upstream of SA waters and
admitted the original Sw designation was due to inadequate consideration of uses.
 In the October 6, 1981 report of proceedings, a staff representative indicated that the streams “had improved enough so that [the streams can] meet the C standard
without being allowed the designated exception.” It is recommended that the state
further address this previous change which removed the swamp classification as
it relates to the proposed change, reverting it back to a swamp classification.
Response: The above-mentioned October 6, 1981 document addresses specific waters in
the Cape Fear River Basin, but those waters do not include any portion of the Cape Fear
River, and those waters are located in counties within the Piedmont portion of the state. Furthermore, in an April 7, 1981 report of proceedings, several waters were proposed to be reclassified to remove the Sw designation from waters that also had the SA designation because of the difference between the pH standards for SA waters and Sw
waters. Some waters that were included in this process, including the subject waters, were
classified as SC Sw, rather than SA Sw, before this process yet their Sw classification was removed due to this process. No information regarding why the Sw class was removed from the subject waters is available in the April 7, 1981 report of proceedings or has been found by DWR staff who researched this issue.

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7. Concern: Questions and suggestions for proposed language regarding implementation
 Natural Conditions and DO Bound i. Who decides what are natural conditions and by what criteria? ii. The management plan should discuss how DO use support determinations will be made. In short, some way to define a new floor with which to
evaluate monitoring and compliance data should be established.
iii. Is there any limitation on the duration or frequency by which a measured DO level can be below the 5 mg/L criterion? How will the assessment of the exceedances below 5 mg/L be determined to be based on natural conditions? Consider providing clarity through the adopted revisions.
iv. The State could consider a specific lower bound for DO, or alternatively a
seasonally, or specific month(s), based lower bound for DO. The State could consider revising the DO and pH language indicating that sources which are not natural will still need to be considered and addressed during activities which consider in-stream and downstream
water quality, like permitting or future criteria development efforts.
 Response: The state’s current use assessment methodology is not contained within the state’s rules, and thus, language to address this methodology is not included in the proposed rules. In order to do a use support assessment of these
waters, a method would need to be developed that accounts for management
strategy targets and the Sw reclassification. As a reminder, in Sw waters, dissolved oxygen levels of less than 5.0 mg/l are only allowed if caused by natural conditions and pH levels as low as 4.3 are only allowed if caused by natural conditions. In addition, as a reminder, the purpose of the management plan is to
codify current permitting policy already in existence for new individual NPDES
wastewater discharges and expansions of individual NPDES wastewater discharges and to provide a path forward for dischargers’ and communities’ planning efforts.
 Monitoring
i. How frequently will water be monitored? The plan includes no
monitoring. ii. The State could clarify whether the 4.3 (for pH) represents an instantaneous measurement; if something different is intended that should also be documented and supported.
iii. Ensure that the influence from anthropogenic sources is still addressed
and continues to be monitored.
iv. How will the state identify the cause of potential future decreases of DO levels?
 Response: No changes to the current monitoring strategy as well as the current permitting and compliance strategies for the subject waters will occur due to this proposal; thus, pH will continue to be measured in an instantaneous manner. As mentioned above, there are on-going efforts in the Cape Fear River Basin to
assess pollution sources and investigate ways to address pollution sources, i.e. as
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discussed in the Cape Fear Basinwide Plan and Nutrient Criteria Development
Plan (NCDP).
 Point Sources i. The petition seems to indicate that point sources will have waste load
allocations developed for them.
ii. The management plan should include the means by which the 0.1 mg/L cap on lowered DO will be determined. Important details to establish and get reviewed by stakeholders include the model to be used, input parameters, season to be modeled, location of compliance, and whether
compliance is to be based on instantaneous versus average conditions.
iii. How will prohibition against causing DO decreases be enforced it at all? iv. Replace “Any” with “All” (at the start of the last sentence of the proposed management plan) so that the cumulative impact of all additional permitted oxygen consuming waste is a diminishment of less than 0.1
mg/L.
v. Shouldn’t allow any discharges to drop the DO levels; require whatever
necessary to prevent that. 10 discharges could drop it 1 mg/l. vi. Need to set limits on industrial facilities’ discharges as with non-industrial discharges.

 Response: The language within the following response is not proposed to be incorporated into the rule, but to provide information on how the dissolved oxygen impact from new or expanding discharges will most likely be assessed by
the Division.
The model to be used will be the most currently available three dimensional water quality model, which at this time, is the Lower Cape Fear dissolved oxygen model, http://portal.ncdenr.org/c/document_library/get_file?uuid=a84477db-
4d83-4cc0-a9b9-f7da7a6a51f9&groupId=38364. The model was finalized on
October 2009 by the Division of Water Quality (now known as the Division of Water Resources). The model is calibrated to 2004 observed data and meteorological conditions. Model inputs are described in the report. The most critical season when dissolved oxygen is expected to be impacted is April-
October, and this season will be the focus for model comparison.
The model will first be run with all existing discharges at full permitted capacity. This run will establish a baseline model for comparison. The baseline model will then be run with the addition of the proposed new or expanding discharge. Results
from the two model runs will then be evaluated to determine the impact of a new
or expanding discharge, and the entire area that is impacted by the discharge will be evaluated. If at any time there is a difference between these two model runs greater than 0.1 mg/L, the discharge will not be allowed. So, this approach will basically be a time-series comparison based on model output, and prohibition
against causing DO decreases will be enforced via permit requirements stated in
the proposed water quality management plan.
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When modeling is conducted for a new or expanded discharge (as described directly above), the term “total permitted capacity” as stated in the proposed water quality management plan is to include all existing discharges as operating at their full permit limits plus the new or expanded discharge operating at its full permit limits. Rather than making the suggested language replacement as noted in the
above fourth comment regarding point sources, DWR proposes to provide clarity to this issue by adding the following phrase to the end of the last sentence of the management plan: “for all discharges.” Thus, the final sentence of the management plan would read as follows: “Any new or expanded permitted pollutant discharge of oxygen consuming waste shall not cause the DO of the
receiving water to drop more than 0.1 mg/l below the modeled in-stream DO at total permitted capacity for all discharges.”
RECOMMENDATION
It is the recommendation of the Hearing Officer that the reclassification of the segment of the
Cape Fear River and associated water quality management plan, as proposed herein, be approved by the Environmental Management Commission in its entirety along with the above-mentioned additional language shown below in green. In making this recommendation, the Hearing Officer has considered the requirements of General Statutes 150B-21.2, 143-214.1, 143-215, and 143-215.3(a)(1), and Rules 15A NCAC 2B .0100 Procedures for Assignment of Water Quality
Standards, 15A NCAC 2B .0220 Tidal Salt Water Quality Standards for Class SC Waters, and 15A NCAC 2B .0227 Water Quality Management Plans. In addition, the existing water quality conditions, the need to codify the current permitting policy already in existence for new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges to the subject waters, the desire for a path forward for these discharges
and associated local communities to plan for the future, and all comments received by DWR were considered. In taking this action, Rule 15A NCAC 2B .0311, which references the Schedule of Classifications for the Cape Fear River Basin, will show that the Environmental Management
Commission has revised the schedule for a portion of the Cape Fear River [Index No. 18-(71)] from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut from Class SC to Class SC Sw. A site-specific management strategy is outlined in 15A NCAC 02B .0227.
In addition, in taking this action, Rule 15A NCAC 2B .0227, which references Water Quality
Management Plans, will show that the Environmental Management Commission has added to this rule a site-specific management strategy for a part of the Cape Fear River [Index No. 18-(71)] from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut, which is described as follows:

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All new individual NPDES wastewater discharges and expansions of existing individual
NPDES wastewater discharges shall be required to provide treatment for oxygen consuming wastes as described in Parts (A) through (C) of this Subparagraph. (A) Effluent limitations shall be as follows: BOD5 = 5 mg/l, NH3-N = 1 mg/l and DO = 6 mg/l, or site-specific best available technology on a case-by-case basis for industrial discharges.
(B) Seasonal effluent limits for oxygen consuming wastes will be considered on a case-by-case basis in accordance with Rule .0404 of this Subchapter. (C) Any new or expanded permitted pollutant discharge of oxygen consuming waste shall not cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream dissolved oxygen at total
permitted capacity for all discharges. The proposed effective date of this reclassification is November 1, 2015.
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APPENDICES
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March 5, 2014 Mr. Tom Reeder Director, Division of Water Resources NC Department of Environment and Natural Resources 1611 Mail Service Center
Raleigh, NC 27699-1611
Subject: Request for Reclassification of a Portion of the Lower Cape Fear River with the Supplemental Swamp Classification
Dear Mr. Reeder: The purpose of this letter is to formally request that the Division of
Water Resources (DWR) recommend to the Environmental
Management Commission (EMC) that portions of the Lower Cape Fear River Estuary (LCFRE) that are currently classified as Class SC Waters be reclassified to include the supplemental Swamp (Sw) classification. This would recognize the influence of natural drainage
from riverine wetland and salt marsh systems that are ubiquitous
throughout the Lower Cape Fear River, Northeast Cape Fear River and Black River watersheds on water quality conditions in the river. This would be consistent with the classifications of immediate upstream segment of the Cape Fear River and the tributaries which all currently
carry the supplemental Sw classification.
Information typically requested by DWR for reclassification requests is included in Table 1 and a map showing the area being requested for consideration for the Sw supplemental classification is included as Figure 1. An additional map based on the US Geological Survey 7.5
minute topographic maps will be included in the hard copy of this letter and attachments.
ADVISORY BOARD
BLADEN COUNTY
BRUNSWICK COUNTY
CAPE FEAR COAST CONVENTION
AND VISITORS BUREAU
CAPE FEAR COUNCIL OF GOVERNMENTS
CAPE FEAR PUBLIC UTILITY AUTHORITY
CAPE FEAR RIVER ASSEMBLY
CITY OF CLINTON
CITY OF WILMINGTON
COLUMBUS COUNTY
DUPLIN COUNTY
GREATER WILMINGTON
CHAMBEROF COMMERCE
LOWER CAPE FEAR WATER
AND SEWER AUTHORITY
NEW HANOVER COUNTY
NORTH CAROLINA COASTAL FEDERATION
NORTH CAROLINA FARM BUREAU
FEDERATION, INC.
NORTH CAROLINA COASTAL
LAND TRUST
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT AND
NATURAL RESOURCES
NORTH CAROLINA FORESTRY ASSOCIATION
NORTH CAROLINA STATE PORTS AUTHORITY
PENDER COUNTY
SAMPSON COUNTY
TRIANGLE J COUNCIL OF GOVERNMENTS
UNIVERSITY OF NORTH CAROLINA
WILMINGTON
WILMINGTON INDUSTRIAL DEVELOPMENT, INC.
EX-OFFICIO MEMBERS
CHAIR, TECHNICAL COMMITTEE,
LOWER CAPE FEAR RIVER PROGRAM
NC REGULATORY AGENCIES
US ARMY CORPS OF ENGINEERS

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Information typically requested by DWR for reclassification requests is included in Table 1 and a map showing the area being requested for consideration for the Sw supplemental classification is included as Figure 1. An additional map based on the US Geological Survey 7.5 minute topographic maps will be included in the hard copy of this letter and
attachments. This letter provides additional background on the Lower Cape Fear River Program (LCFRP) and this specific request and a summary of supporting technical papers that have been prepared.
Background on LCFRP and LCFRE
The Lower Cape Fear River Program is an integrative effort which brings together a
coalition of citizens groups, industry, business, local, regional, and state government, and the university community. The Lower Cape Fear River Program (LCFRP) was formed in May, 1994 to develop an understanding of the fundamental scientific processes shaping and controlling the Cape Fear River Estuary and provide a mechanism for information
exchange and public education. It is administered in cooperation with the University of
North Carolina Wilmington’s Center for Marine Science. Since the group was formed, comprehensive data to assess ecological conditions in the river has been collected. The LCFRP was one of the first coalition monitoring groups
established through a memorandum of agreement (MOA) with NC Department of Environment and Natural Resources (DENR) that relieves NPDES permit holders of individual requirements to perform instream monitoring and replaces that with a comprehensive and coordinated monitoring program. Currently, there are 17 NPDES permit holders that are party to the MOA, but many other advisory board members from
throughout the lower basin as listed on the border on the first page of this letter. All of the monitoring data is submitted to DENR in accordance with the MOA. The program also has an interactive data base available on the internet where the LCFRP data can be accessed. This site also includes data from the Middle and Upper Cape Fear River Basin coalition groups for a comprehensive tool to review water quality conditions for the
entire river basin. Beginning in 1998, the section of the LCFRE from upstream of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut has been listed on the State of North Carolina’s 303d List as impaired for DO. In 2006, DENR added pH as impaired
for this segment, and in 2008, DENR added copper and turbidity to the listing, as well. The draft 2014 303d List maintains these impairments despite some changes to the listing methodology (DENR, 2014). Until recently, DENR had been pursuing development of a total maximum daily load
(TMDL) to establish what were originally believed to be reduction needs for oxygen-
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demanding pollutants, including biochemical oxygen demand (BOD) and ammonia nitrogen (NH3-N). An extensive effort had gone into developing a three-dimensional hydrodynamic and water quality model (using the Environmental Fluid Dynamics Code, or EFDC, model) between 2000 and 2009. This model provides an excellent tool for
evaluating water quality conditions in the LCFRE. Based on the modeling analysis, the DENR determined that developing a TMDL using the existing standard for the Class SC portion of the LCFRE of 5 milligrams per liter (mg/L) (at all times) would not be appropriate because the modeling results indicate that point-source discharges have a relatively minor impact on DO levels, and that even significant reductions in background
(both natural and nonpoint source) loads would not result in attainment of the current standard for considerable periods of time during the summer. Recently, DENR indicated that changes to the classification of the LCFRE might be appropriate to recognize the influence of natural drainage from riverine and saltwater marsh systems in the watershed on DO concentrations. A reclassification with the supplemental Sw classification would
allow the water quality standards for DO and pH to be interpreted with narrative portion of the standard [from 15A NCAC 2B .0220 (3)]: (b) Dissolved oxygen: not less than 5.0 mg/l, except that swamp waters, poorly flushed tidally influenced streams or embayments, or estuarine bottom waters
may have lower values if caused by natural conditions;
(g) pH: shall be normal for the waters in the area, which generally shall range between 6.8 and 8.5 except that swamp waters may have a pH as low as 4.3 if it is the result of natural conditions;
It is recognized that with this classification change, DWR will still require the development of implementation procedures for determining allowable waste load allocations for point source discharges. Supporting Information

There is a wealth of research and technical assessment studies that have been conducted on the LCFRE since the formation of the LCFRP in 1995, as well as during the 40 years prior to that time. In discussing this reclassification request with DWR staff, it was suggested that a summary of information be prepared to support the reclassification
request. Four Technical Memoranda (TM) have been prepared in support of this
reclassification request and are included as Attachments to this letter. The following is a brief summary of each TM.
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TM 1 - Summary of Background Information and Previous Studies for the Lower Cape Fear River This TM served to review available background information for the LCFRE dating back
to original studies in the 1950s where water quality and pollutions sources were assessed and initial recommendations on stream classifications were made. Key studies and assessments up to the present time were also reviewed and a bibliography or studies and research papers was also included. A several of the key points from this TM include:
 Swamp influences were identified even during the early studies and the entire LCFRE and tributaries were recommended and subsequently classified with the supplemental Sw classification
 The supplemental Sw classification was removed from the Class SC portion of the Cape Fear River in 1981 without extensive evaluation for the basis of this change
 LCFRP monitoring in the mid to late 1990s documented the impact of swamp drainage following hurricanes, similar to what was documented during the 1990s

 The EFDC hydrodynamic and water quality model completed in 2009 demonstrated that the point sources had a minor contribution to the DO deficit and that even with
30 to 70 percent reductions in loadings of oxygen demanding materials from
tributaries and wetlands/marsh systems (a combination of anthropogenic and natural sources), the DO standard of 5 mg/L could not be achieved between 20 and 30 percent of the time.
TM 2 - Updated Trend Analysis of DO Conditions and Pollutant Loading from
Point Sources This TM was an update of an analysis done in 2003. The previous DO trend analysis found no statistically significant trend for DO for the period of 1984 through 2002 for
DO conditions at several stations within or immediately adjacent to the 303(d) listed
portion of the LCFRE. The same conclusion was drawn for the period of 1991 through 2002, despite a statistically significant reduction in major point source ultimate biochemical oxygen demand (BODu) load of approximately 25 percent for that period. The updated analysis used monitoring data and information on point source loading from
1994 through 2013. The updated point source analysis focused on International Paper and
Cape Fear Public Utilities Authority (CFPUA) Northside and Southside discharges since these facilities comprise over 90 percent of the point source loading to the local watershed. This analysis also showed no significant trend in DO levels in the LCFRE over the 20 year period while the loading of BODu from these three facilities declined by
23 percent over the same time period. This analysis confirms model results indicating that
point sources are having a minor impact on DO levels in the LCFRE.
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TM 3 - Analysis of Long-term Data near the Limits of the Tidal Influence for the Cape Fear River, Black River, and NE Cape Fear River This TM presents an analysis of water quality parameters at the sampling stations
representative of inflows to the system, with the purpose of examining issues related to a supplemental Sw classification for the estuary. Data was examined for several key parameters, including nutrients, pH, and DO, that are related to the occurrence of low DO in the Cape Fear River. The evaluation of water quality data at the boundary conditions supports the concept that inflows from the swamp areas have a significant impact on
water quality in the Cape Fear River. The levels of nutrients, DO, and pH are consistently different between the station at Lock & Dam 1 (L&D1) on the main stem of the Cape Fear River, and in the major blackwater tributaries – the Black River and the NE Cape Fear River. A distinct response from these inflows can be seen in the levels for these parameters in the portion of the Cape Fear River near Navassa, providing additional
supporting evidence that water quality in the Cape Fear River is significantly influenced by the conditions found in the swamp areas tributary to the river downstream of L&D1. TM 4 - An Analysis of Model Results to Assess the Relative Impact of Riparian Wetlands and Salt Marshes versus other Tributary Loadings This TM used the results of the two modeling efforts with the EFDC model in the 2000s to examine the technical basis for a supplemental Sw classification for the LCFRE. The two modeling studies included the initial EFDC model developments by Tetra Tech on behalf of the City of Wilmington and New Hanover County and the follow up work by
the University of North Carolina – Charlotte on behalf of NC DENR. Both modeling efforts demonstrated that the impact from point source loads in the LCFRE contributes to less than 10 percent of the DO deficit in the LCFRE. The 2001 modeling effort demonstrated that an accurate calibration could not be achieved without representing the wetting and drying of adjacent low elevation wetland and salt marsh areas. That modeling
estimated that wetland/marsh and sediment oxygen demand (SOD) sources accounted for between 75 and 80 percent of all oxygen demand in the LCFRE. The 2009 modeling effort validated and expanded the influence of adjacent marshland based on more detailed analysis. Further, application of the 2009 model that simulated up to 70 percent of nonpoint source load reduction demonstrated that even with such large pollutant loading
reductions, DO concentrations would be expected to be below 5 mg/L approximately 20 percent of the time in the LCFRE during the summer. Therefore, the 2001 and 2009 modeling analyses provide further weight of evidence collectively that flow and oxygen-demanding loads from wetlands/marsh systems SOD are driving low DO during the summer period and suggest that reinstitution of the supplemental Sw designation for the
LCFRE should be considered by DENR and the EMC.

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Table 1.
DWR Requested Information in Support of Reclassification Requests
Date of Request March 6, 2014
Requested by Lower Cape Fear River Program

River Basin and Counties Cape Fear River Basin New Hanover and Brunswick Counties
Water bodies requested for Reclassification
Water Body: Cape Fear River Description: From a point upstream Toomers creek to a line across the river from Snows Point (through Snows Marsh) to Federal Point
Index No.: 18-(71) Current Classification: SC Requested Classification: SC Sw
Map See Figure 1 from 7.5 minute USGS GIS Information
Rationale for Request
See text of letter and attached Technical Memoranda
Local Champions for
Request
Lower Cape Fear River Program Members
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Figure 1. Requested portion of Lower Cape Fear River Estuary for Consideration for Supplemental Swamp Classification
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Attachments
TM 1 - Summary of Background Information and Previous Studies for the Lower Cape Fear River TM 2 - Updated Trend Analysis of DO Conditions and Pollutant Loading from Point Sources TM 3 - Analysis of Long-term Data near the Limits of the Tidal Influence for the Cape Fear
River, Black River, and NE Cape Fear River TM 4 - An Analysis of Model Results to Assess the Relative Impact of Riparian Wetlands and Salt Marshes versus other Tributary Loadings

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Technical Memo:
Task 1 – Summary of Background
Information and Previous Studies
for the Lower Cape Fear River
Prepared for
Lower Cape Fear River Program
Prepared by

February 25, 2014

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1 Introduction
The purpose of this technical memorandum (TM) is to identify available data and studies pertaining to the Lower Cape Fear River Estuary (LCFRE), and highlight key information pertaining to the influence of natural drainage from riverine and saltwater marsh systems in the watershed on dissolved oxygen (DO) conditions. This information is being summarized at a high level, for further consideration as the North Carolina Department of Environment and Natural Resources (DENR) and Environmental Management Commission consider appropriate stream classification and associated water quality criteria for the Cape Fear River.
1.1 BACKGROUND
The Lower Cape Fear River Program (LCFRP) was established in 1995 as a collaborative effort by public, private, and academic interests to collect data and research information on the LCFRE and its coastal watershed. Since the group was formed, comprehensive data to assess environmental conditions in the river has been collected.
Beginning in 1998, the section of the LCFRE from upstream of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut has been listed on the State of North Carolina’s 303d List as impaired for DO. In 2006, DENR added pH as impaired for this segment, and in 2008, DENR added copper and turbidity to the listing, as well. The draft 2014 303d List maintains these impairments despite some changes to the listing methodology (DENR, 2014).
Until recently, DENR had been pursuing development of a total maximum daily load (TMDL) to establish what were originally believed to be reduction needs for oxygen-demanding pollutants, including biochemical oxygen demand (BOD) and ammonia nitrogen (NH3-N). However, the DENR has recently determined that, based on the technical information compiled and assessed to date, developing a TMDL using the existing standard for the LCFRE of 5 milligrams per liter (mg/L) (at all times) would not be appropriate because the modeling results indicate that point-source discharges have a relatively minor impact on DO levels, and that even significant reductions in background (both natural and nonpoint source) loads would not result in attainment of the current standard for considerable periods of time during the summer. Recently, DENR indicated that changes to the classification of the LCFRE might be appropriate to recognize the influence of natural drainage from riverine and saltwater marsh systems in the watershed on DO concentrations.
There is a wealth of research and technical assessment studies that have been conducted on the LCFRE since the formation of the LCFRP in 1995, as well as during the 40 years prior to that time. Over the years, many technical studies of the LCFRE have been conducted by the LCFRP, DENR, other agencies and academic researchers, and consultants. As a result, an extensive technical foundation of knowledge on the LCFRE has been created, including information on physical, chemical, and biological features and processes.
1.2 SUMMARY OF AVAILABLE INFORMATION
A comprehensive listing of studies and research related to the LCFR has been included in the Attachment to this TM. In reviewing this information, it was decided to start with the early study of the river used to determine the stream classification and water quality standards and then move forward to the present. The following is a summary of this available information related to understanding the LCFRE, especially as it relates to assessing DO concentrations..
1.2.1 Original North Carolina State Board of Health Studies
Beginning in the mid-1950s and continuing until the early 1960s, the Division of Water Pollution Control of the State Board of Health conducted sanitary surveys of all the river basins in North Carolina, and made recommendations for stream classifications to be included in state water quality standards. The Cape Fear River Basin was sampled in 1955 and 1956, and the study report was published in 1957 (State Stream Sanitation Committee, 1957). This report includes analytical results from stream sampling and documented pollution loads from major sources of pollution.
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The setting at the time of this study was that many towns and cities did not have any treatment, and industries varied from having no treatment to primary treatment facilities. There were no major impoundments in the Cape Fear Basin, so the basin experienced extreme ranges in flow conditions, depending on precipitation and hurricane conditions, which were apparent during 1955 when three hurricanes impacted eastern North Carolina.
In the lower river, there were two principal sources of pollution identified, the Riegel Paper Corporation (Riegel) and the City of Wilmington, plus numerous other smaller communities and industrial facilities. The following table summarizes the treatment and loads from the primary facilities.
Table 1. Primary Facility Treatment and Load Summary
Facility Type of Treatment Estimated Load (PE)
Riegel Primary (13% efficient) 330,000
City of Wilmington None 44,700
Timmie Manufacturing Lagoon (20% efficient) 1,144
Wilmington Packing Grease removal (20% efficient) 3,850
Wanet Sausage Co. Grease removal (20% efficient) 3,200
Note:
PE - population equivalent
These loads cannot be directly transferred to the way oxygen-demanding loads are measured today. However, assuming 0.17 pounds per day (lb/d) of CBOD5 per PE, this translates to about 65,000 lb/d of CBOD5 discharged as highly reactive raw or primary treated waste. No information was presented in the study to estimate the nitrogenous (organic nitrogen and ammonia) oxygen demand load. This is estimated to be about 10 times greater than the current loading of CBOD5 based on comparison with current discharger monitoring data. The water quality data demonstrated impacts on DO conditions in the river. Summertime DO levels from downstream of Riegel to downstream of Wilmington typically ranged from 2 to 3 mg/L, with some values considerably less than that. The highly reactive wastewater resulted in a double DO sag beginning just a few miles below the Riegel discharge to downstream of Wilmington.
Despite the significant impacts from untreated and poorly treated wastewater under low to moderate flow conditions in the river, two different situations influencing DO condition were also described in the report:
1. High flows from the Black and NE Cape Fear Rivers, and moderate flow from the Cape Fear River (data from August 30, 1955):
 Low DO (1.3 to 2 mg/L) and low pH (5 to 6) coming from NE Cape Fear and Black Rivers
 Resulting in low DO (1.3 to 2.2 mg/L) and low pH (5.8 to 6) in the typically brackish area below Wilmington
2. High flows from the Cape Fear River, and moderate flows from the NE Cape Fear and Black Rivers (data from July 23-24, 1956):
 DO (2.8 to 4.9 mg/L and pH 6.8 to 7.2) conditions in lower river were moderate
They concluded that under some situations, swamp drainage conditions could significantly influence DO and pH conditions in the river, and recommended that the freshwater portion of the Lower Cape Fear River (LCFR) be Class C-Swamp (C-Sw) from the Riegel water intake to Toomers Creek, and Class SC-Swamp (SC-Sw) from Toomers Creek to the mouth of the Cape Fear River. These recommendation were adopted in 1962.
1.2.2 Reclassification in 1981
In 1981, a rule-making proceeding was initiated to remove the “Swamp” designation from waters classified as Class SA (for shellfishing). The record includes little basis for the removal of the Swamp designation from
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tidal saltwater classes other than statements that the designation is inconsistent with a shellfishing designation. There was little other discussion of the changes and nothing specific to Class SC waters. Based on the lack of objection, the Swamp designation was removed from a substantial portion of all tidal saltwaters in North Carolina in 1981 in conjunction with some other stream/coastal water classification changes (DEM, 1981). This action changed the classification of the Cape Fear River from “upstream of the mouth of Toomers creek to Atlantic Ocean” from Class SC Sw to Class SC. However, the Sw designation was not removed from the Class SC portion of the NE Cape Fear River by this action. As a result of this reclassification, the DO standard of not less than 5 mg/L at all times and pH standard not less than 6.8 became effective for the Class SC portion of the Cape Fear River, with no recognition of the potential influence of natural conditions.
1.2.3 Initial Water Quality Modeling
Despite significant improvement in wastewater treatment throughout the basin since the initial studies in the 1950s, there was a recognition that water quality conditions in the Cape Fear River might limit future industrial and urban growth. In addition, hydrological conditions in the basin had changed with the filling of Jordan Lake in 1981. This lake has a watershed of approximately 1,700 square miles (mi2), and has authorized purposes of flood damage reduction, water supply, water quality control, fish and wildlife conservation, and outdoor recreation. With this changed hydrology, and significant urban and industrial growth in the Wilmington area, the Division of Environmental Management (DEM) initiated the development of a water quality model using a program called the Georgia Estuary Model (DEM, 1984). The U.S. Environmental Protection Agency (USEPA) and Georgia Environmental Protection Division had been promoting the model as a useful tool for coastal river/estuary systems and were in the process of applying the model to the Lower Savannah River along the Georgia-South Carolina border. Although the report was finalized in 1984, the model was not apparently used for any major permitting decisions for the river.
1.2.4 Federal Paperboard Co. Studies
In 1990, Federal Paperboard Co., the current owner of the facility formerly called the Riegel Paper Corporation, conducted a series of studies in order to resolve a long-time permit dispute. While the facility had greatly expanded treatment with the installation of an aerated stabilization basin (ASB) system, the facility and DEM could not agree on appropriate permit limits for the facility. This included development of a water quality model for the LCFR (Hydroscience, 1990) and extensive biological surveys on the LCFRE, as well as lower portions of the Black River and NE Cape Fear River (CH2M HILL, 1992).
The water quality model was developed as a slack-tide calibrated QUAL 2E model, recognizing that this was a conservative approach for modeling the impacts of the Federal Paperboard Co. discharge, since it did not consider dilution provided by tidal exchange. The DEM developed a similar model of the river, and both models indicated that there was only a small DO sag resulting from the Federal Paperboard Co. discharge under this conservative modeling approach (Kreutzberger and Wakild, 1993).
Biological investigations of the river, including habitat characteristics, benthic macroinvertebrates, and fisheries, indicated that the aquatic life uses of the river were not impaired as a result of wastewater discharges. Habitat characteristics of the Cape Fear River related to basin hydrology and historical dredging were determined to be primary factors affecting variability in biological characteristics in the river (CH2M HILL, 1992; Kreutzberger and Wakild, 1993; Sacco et al., 1993).
Information provided by these studies allowed the National Pollutant Discharge Elimination System (NPDES) permit issues for Federal Paperboard Co. to be resolved with a permit issued and a Special Order by Consent (SOC) to achieve those limits by 1999. International Paper purchased the mill in 1996 and continues to operate this facility today.
1.2.5 1996 Cape Fear River Basinwide Water Quality Management Plan
In the mid-1990s, the DENR began development of basinwide water quality management plans for each of the river basins in the state, with plans to update them every 5 years. They also rearranged permit expiration schedules so that these plans could then guide all of the permitting in each basin. In the 1996 Plan, the LCFRE was not considered impaired, and there was no specific water quality management strategy presented. However, because portions of the estuary were designated as Primary Nursery Areas (PNA) by the Division of Marine Fisheries, this area was subject to High Quality Waters (HQW) requirements according to the plan.
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This actually includes significant portions of the currently impaired areas. Based on this requirement, all new and expanding dischargers were required to meet advanced treatment requirements for oxygen-consuming wastes for which the specific limitations have evolved over the years (DENR, 1996).
1.2.6 Lower Cape Fear River Program Studies
As noted in the background, the LCFRP was established in 1995 and has been providing excellent data on ambient conditions in the river, as well as a wide variety of targeted research efforts. The annual and special reports, as well as published research papers, are listed in the attachment. A comprehensive review of the efforts is beyond the scope of this TM. The following provides a brief overview of the consistent findings over the years and a few highlighted observations that seem pertinent to consideration of the appropriate classification for the LCFRE.
In reviewing annual reports over the nearly 20 years of monitoring, the characterization of the LCFRE and tributaries has been fairly consistent. The LCFR has been characterized as experiencing periodically high turbidity with moderate to high levels of inorganic nutrients. The estuary also has two major blackwater tributaries (the Black and Northeast Cape Fear Rivers) that generally exhibit low levels of turbidity, lower levels of inorganic nutrients, and high levels of color. Despite the high levels of nutrients, algal blooms are typically limited in the rivers due to a combination of limited light as a result of turbidity and flushing in the Cape Fear River, or limited light because of the highly colored waters in the tributaries. During periods of low flow, discussed later in this section, chlorophyll a levels increase because water clarity increases and flushing decreases, allowing more time for algal populations to develop. Some major algal blooms have been observed in tributaries where point-source influences have been noted. Blackwater swamps and agricultural areas have been characterized as periodically having high pollutant levels (Mallin et al., 2013).
In addition to the overall summary of conditions, the LCFRP has documented water quality conditions following major hurricanes and during two extreme droughts. The following summarizes some observations during these periods.
The early years of the monitoring effort allowed for extensive documentation of hurricane effects similar to those observed during the initial water quality surveys in 1955. In the summer of 1996, eastern North Carolina experienced the effects of Hurricane Bertha (July 1996) and Hurricane Fran (September 1996). The ongoing LCFRP was able to document the water quality response from Hurricane Fran in particular, where hurricane-induced flooding resulted in significant inputs from riparian wetlands, especially in the NE Cape Fear River. The DO in the NE Cape Fear River fell to about zero for approximately 3 weeks, and there were also documented fish kills. The DO levels in the mainstem of the Cape Fear River were as low as 2 mg/L but recovered faster due to flushing from flows originating from the upper part of the watershed. It is important to note that while inputs from riparian wetlands were significant contributors to the tremendous loads of oxygen-demanding materials, there were also significant inputs of raw and partially treated sewage as a result of power failures, as well as significant inputs of swine waste from breached lagoon storage systems. Therefore, the natural inputs from wetlands could not be separated from anthropogenically derived inputs, which were concluded to be especially significant in the NE Cape Fear River system based on monitoring results for BOD and ammonia (Mallin et al., 1997).
Much of North Carolina and the Cape Fear River basin, in particular, experienced a severe drought in 2001 and 2002 that ended in 2003. The LCFRP documented higher salinity levels and extended low DO conditions in the main river during the summer of 2002. Several tributaries, Angola Creek, the upper portion of the NE Cape Fear River, and the upper South River were noted to have extremely low DO levels. Turbidity levels were lower than the mean conditions for the period of record in the Cape Fear River and the upper estuary, but algal blooms were not documented in the major rivers but were observed in some small streams (Mallin et al., 2003).
Another severe drought occurred during 2007. Observations were similar for the 2001-2002 drought in terms of low DO levels and lower than typical levels of turbidity in the Cape Fear River. While algal blooms were not observed in the Cape Fear River, some severe blooms were observed in many small tributaries where turbidity levels were also significantly lower than the long-term trend (Mallin et al., 2008).
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This is just a brief summary of the extensive assessment efforts conducted by the LCFRP. There has also been a wide variety of published papers. The assessment reports and other publications are listed in the Attachment A.
1.2.7 City of Wilmington/New Hanover County Studies
In the period between 2000 and 2001, efforts were made on behalf of the City of Wilmington and New Hanover County to develop an initial application of a three-dimensional hydrodynamic model (the Environmental Fluid Dynamics Code, or EFDC, model), with the intention of meeting several objectives deemed important at the time (Tetra Tech, 2001). This model was an important step in developing an assessment tool for the river. However, DENR and stakeholders determined that more data for development and calibration were required to support development of a model that could be used to determine a TMDL for the impaired portions of the river. This effort is discussed in this section relative to the University of North Carolina (UNC)-Charlotte Water Quality Model.
In addition to the initial EFDC model development, a trend analysis was also conducted of available data to determine whether there was any significant change in DO levels in the impaired portion of the river during a period when significant reductions in point-source loadings of oxygen-consuming wastes occurred (Doll and Clements, 2003). The previous DO trend analysis found no statistically significant trend for DO for the period of 1984 through 2002. The same conclusion was drawn for the period of 1991 through 2002, despite a statistically significant reduction in major point-source ultimate biochemical oxygen demand (BODu) load of approximately 25 percent for that period. This analysis has been updated with recent data and is presented in TM A-2 (Tetra Tech, 2014).
1.2.8 UNC-Charlotte Water Quality Model
As an extension of the effort started by consultants to the City of Wilmington and New Hanover County (Tetra Tech, 2001), DENR contracted with UNC-Charlotte to further develop the hydrodynamic model and water quality model using EFDC (Bowen et al., 2009). The objective of the study was to develop a water quality model of the LCFRE that would be suitable for use in developing a TMDL to address DO impairment. This model generally covers the tidally influenced areas of the Cape Fear River, Black River, and NE Cape Fear River, and extends to the mouth of the Cape Fear River with the Atlantic Ocean. The final report documents the details of the model development and calibration.
Analyses were conducted upon completion of model development, and calibration including the following eight scenarios:
1. Eliminating wastewater point-source loadings 2. Reducing river, creek, and wetland loadings 3. Changing wastewater loadings for various values of sediment oxygen demand 4. Reducing river, creek, and wetland loadings, and sediment oxygen demand 5. Eliminating ammonia inputs from wastewater point sources 6. Increasing wastewater inputs to maximum permitted values 7. Deepening of the navigation channel 8. Changing Brunswick County wastewater loadings
The following are a few highlights of major observations for some scenarios based on a simulation period to include April through October during a relatively low flow year – 2004.
1.2.8.1 Eliminating Wastewater Point-source Loadings
The sensitivity of the system to point sources was performed by running the model under different point-source conditions, including one with all point sources removed. Results from this analysis are shown in Figure 1 for the impaired portion of the Cape Fear River as a cumulative frequency diagram illustrating the percentage of the time the DO was above a certain level. Key findings include:
 During the period of lowest DO (selected as the 10th percentile), turning off all point-source discharges resulted in an increase in the DO from about 4.3 to 4.6 mg/L.
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 DO levels were less than the standard of 5 mg/L approximately 32 percent of the time with the point-source discharges, and 27 percent of the time when these loadings were turned off.
1.2.8.2 Reducing River, Creek, and Wetland Loadings
Nonpoint-source reduction scenarios were also run by reducing the loading of oxygen-demanding pollutants for the tributaries and wetland cells by 30, 50, and 70 percent. These results indicate the following:
 During the period of lowest DO (selected as the 10th percentile), the difference between the base case with all calibrated pollutant loading and a 70 percent reduction in tributary/wetland loading resulted in an increase in DO of about 4.3 to 4.7 mg/L.
 DO levels were less than the standard of 5 mg/L approximately 32 percent of the time for the base case, 24 percent of the time with a 30 percent reduction in tributary/wetland loads, 20 percent of the time with a 50 percent reduction in tributary/wetland loads, and 18 percent of the time with a 70 percent reduction of tributary wetland loads.
1.2.8.3 Eliminating Ammonia Inputs from Wastewater Point Sources
The model results indicated that elimination of ammonia from point sources resulted in an approximate 0.1 mg/L increase in DO for periods when the DO was less than 5 mg/L.
Based on the results of the UNC-Charlotte modeling study, DENR determined that it could not move forward with development of a TMDL because it was apparent that point sources contributed a relatively small portion of the observed DO impairment based on the DO standard of 5 mg/L. DENR also concluded that although natural sources appeared to be a significant contributor to the low DO conditions, they could not differentiate what portion of the DO deficit was due to natural sources versus anthropogenic sources.

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Figure 1. Cumulative frequency of model-predicted DO concentrations (April through October 2004) in the impaired portion of the LCFRE for the base case and three reduction scenarios for WWTP loads (reproduced from Bowen et al., 2009)

The three analyses highlighted above demonstrate the LCFRE lack of sensitivity to changes in point source
loads. It should also be pointed out that the modeling also showed a significant impact of further channel
dredging on DO conditions in the river.

2 Summary
There is a vast amount of data, research, technical analysis, and modeling for the LCFRE. While discharges from point sources and nonpoint sources appear to have some contribution to the DO deficit, it is also clear that natural drainage from riparian wetlands, salt marshes, and blackwater tributaries are more significant contributors to DO conditions not meeting the assigned standard of 5 mg/L and the pH minimum of 6.8 at all times for Class SC waters (see TM 4 for additional technical details on relative impact of sources on DO deficit) (Tetra Tech, 2014). The supplemental “Swamp” classification appears appropriate for these areas to recognize the natural source contributions to deviations in these parameters.
Other TMs prepared in conjunction with this summary address other aspects of these issues, including:
 TM 2 - Updated trend analysis of DO conditions and pollutant loading from point sources
 TM 3 - Analysis of long-term data near the limits of the tidal influence for the Cape Fear River, Black River, and NE Cape Fear River, which are approximate boundaries in the EFDC model
 TM 4 - An analysis of model results to assess the relative impact of riparian wetlands and salt marshes versus other tributary loadings
3 References
Bowen, J.D., S. Negusse, J.M. Goodman, B. Duclaud, M. Robin, and J. Williams. 2009. Development and Use of a Three-Dimensional Water Quality Model to Predict Dissolved Oxygen Concentrations in the Lower Cape Fear River Estuary, North Carolina. Charlotte, North Carolina: Department of Civil and Environmental Engineering, University of North Carolina at Charlotte.
CH2M HILL. 1992. Biological Assessment in the Cape Fear River Watershed. Atlanta, Georgia: CH2M HILL.
Department of Environment and Natural Resources (DENR). 1996. Cape Fear River Basinwide Water Quality Management Plan. Raleigh, North Carolina.
Department of Environment and Natural Resources (DENR). 2014. 2014 Draft Category 5 Water Quality Assessments-303(d) List. Raleigh, North Carolina.
Division of Environmental Management (DEM). 1981. Proceedings of the Reclassification of Tidal Saltwaters. Raleigh, North Carolina.
Division of Environmental Management (DEM). 1984. Water Quality Analysis and Model Lower Cape Fear River. North Carolina Division of Natural Resources (NCDNR) and Community Development. Report No. 84-08.
Doll, J., and T. Clements. 2003. Results of Dissolved Oxygen and Pollutant Loading Trend Analyses. Research Triangle Park, North Carolina: Tetra Tech.
Hydroscience. 1990. Water Quality Model of the Lower Cape Fear River. Report submitted to Federal Paperboard Company, Riegelwood, North Carolina. June.
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Kreutzberger, W., and C. Wakild. 1993. “Water quality and biological investigation of the lower cape fear basin.” Tappi Journal. Vol. 76(7). July.
Mallin, M.A., M.H. Posey, M.L. Moser, G.C. Shank, M.R. McIver, T.D. Alphin, S.H. Ensign, and J.F. Merritt. 1997. Water Quality in the Lower Cape Fear River System, 1996-1997. Wilmington, North Carolina: University of North Carolina – Wilmington, Center for Marine Science Research.
Mallin, M., M. McIver, H. Wells, M. Williams, T. Lankford, and J. Merritt. 2003. Environmental Assessment of the Lower Cape Fear River System, 2002-2003. CMSR Report No. 03-03, Center for Marine Science Research. Wilmington, North Carolina: University of North Carolina Wilmington. October.
Mallin, M., M. McIver, and J. Merritt. 2008. Environmental Assessment of the Lower Cape Fear River System, 2007. CMSR Report No. 08-03, Center for Marine Science Research. Wilmington, North Carolina: University of North Carolina Wilmington. December.
Mallin, M., M. McIver, and J. Merritt. 2013. Environmental Assessment of the Lower Cape Fear River System, 2012. CMSR Report No. 13-02, Center for Marine Science. Wilmington, North Carolina: University of North Carolina Wilmington. October.
Sacco, P., T. Simpson, and W. Kreutzberger. 1993. Adapting the EPA Rapid Bioassessment Protocol for Use Attainability Study in the Cape Fear River. Proceedings of the 1993 Georgia Water Resources Conference. Kathryn J. Hatcher, ed. Athens, Georgia: The University of Georgia, Institute of Natural Resources. April 20 and 21.
State Stream Sanitation Committee. 1957. Cape Fear River Basin Pollution Survey Report 1957 (1954-1956). Raleigh, North Carolina: North Carolina State Board of Health, Division of Water Pollution Control.
Tetra Tech. 2001. 3-Dimensional EFDC Water Quality Model of the Lower Cape Fear River and its Estuary. Prepared for the City of Wilmington and New Hanover County, North Carolina. May.
Tetra Tech. 2014. Technical Memo: The Relationship of Adjacent Wetlands and Salt Marsh to Dissolved Oxygen in the Lower Cape Fear River Estuary. Prepared for the Lower Cape Fear River Program. February (Draft).

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Attachment A – Bibliography of Studies Pertinent to
Water Quality Conditions in the Lower Cape Fear River
Lower Cape Fear River Program Related Reports and Publications
Benedetti, M.M., M.J. Raber, M.S. Smith, and L.A. Leonard. 2006. Physical Geography. 27: 258-281.
Burkholder, J. M., Dickey, D. A., Kinder, C. A., Reed, R. E., Mallin, M. A., McIver, M. R., Cahoon, L. B., Melia, G., Brownie, C., Smith, J., Deamer, N., Springer, J., Glasgow, H. B., and D. Toms. 2006. Limnology and oceanography. 51:463-487.
Cahoon, L.B., J.A. Mikucki, and M.A. Mallin. 1998. “Nutrient imports to the Cape Fear and Neuse River basins on animal feeds.” Manure Management in Harmony with Environment and Society. Ames, Iowa: Soil and Water Conservation Service. pp. 228-232.
Cahoon, L.B., J.A. Mickucki, and M.A. Mallin. 1999a Environmental Science and Technology. 33:410-415.
Cahoon, L.B., J.A. Mikucki, and M.A. Mallin. 1999b. Environmental Science and Technology. 33: 410-415.
Dafner, E.V., M.A. Mallin, J.J. Souza, H. A. Wells, and D.C. Parsons. 2007. Marine Chemistry. 103: 289-303.
Dame, R., M. Alber, D. Allen, M. Mallin, C. Montague, A. Lewitus, A. Chalmers, R. Gardner, C. Gilman, B. Kjerfve, J. Pinckney, and N. Smith. 2000. Estuaries. 23: 793-819.
Lin, J., L. Xie, L.J. Pietrafesa, J. Shen, M.A. Mallin, M.J. Durako. 2006. Estuarine Coastal and Shelf Science. 70: 423-437.
Mallin, M., M. McIver, and J. Merritt. 2013. Environmental Assessment of the Lower Cape Fear River System, 2012. CMS Report No. 13-02. Wilmington, North Carolina: Center for Marine Science, University of North Carolina Wilmington. October.
Mallin, M.A. 1994. Estuaries. 17: 561-574.
Mallin, M.A. 2000. “Impacts of industrial-scale swine and poultry production on rivers and estuaries.” American Scientist. 88:26-37.
Mallin, M.A., and C.A. Corbett. 2006. Estuaries and Coasts. 29: 1046-1061.
Mallin, M.A., G.C. Shank, M.R. McIver, and J.F. Merritt. 1996. Water Quality in the Lower Cape Fear Watershed, 1995-1996. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington.
Mallin, M.A., G.C. Shank, M.R. McIver, L.B. Cahoon, and D.C. Parsons. 1996. Spatial and temporal nutrient patterns in the Lower Cape Fear River system. Solutions: Proceedings of a technical conference on water quality. Raleigh, North Carolina: North Carolina State University. March 19-21.
Mallin, M.A., J.M. Burkholder, G.C. Shank, M.R. McIver, and H.B. Glasgow, Jr. 1996. Effects of animal waste spills on receiving waters. Solutions: Proceeding of a technical conference on water quality. Raleigh, North Carolina: North Carolina State University. March 19-21.
Mallin, M.A., J.M. Burkholder, M.R. McIver, G.C. Shank, H.B. Glasgow, Jr., B.W. Touchette, and J. Springer. 1997. “Comparative effects of poultry and swine waste lagoon spills on the quality of receiving streamwaters.” Journal of Environmental Quality. 26:1622-1631.
Mallin, M.A., L.B. Cahoon, D.C. Parsons, and S.H. Ensign. 1998. Effect of organic and inorganic nutrient loading on photosynthetic and heterotrophic plankton communities in blackwater rivers. Report No. 315. Raleigh, North Carolina: Water Resources Research Institute of the University of North Carolina.
Mallin, M.A., L.B. Cahoon, M.R. McIver, D.C. Parsons, and G.C. Shank. 1997. Nutrient limitation and eutrophication potential in the Cape Fear and New River Estuaries. Report No. 313. Raleigh, North Carolina: Water Resources Research Institute of the University of North Carolina.
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Mallin, M.A., L.B. Cahoon, M.R. McIver, D.C. Parsons, and G.C. Shank. 1999. Estuaries. 22:985-996.
Mallin, M.A., M.H. Posey, G.C. Shank, M.R. McIver, S.H. Ensign, and T.D. Alphin. 1999. Ecological Applications. 9:350-362.
Mallin, M.A., M.H. Posey, M.L. Moser, G.C. Shank, M.R. McIver, T.D. Alphin, S.H. Ensign, and J.F. Merritt. 1997. Environmental Assessment of the Lower Cape Fear River System, 1996-1997. CMSR Report No. 97-01. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington.
Mallin, M.A., M.H. Posey, M.L. Moser, G.C. Shank, M.R. McIver, T.D. Alphin, S.H. Ensign, and J.F. Merritt. 1998. Environmental Assessment of the Lower Cape Fear River System, 1997-1998. CMSR Report No. 98-02. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington.
Mallin, M.A., M.H. Posey, M.L. Moser, L.A. Leonard, T.D. Alphin, S.H. Ensign, M.R. McIver, G.C. Shank, and J.F. Merritt. 1999. Environmental Assessment of the Lower Cape Fear River System, 1998-1999. CMSR Report No. 99-01. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington.
Mallin, M.A., M.H. Posey, M.R. McIver, S.H. Ensign, T.D. Alphin, M.S. Williams, M.L. Moser, and J.F. Merritt. 2000. Environmental Assessment of the Lower Cape Fear River System, 1999-2000. CMS Report No. 00-01. Wilmington, North Carolina: Center for Marine Science, University of North Carolina at Wilmington.
Mallin, M.A., M.H. Posey, T.E. Lankford, M.R. McIver, H.A. CoVan, T.D. Alphin, M.S. Williams, and J.F. Merritt. 2002. Environmental Assessment of the Lower Cape Fear River System, 2001-2002. CMS Report No. 02-01. Wilmington, North Carolina: Center for Marine Science, University of North Carolina at Wilmington.
Mallin, M.A., M.H. Posey, T.E. Lankford, M.R. McIver, S.H. Ensign, T.D. Alphin, M.S. Williams, M.L. Moser, and J.F. Merritt. 2001. Environmental Assessment of the Lower Cape Fear River System, 2000-2001. CMS Report No. 01-01. Wilmington, North Carolina: Center for Marine Science, University of North Carolina at Wilmington.
Mallin, M.A., M.R. McIver, H.A. Wells, M.S. Williams, T.E. Lankford, and J.F. Merritt. 2003. Environmental Assessment of the Lower Cape Fear River System, 2002-2003. CMS Report No. 03-01. Wilmington, North Carolina: Center for Marine Science, University of North Carolina at Wilmington.
Mallin, Michael A., Lawrence B. Cahoon, John J. Manock, James F. Merritt, Martin H. Posey, Troy D. Alphin, Douglas C. Parsons, and Tracy L. Wheeler. 1998. Environmental Quality of Wilmington and New Hanover County Watersheds 1997-1998. CMSR Report No. 98-03. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington. November.
Mallin, Michael A., Lawrence B. Cahoon, John J. Manock, James F. Merritt, Martin H. Posey, Ronald K. Sizemore, W. David Webster, and Troy D. Alphin. 1998. A Four Year Environmental Analysis of New Hanover County Tidal Creeks 1993-1997. CMSR Report No. 98-01. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington.
Mallin, Michael A., Scott H. Ensign, Douglas C. Parsons, and Tracy L. Wheeler. 1999. Environmental Quality of Wilmington and New Hanover County Watersheds 1998-1999. CMSR Report No. 99-02. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington. December.
Mallin, Michael, Matthew R. McIver, and James F. Merritt. 2008. Environmental Assessment of the Lower Cape Fear River System, 2007. CMSR Report No. 08-03. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington. December.
Mallin, Michael, Matthew R. McIver, and James F. Merritt. 2012. Environmental Assessment of the Lower Cape Fear River System, 2011. CMSR Report No. 12-03. Wilmington, North Carolina: Center for Marine Science Research, University of North Carolina at Wilmington. September.
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Padgett, D.E., M.A. Mallin, and L.B. Cahoon. 2000. “Evaluating the use of ergosterol as a bioindicator for assessing water quality.” Environmental Monitoring and Assessment 00:1-12.
Xia, M., L. Xie. and L.J. Pietrafesa. 2007. Estuaries and Coasts. 30: 698-709.
State and Federal Government Studies
Hackney CT, Posey M, Leonard LL, Alphin T, and Avery GB. 2002. Monitoring Effects of a Potential Increased Tidal Range in the Cape Fear River Ecosystem Due to Deepening Wilmington Harbor, NC, Year 1: August 1, 2000-July, 2001. Prepared for the U.S. Army Corps of Engineers, Wilmington District. Contract No. DACW 54-00-R-0008. April.
National Oceanic and Atmospheric Administration (NOAA). 1979. Circulation and Hydrodynamics of the LCFR, NC. National Ocean Survey. U.S. Department of Commerce. August.
North Carolina Department of Environment and Natural Resources (DENR). 1995. Cape Fear River Basinwide Assessment Report. Raleigh, North Carolina.
North Carolina Department of Environment and Natural Resources. (DENR). 1996. Cape Fear River Basinwide Water Quality Management Plan. Raleigh, North Carolina.
North Carolina Department of Environment and Natural Resources (DENR). 2000. Cape Fear River Basinwide Assessment Report. Raleigh, North Carolina.
North Carolina Department of Environment and Natural Resources (DENR). 2001. Cape Fear River Basinwide Water Quality Management Plan. Raleigh, North Carolina.
North Carolina Department of Environment and Natural Resources (DENR). 2005. Cape Fear River Basinwide Assessment Report. Raleigh, North Carolina.
North Carolina Department of Environment and Natural Resources (DENR). 2006. Cape Fear River Basinwide Water Quality Management Plan. Raleigh, North Carolina.
North Carolina Department of Environment and Natural Resources, Water Quality (DWQ). 1998. Basinwide Wetland and Riparian Restoration Plan for the Cape Fear River Basin. NC Wetlands Restoration Program.
North Carolina Department of Environment and Natural Resources, Water Quality (DWQ). 2001. Watershed Restoration Plan for the Cape Fear River Basin. NC Wetlands Restoration Program.
North Carolina Department of Natural Resources and Community Development. 1984. Water Quality Analysis and Model, Lower Cape Fear River. Report No 84-08. Division of Environmental Management. June.
North Carolina Department of Natural Resources and Community Development, and U.S. Water Resources Council. 1983a. Status of Water Resources in the Cape Fear River Basin. Cape Fear River Basin Study. June.
North Carolina Department of Natural Resources and Community Development, and U.S. Water Resources Council. 1983b. Wetlands Technical Memorandum 1.1 Cape Fear River Basin. Cape Fear River Basin Study. September.
North Carolina Department of Natural Resources and Community Development, and U.S. Water Resources Council. 1984. Summary Report: Cape Fear River Basin Study, 1981-84.
North Carolina Division of Environmental Management (DEM). 1981. Proceedings of the Reclassification of Tidal Saltwaters. Raleigh, North Carolina.
North Carolina Division of Water Pollution Control. 1962. Proceedings of the Classification of the Waters of the Cape Fear River Basin.
State Stream Sanitation Committee. 1957. Cape Fear River Basin Pollution Survey Report 1957 (1954-1956). Raleigh, North Carolina: North Carolina State Board of Health, Division of Water Pollution Control.
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Other Studies
Becker, May Ling. 2006. Hydrodynamics Behavior of the Cape fear River Estuarine System, NC. Doctoral dissertation. University of North Carolina at Charlotte.
Bowen, J.D., S. Negusse, J.M. Goodman, B. Duclaud, M. Robin, and J. Williams. 2009. Development and Use of a Three-Dimensional Water Quality Model to Predict Dissolved Oxygen Concentrations in the Lower Cape Fear River Estuary, North Carolina. Charlotte, North Carolina: Department of Civil and Environmental Engineering, University of North Carolina at Charlotte.
Carolina Power and Light. 1973-2008.. Brunswick Nuclear Power Plant Biological Monitoring Report and Other Studies, 1973 to 2008.
CH2M HILL. 1992. Biological Assessment in the Cape Fear River Watershed. Report prepared for Federal Paper Board Co. Atlanta, Georgia: CH2M HILL.
Doll, J., and T. Clements. 2003. Results of Dissolved Oxygen and Pollutant Loading Trend Analyses. Research Triangle Park, North Carolina: Tetra Tech.
Henry Von Oesen and Associates, Inc. 1984. Lower Cape fear River Water Quality Problems, Impacts and Alternatives for Remedial Action. Prepared for Wilmington Industrial Development, Inc. July..
Hydroscience, 1990. Water Quality Model of the Lower Cape Fear River. Report submitted to Federal Paperboard Co., Riegelwood, North Carolina. June.
Kreutzberger, W., and C. Wakild. 1993. “Water quality and biological investigation of the lower cape fear basin.” TAPPI Journal. Vol. 76(7). July.
Sacco, P., T. Simpson, and W. Kreutzberger. 1993. Adapting the EPA Rapid Bioassessment Protocol for Use Attainability Study in the Cape Fear River. Proceedings of the 1993 Georgia Water Resources Conference. Kathryn J. Hatcher, ed. Athens, Georgia: The University of Georgia, Institute of Natural Resources. April 20 and 21.
Tetra Tech, Inc. 2001. 3-Dimensional EFDC Water Quality Model of the Lower Cape Fear River and its Estuary. Prepared for the City of Wilmington and New Hanover County, North Carolina. May.

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Technical Memo:
Dissolved Oxygen Trend Analysis
for the
Lower Cape Fear River Estuary
Prepared for
The Lower Cape Fear River
Program
Prepared by
February 21, 2014
One Park Drive, Suite 200 • PO Box 14409
Research Triangle Park, NC 27709
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Dissolved Oxygen Trend Analysis for the LCFRE February 21, 2014
1
1 Introduction
The Lower Cape Fear River Program (LCFRP) is a large-scale water quality and environmental
assessment program covering the Cape Fear River Estuary and a large portion of the lower Cape FearRiver watershed. The LCFRP represents a collaboration of academia, government, industry, and thepublic, which has been coordinating with the North Carolina Department of Environment and Natural
Resources (DENR) since 1995. The purpose of this memo is to update a previous (Tetra Tech, 2003)statistical trend analysis performed on dissolved oxygen (DO) data collected in the Lower Cape FearRiver Estuary (LCFRE) portion of the basin. The current memo was prepared as part of a joint LCFRP-
DENR effort to summarize the existing body of technical evidence for submission to the North CarolinaEnvironmental Management Commission (EMC) requesting reclassification of portions of the LCFREinto a supplemental “Swamp” designation— a designation which had been applied to the LCFRE from
the late 1950’s until the early 1980’s.
The previous DO trend analysis found no statistically significant trend for DO for the period of 1984through 2002. The same conclusion was drawn for the period of 1991 through 2002, despite a statisticallysignificant reduction in major point source ultimate biochemical oxygen demand (BODu) load ofapproximately 25 percent for that period. For this updated review, advanced statistical analyses wereperformed to determine if ambient DO data or major point source BODu loads exhibit significant trendsover an extended period of time in the LCFRE (i.e., extending the data reviewed out to 2013). Monitoringdata compilation, preparation, and analysis methods and results are summarized below.
2 Monitoring Data
The first step for the extended trend analysis involved obtaining ambient DO data and major point sourcedata relevant for the LCFRE. The following subsections describe what data were compiled and how thedata were processed to address outliers and fill gaps in preparation for the statistical tests.
2.1 DISSOLVED OXYGEN
DO data were obtained from STORET (EPA’s online data storage and retrieval resource) for fivemonitoring stations in the Cape Fear Estuary (Table 1 and Figure 1). These stations were chosen for the
analysis because they offered the longest available period of monitoring records and because they areeach located either directly within or immediately adjacent to the 303(d) listed portion of the Cape FearEstuary. Note that the names of the last two stations in the table have changed since the first trend
analysis memo was produced in 2003, due apparently to renumbering of the channel markers. The stationIDs, and thus the locations, are identical.
Table 1. Ambient Monitoring Stations Used in the DO Trend Analysis
Station ID Station Name Selected Period of Record
B902000 Cape Fear River downstream Hale Point Landing near Phoenix January 1992 – April 2013
B905000 Cape Fear River at Navassa May 1984 – April 2013
B974000 Northeast Cape Fear River at NC 133 at Wilmington January 1981 – April 2013
B980000 Cape Fear River at Channel Marker 61 at Wilmington January 1985 – April 2013
B982000 Cape Fear River at Channel Marker 56 near Wilmington January 1981 – April 2013
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Dissolved Oxygen Trend Analysis for the LCFRE February 21, 2014
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Figure 1. Locations of Ambient Monitoring Stations Used in the DO Trend Analysis
Only DO measurements within one foot the water surface were evaluated, because historical depthstratified monitoring data has consistently indicated strong mixing with little vertical stratification in theestuary. As was done with the previous analysis, one outlier was removed from the dataset; 0.4 mg/l fromFebruary 1998 at the Northeast Cape Fear River station. Observations associated with major hurricaneevents that affected the Cape Fear Estuary were also removed. Following Hurricane Bertha on July 12,1996 and Hurricane Fran on September 5, 1996, prolonged periods of depressed instream dissolved
oxygen levels in the Cape Fear Estuary followed each storm (Mallin et al., 1997). The Mallin reportindicated conditions approached anoxia at several monitoring locations after Fran, likely due tosignificant undocumented “point sources” including pump station and WWTP failures as well as hog
lagoon breaches. After each storm, dissolved oxygen levels did not return to normal until about twomonths following each event. Two other hurricanes were identified that struck in the vicinity of the CapeFear Estuary – Hurricane Bonnie on August 27, 1998 and Hurricane Floyd on September 16, 1999. Based
on the recovery period reported by Mallin et al., observations were removed from each of the datasets fora period of two months following each of the four hurricanes. Figure 2 through Figure 6 show thedissolved oxygen observations for the five stations. The hurricane event observations that were omitted
from the analysis are shown in red; the impact of the hurricanes on DO is visible in many cases.
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Figure 2. Dissolved Oxygen at B9020000, Cape Fear River Downstream of Hale Point Landing
Figure 3. Dissolved Oxygen at B9050000, Cape Fear River at Navassa
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Figure 4. Dissolved Oxygen at B9740000, Northeast Cape Fear River at US 117
Figure 5. Dissolved Oxygen at B9800000, Cape Fear River at Channel Marker 61
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Figure 6. Dissolved Oxygen at B9820000, Cape Fear River at Channel Marker 56
2.2 POINT SOURCE DATA
Data were obtained from DENR for major facilities discharging oxygen demanding waste from Januaryof 1994 through November of 2013. Previous point source pollutant loading assessments by DENR
(1999) have shown that, based on actual summer effluent data from 1998 and 1999, 90% of the total pointsource based oxygen demanding pollutant load to the estuary comes from three facilities – InternationalPaper (NPDES NC0003298), Wilmington Northside WWTP (NPDES NC0003298), and Wilmington
Southside WWTPs (NPDES NC0003298). Brief correspondence with the DENR NPDES Permitting Unitindicated that these facilities remain the bulk of total discharge in the LCFRE. For that reason, theanalysis is focused on those three point sources.
For each of the facilities, monthly loads of BOD5 and ammonia were estimated using monitoring data. Inmost cases, BOD5 and ammonia were reported as a daily concentration. Daily load was calculated ondays where both daily concentration and daily flow data existed. The one exception was BOD5 from
International Paper, which was already reported as a daily load. These daily loads were then averaged ona monthly basis, and multiplied by the number of days in the month to obtain the monthly load. Therewere a few cases where monthly loads had to be estimated differently:
Daily discharge data for BOD5 and ammonia were not available from DENR for the WilmingtonSouthside facility during 1999. As a result, City of Wilmington monthly discharge data were used
for this period. The 1999 monthly loads were estimated for the previous 2003 trend analysismemo, and were used in this analysis as well.
Ammonia data were not reported on a routine basis between January 1994 and January 1997 atInternational Paper; rather, three monthly values were available during each of the three yearsspanning 1994 – 1996. Yearly averages were calculated from the available months, and missing
values were set equal to the average from the same year; January 1997 was set equal to theaverage for 1996. A total of 28 values were estimated using these methods.
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Data were not available to estimate BOD5 during November 2001 at International Paper and May2005 at Wilmington Southside. There was also an apparent reporting error for January 1997 atInternational Paper, with average BOD5 reported about two orders of magnitude lower than
typical values. In each case, values were estimated by taking the average of the value for theprevious month and the subsequent month.
Monthly BOD5 loads were converted to CBODu using multipliers inferred from graphs provided inBowen et al. (2009). A multiplier of 5.65 was used for International Paper based on the combined averagefrom two long term BOD studies. The multiplier for the Wilmington Southside facility long term BODmeasurement was estimated as 3.0. The near detection low level of long term BOD measurement for the
Wilmington Northside facility prevented estimating a multiplier from the graph with sufficientconfidence, so 3.0 was used to be consistent with the Southside value. Monthly ammonia loads wereconverted to NBODu using a multiplier of 4.5 (the stoichiometric ratio for the amount of DO required for
the oxidation of ammonia). The estimated monthly CBODu loads for each of the three facilities areshown in Figure 7 through Figure 9, and monthly NBODu loads are shown in Figure 10 throughFigure 12.
Figure 7. Estimated Monthly CBODu for International Paper
0
500,000
1,000,000
1,500,000
2,000,000
2,500,000
'94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 '13lbs/monthInternational Paper Monthly CBODu Load
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Figure 8. Estimated Monthly CBODu for Northside WWTP
Figure 9. Estimated Monthly CBODu for Southside WWTP
0
50,000
100,000
150,000
200,000
250,000
'94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 '13lbs/monthNorthside WWTP MonthlyCBODu Load
0
50,000
100,000
150,000
200,000
250,000
'94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 '13lbs/monthSouthside WWTP Monthly CBODu Load
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Figure 10. Estimated Monthly NBODu for International Paper
Figure 11. Estimated Monthly NBODu for Northside WWTP
0
50,000
100,000
150,000
200,000
250,000
300,000
350,000
400,000
'94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 '13lbs/monthInternationalPaper Monthly NBODu Load
0
50,000
100,000
150,000
200,000
250,000
'94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 '13lbs/monthNorthside WWTP MonthlyNBODu Load
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Figure 12. Estimated Monthly NBODu for Southside WWTP
3 TrendAnalysis
3.1 STATISTICAL TESTS
The USGS Kendall Program (Helsel et al., 2006) was used to perform the statistical trend analysis on the
DO and BODu monitoring data. Specifically, the Seasonal Kendall test was selected within the USGSKendall Program for the trend analysis because seasonality is present in the both the ambient DO andBODu data, and the Seasonal Kendall test accounts for autocorrelation across seasons. Also, the SeasonalKendall test allows for missing values and does not require complete years of data (i.e., bias in notintroduced). Additional background on the statistical methods applied is provided in Attachment A. DO isknown to show a seasonal pattern, but seasonality in BOD should be confirmed prior to conducting thetest. CBODu and NBODu were summed across the three point sources to develop an overall point sourceestimated BODu time series. Average monthly BODu was then calculated across the monitoring period of1994 – 2013. As seen in Figure 13, there is clearly a seasonal pattern in BODu loads to the Cape FearEstuary.
0
50,000
100,000
150,000
200,000
250,000
300,000
350,000
'94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 '13lbs/monthSouthside WWTP Monthly NBODu Load
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Figure 13. Estimated Average Total Monthly BODu to Cape Fear Estuary, 1999 - 2013
The Seasonal Kendall test was performed on the total BODu time series, using “seasons” defined bymonths. Monthly seasons are typically used for the Seasonal Kendall test; while seasons of a differentduration can be used (e.g., bi-weekly, quarterly), the Seasonal Kendall test was developed using monthlydata, and much of the guidance on minimum period of record and adjusting for autocorrelation is focused
on using monthly data (Hirsch et al., 1981). In the previous trend analysis, quarterly data were used toreduce seasonal autocorrelation associated with monthly data. However, the USGS Kendall programcalculates a modified version of the test statistic that accounts for the autocorrelation, so the data did notrequire any adjustment for the analyses conducted for this memorandum.
For total BODu, the Seasonal Kendall test indicated a trend of strong statistical significance, with a p-value adjusted for autocorrelation of 0.0034; any p-value less than 0.05 is considered significant with 95
percent confidence. The trend calculated using Sen’s slope estimator (Sen, 1968) was -18,340 lbs/month;in other words an overall annual reduction of 220,080 lbs/yr. A plot of estimated total BODu with thetrend superimposed is shown in Figure 14. An additional test was conducted using BODu for a reduced
time period (2003 – 2013) to check whether the trend has continued since publication of the previoustrend analysis. The adjusted p-value was 0.0143, indicating a highly significant trend for the reduced timeperiod, and the magnitude was actually higher at -32,730 lbs/month.
0
200,000
400,000
600,000
800,000
1,000,000
1,200,000
1,400,000
1,600,000
1,800,000
2,000,000
1 2 3 4 5 6 7 8 9 10 11 12lbs/monthMonth
Average Monthly BODu, 1994 - 2013
International Paper, Northside WWTP, and Southside WWTP
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Figure 14. Estimated Total Monthly BODu to Cape Fear Estuary, with Reported Trend
Seasonal Kendall tests were then performed for DO at each of the five stations for the periods of recordshown in Table 1. In all cases, the null hypothesis of no trend could not be rejected – in other words, afinding of no trend. The p-values adjusted for autocorrelation did not indicate anything close to statisticalsignificance (Table 2). The tests were repeated for reduced time periods of 2003 – 2013 to test for anytrend following publication of the previous trend analysis. Again, no trends were found and all theadjustedp-values did not show any statistical significance.
Table 2. Results of DO Trend Analysis Showing No Trend of Significance
Station ID p-value, fullperiod of record p-value,2003 – 2013
B9020000 0.5026 0.9238
B9050000 0.6853 0.4310
B9740000 0.1532 0.9334
B9800000 0.4823 0.9159
B9820000 0.1342 0.8636
3.2 CONCLUSIONS
This memorandum supports the same finding as the previous analysis conducted in 2003. A significantdownward trend was detected in the total oxygen demanding pollutant loads from the three facilities thatcomprise roughly 90 percent of all point source loads to the LCFRE, while no corresponding trend was
found in DO monitoring data at five separate LCFRE stations. During the 20 years of point source loadmonitoring included in this analysis, the total estimated BODu load from the three facilities has declinedabout 23 percent as indicated by the trend estimate.
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References
Bowen, J.D., S. Negusse, J.M. Goodman, B. Duclaud, M. Robin, and J. Williams. 2009.Development and
Use of a Three-Dimensional Water Quality Model to Predict Dissolved Oxygen Concentrations in the
Lower Cape Fear River Estuary, North Carolina. Department of Civil and Environmental Engineering,
University of North Carolina at Charlotte.
Helsel, D.R., D.K. Mueller, and J.R. Slack. 2006.Computer Program for the Kendall Family of Trend
Tests.Scientific Investigations Report 2005-5275. U.S. Geological Survey. Reston, VA.
Hirsch, R.M., J.R. Slack, and R.A Smith. 1982. Techniques of trend analysis for monthly water qualitydata.Water Resources Research. 18:107-121.
Mallin, M.A., M.H. Posey, M.L. Moser, G.C. Shank, M.R. McIver, T.D. Alphin, S.H. Ensign, and J.F.Merritt. 1997.Water Quality in the Lower Cape Fear River System, 1996-1997.University of NorthCarolina – Wilmington, Center for Marine Science Research. 255 pp.
North Carolina DENR. 1999. Point Source Loading Analysis Table prepared by Andy McDaniel forPresentation to Lower Cape Fear River Program Technical Committee. 2 pp.
Sen, P.K. 1968. Estimates of the regression coefficient based on Kendall’s tau.Journal of the American
Statistical Association.63:1379-1389.
Tetra Tech. 2003. Technical Memorandum: Results of Dissolved Oxygen and Pollutant Loading TrendAnalyses. Submitted to Hugh Caldwell, Ken Vogt, and Wyatt Blanchard from Trevor Clements and Jason
Doll. January 16, 2003.
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Attachment A– Background on Statistical
Methods
The Seasonal Kendall test (Hirsch et al., 1982) and Sen’s nonparametric slope estimator (Sen, 1968) wereused to test for the presence of a statistically significant trend. Background information outlining thetechnical basis for the selection of these methods is provided below.
The nonparametric Mann-Kendall test for trend (Mann, 1945; Kendall, 1975) forms the basis of a method
that is frequently used for trend analyses performed on water quality monitoring data – the SeasonalKendall Test. The method was developed and popularized by USGS researchers throughout the 1980s(Hirsch et al., 1991), and USGS published computer code supporting its use.
Mann-Kendall is especially useful for detecting trends in environmental variables for several reasons:
The test is nonparametric, and the data do not need to be normally distributed.
Missing values are allowed; gaps are simply ignored.
Data reported at the detection limit can be used without censoring, so long as the values are set
lower than the smallest observation.
This is all possible because Mann-Kendall looks only at the relative magnitudes of sequential data, so thetype of distribution, gaps, and the assumptions used for non-detects become irrelevant. The test does,however, assume that the data are not serially correlated, an assumption frequently violated byenvironmental monitoring data. Serial correlation (also called autocorrelation) occurs when data pointsare not independent from each other. Monitoring data tend to show positive serial correlation, meaning
that positive errors (about the mean) in one time period are associated with positive errors in adjacenttime periods (and negative errors are associated with adjacent negative errors).
The Seasonal Kendall test is a generalization of the Mann-Kendall test, developed by Hirsch et al. (1982).In its original application, data were divided into 12 “seasons”, with each month representing a season.Missing values are allowed (as is the case with the Mann-Kendall test), and complete years of all 12seasons are not required. The Mann-Kendall test statistic and its variance are calculated separately oneach season. The statistics are summed and a Z statistic computed, which is compared to the standardnormal tables. The null hypothesis HO is there is no trend, while the alternative hypothesis HA is eitheran upland or downward trend (a two-tailed test). Serial correlation among values within a season can beaddressed by a modification of the test statistic (Hirsch and Slack, 1984). The modification isrecommended in cases where there are 10 or more observations per season (i.e., 10 years of data if
seasons are defined monthly) due to difficulties accurately determining covariance for fewer data.
A slope can be calculated as well for the Seasonal Kendall test. The slope is based on Sen’snonparametric slope estimator (Sen, 1968). The method estimates a series of slopes between values from
the same season. The Seasonal Kendall slope is the median of this series of slopes.
The USGS Kendall Program (Helsel et al., 2006) was developed to address a gap in publically availablesoftware for estimating trends using the Seasonal Kendall test and other Kendall tests. In the 1980s USGS
popularized Kendall methods, and USGS published computer code supporting its use in popular statisticalpackages. However, in later years as statistical analysis moved to desktop computing, the code becamedifficult to execute without purchase of commercial statistical software. As a result, USGS repackaged thecode into an executable program which can be used on computers supporting DOS or DOS emulation.The USGS Kendall program is freely available from a USGS website.
Helsel, D.R., D.K. Mueller, and J.R. Slack. 2006.Computer Program for the Kendall Family of Trend
Tests.Scientific Investigations Report 2005-5275. U.S. Geological Survey. Reston, VA.
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Hirsch, R.M., J.R. Slack, and R.A Smith. 1982. Techniques of trend analysis for monthly water quality
data.Water Resources Research. 18:107-121.
Hirsch, R.M., R.B. Alexander, and R.A. Smith. 1991. Selection of methods for the detection andestimation of trends in water quality.Water Resources Research. 27:803–813.
Kendall, M.G. 1975.Rank Correlation Methods. 4th ed. Charles Griffin, London.
Mann, H.B. 1945. Non-parametric test against trend.Econometrica. 13:245-259.
Sen, P.K. 1968. Estimates of the regression coefficient based on Kendall’s tau.Journal of the American
Statistical Association.63:1379-1389.
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Technical Memo:
Task 3 - Analysis of Water Quality
Data at Cape River Estuary Model
Boundaries
Prepared for
Lower Cape Fear River Program
Prepared by

February 25, 2014

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1 Introduction
Since 1998, the section of the Lower Cape Fear River Estuary (LCFRE) from upstream of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut has been listed on the State of North Carolina’s 303d List as impaired for dissolved oxygen (DO). Since the original listing for DO, many technical studies of the LCFRE have been conducted by the North Carolina Department of Environment and Natural Resources (DENR), the Lower Cape Fear River Program (LCFRP), other agencies and academic researchers, and consultants. As a result, an extensive technical foundation of knowledge on the LCFRE has been created, including information on physical, chemical, and biological features and processes. Monitoring programs have provided insight regarding ambient conditions over many years on water quality, benthos, and fish. Additionally, sophisticated three-dimensional (3D), hydrodynamic modeling tools have been developed for the entire estuary and the portion of the river beginning at Lock and Dam #1 (L&D1) (Tetra Tech, 2001; Bowen et al., 2009).
The modeling results indicate that point-source discharges have little impact on DO levels, and that even significant reductions in background (both natural and nonpoint source) loads would not result in attainment of the current standard at all times. DENR has also agreed with representatives of the LCFRP that a more thorough understanding of natural and anthropogenic sources of oxygen deficit is needed.
This technical memorandum (TM) presents an analysis of water quality parameters at the points representative of inflows to the system, with the purpose of examining issues related to a supplemental DENR “Swamp” classification for the estuary. This TM examines data related to key parameters, including nutrients, pH, and DO, that are related to the occurrence of low DO in the Cape Fear River.
1.1 DATA SOURCES AND PROCESSING
The LCFRP has conducted monitoring in coordination with DENR since 1995, and a considerable amount of data is available prior to that. There has also been extensive data collected by the Middle Cape Fear Basin Association (MCFBA) upstream of L&D1 since mid-1998 and the Upper Cape Fear Basin Association (UCFBA) since about 2000. Data for this evaluation were downloaded from the Cape Fear River Basin Monitoring Coalitions Water Quality Data website (accessible at http://www.cormp.org/CFP/CFP_map.php) and the U.S. Environmental Protection Agency’s (USEPA’s) STOrage and RETrieval (STORET) Data Warehouse (2012accessible at http://www.epa.gov/storet/). The primary stations of interest for this evaluation were:
 B8360000 Cape Fear River at NC 11 near East Arcadia (downstream of L&D1)
 B9670000 Northeast (NE) Cape Fear River near Wrightsboro
 B9000000 Black River at NC 210 at Still Bluff
 B9050000 Cape Fear River at Navassa
These stations (shown in Figure 1) represent the water quality conditions at the main inflows to the system: the Middle Cape Fear River, the Black River, and the NE Cape Fear River, and coincide with the boundary conditions of the 3D hydrodynamic model developed for the system. The station at L&D1 represents water quality in the Cape Fear River as water leaves the Sandhills and enters the coastal area. The NE Cape Fear and Black River stations measure water quality as water leaves areas currently classified as swamps. The Cape Fear monitoring station at Navassa is included in the analysis, as it reflects the changes in water quality as a result of the confluence of the middle Cape Fear River and Black River. While data is available at a number of other stations, such as B980000 (Cape Fear River at Channel Marker 61), they were not used for this analysis. The data would also capture the changes as a result of the inflow of the NE Cape Fear River, but would also more directly reflect the influence of tidal flows.
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Figure 1. Location of Stations used for Evaluation of Boundary Conditions

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The data were downloaded from the Cape Fear River Basin Monitoring Coalition’s Water Quality Data and USEPA’s STORET websites in February 2014. Data downloaded included all data available for these sites at that time. Parameters evaluated for this analysis include DO, nitrate-nitrite (NO2-NO3), total Kjeldahl nitrogen (TKN), pH, total phosphorus (TP), and ammonia (NH3). Data were processed to identify measurements collected during the summer period (April through October) to focus on critical DO periods. The dataset was also processed to only evaluate surface grab samples. Depth-stratified monitoring showed little vertical stratification, and inclusion of all data would have skewed results toward deeper locations with more samples per event. Finally, data were averaged on a monthly basis to simplify the comparison and reduce the effects of any outliers.
1.2 RESULTS
The water quality monitoring data was evaluated using basic statistics, as well as time series plots. The statistics provide a long-term evaluation of water quality; whereas, the time series plots allow for identification of key periods and the relative difference in water quality between stations in more detail. Table 1 provides a summary of the basic monthly summer (April through October) statistics for the stations of interest.
Review of the data shows distinct differences in water quality between the Cape Fear River at L&D1 and the major tributaries, the Black River, and NE Cape Fear River. The average summer (April through October) monthly DO level at L&D1 is greater than 7 mg/L; whereas, as the DO levels in the Black River are nearly 2 mg/L lower at 5.19 mg/L and more than 2 mg/L less in the NE Cape Fear River at 4.96 mg/L. This primarily reflects the low DO found in these swamp areas but it is important to note that the DO below L&D 1 maybe somewhat influenced by reaeration from the dam.
The influence of the Black River and the NE Cape Fear River on the Cape Fear River mainstem can also be seen in the summer (April through October) monthly average NO2-NO3 and TP values. Concentrations of both of these constituents are higher at L&D1 when compared to the other stations. The addition of the flows from the tributaries significantly reduces the concentrations, as is seen at Navassa.
A number of time series plots were generated to assess changes in these constituents over time and to also provide a method to compare stations in a more detailed fashion. The plots for each constituent and a brief discussion is provided in Figures 2 through 7.
The DO time series (Figure 2) shows that summer (April through October) DO levels at L&D1 are greater than 5 mg/L the majority of the time. Only one event fell below 4 mg/L, which corresponded to Hurricane Fran. Summer (April through October) DO levels in the NE Cape Fear River are significantly lower at all times. The lowest observed DO in the NE Cape Fear River coincides with Hurricane Fran in 1996, Hurricane Bonnie in 1998, and Hurricane Floyd in 1999. While DO levels at L&D1 show some decrease during these events, a more significant effect is seen at the tributary stations and at Navassa. In general, the NE Cape Fear River shows the lowest DO levels, with levels at Navassa being second lowest. This suggests that inflow from the NE Cape Fear River and the swamps it drains has a significant impact on DO levels in the Cape Fear River mainstem. DO in the Black River tends to be more moderate, typically being less than concentrations at L&D1 but not as low as in the NE Cape Fear River. Inflow from the Black River is likely to have an impact but of a lesser magnitude. DO does not appear to show a negative or positive trend if the excursions related to hurricanes in the late 1990s are excluded.
Summer (April through October) nitrate-nitrite levels (Figure 3) are the highest at L&D1, receiving nitrate loading from upstream sources and atmospheric deposition. Nitrate is readily utilized in anoxic systems, such as swamps, as an oxygen source and can often fall below 0.1 mg/L. This is reflected in the low values seen in the Black River and the NE Cape Fear River. The levels at Navassa reflect the inflow from these low nitrate areas, with levels in the Cape Fear River dropping from those seen at L&D1. Nitrate-nitrite concentrations appear to show a slight positive trend in recent years at L&D1 and Navassa.

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Table 1. Summary of Monthly Water Quality Statistics for Summer Periods (April through October)

Cape Fear River at L&D1 Black River at NC 210 at Still Bluff Cape Fear River at Navassa NE Cape Fear River near Wrightsboro
DO
Minimum (mg/L) 3.60 1.20 0.85 0.10
Maximum (mg/L) 10.10 8.00 9.20 8.50
Average (mg/L) 7.14 5.19 5.10 4.96
NO2+NO3-N
Minimum (mg/L) 0.01 0.01 0.00 0.01
Maximum (mg/L) 1.58 0.52 1.14 0.51
Average (mg/L) 0.64 0.14 0.42 0.23
TKN-N
Minimum (mg/L) 0.10 0.20 0.10 0.10
Maximum (mg/L) 2.00 2.00 1.50 2.10
Average (mg/L) 0.69 0.81 0.72 0.78
pH
Minimum (mg/L) 5.30 4.80 5.60 5.00
Maximum (mg/L) 7.35 7.80 7.90 7.30
Average (mg/L) 6.61 6.13 6.87 6.63
TP
Minimum (mg/L) 0.08 0.04 0.04 0.05
Maximum (mg/L) 0.61 0.36 0.31 0.36
Average (mg/L) 0.18 0.10 0.14 0.12
NH3-N
Minimum (mg/L) 0.01 0.01 0.01 0.01
Maximum (mg/L) 0.22 0.20 0.20 0.30
Average (mg/L) 0.07 0.05 0.07 0.05
Note:
mg/L - milligram per liter

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Figure 2. Dissolved Oxygen in the LCFRE (April through October Data Only)

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Figure 3. Nitrate-Nitrite in the LCFRE (April through October Data Only)

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Figure 4. Total Kjeldahl Nitrogen in the LCFRE (April through October Data Only)

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Figure 5. Ammonia in the LCFRE (April through October Data Only)

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Figure 6. Total Phosphorus in the LCFRE (April through October Data Only)

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Figure 7. pH in the LCFRE (April through October Data Only)
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The highest levels of summer (April through October) TKN (Figure 4) are typically seen in the Black River and reflect the organic load generated by the high biological productivity of the adjacent marsh areas. Levels at L&D1 are consistently the lowest, although a few high values do occur at this station. TKN levels appear to be trending lower in recent years.
Summer (April through October) ammonia levels (Figure 5) at all stations were relatively similar and typically less than 0.1 mg/L. Ammonia is readily utilized for primary production, so ammonia loads are quickly transformed into organic matter. Ammonia levels appear to have dropped since 2002, with a slight increase in 2012.
Summer (April through October) phosphorus levels (Figure 6) at all stations were relatively similar and typically less than 0.2 mg/L. Phosphorus is utilized for primary production but is not the limiting nutrient in estuarine systems. Phosphorus levels in the Cape Fear River appear to have dropped since 2002, with a slight increase in 2012.
The sum er summer (April through October) pH levels (Figure 7) at the boundary stations show an interesting pattern. The lowest levels are consistently seen in the Black River with levels often less than 6 standard units. This is typical for swamp areas where decomposition of organic matter results in the occurrence of high levels of humic acids. Levels in the NE Cape Fear River are higher than in the Black River, suggesting that the vegetation and substrate is different between the two drainages. The highest levels are at Navassa. The pH at L&D1 and NE Cape Fear are fairly similar, with the L&D1 values being approximately 0.5 standard units higher. The Cape Fear River is listed for pH impairment. A review of Figure 7 shows that the low pH excursions may be naturally occurring. Levels in the Black River are typically less than 6.5 standard pH units, and frequently fall below 6.0 standard units. A coinciding drop of pH at Navassa is seen during these periods, supporting the conclusion that low pH in the Cape Fear is driven by an influx of low pH waters from adjacent swamp areas.
2 Conclusions
The evaluation of water quality data at the boundary conditions supports the concept that inflows from the swamp areas have a significant impact on water quality in the Cape Fear River. The levels of nutrients, DO, and pH are consistently different between the station at L&D1, and in the Black River and the NE Cape Fear River. A distinct response from these inflows can be seen in the levels at Navassa for these parameters, supporting the idea that water quality in the Cape Fear River is dominated by the conditions found in the swamp areas below L&D1.
3 Works Cited
Bowen, J.D., S. Negusse, J.M. Goodman, B. Duclaud, M. Robin, and J. Williams. 2009. Development and Use of a Three-Dimensional Water Quality Model to Predict Dissolved Oxygen Concentrations in the Lower Cape Fear River Estuary, North Carolina. Department of Civil and Environmental Engineering, University of North Carolina at Charlotte.
Cape Fear River Basin Monitoring Coalition. Water Quality Data website. http://www.cormp.org/CFP/CFP_map.php. Accessed February 3, 2014.
Tetra Tech. 2001. 3-Dimensional EFDC Water Quality Model of the Lower Cape Fear River and its Estuary. Prepared for the City of Wilmington and New Hanover County, North Carolina. May, 2001.
U.S. Environmental Protection Agency (USEPA). 2012. STOrage and RETrieval (STORET) Data Warehouse. April 20. http://www.epa.gov/storet/. Accessed February 3, 2014.

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Technical Memo:
The Relationship of Adjacent
Wetlands and Salt Marsh to
Dissolved Oxygen in the
Lower Cape Fear River Estuary
Prepared for
The Lower Cape Fear River
Program
Prepared by
February 21, 2014
One Park Drive, Suite 200 • PO Box 14409Research Triangle Park, NC 27709
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The Relationship of Adjacent Wetlands & Salt Marsh to DO in the LCFRE February 21, 2014
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1 Introduction
The Lower Cape Fear River Program (LCFRP) is a large-scale water quality and environmental
assessment program covering the Cape Fear River Estuary and a large portion of the lower Cape FearRiver watershed. The LCFRP represents a collaboration of academia, government, industry, and thepublic, which has been coordinating with the North Carolina Department of Environment and Natural
Resources (DENR) since 1995. The purpose of this memo is to summarize previous water qualitymodeling performed to analyze the impact that adjacent wetlands and salt marsh areas in the Lower CapeFear River Estuary (LCFRE) portion of the basin have on dissolved oxygen (DO) concentrations in that
region. The memo was prepared as part of a joint LCFRP-DENR effort to summarize the existing body oftechnical evidence for submission to the North Carolina Environmental Management Commission (EMC)requesting reclassification of portions of the LCFRE into a supplemental “Swamp” designation— a
designation which had been applied to the LCFRE from the late 1950’s until the early 1980’s.
Contents of the memo focus on two relatively extensive modeling studies. The first was completed in2001 by Tetra Tech on behalf of the City of Wilmington and New Hanover County, prior to the formationof the Cape Fear Public Utility Authority (CFPUA). In that study, the physical link between wetlands, saltmarshes, the main channel, water movement, and contributions to dissolved oxygen (DO) deficit wasestablished (Tetra Tech, 2001). Follow up work by the University of North Carolina – Charlotte on behalfof NC DENR both confirmed and expanded on the link (Bowen, et. Al., 2009). The results of thesemodeling studies are summarized here to provide a significant part of the technical basis for reclassifyingthe portions of the LCFR with the supplemental “Swamp” designation.
2 Preliminary Modeling Effort (2001)
In the period between 2000 and 2001, efforts were made on behalf of the City of Wilmington and NewHanover County to develop an initial application of a three-dimensional hydrodynamic model (the
Environmental Fluid Dynamics Code, or EFDC, model) with the intention of meeting several objectivesdeemed important at the time (Tetra Tech, 2001):
Simulation of the mixing and transport of the existing and proposed future Wilmington Northsideand Wilmington Southside wastewater treatment plant effluents.
Simulation of the impact of existing and proposed future Northside and Southside facilitypollutant loads for oxygen-demanding substances.
Evaluation of multiple sources and cumulative loads of oxygen-demanding substances to thelower Cape Fear River estuary.
Analysis of the various processes affecting dissolved oxygen and their relative contribution toambient dissolved oxygen deficit levels.
EFDC was selected because it is versatile, peer reviewed, accepted and endorsed by the USEPA, availablein the public domain, and could be used for 1, 2, or 3-dimensional (3-D) simulation of rivers, lakes,estuaries, coastal regions and wetlands. The 2001 model development was considered a scoping level
effort with an end goal of providing model results to guide further, more expansive model developmentsupporting long term water quality management of the LCFRE. Specifically, an important question at thetime was whether a 3-D model or 2-D model would be needed for the anticipated Total Maximum Daily
Load (TMDL) development planned for the estuary because of its inclusion on the State’s 303(d) list ofimpaired waters for low dissolved oxygen in 1998 with low pH added in 2006.
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2.1.1 Preliminary Model Approach
A vast amount of data characterizing the LCFRE system available from numerous agencies andorganizations was drawn upon to set up, calibrate, and validate the initial 3-D EFDC model. An overview
of the data used in the preliminary model setup and calibration listed by sources and associated types isprovided below:
National Oceanic and Atmospheric Administration – digital bathymetry, land surface elevations,and tide data.
US EPA– Reach File 1.0 cross-sectional data; Reach File 3.0 river shoreline data.
National Weather Service – atmospheric data including observations of wind speed, wind
direction, barometric pressure, air temperature, rainfall and cloud cover.
US Army Corps of Engineers – electronic navigational survey data; water level, current,
temperature, and salinity data collected during extensive 3 month intensive survey in 1993.
US Geological Survey – daily river flow data; dye dispersion study.
LCFRP – ambient water quality data.
NC DENR – ambient water quality data; NPDES discharge data; Long-term BOD analyses;
Sediment Oxygen Demand (SOD) in-situ measurements.
Additionally, two extensive dye studies were conducted in December 1999 (Tetra Tech, 2001).
Approximately 1,300 samples were collected for dye, salinity, and temperature throughout the estuaryduring the two studies. A fixed station was also monitored for water level, salinity, and temperature at15-minute intervals for 10 days. In addition to providing data to support calibration of the hydrodynamic
portion of the model, the dye studies provided a basis for examining near field mixing and far fieldtransport of the existing effluents. During these initial field studies, movement of water into adjacentwetlands and salt marshes during flood portions of the tide, and drainage of these areas during the ebbportion of tides, was observed.
In the course of the subsequent EFDC model calibration, the previously set up model grid was enhancedthrough the addition of several areas of swamp grid cells to better represent the wetting and drying offloodplain wetlands and their effect on in-stream dissolved oxygen levels (Figure 1). Out of the revised
total of 950 cells, 146 (~15%) were “marsh” cells with the remaining 804 modeled as “channel” cells. Toevaluate the sensitivity of the model to the presence of the swamp areas, the model was run without theadditional grid cells. Although there were not specific model calibration points in swamp only areas, themain model calibration points showed substantial improvement of model performance with the addedrepresentation of the marsh cells.
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Figure 1. Upper Section of 2001 EFDC Model Grid Without, and With, Swamp Areas Delineated
on the Basis of Elevation from the NOAA Coastal Relief Database
2.1.2 Preliminary Model Results
Results of multiple sensitivity analyses performed with the 2001 EFDC model for the LCFRE providedfor a type of DO deficit component analysis. Results for July 19, 1998 were graphed in the study, and areshown below in Figure 2. July 19, 1998 was selected because it represented the day of lowest predictedDO for the baseline analysis prior to the effect of Hurricane Bonnie (i.e., a summer critical conditionday). Each bar graph displays the model-predicted relative effect of each source of oxygen demand at fiveseparate stations in the LCFRE for the simulated day of July 19. The bar graphs for the Navassa andNortheast Cape Fear River mouth stations (where observed DO concentrations are often the lowest duringsummer critical periods) show that SOD and swamp oxygen demand are predicted to account for between73 and 84 percent of the total oxygen demand at those stations. SOD and swamp oxygen demand alsocomprised the majority of the total oxygen demands at other stations showing the importance of these
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sources. Overall, the combined effect of SOD and swamp oxygen demand was predicted to be between 3
and 4 times greater than the combined impact of loading from point source and tributary BOD loadsduring a summer critical condition day. This was one of the first demonstrations that the low DOoccurring in the LCFRE was driven by exchange with the bottom sediment and naturally occurring low
DO from adjacent marsh/swamp lands and not from loads from point source discharges and majortributaries including the mainstem above Lock and Dam No. 1.
Figure 2. Predicted Relative Impact of Sources of Oxygen Demand in the Estuary (July 19, 1998)
Although the 2001 EFDC modeling demonstrated that a significant portion of the DO deficit nearNavassa and down through Channel Marker 61 could be attributed to the combined effects of instreamSOD and the oxygen demand from adjacent decaying marsh and swamp vegetation, it was acknowledgedthat uncertainty remained regarding the precise allocation to the two different oxygen demanding sources
because of limited field data on each. The 2001 study recommended that additional study be performedon the LCFRE system to help delineate marsh impacts from instream SOD, which could help furtherrefine the modeling assumptions for these parameters.
3 Subsequent Modeling Effort (2009)
To support the State’s regulatory program for dissolved oxygen management in the LCFRE, a detailed
monitoring and modeling program was conducted in the mid-2000s culminating with an updated EFDCmodeling study (Bowen, et. al., 2009). As with the 2001 modeling effort, existing pertinent data weregathered to support model development, calibration, and validation. Two recommendations from the
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earlier 2001 modeling effortthat additional information be gathered on the bathymetry within theestuary, and that additional work be done to quantify the effect of the riparian wetlands within the
estuarywere undertaken during the updated hydrodynamic model calibration.
Twenty-one river cross-sections were surveyed by NC DENR and the additional bathymetric informationwas incorporated into the updated specification of the model grid. Additional grid work was also
performed to specify the location and size of “wetland” cells that adjoin the main river channel. Theoverall strategy in determining wetland surface area was to use the information on the attenuation of thetidal amplitude to determine the distribution and overall area of the fringing marshes while consideringthe wetland delineations performed by the NC Division of Coastal Management in1999. As a result, the2009 EFDC model included 100 additional model grid cells, of which 95 were “marsh” cells (Figure 3).This modification brought the number of marsh cells up to 241, approximately 23 percent of the model’stotal cell count of 1050 (up from 15 percent of 2001 model’s total cell count).
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The Relationship of Adjacent Wetlands & Salt Marsh to DO in the LCFRE February 21, 2014
6
Figure 3. 2009 EFDC Model Grid Showing Location and Size of Marsh Cells; (map imageextracted from Bowen, et al., 2009)
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The Relationship of Adjacent Wetlands & Salt Marsh to DO in the LCFRE February 21, 2014
7
Results from the 2009 modeling effort showing average DO concentrations and deficit sources predicted
for the model summer period (April through October) are displayed in Figure 4. Unlike the 2001 effort,the swamp and tributary loading predictions were lumped into one category, “Riv Load Def.” as labeledin Figure 4. The 2009 modeling results, similar to the 2001 results, show that the portion of the DO deficit
attributed to SOD and river loadings of organic matter is significantly greater than that attributed to pointsource loads (i.e., Waste Water Treatment Plant, or WWTP, effluent). Additionally, while the 2001 modelconsidered wetlands to be a sink of DO but did not model these areas as sources of organic matter (OM)
loadings, the 2009 model considered tidal creeks and wetlands as both sinks of DO and a source of OMand freshwater back to the channel cells. Note that since the 2009 results are for average summerconditions; we would expect the contributions at critical low flow conditions within the summer to showeven more dominance by wetlands since the filling and draining of adjacent marshland would continuedue to tidal cycle while the amount of tributary loading would decrease with freshwater flow decreasesduring the critical period.
Although the 2009 model results combine riverine and wetland loads, the updated model configurationphysically links even more area to wetland and salt marsh sources than the 2001 model (23 percent asopposed to 15 percent previously). Since the 2001 model results already showed greater impact on DOdeficit from wetlands than riverine loadings at key locations such as Navassa and the mouth of theNortheast Cape Fear River (refer back to Figure 2), one might reasonably infer that with even greaterphysical attribution to wetlands and salt marsh in the 2009 model that the swamp impact is greater thanthe river load regarding deficit in the LCFRE hot spots. Additionally, the 2009 modeling confirmed that
DO deficit associated with the total point source load in the LCFRE (noted by “WWTP deficit” inFigure4) is less than 10 percent of the total DO deficit.
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The Relationship of Adjacent Wetlands & Salt Marsh to DO in the LCFRE February 21, 2014
8
Figure 4. Summer Season (Apr-Oct) Time-Averaged Model Predicted DO Concentrations(image from Bowen, et al., 2009)
Additional scenario testing performed by Bowen et. al. (2009) simulated conditions in the LCFRE with
up to 70 percent of the riverine (nonpoint source) oxygen demanding load being removed. The resultsindicated that even with such a large nonpoint source load reduction, DO concentrations are predicted tobe less than the current water quality standard of 5 mg/L roughly 20 percent of the time during summer
conditions. The 2009 modeling study therefore added further weight of evidence that other local, naturallyoccurring sources of oxygen demand (i.e., marshland and SOD) are driving low DO during the summerperiod.
4 Summary
At the time of the initial 1998 303(d) listing of the LCFRE as impaired due to low dissolved oxygen, NC
DENR used a DO standard of 5 mg/L to make its assessment and the reason for impairment was thoughtto be a combination of point source discharge and nonpoint source pollutant loadings. The setup,calibration, validation, and independent application of two EFDC hydrodynamic water quality models forthe LCFRE (Tetra Tech, 2001, and Bowen et.al., 2009) provide a strong scientific basis for isolatingprimary influences on DO concentrations in the LCFRE. Both modeling efforts demonstrated that theimpact from point source loads in the LCFRE contributes to less than 10 percent of the DO deficit in theLCFRE. The 2001 modeling effort demonstrated that an accurate calibration could not be achievedwithout representing the wetting and drying of adjacent low elevation wetland and salt marsh areas. Thatmodeling estimated that wetland/marsh and SOD sources accounted for between three quarters and fourfifths of all oxygen demand in the LCFRE. The 2009 modeling effort validated and expanded theinfluence of adjacent marshland based on more detailed analysis. Further, application of the 2009 model
that simulated up to 70 percent of nonpoint source load reduction demonstrated that even with such largepollutant loading reductions, DO concentrations would be expected to be below 5 mg/L 20 percent of thetime in the LCFRE during the summer. Therefore, the 2001 and 2009 modeling analyses provide further
weight of evidence collectively that other local, naturally occurring sources of oxygen demand (i.e.,marshland and SOD) are driving low DO during the summer period and suggest that reinstitution of thesupplemental “Swamp” designation for the LCFRE should be considered by NC DENR and the
Environmental Management Commission.
References
Bowen, J.D., S. Negusse, J.M. Goodman, B. Duclaud, M. Robin, and J. Williams. 2009. Development
And Use Of A Three-Dimensional Water Quality Model To Predict Dissolved Oxygen Concentrations InThe Lower Cape Fear River Estuary, North Carolina. Department of Civil and EnvironmentalEngineering, University of North Carolina at Charlotte. Prepared for NCDENR.
Tetra Tech. 2001. 3-Dimensional EFDC Water Quality Model of the Lower Cape Fear River and itsEstuary. Prepared for the City of Wilmington and New Hanover County, North Carolina. May, 2001.
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15A NCAC 02B .0220 TIDAL SALT WATER QUALITY STANDARDS FOR CLASS SC WATERS General. The water quality standards for all tidal salt waters shall be the basic standards applicable to Class SC waters. Additional and more stringent standards applicable to other specific tidal salt water classifications are specified in Rules .0221 and .0222 of this Section. Action Levels, for purposes of National Pollutant Discharge Elimination System (NPDES) permitting, are specified in Item (20) of this Rule.
(1) Best Usage of Waters: any usage except primary recreation or shellfishing for market purposes; usages include aquatic life propagation and maintenance of biological integrity (including fishing, fish and functioning Primary Nursery Areas (PNAs)), wildlife, and secondary recreation; (2) Conditions Related to Best Usage: the waters shall be suitable for aquatic life propagation and maintenance of biological integrity, wildlife, and secondary recreation. Any source of water pollution that precludes any of these uses, including their functioning as PNAs, on either a
short-term or a long-term basis shall be considered to be violating a water quality standard; (3) Chlorophyll a (corrected): not greater than 40 ug/l in sounds, estuaries, and other waters subject to growths of macroscopic or microscopic vegetation. The Commission or its designee may prohibit or limit any discharge of waste into surface waters if, in the opinion of the Director, the surface waters experience or the discharge would result in growths of microscopic or macroscopic vegetation such that the standards established pursuant to this Rule would be violated or the intended best usage of the waters would be impaired; (4) Cyanide: 1 ug/l; (5) Dissolved oxygen: not less than 5.0 mg/l, except that swamp waters, poorly flushed tidally influenced streams or embayments, or estuarine bottom waters may have lower values if caused by natural conditions; (6) Enterococcus, including Enterococcus faecalis, Enterococcus faecium, Enterococcus avium and Enterococcus gallinarium: not to exceed a geometric mean of 35 enterococci per 100 ml based upon a minimum of five samples within any consecutive 30 days. For purposes of beach monitoring and notification, "Coastal Recreational Waters Monitoring, Evaluation and Notification" regulations (15A NCAC 18A .3400), available free of charge at:
http://www.ncoah.com/, are hereby incorporated by reference including any subsequent amendments; (7) Floating solids, settleable solids, or sludge deposits: only such amounts attributable to sewage, industrial wastes, or other wastes, as shall not make the waters unsafe or unsuitable for aquatic life and wildlife, or impair the waters for any designated uses; (8) Gases, total dissolved: not greater than 110 percent of saturation;
(9) Metals: (a) With the exception of mercury and selenium, tidal salt water quality standards for metals shall be based upon measurement of the dissolved fraction of the metals. Mercury and selenium shall be based upon measurement of the total recoverable metal; (b) Compliance with acute instream metals standards shall only be evaluated using an average of two or more samples collected within one hour. Compliance with chronic
instream metals standards shall only be evaluated using averages of a minimum of four samples taken on consecutive days, or as a 96-hour average; (c) Metals criteria shall be used for proactive environmental management. An instream exceedence of the numeric criterion for metals shall not be considered to have caused an adverse impact to the aquatic community without biological confirmation and a comparison of all available monitoring data and applicable water quality standards. This
weight of evidence evaluation shall take into account data quality and the overall confidence in how representative the sampling is of conditions in the waterbody segment before an assessment of aquatic life use attainment, or non-attainment, is made by the Division. Recognizing the synergistic and antagonistic complexities of other water quality variables on the actual toxicity of metals, with the exception of mercury and selenium, biological monitoring shall be used to validate, by direct measurement, whether or not the aquatic life use is supported. (d) Acute and chronic tidal salt water quality metals standards are as follows: (i) Arsenic, acute: WER∙ 69 ug/l; (ii) Arsenic, chronic: WER∙ 36 ug/l; (iii) Cadmium, acute: WER∙ 40 ug/l;
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(iv) Cadmium, chronic: WER∙ 8.8 ug/l;
(v) Chromium VI, acute: WER∙ 1100 ug/l; (vi) Chromium VI, chronic: WER∙ 50 ug/l; (vii) Copper, acute: WER∙ 4.8 ug/l; (viii) Copper, chronic: WER∙ 3.1 ug/l;
(ix) Lead, acute: WER∙ 210 ug/l; (x) Lead, chronic: WER∙ 8.1 ug/l; (xi) Mercury, total recoverable, chronic: 0.025 ug/l; (xii) Nickel, acute: WER∙ 74 ug/l; (xiii) Nickel, chronic: WER∙ 8.2 ug/l; (xiv) Selenium, total recoverable, chronic: 71 ug/l;
(xv) Silver, acute: WER∙ 1.9 ug/l; (xvi) Silver, chronic: WER∙ 0.1 ug/l; (xvii) Zinc, acute: WER∙ 90 ug/l; and (xviii) Zinc, chronic: WER∙ 81 ug/l; With the exception of mercury and selenium, acute and chronic tidal saltwater quality aquatic life standards for metals listed above apply to the dissolved form of the metal and apply as a function of the pollutant's water effect ratio (WER). A WER expresses the difference between the measures of the toxicity of a substance in laboratory waters and the toxicity in site water. The WER shall be assigned a value equal to one unless any person demonstrates to the Division's satisfaction in a permit proceeding that another value is developed in accordance with the "Water Quality Standards Handbook: Second Edition" published by the US Environmental Protection Agency (EPA-823-B-12-002), free of charge, at http://water.epa.gov/scitech/swguidance/standards/handbook/, hereby incorporated by reference including any subsequent amendments. Alternative site-specific standards may also be developed when any person submits values that demonstrate to the Commissions’ satisfaction that they were derived in accordance with
the "Water Quality Standards Handbook: Second Edition, Recalculation Procedure or the Resident Species Procedure", hereby incorporated by reference including subsequent amendments at http://water.epa.gov/scitech/swguidance/standards/handbook/. This material is available free of charge; (10) Oils, deleterious substances, colored, or other wastes: only such amounts as shall not render the waters injurious to public health, secondary recreation, aquatic life, and wildlife or adversely
affect the palatability of fish, aesthetic quality, or impair the waters for any designated uses. For the purpose of implementing this Rule, oils, deleterious substances, colored, or other wastes shall include substances that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines pursuant to 40 CFR 110.3; (11) Pesticides: (a) Aldrin: 0.003 ug/l;
(b) Chlordane: 0.004 ug/l; (c) DDT: 0.001 ug/l; (d) Demeton: 0.1 ug/l; (e) Dieldrin: 0.002 ug/l; (f) Endosulfan: 0.009 ug/l; (g) Endrin: 0.002 ug/l;
(h) Guthion: 0.01 ug/l; (i) Heptachlor: 0.004 ug/l; (j) Lindane: 0.004 ug/l; (k) Methoxychlor: 0.03 ug/l; (l) Mirex: 0.001 ug/l; (m) Parathion: 0.178 ug/l; and (n) Toxaphene: 0.0002 ug/l; (12) pH: shall be normal for the waters in the area, which range between 6.8 and 8.5, except that swamp waters may have a pH as low as 4.3 if it is the result of natural conditions; (13) Phenolic compounds: only such levels as shall not result in fish-flesh tainting or impairment of other best usage;
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(14) Polychlorinated biphenyls: (total of all PCBs and congeners identified) 0.001 ug/l;
(15) Radioactive substances: (a) Combined radium-226 and radium-228: The average annual activity level (based on at least one sample collected per quarter) for combined radium-226, and radium-228 shall not exceed five picoCuries per liter;
(b) Alpha Emitters. The average annual gross alpha particle activity (including radium-226, but excluding radon and uranium) shall not exceed 15 picoCuries per liter; (c) Beta Emitters. The average annual activity level (based on at least one sample collected per quarter) for strontium-90 shall not exceed eight picoCuries per liter; nor shall the average annual gross beta particle activity (excluding potassium-40 and other naturally occurring radionuclides exceed 50 picoCuries per liter; nor shall the average annual
activity level for tritium exceed 20,000 picoCuries per liter; (16) Salinity: changes in salinity due to hydrological modifications shall not result in removal of the functions of a PNA. Projects that are determined by the Director to result in modifications of salinity such that functions of a PNA are impaired shall be required to employ water management practices to mitigate salinity impacts; (17) Temperature: shall not be increased above the natural water temperature by more than 0.8 degrees C (1.44 degrees F) during the months of June, July, and August nor more than 2.2 degrees C (3.96 degrees F) during other months and in no cases to exceed 32 degrees C (89.6 degrees F) due to the discharge of heated liquids; (18) Trialkyltin compounds: 0.007 ug/l expressed as tributyltin; (19) Turbidity: the turbidity in the receiving water shall not exceed 25 Nephelometric Turbidity Units (NTU); if turbidity exceeds this level due to natural background conditions, the existing turbidity level shall not be increased. Compliance with this turbidity standard can be met when land management activities employ Best Management Practices (BMPs) [as defined by Rule .0202 of this Section] recommended by the Designated Nonpoint Source Agency (as defined by Rule .0202 of this Section). BMPs shall be in full compliance with all specifications governing the proper
design, installation, operation, and maintenance of such BMPs; (20) Action Levels for Toxic Substances Applicable to NPDES Permits: (a) Copper, dissolved, chronic: 3.1 ug/l; (b) Silver, dissolved, chronic: 0.1 ug/l; (c) Zinc, dissolved, chronic: 81 ug/l If the action levels for any of the substances listed in this Item (which are generally not
bioaccumulative and have variable toxicity to aquatic life because of chemical form, solubility, stream characteristics, or associated waste characteristics) shall be determined by the waste load allocation to be exceeded in a receiving water by a discharge under the 7Q10 flow criterion for toxic substances, the discharger shall monitor the chemical or biological effects of the discharge; efforts shall be made by all dischargers to reduce or eliminate these substances from their effluents. Those substances for which action levels are listed in this Item shall be limited as
appropriate in the NPDES permit if sufficient information (to be determined for metals by measurements of that portion of the dissolved instream concentration of the action level parameter attributable to a specific NPDES permitted discharge) exists to indicate that any of those substances may be a causative factor resulting in toxicity of the effluent. History Note: Authority G.S. 143-214.1; 143-215.3(a)(1);
Eff. October 1, 1995; Amended Eff. January 1, 2015; May 1, 2007; August 1, 2000.
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15A NCAC 02B .0227 WATER QUALITY MANAGEMENT PLANS (a) In implementing the water quality standards to protect the existing uses [as defined by Rule .0202 of this Section] of the waters of the state or the water quality which supports those uses, the Commission shall develop water quality management
plans on a priority basis to attain, maintain or enhance water quality throughout the state. Additional specific actions deemed necessary by the Commission to protect the water quality or the existing uses of the waters of the state shall be specified in Paragraph (b) of this Rule. These actions may include anything within the powers of the Commission. The Commission may also consider local actions which have been taken to protect a waterbody in determining the appropriate protection options to
be incorporated into the water quality management plan. (b) All waters determined by the Commission to be protected by a water quality management plan are listed with specific actions as follows: The Lockwoods Folly River Area (Lumber River Basin), which includes all waters of the lower Lockwoods Folly River in an
area extending north from the Intracoastal Waterway to a line extending from Genoes Point to Mullet Creek, shall be protected
by the specific actions described in Subparagraphs (1) through (5) of this Paragraph. (1) New development activities within 575' of the mean high water line which require a Sedimentation Erosion Control Plan or a CAMA major development permit must comply with the low density option of the coastal
Stormwater Runoff Disposal Rules [as specified in 15A NCAC 2H .1005(2)(a)].
(2) New or expanded NPDES permits shall be issued only for non-domestic, non-industrial process type discharges (such as non-industrial process cooling or seafood processing discharges). A public hearing is mandatory for any proposed (new or expanded) NPDES permit to this protected area.
(3) New non-discharge permits shall be required to meet reduced loading rates and increased buffer zones, to
be determined on a case-by-case basis. (4) New or expanded marinas must be located in upland basin areas. (5) No dredge or fill activities shall be allowed where significant shellfish or submerged aquatic vegetation bed resources occur, except for maintenance dredging, such as that required to maintain access to existing
channels and facilities located within the protected area or maintenance dredging for activities such as agriculture. History Note: Authority G.S. 143-214.1; 143-215.8A;
Eff. October 1, 1995;
Amended Eff. January 1, 1996.

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Fiscal Analysis
Rule Citation Numbers: 15A NCAC 2B .0227 Water Quality Management Plans and 15A NCAC 2B .0311
Cape Fear River Basin

Rule Topic: Proposed Reclassification of a Segment of the Cape Fear River in New Hanover and
Brunswick Counties (Cape Fear River Basin) from Class SC to Class SC Sw with a Water
Quality Management Plan
DENR Division: Division of Water Resources

Staff Contact: Elizabeth Kountis: Environmental Senior Specialist, Division of Water Resources (DWR)
[phone]
[e-mail]
Jucilene Hoffmann: Economist II, Division of Water Resources (DWR)
[e-mail]
[phone]

Impact Summary: State government: No
Local government: No
Private entities: No
Substantial Impact: No
Federal government: No

Necessity: The proposed water quality management plan associated with the proposed reclassification
codifies the current permitting policy already in existence for new individual NPDES
wastewater discharges and expansions of existing individual National Pollutant Discharge
Elimination System (NPDES) wastewater discharges to the subject waters. In addition, the
proposed reclassification in partnership with the proposed management plan provides a path
forward for new individual NPDES wastewater discharges and expansions of existing
individual NPDES wastewater discharges, thus enabling the local community to plan
accordingly.

1. Summary
The Lower Cape Fear River Program has submitted a surface water reclassification request for a
portion of the Cape Fear River. This portion of the Cape Fear River of interest is proposed to be
reclassified from Class SC to Class SC Swamp with a water quality management plan.

The proposal codifies the current permitting policy already in place for new wastewater
discharges and expansions of existing wastewater discharges to the subject waters. In addition,
the proposal provides a path for the subject water’s discharges, and thus for local communities,
for future planning purposes. Finally, the proposal may positively impact the subject water’s
current water quality impairments.

There are no quantifiable impacts of the proposed rulemaking according to this fiscal analysis.
The expected reclassification effective date is November 1, 2015.
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2. Background
The area that would be impacted by this proposal is the portion of the Cape Fear River from
upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut.
This river segment flows along the border of Brunswick and New Hanover counties. In these waters
as well as adjacent waters, there are several tidal saltwater species, including the federally
endangered Shortnose Sturgeon and Atlantic Sturgeon, and the associated Marine Fisheries
Commission designations of Primary Nursery Area, or PNA; PNA waters are by definition High
Quality Waters, or HQW, per 15A NCAC 2B .0101. In addition, the types of land cover occurring
adjacent to the proposed river segment are comprised of wetlands, some developed lands, other
open waters, forest lands, and shrub/scrub lands. Furthermore, the segment of the Cape Fear River
directly above and below the river segment to be reclassified is classified C Swamp and SC,
respectively, and the named tributaries flowing to this river segment are currently classified either
SC Swamp, WS-IV, SC, or C Swamp.

Several tidal saltwater species, including the federally endangered Shortnose Sturgeon and federally
endangered Atlantic Sturgeon, and the striped bass live in the subject waters. The NC Division of
Marine Fisheries (DMF) has a tagging program for striped bass and sturgeon in this vicinity. This is
an area of diverse and abundant fish use, partially since salinity fluctuates widely. When salinity is
lower, fresh-brackish water species such as catfish and gar can be found, while during high salinity
times, spotted red drum and spadefish have been documented.
There are currently eight NPDES individual permitted wastewater discharges within this segment.
According to the 2012 North Carolina 303(d) list, the river segment is impaired for water quality
parameters including dissolved oxygen (DO) and pH.

According to the reclassification request, “…the DO standard of 5 mg/l for the Lower Cape Fear River
Estuary is not appropriate since it is not achieved a significant portion of the time as a result of
natural drainage from riverine wetlands and salt marshes. Modeling results indicate that the current
DO standard of 5 mg/L is not attained about 30 percent of the time during the summer months and
that point sources in this segment are a minor contributor to overall dissolved oxygen depletion.
Subsequent modeling and data analyses have indicated that drainage and the wetting and drying of
floodplain wetlands and salt marshes are the most significant contributor to the waterbody’s not
meeting the DO standard for non-swamp classified waters. From a regulatory standpoint, a
straightforward way to recognize the natural influence on standards is to reclassify the area with the
supplemental Sw classification. “

The regulations applicable to Class SC waters, which include the subject waters, provide a base of
protection to all of the state’s tidal saltwaters and allow for lower dissolved oxygen and pH values
under natural conditions for SC waters that carry the supplemental Swamp designation. For Class SC
waters, currently the dissolved oxygen standard is 5 mg/l, and the pH standard is a range between
6.8-8.5; if this segment is reclassified to include the Swamp designation, then the pH can be as low
as 4.3 if caused by natural conditions, and the dissolved oxygen can be lower than 5.0 mg/l if caused
by natural conditions. These regulations are located in rule, 15A NCAC 02B .0220.

The proposed management plan to accompany the proposed Swamp designation contains effluent
limits that new individual NPDES wastewater discharges and expansions of existing individual NPDES
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wastewater discharges within the river segment would have to meet regarding oxygen consuming
wastes. These limits are similar to the limits for High Quality Waters (HQW), and the subject waters
are HQW by virtue of being designated as Primary Nursery Areas. Effluent limits of 5 mg/l for
biochemical oxygen demand (BOD), 1 mg/l for Ammonia, and 6 mg/l for dissolved oxygen would
apply. For industrial discharges, site specific best available technology on a case by case basis would
be utilized to determine the limits for BOD, Ammonia and DO.

For new individual NPDES facilities and expansions of existing individual NPDES facilities, the
management plan includes consideration of seasonal effluent limits on a case by case basis in
accordance with 15A NCAC 2B .0404. The plan also includes the following stipulation: Any new or
expanded individual NPDES pollutant discharge of oxygen-consuming waste shall not cause the
dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream
dissolved oxygen at total permitted capacity.

The proposed management plan is consistent with the current permitting policy already in place for
new individual NPDES wastewater discharges and expansions of existing individual NPDES
wastewater discharges to the subject waters. Furthermore, there is no known plans for new NPDES
wastewater discharges and there is one planned expansion of an existing NPDES wastewater
discharge in the reclassification area (Cape Fear Public Utility Authority Southside Wilmington, NC),
which already meets the proposal’s requirements. Finally, the proposed management plan in
conjunction with the Swamp designation provides a path for the subject waters’ dischargers, and
thus for local communities, for future planning purposes, and also may, in a positive fashion, impact
the subject water’s current impairments. As a result, this proposal serves the environment and
public interest per Executive Order #70 and complies with G.S. 150B-19.1.

3. Costs
(i.) New and Existing Individual NPDES Wastewater Discharges
There are eight existing individual NPDES wastewater discharges. For now, there are
currently no known planned new individual NPDES wastewater discharges and one
planned expansion of an existing individual NPDES wastewater discharge in the
reclassification area, which already meets the proposal’s requirements. The proposed
management plan to accompany the proposed Swamp designation contains effluent
limits that new individual NPDES wastewater discharges and expansions of existing
individual NPDES wastewater discharges within the river segment would have to meet
regarding oxygen consuming wastes. These limits are similar to the limits for High
Quality Waters, and the subject waters are HQW by virtue of being designated as
Primary Nursery Areas. Effluent limits of 5 mg/l for BOD, 1 mg/l for Ammonia, and 6
mg/l for dissolved oxygen would apply. For industrial discharges, site specific best
available technology on a case by case basis would be utilized to determine the limits for
BOD, Ammonia and DO. In sum, the proposed regulations would not have any impact on
current or future wastewater discharges.
(ii.) Implementing Agencies
The proposed rulemaking will have no cost to the State implementing agency
(DWR/DENR). These amendments will not require DWR to revise its existing procedures
nor will they require DWR to procure additional staff. Therefore, this proposed
rulemaking will have no economic impact to the implementing agency.

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(iii.) Environment/Ecosystem
Like it was mentioned in the summary above, according to the reclassification request,
“…the DO standard of 5 mg/l for the Lower Cape Fear River Estuary is not appropriate
since it is not achieved a significant portion of the time as a result of natural drainage
from riverine wetlands and salt marshes. From a regulatory standpoint, a
straightforward way to recognize the natural influence on standards is to reclassify the
area with the supplemental Sw classification….” As a result of the Sw reclassification,
ambient (in-situ) standards for DO and pH would be allowed to reflect natural
conditions rather than standards reflected solely by the SC classification. Water quality
monitoring may reflect DO and pH at levels below solely SC requirements. It is uncertain
if and/or to what extent the DO and pH levels will change over time once the proposal
becomes effective.

4. Benefits
(i.) Humans
This reclassification does not provide a direct benefit to humans. No changes to local
government programs are required, and there are no existing or proposed activities
affected by the proposal.

(ii.) New Individual NPDES and Existing Individual NPDES Wastewater Discharges
New individual NPDES and existing individual NPDES wastewater discharges will not
incur any direct benefits from the proposal, other than more accurately describing the
characteristics of the waters in this river. There are no existing or known proposed
discharges affected by the proposal. However, the proposed management plan codifies
the current permitting policy already in place for new individual NPDES wastewater
discharges and expansions of existing individual NPDES wastewater discharges to the
subject waters, cementing permitting expectations for those discharges. In addition, the
proposed management plan in conjunction with the Swamp designation provides a path
for the subject waters’ discharges, and thus for local communities, for future planning
purposes. Finally, as a result of the Sw reclassification, ambient (in-situ) standards for
DO and pH would be allowed to reflect natural conditions rather than standards
reflected solely by the SC classification. Water quality monitoring may reflect DO and
pH at levels solely below SC requirements. Discharges may in the future be granted
additional wasteload allocations; the amount, if any, of additional wasteload allocations
can only be determined with additional water quality monitoring and analysis. This
analysis would also reflect if the reclassification has any positive impact on the subject
water’s current impairments. It is uncertain if and/or to what extent the DO and pH
levels will change over time once the proposal becomes effective.

5. Total Economic Impact
The economic impacts of the proposed rulemaking, both in terms of cost and benefit, are
not quantifiable as measured from the baseline conditions. Consequently, there were no
specific cost or benefit estimations to report in this fiscal note.

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Appendix
DRAFT
15A NCAC 02B .0227 WATER QUALITY MANAGEMENT PLANS (a) In implementing the water quality standards to protect the existing uses [as defined by Rule .0202 of this Section] of the waters of the state or the water quality which supports those uses, the Commission shall develop water quality management plans on a priority basis to attain, maintain or enhance water quality throughout the state. Additional specific actions deemed necessary by the Commission to protect the water quality or the existing uses of the waters of the state shall be specified in Paragraph (b) of this Rule. These actions may include anything within the powers of the Commission. The Commission may also consider local actions which have been taken to protect a waterbody in determining the appropriate protection options to be incorporated into the water quality management plan. (b) All waters determined by the Commission to be protected by a water quality management plan are listed with specific actions as follows: The Lockwoods Folly River Area (Lumber River Basin), which includes all waters of the lower Lockwoods Folly River in an area extending north from the Intracoastal Waterway to a line extending from Genoes Point to Mullet Creek, shall be protected by the specific actions described in Subparagraphs (1) through (5) of this Paragraph. (1) New development activities within 575' of the mean high water line which require a Sedimentation Erosion Control Plan or a CAMA major development permit must comply with the low density option of the coastal Stormwater Runoff Disposal Rules [as specified in 15A NCAC 2H .1005(2)(a)]. (2) New or expanded NPDES permits shall be issued only for non-domestic, non-industrial process type discharges (such as non-industrial process cooling or seafood processing discharges). A public hearing is mandatory for any proposed (new or expanded) NPDES permit to this protected area. (3) New non-discharge permits shall be required to meet reduced loading rates and increased buffer zones, to be determined on a case-by-case basis. (4) New or expanded marinas must be located in upland basin areas. (5) No dredge or fill activities shall be allowed where significant shellfish or submerged aquatic vegetation bed resources occur, except for maintenance dredging, such as that required to maintain access to existing channels and facilities located within the protected area or maintenance dredging for activities such as agriculture. A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of 18-(71) from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut shall be protected by the Class SC Sw standards as well as the site-specific action described in Subparagraph (1) of this Paragraph: (1) All new individual NPDES wastewater discharges and expansions of existing NPDES wastewater discharges shall be required to provide the treatment described below: (A) Oxygen consuming wastes: Effluent limitations shall be as follows: BOD5= 5 mg/l, NH3-N = 1 mg/l and DO = 6 mg/l, or site-specific best available technology on a case-by-case basis for industrial discharges. Seasonal effluent limits for oxygen-consuming wastes will be considered on a case-by-case basis in accordance with 15A NCAC 2B.0404. Any new or expanded permitted pollutant discharge of oxygen-consuming waste shall not cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream dissolved oxygen at total permitted capacity.

History Note: Authority G.S. 143-214.1; 143-215.8A; Eff. October 1, 1995; Amended Eff. November 1, 2015; January 1, 1996.
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15A NCAC 02B .0311 CAPE FEAR RIVER BASIN (a) Effective February 1, 1976, the adopted classifications assigned to the waters within the Cape Fear River Basin are set forth in the Cape Fear River Basin Schedule of Classifications and Water Quality Standards, which may be inspected at the following places: (1) the Internet at http://portal.ncdenr.org/web/wq/ps/csu/rules; and (2) the North Carolina Department of Environment and Natural Resources: (A) Winston-Salem Regional Office 585 Waughtown Street Winston-Salem, North Carolina (B) Fayetteville Regional Office 225 Green Street Systel Building Suite 714 Fayetteville, North Carolina (C) Raleigh Regional Office 3800 Barrett Drive Raleigh, North Carolina (D) Washington Regional Office 943 Washington Square Mall Washington, North Carolina (E) Wilmington Regional Office 127 Cardinal Drive Extension Wilmington, North Carolina (F) Division of Water Quality Central Office 512 North Salisbury Street Raleigh, North Carolina. (b) The Cape Fear River Basin Schedule of Classification and Water Quality Standards was amended effective: (1) March 1, 1977; (2) December 13, 1979; (3) December 14, 1980; (4) August 9, 1981; (5) April 1, 1982; (6) December 1, 1983; (7) January 1, 1985; (8) August 1, 1985; (9) December 1, 1985; (10) February 1, 1986; (11) July 1, 1987; (12) October 1, 1987; (13) March 1, 1988; (14) August 1, 1990. (c) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective June 1, 1988 as follows: (1) Cane Creek [Index No. 16-21-(1)] from source to a point 0.5 mile north of N.C. Hwy. 54 (Cane Reservoir Dam) including the Cane Creek Reservoir and all tributaries has been reclassified from Class WS-III to WS-I. (2) Morgan Creek [Index No. 16-41-1-(1)] to the University Lake dam including University Lake and all tributaries has been reclassified from Class WS-III to WS-I. (d) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective July 1, 1988 by the reclassification of Crane Creek (Crains Creek) [Index No. 18-23-16-(1)] from source to mouth of Beaver Creek including all tributaries from C to WS-III.
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(e) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended
effective January 1, 1990 as follows: (1) Intracoastal Waterway (Index No. 18-87) from southern edge of White Oak River Basin to western end of Permuda Island (a line from Morris Landing to Atlantic Ocean), from the eastern mouth of Old Topsail Creek to the southwestern shore of Howe Creek and from the southwest mouth of
Shinn Creek to channel marker No. 153 including all tributaries except the King Creek Restricted Area, Hardison Creek, Old Topsail Creek, Mill Creek, Futch Creek and Pages Creek were reclassified from Class SA to Class SA ORW. (2) Topsail Sound and Middle Sound ORW Area which includes all waters between the Barrier Islands and the Intracoastal Waterway located between a line running from the western most shore of Mason Inlet to the southwestern shore of Howe Creek and a line running from the western
shore of New Topsail Inlet to the eastern mouth of Old Topsail Creek was reclassified from Class SA to Class SA ORW. (3) Masonboro Sound ORW Area which includes all waters between the Barrier Islands and the mainland from a line running from the southwest mouth of Shinn Creek at the Intracoastal Waterway to the southern shore of Masonboro Inlet and a line running from the Intracoastal Waterway Channel marker No. 153 to the southside of the Carolina Beach Inlet was reclassified from Class SA to Class SA ORW. (f) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective January 1, 1990 as follows: Big Alamance Creek [Index No. 16-19-(1)] from source to Lake Mackintosh Dam including all tributaries has been reclassified from Class WS-III NSW to Class WS-II NSW. (g) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective August 3, 1992 with the reclassification of all water supply waters (waters with a primary classification of WS-I, WS-II or WS-III). These waters were reclassified to WS-I, WS-II, WS-III, WS-IV or WS-V as defined in the revised water supply protection rules, (15A NCAC 02B .0100, .0200 and .0300) which became effective on August 3, 1992. In some cases, streams with primary classifications other than WS were reclassified to a WS classification due to their proximity and linkage to water supply waters. In other cases, waters were reclassified from a WS
classification to an alternate appropriate primary classification after being identified as downstream of a water supply intake or identified as not being used for water supply purposes. (h) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective June 1, 1994 as follows: (1) The Black River from its source to the Cape Fear River [Index Nos. 18-68-(0.5), 18-68-(3.5) and 18-65-(11.5)] was reclassified from Classes C Sw and C Sw HQW to Class C Sw ORW.
(2) The South River from Big Swamp to the Black River [Index Nos. 18-68-12-(0.5) and 18-68-12(11.5)] was reclassified from Classes C Sw and C Sw HQW to Class C Sw ORW. (3) Six Runs Creek from Quewhiffle Swamp to the Black River [Index No. 18-68-2] was reclassified from Class C Sw to Class C Sw ORW. (i) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective September 1, 1994 with the reclassification of the Deep River [Index No. 17-(36.5)] from the Town of
Gulf-Goldston water supply intake to US highway 421 including associated tributaries from Class C to Classes C, WS-IV and WS-IV CA. (j) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective August 1, 1998 with the revision to the primary classification for portions of the Deep River [Index No. 17-(28.5)] from Class WS-IV to Class WS-V, Deep River [Index No. 17-(41.5)] from Class WS-IV to Class C, and the Cape Fear River [Index 18-(10.5)] from Class WS-IV to Class WS-V.
(k) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective April 1, 1999 with the reclassification of Buckhorn Creek (Harris Lake)[Index No. 18-7-(3)] from the backwaters of Harris Lake to the Dam at Harris Lake from Class C to Class WS-V. (l) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective April 1, 1999 with the reclassification of the Deep River [Index No. 17-(4)] from the dam at Oakdale-Cotton Mills, Inc. to the dam at Randleman Reservoir (located 1.6 mile upstream of U.S. Hwy 220 Business), and including tributaries from Class C and Class B to Class WS-IV and Class WS-IV & B. Streams within the Randleman Reservoir Critical Area have been reclassified to WS-IV CA. The Critical Area for a WS-IV reservoir is defined as 0.5 mile and draining to the normal pool elevation of the reservoir. All waters within the Randleman Reservoir Water Supply Watershed are within a designated Critical Water Supply Watershed and are subject to a special management strategy specified in 15A NCAC 02B .0248.
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(m) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended
effective August 1, 2002 as follows: (1) Mill Creek [Index Nos. 18-23-11-(1), 18-23-11-(2), 18-23-11-3, 18-23-11-(5)] from its source to the Little River, including all tributaries was reclassified from Class WS-III NSW and Class WS-III B NSW to Class WS-III NSW HQW@ and Class WS-III B NSW HQW@.
(2) McDeed's Creek [Index Nos. 18-23-11-4, 18-23-11-4-1] from its source to Mill Creek, including all tributaries was reclassified from Class WS III NSW and Class WS-III B NSW to Class WS-III NSW HQW@ and Class WS-III B NSW HQW@. The "@" symbol as used in this Paragraph means that if the governing municipality has deemed that a development is covered under a "5/70 provision" as described in Rule 15A NCAC 02B .0215(3)(b)(i)(E) (Fresh Surface Water Quality Standards for Class WS-III Waters), then that development is not subject to the stormwater requirements as
described in rule 15A NCAC 02H .1006 (Stormwater Requirements: High Quality Waters). (n) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective November 1, 2004 as follows: (1) the portion of Rocky River [Index Number 17-43-(1)] from a point 0.3 mile upstream of Town of Siler City upper reservoir dam to a point 0.3 mile downstream of Lacy Creek from WS-III to WS-III CA. (2) the portion of Rocky River [Index Number 17-43-(8)] from dam at lower water supply reservoir for Town of Siler City to a point 65 feet below dam (site of proposed dam) from C to WS-III CA. (3) the portion of Mud Lick Creek (Index No. 17-43-6) from a point 0.4 mile upstream of Chatham County SR 1355 to Town of Siler City lower water supply reservoir from WS-III to WS-III CA. (4) the portion of Lacy Creek (17-43-7) from a point 0.6 mile downstream of Chatham County SR 1362 to Town of Siler City lower water supply reservoir from WS-III to WS-III CA. (o) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective November 1, 2007 with the reclassifications listed below, and the North Carolina Division of Water Quality maintains a Geographic Information Systems data layer of these UWLs. (1) Military Ocean Terminal Sunny Point Pools, all on the eastern shore of the Cape Fear River [Index
No. 18-(71)] were reclassified to Class WL UWL as defined in 15A NCAC 02B .0101. (2) Salters Lake Bay near Salters Lake [Index No. 18-44-4] was reclassified to Class WL UWL as defined in 15A NCAC 02B .0101. (3) Jones Lake Bay near Jones Lake [Index No. 18-46-7-1] was reclassified to Class WL UWL as defined in 15A NCAC 02B .0101. (4) Weymouth Woods Sandhill Seep near Mill Creek [18-23-11-(1)] was reclassified to Class WL
UWL as defined in 15A NCAC 02B .0101. (5) Fly Trap Savanna near Cape Fear River [Index No. 18-(71)] was reclassified to Class WL UWL as defined in 15A NCAC 02B .0101. (6) Lily Pond near Cape Fear River [Index No. 18-(71)] was reclassified to Class WL UWL as defined in 15A NCAC 02B .0101. (7) Grassy Pond near Cape Fear River [Index No. 18-(71)] was reclassified to Class WL UWL as
defined in 15A NCAC 02B .0101. (8) The Neck Savanna near Sandy Run Swamp [Index No. 18-74-33-2] was reclassified to Class WL UWL as defined in 15A NCAC 02B .0101. (9) Bower's Bog near Mill Creek [Index No. 18-23-11-(1)] was reclassified to Class WL UWL as defined in 15A NCAC 02B .0101. (10) Bushy Lake near Turnbull Creek [Index No. 18-46] was reclassified to Class WL UWL as defined
in 15A NCAC 02B .0101. (p) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective January 1, 2009 as follows: (1) the portion of Cape Fear River [Index No. 18-(26)] (including tributaries) from Smithfield Packing Company's intake, located approximately 2 miles upstream of County Road 1316, to a point 0.5 miles upstream of Smithfield Packing Company's intake from Class C to Class WS-IV CA. (2) the portion of Cape Fear River [Index No.18-(26)] (including tributaries) from a point 0.5 miles upstream of Smithfield Packing Company's intake to a point 1 mile upstream of Grays Creek from Class C to Class WS-IV. (q) The schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective August 11, 2009 with the reclassification of all Class C NSW waters and all Class B NSW waters upstream
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of the dam at B. Everett Jordan Reservoir from Class C NSW and Class B NSW to Class WS-V NSW and Class
WS-V & B NSW, respectively. All waters within the B. Everett Jordan Reservoir Watershed are within a designated Critical Water Supply Watershed and are subject to a special management strategy specified in 15A NCAC 02B .0262 through .0273. (r) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended
effective September 1, 2009 with the reclassification of a portion of the Haw River [Index No. 16-(28.5)] from the Town of Pittsboro water supply intake, which is located approximately 0.15 mile west of U.S. 15/501, to a point 0.5 mile upstream of the Town of Pittsboro water supply intake from Class WS-IV to Class WS-IV CA. (s) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective March 1, 2012 with the reclassification of the portion of the Haw River [Index No. 16-(1)] from the City of Greensboro's intake, located approximately 650 feet upstream of Guilford County 2712, to a point 0.5 miles
upstream of the intake from Class WS-V NSW to Class WS-IV CA NSW, and the portion of the Haw River [Index No. 16-(1)] from a point 0.5 miles upstream of the intake to a point 0.6 miles downstream of U.S. Route 29 from Class WS-V NSW to Class WS-IV NSW. (t) The Schedule of Classifications and Water Quality Standards for the Cape Fear River Basin was amended effective November 1, 2015 with the reclassification of a section of 18-(71) from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut from Class SC to Class SC Sw. A site-specific management strategy is outlined in 15A NCAC 02B .0227. History Note: Authority G.S. 143-214.1; 143-215.1; 143-215.3(a)(1); Eff. February 1, 1976; Amended Eff. November 1, 2015; March 1, 2012; September 1, 2009; August 11, 2009; January 1, 2009; November 1, 2007; November 1, 2004; August 1, 2002; April 1, 1999; August 1, 1998; September 1, 1994; June 1, 1994; August 3, 1992; August 1, 1990.

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PROPOSED SWAMP RECLASSIFICATION WITH WATER QUALITY MANAGEMENT PLAN
FOR PART OF CAPE FEAR RIVER:
PUBLIC HEARING SET FOR FEBRUARY 2015

The Cape Fear River Class SC waters shown on the map below are proposed to be assigned the supplemental Swamp (Sw) classification, and would be subject to the provisions of the Sw designation as well as the provisions of a water quality management plan that is also proposed to be assigned to these waters.

WATERS AFFECTED BY PROPOSED RECLASSIFICATION & WATER QUALITY MANAGEMENT PLAN The proposed reclassification and water quality management plan concern the portion of the Cape Fear River from the upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut, where the Intracoastal Waterway (ICW)
meets the river. No tributaries to this section of the Cape Fear River are to be affected by the proposed actions. Wetlands, developed lands, other open waters, forest lands, shrub/scrub lands, and primarily Class Sw tributaries exist directly adjacent to the subject
waters. Several tidal saltwater species, including the federally endangered shortnose sturgeon and federally endangered Atlantic sturgeon, live in these waters. Within the subject waters, there are eight (8) existing NPDES wastewater discharges.
PUBLIC HEARING Location: USS North Carolina Battleship 1 Battleship Road Northeast Wilmington, NC 28401 Time & Date: 6:30 p.m., Thursday, February 5, 2015 Purpose: to receive public comments on a proposed reclassification and
water quality management plan for a section of the Cape Fear River in
Brunswick and New Hanover Counties (Cape Fear River Basin)
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REGULATIONS INVOKED BY PROPOSED RECLASSIFICATION & WATER QUALITY MANAGEMENT PLAN If the proposed reclassification and management plan become effective, then the pH standard applicable to these waters can be as low as 4.3 if caused by natural conditions, and the dissolved oxygen (DO) standard applicable to these waters can be lower than 5.0 mg/l if caused by natural conditions; currently the DO standard is 5 mg/l, and the pH standard is a range between 6.8-8.5, for the subject waters. In addition, new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges in the subject waters would have to meet specific effluent limits for oxygen consuming wastes. For such domestic facilities, effluent limits of 5 mg/l for BOD5, 1 mg/l for ammonia, and 6 mg/l for DO would apply. For industrial discharges, site specific best available technology on a case by case basis would be utilized to determine the limits for BOD5, ammonia and DO. For new individual NPDES wastewater facilities and expansions of existing individual NPDES wastewater discharges, the management plan would include consideration of seasonal effluent limits on a case by case basis, and the following stipulation: Any new or expanded permitted pollutant discharge of oxygen-consuming waste shall not cause the DO of the receiving water to drop more than 0.1 mg/l below the modeled in-stream DO at total permitted capacity. The proposed management plan is consistent with the current permitting policy for new individual NPDES wastewater discharges and expansions of existing individual NPDES wastewater discharges to the subject waters. There are currently no known planned new individual NPDES wastewater discharges and one (1) planned expansion of an existing individual NPDES wastewater discharge in the subject waters, which already meets the proposal’s requirements. The proposed water quality management plan in conjunction with the Sw designation provides a path forward for the subject waters’ dischargers, and thus for local communities, for future planning purposes. Finally, it is unknown how the Sw standards will affect the current DO and pH impairment status of these waters.
A fiscal analysis for this proposal has been completed, and revealed no quantifiable cost or benefit to the ecosystem, humans,
implementing agencies, new individual NPDES wastewater discharges, and expansions of existing individual NPDES wastewater
discharges.
MEETING FEDERAL TRIENNIAL REVIEW REQUIREMENTS The public hearing and comment period are to be held in accordance with the federal Clean Water Act that requires States, at least every three years, to review and revise water quality standards. These standards are provided in existing rules NCAC 15A 02B .0100 and .0201 through .0228. The process is in accordance with the Triennial Review and includes an assessment and revision of the designated uses of waters (classifications) and the water quality criteria (standards), which are based on the designated uses. More specifically, this public hearing and comment period are to address the potential assignment of a Sw classification and water quality management plan to a portion of the Cape Fear River. This proposal will result in additional water quality standards applicable to the
subject waters.
HOW TO SUBMIT COMMENTS You may attend the public hearing and provide verbal comments that specifically address the proposed reclassification and water quality management plan for the subject portion of the Cape Fear River. The Hearing Officer may limit the length of time that you may speak at the public hearing, if necessary, so that all those who wish to speak may have an opportunity to do so. In addition,
written comments addressing the proposed reclassification and water quality management plan for the Cape Fear River segment will be accepted until March 3, 2015.
All persons interested and potentially affected by the proposal are encouraged to read this announcement and make comments on the proposal. The EMC may not adopt a rule that differs substantially from the text of the proposed rule published in the North Carolina Register unless the EMC publishes the text of the proposed different rule and accepts comments on the new text. The proposed effective date for this proposed reclassification is November 1, 2015. Written comments on the proposed reclassification and water quality management plan for the Cape Fear River segment may be submitted to Elizabeth Kountis of the Division of Water Resources Planning Section at the postal address, e-mail address, or fax number listed below. FOR ADDITIONAL INFORMATION This announcement and a map of the subject waters are located on the internet via http://portal.ncdenr.org/web/wq/event-calendar (look under “2015-02-5”). In the case of inclement weather on the day of the scheduled public hearing, please contact the telephone number below for a recorded message regarding any changes to the location, date, or time of the hearing. Further explanations and details on reclassifications may be obtained by writing or calling: Elizabeth Kountis, DENR-Division of Water Resources, Planning Section
1611 Mail Service Center, Raleigh, NC 27699-1611 phone [phone], fax [phone], e-mail [e-mail] To learn more about how the Division of Water Resources protects water quality in North Carolina, go to http://portal.ncdenr.org/web/wq/home/wyk.

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1611 Mail Service Center, Raleigh, North Carolina 27699-1611
Phone: [phone] \ Internet: www.ncdenr.gov
An Equal Opportunity \ Affirmative Action Employer – Made in part by recycled paper

North Carolina Department of Environment and Natural Resources

Pat McCrory
Governor Donald R. van der Vaart
Secretary

January 9, 2015
TO: Major Newspapers of NC
FROM: Ms. Elizabeth Kountis Environmental Senior Specialist N.C. Department of Environment and Natural Resources Division of Water Resources
SUBJECT: Publication of Announcement for Proposed Swamp Reclassification and Water
Quality Management Plan for Cape Fear River
Attached is an announcement for the Proposed Swamp Reclassification and Water Quality Management Plan for the Cape Fear River. The legal requirements for notice as required by G.S.
150B-21.2 have been met by publishing this notice in the NC Register. Publishing this notice in
newspapers is not a statutory requirement and has therefore been recently cut from the Department's budget as non-essential spending. However, we do recognize that newspapers are one of the most effective methods to convey information to the public, and many newspapers contain a public announcement (or similar) section that does not charge a fee to service its
readers with public announcements. Therefore, we are presenting the attached announcement to
you for your information to publish at your discretion. Should you decide to publish this information, it would be greatly appreciated if you would notify us. I can be contacted at any of the following:

By Email: [e-mail] By Fax #: [phone] By postal mail: Ms. Elizabeth Kountis
NCDENR-DWR-Planning Section
1611 Mail Service Center, Raleigh, NC 27699-1611 By phone: [phone] If you should have any questions, please do not hesitate to contact me. Thank you sincerely for
your consideration.
Enclosure

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LIST OF ATTENDEES
PROPOSED RECLASSIFICATION AND WATER QUALITY MANAGEMENT PLAN
FOR CAPE FEAR RIVER SEGMENT
PUBLIC HEARING: FEBRUARY 5, 2015, WILMINGTON, NC
Hearing OfficerWilseyJulieEnvironmental Magagement Commissioner
Div. of Water Resources (CSRRB = Classifications & Standards Rules Review Branch)Kountis Elizabeth Senior Environmental Specialist, CSRRB, Water Planning SectionKreiserGaryGroundwater Vairance and Rulemaking, CSRRB, Water Planning Section
Manning Jeff Chief, CSRRB, Water Planning SectionWeaverAdrieneSenior Environmental Specialist, CSRRB, Water Planning SectionDeamerNoraCape Fear River Basin Planner, Basin Planning Branch, Water Planning SectionRajbhandariNarayanModeler, Modelling and Assessment Branch, Water Planning Section
Kroeger Steve Supervisor, Ecosystems Branch, Water Sciences SectionRuhlmanCarrieMonitoring Coalition Coordinator, Ecosystems Branch, Water Sciences SectionTracyBrynFish Community Assessments and Environmental Fish Reviews, Biological Assessment
Branch, Water Sciences SectionGregsonJimRegional Supervisor, Wilmington Regional Office, Water Qual. Regional Operations SectionGarrettStephanieWater Quality Monitoring, Wilmington Regional Office, Water Qual. Regional Operatons Section
Massengale Susan Public Information Officer
Department of Environment and Natural Resources
Bromby Craig Assistant General Counsel
Citizens in Attendance (*=made verbal comments)
Last Name First NameEntity Representing City County StateFellerDonaldAqua NC Wilmington New Hanover NCWilliamsDonaldAqua NC Hampstead Pender NC
York Dawn Cape Fear River Partnership Wilmington New Hanover NCSargent Dana Cape Fear River Watch NA NA NAYelvertonFrankCape Fear River Watch Wilmington New Hanover NC*Vogt Ken CFPUA Wilmington New Hanover NC*Kreutzberger Bill CH2M Hill Charlotte Mecklenberg NC*
McEwen Tony City of Wilmington NA NA NAThompsonDaciaDuke Environmental Policy Clinic Durham Durham NC*Sebastian Abiles Duke Environmental Policy Clinic Durham Durham NC*Longest Ryke Duke Environmental Policy Clinic Durham Durham NC*O'Connor Shawn General Electric Company Wilmington New Hanover NCKreulEdwardInternational Paper Riegelwood Columbus NC*Henderson Emily International Paper Riegelwood Columbus NCMerrittJamesLCFRP - UNCW Wilmington New Hanover NC*Tomlin Andrew NA Wilmington New Hanover NCBeckerMayNAChapel Hill Orange NCHasvellDianneNew Hanover County NA NA NCO'Connor Jennifer self Leland Brunswick NCGattettRickselfBurgawPenderNCMallinMichaelUNCWWilmingtonNew Hanover NC*McIver Matthew UNCW Wilmington New Hanover NC*Shew Roger UNCW Wilmington New Hanover NCAlexanderMikeVopak Terminals Wilmington New Hanover NC
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March 3, 2015

Elizabeth Kountis
DENR-Division of Water Resources, Planning Section
1611 Mail Service Center
Raleigh, NC 27699-1611
Subject: Additional Comments Regarding the Proposed Reclassification of the Lower Cape Fear River with
Supplemental “Swamp” Classification and Proposed Water Quality Management Plan
Dear Ms. Kountis:
On behalf of representatives of the Lower Cape Fear River Program (LCFRP) that testified at the public
hearing, I am writing to provide some additional comments in support of the proposed subject
reclassification and water quality management plan.
At the public hearing on February 5, we had four speakers speak on behalf of the program including:
 Ken Vogt – Wastewater Superintendent for Cape Fear Public Utility Authority
 Ed Kreul - Manager - Environment, Health, Safety and Sustainability for International Paper
 Bill Kreutzberger – Consultant with CH2M HILL
 Jim Merritt – Executive Director of the Lower Cape Fear River Program

The speakers discussed the coordinated efforts of the LCFRP and the Department of Environment and
Natural Resources (DENR) to assess the issues in the estuary, the technical justification for the propose
reclassification and water quality management plan, and the benefits of this action. Written copies of
comments were submitted at the hearing.

Based on some comments made at the public hearing, we want to provide some supplemental information
and to offer some clarifying language to the water quality management plan language as proposed.
Responses to Comments in Opposition
Overview
Several of the commenters opposed the reclassification primarily because of concern about nonpoint
sources - specifically agricultural runoff related to animal operations. The concern was that the proposal did
nothing to address agricultural nonpoint sources and that these were a major contributor to the low DO
situation in the estuary. In making these comments, commenters were either unaware of or misinterpreted
prior studies that have occurred since the Lower Cape Fear River estuary (LCFRE) was listed as impaired in
1998. The LCFRP formally made the request for reclassification in March 2014 and in support of the request
included technical information that summarized and interpreted historical data as well as recent water
quality modeling studies completed in 2009 by Dr. James Bowen of UNC-Charlotte under contract to DENR.
This information was incorporated in four technical memoranda that were included with the reclassification
request. Some of the key points from that submittal include the following:
 Swamp influences were identified even during the early studies of the river/estuary in the 1950s and the
entire LCFRE and tributaries were recommended and subsequently classified with the supplemental
“Swamp” classification in the early 1960s which was later removed from the estuary with no technical
justification.
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 The hydrodynamic and water quality model completed in 2009 demonstrated that the point sources
have a minor contribution to the DO deficit and that even with 30 to 70 percent reductions in loadings
of oxygen demanding materials from tributaries and wetlands/marsh systems (a combination of
anthropogenic and natural sources), the DO standard of 5 mg/L could not be achieved between 20 and
30 percent of the time.
 An updated trend analysis of DO conditions in the LCFRE showed no significant trend in DO levels over
the 20 year period from 1994 through 2013 while the loading of ultimate Biochemical Oxygen Demand
(BODu) from major point sources declined by 23 percent over the same time period confirming model
results indicating that point sources are having a minor impact on DO levels in the LCFRE.
 The evaluation of water quality data at the boundary conditions supports the conclusion that inflows
from the swamp areas have a significant impact on water quality in the Cape Fear River. The levels of
nutrients, DO, and pH are consistently different between the station at Lock & Dam 1 (L&D1) on the
main stem of the Cape Fear River, and in the major blackwater tributaries – the Black River and the NE
Cape Fear River.
 Modeling analyses conducted in 2001 and 2009 provide further weight of evidence collectively that flow
and oxygen-demanding loads from wetlands/marsh systems and SOD are driving low DO during the
summer period and suggest that reinstitution of the supplemental “Swamp” designation for the LCFRE
should be considered by DENR and the EMC.

Attachment 1 to this letter summarizes these Technical Memoranda and the major technical points that
support the reclassification.
Impact of Nonpoint Sources
There were several comments that pointed out the significant animal population in coastal counties in the
Cape Fear River watershed as well as highlighting that the waste exceeded the ability of soils and crops to
utilize the nutrients. We believe that this information is anecdotal and indicative of potential for water
quality problems to occur. The main way these nutrients could impact dissolved oxygen in the portion of the
estuary modeled is through increases in algal productivity that could impact daily DO variations as well as
generate organic material that can degrade and impact DO either directly or through accumulation in
sediments and generating sediment oxygen demand (SOD). The water quality modeling completed by Dr.
James Bowen of UNC-Charlotte (a recent appointee to the Science Advisory Committee to aid DENR’s
Nutrient Criteria Development Plan) indicates in the modeling report that nutrients and associated algal
productivity is currently having a minor impact on the DO regime in the Lower Cape Fear River Estuary.
Importance of Sediment Oxygen Demand
There were some comments that specifically pointed out that Dr. Bowen’s modeling report indicated
sensitivity of the model to SOD and that runoff from animal operations was a significant contributor to SOD
through a direct contribution of long term BOD and through contribution to algal productivity. It was
indicated that this sensitivity analysis specifically showed the importance of SOD and if SOD rates were
reduced, presumably through more controls on agricultural runoff, DO concentration in the river would be
above 5 mg/L a substantial portion of the time.
In considering this comment, it is important to review the modeling information and specifically SOD. In
Technical Memorandum 4, submitted in support of the reclassification request and summarized in
Attachment 1, it was concluded that “wetland/marsh and sediment oxygen demand (SOD) sources
accounted for between 75 and 80 percent of all oxygen demand in the LCFRE”. However, it is also important
to note that SOD rates were a calibrated value in the model which was set after reviewing measurements
conducted by DENR. The applied rate in the model is 0.4 gm/m2/day which is actually quite low. The
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following is a summary of measured SOD rates (using the average concentration in g/m2/day at each
location normalized to 20 degrees C) for the Cape Fear River Basin as a whole and the portion of the basin
downstream of Lock & Dam No. 1:
All 67 locations In Cape Fear River Basin
Min 0.19
Median 1.11
Max 6.48
Std. Dev 0.95

16 locations below L&D 1
Min 0.19
Med 0.48
Max 6.48
Std. Dev 1.47

Dr. Bowen’s applied SOD rate of 0.4 is already below the median for both the entire river basin and the area
below L&D 1 datasets. We believe these low rates indicate that while the model showed sensitivity to SOD
rates, the rates used in the model indicate there is little opportunity to further reduce these rates through
management of nonpoint sources. A 50 percent reduction in SOD from 0.4 would place the resulting rate
(0.2) as the second lowest rate measured in the entire river basin. Based on the DENR data, this is not a
likely scenario.
The point of Technical Memorandum 4 is to demonstrate the relative importance of wetlands and salt
marsh to accurately predicting DO in the LCFRE in the modeled areas. First hypothesized by Tetra Tech (Tt)
in 2001, Dr. Bowen’s work demonstrated an even greater impact from the wetlands and salt marsh using
more areal coverage and reducing SOD rates (from those applied by Tt during earlier scoping level modeling)
and causing the wetlands and salt marsh to have an even larger impact than originally hypothesized. This
information clearly supports that view that there is a significant “natural” contribution to the observed low
DO values in the river and supports the proposed action to reclassify the river as “swamp” waters.
A Use Attainability Analysis is Required to Reclassify the Lower Cape Fear River as “Swamp”
One commenter indicated that a use attainability analysis was required to support the proposed action. US
EPA water quality standards regulations included in 40 CFR 131.10 (j) states:
(j) A State must conduct a use attainability analysis as described in § 131.3(g) whenever:
(1) The State designates or has designated uses that do not include the uses specified in
section 101(a)(2) of the Act, or
(2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the
Act or to adopt subcategories of uses specified in section 101(a)(2) of the Act which require
less stringent criteria.

The proposed action to classify a portion of the estuary as “Swamp” is not impacting the designated use of
the estuary (which do meet the uses specified in the Clean Water Act) nor does it remove a use or require
less stringent water quality criteria. The current DO and pH criteria remain in effect for the area designated
as “Swamp”. However, the narrative portion of the standard allows the State to make a determination as to
whether any deviation from these criteria is due to natural causes. If this determination is made, values
below the numerical criteria are not considered a deviation from the water quality standard.
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The Proposed Action is to Get Around the Development of a Total Maximum Daily Load (TMDL)
Generally, most commenters agreed that point source dischargers have little impact on DO levels in the
estuary. However, one commenter specifically indicated that the proposed action was to get around the
development of a TMDL. On the contrary, the LCFRP and DENR worked towards development of a TMDL
from about 2000 through 2010. At that point, DENR determined that development of a TMDL was not
feasible due to the apparent natural contribution to DO levels below the standard of 5 mg/L. The request for
reclassification developed from this effort. DENR staff has determined that the proposed reclassification
supplemented with the proposed water quality management plan is an appropriate way to address this
issue.
Clarification to the Proposed Water Quality Management Plan Language
In discussions that lead to the proposed water quality management plan requirements, it was clear that this
language was to apply to sources of domestic and industrial wastewater. To completely clarify this, the
following additions are suggested to the proposed language, marked in red, as follows:

(1) All new individual NPDES wastewater discharges and expansions of existing NPDES wastewater discharges permitted in accordance with 15A NCAC 02H .0102 (1), (2) and (3) shall be required to provide the treatment described below:
(A) Oxygen consuming wastes: Effluent limitations shall be as follows: BOD5= 5 mg/l, NH3-N = 1 mg/l and DO =
6 mg/l, or site-specific best available technology on a case-by-case basis for industrial discharges. Seasonal
effluent limits for oxygen-consuming wastes will be considered on a case-by-case basis in accordance with 15A
NCAC 2B.0404. Any new or expanded permitted pollutant discharge of oxygen-consuming waste shall not
cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream
dissolved oxygen at total permitted capacity.

This completes our supplemental comments on the proposed reclassification of a portion of the Lower Cape
Fear River estuary to include the supplemental “Swamp” classification and the proposed water quality
management plan specified as part of 15A NCAC 2B .0227. We strongly support adoption of this
classification and the management plan, with the clarifying language, by the Environmental Management
Commission.

Sincerely,

CH2M HILL

William A. Kreutzberger
Vice President

c:

Jim Merritt/UNCW
Ken Vogt/CFPUA
Ed Kreul/International Paper
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Attachment 1
Technical Memoranda Submitted in Support of the Reclassification Request
Supporting Information

There is a wealth of research and technical assessment studies that have been conducted on the LCFRE since
the formation of the LCFRP in 1995, as well as during the 40 years prior to that time. In discussing this
reclassification request with DWR staff, it was suggested that a summary of information be prepared to
support the reclassification request. Four Technical Memoranda (TM) have been prepared in support of this
reclassification request and are included as Attachments to this letter. The following is a brief summary of
each TM.

TM 1 - Summary of Background Information and Previous Studies for the Lower Cape Fear River

This TM served to review available background information for the LCFRE dating back to original studies in
the 1950s where water quality and pollutions sources were assessed and initial recommendations on stream
classifications were made. Key studies and assessments up to the present time were also reviewed and a
bibliography or studies and research papers was also included. A several of the key points from this TM
include:

 Swamp influences were identified even during the early studies and the entire LCFRE and tributaries
were recommended and subsequently classified with the supplemental Sw classification

 The supplemental Sw classification was removed from the Class SC portion of the Cape Fear River in
1981 without extensive evaluation for the basis of this change

 LCFRP monitoring in the mid to late 1990s documented the impact of swamp drainage following
hurricanes, similar to what was documented during the 1990s

 The EFDC hydrodynamic and water quality model completed in 2009 demonstrated that the point
sources had a minor contribution to the DO deficit and that even with 30 to 70 percent reductions in
loadings of oxygen demanding materials from tributaries and wetlands/marsh systems (a combination
of anthropogenic and natural sources), the DO standard of 5 mg/L could not be achieved between 20
and 30 percent of the time.

TM 2 - Updated Trend Analysis of DO Conditions and Pollutant Loading from Point Sources

This TM was an update of an analysis done in 2003. The previous DO trend analysis found no statistically
significant trend for DO for the period of 1984 through 2002 for DO conditions at several stations within or
immediately adjacent to the 303(d) listed portion of the LCFRE. The same conclusion was drawn for the
period of 1991 through 2002, despite a statistically significant reduction in major point source ultimate
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biochemical oxygen demand (BODu) load of approximately 25 percent for that period. The updated analysis
used monitoring data and information on point source loading from 1994 through 2013. The updated point
source analysis focused on International Paper and Cape Fear Public Utilities Authority (CFPUA) Northside
and Southside discharges since these facilities comprise over 90 percent of the point source loading to the
local watershed. This analysis also showed no significant trend in DO levels in the LCFRE over the 20 year
period while the loading of BODu from these three facilities declined by 23 percent over the same time
period. This analysis confirms model results indicating that point sources are having a minor impact on DO
levels in the LCFRE.

TM 3 - Analysis of Long-term Data near the Limits of the Tidal Influence for the Cape Fear River, Black River, and NE Cape Fear River

This TM presents an analysis of water quality parameters at the sampling stations representative of inflows
to the system, with the purpose of examining issues related to a supplemental Sw classification for the
estuary. Data was examined for several key parameters, including nutrients, pH, and DO, that are related to
the occurrence of low DO in the Cape Fear River. The evaluation of water quality data at the boundary
conditions supports the concept that inflows from the swamp areas have a significant impact on water
quality in the Cape Fear River. The levels of nutrients, DO, and pH are consistently different between the
station at Lock & Dam 1 (L&D1) on the main stem of the Cape Fear River, and in the major blackwater
tributaries – the Black River and the NE Cape Fear River. A distinct response from these inflows can be seen
in the levels for these parameters in the portion of the Cape Fear River near Navassa, providing additional
supporting evidence that water quality in the Cape Fear River is significantly influenced by the conditions
found in the swamp areas tributary to the river downstream of L&D1.

TM 4 - An Analysis of Model Results to Assess the Relative Impact of Riparian Wetlands and Salt Marshes versus other Tributary Loadings

This TM used the results of the two modeling efforts with the EFDC model in the 2000s to examine the
technical basis for a supplemental Sw classification for the LCFRE. The two modeling studies included the
initial EFDC model developments by Tetra Tech on behalf of the City of Wilmington and New Hanover
County and the follow up work by the University of North Carolina – Charlotte on behalf of NC DENR. Both
modeling efforts demonstrated that the impact from point source loads in the LCFRE contributes to less
than 10 percent of the DO deficit in the LCFRE. The 2001 modeling effort demonstrated that an accurate
calibration could not be achieved without representing the wetting and drying of adjacent low elevation
wetland and salt marsh areas. That modeling estimated that wetland/marsh and sediment oxygen demand
(SOD) sources accounted for between 75 and 80 percent of all oxygen demand in the LCFRE. The 2009
modeling effort validated and expanded the influence of adjacent marshland based on more detailed
analysis. Further, application of the 2009 model that simulated up to 70 percent of nonpoint source load
reduction demonstrated that even with such large pollutant loading reductions, DO concentrations would
be expected to be below 5 mg/L approximately 20 percent of the time in the LCFRE during the summer.
Therefore, the 2001 and 2009 modeling analyses provide further weight of evidence collectively that flow
and oxygen-demanding loads from wetlands/marsh systems and SOD are driving low DO during the summer
period and suggest that reinstitution of the supplemental Sw designation for the LCFRE should be
considered by DENR and the EMC.

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United States Department of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box33726
Raleigh, North Carolin a 27 636-3726
March 3,20Ls
Ms. Elizabeth Kountis
DENR/ Division of Water Resources, Planning Section
1611 Mail Service Center
Raleigh, NC 27699-161L
Dear Ms. Kountis:
This letter conveys the U.S. Fish and Wildlife Service's (Service) comments on proposed
reclassification of a section of the Cape Fear River (Brunswick and New Hanover Counties)from
Class SC to Class SC Swamp (Sw) with a water quality management plan. The Division of Water
Resources (DWR), on behalf of the Environmental Management Commission, seeks comments
on the proposed changes which were detailed in a January 12,2015 public hearing notice.
The Service is the principal Federal agency responsible for conserving, protecting and enhancing
fish, wildlife and plants and their habitats for the continuing benefit of the American people.
Among our priorities is the health and restoration of diadromous fish stocks in the area,
including striped bass (Morone saxatilis), American shad (A/osa sapidissima), hickory shad
(Alosa mediocris), blueback herring (Alosa aestivalisl, alewife (Aloso pseudohorengusl,
shortnose sturgeon (Acipenser brevirostrum), Atlantic sturgeon (Acipenser oxyrinchus
oxyrinchus), and American eel (Anguillo rostrato). All diadromous species have complex life
cycles entailing use of freshwater and marine habitats, so the proposed reclassification of the
lower Cape Fear River is of interest to us and partners working on fish restoration.
We appreciate DWR's early coordination with us on the proposal. At your request, on April 23,
2OL4we emailed references documenting 1) protected aquatic species and species of special
management importance in the lower Cape Fear River, with emphasis on the lifestages present
in late spring, summer and early fall when dissolved oxygen (DO) would be lowest (and
therefore potentially most affected by a Sw reclassification); 2) DO tolerances of fish species of
management concern, including references demonstrating adverse effects to fish early
lifestages at DO concentrations less than the standard of 5 mg/L; and 3) concern that a Sw
classification, allowing lower DO if caused by natural conditions, might make it more difficultto
determine use support related to DO in the future without some mechanism to define a new
lower bound on DO indicative of background conditions. The three April 23, 2014 emails are
incorporated here by reference.
Last summer, a biologist with our Coastal Program (which is integrally involved in Cape Fear
River fisheries and habitat restoration) met with reclassification proponents and consultants.
From those meetings, supporting technical memoranda, and water quality modeling reports,
we better understand the intention of the reclassification -- to document the large influence of
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wetlands and sediment and lesser influence of local point sources on local DO conditiorls. That
should allow stakeholders to refocus restoration efforts on those factors which have the
greatest impact, including anthropogenic sources of oxygen consuming waste upstream of the
reclassified reach. We offer four technical suggestions for DWR's consideration:
1) The proposed management plan concludes with "Any new or expanded permitted pollutant
discharge of oxygen-consuming waste shall not cause the DO of the receiving water to drop
more than 0.1 mg/l below the modeled in-stream DO at total permitted capacity." We suggest
replacing "Any" with "All" so that the cumulative impact of all additional permitted oxygen
consuming waste is a diminishment of less than 0.1 mg/L. This is important because the
monitoring and modeling confirm the reach has essentially no assimilative capacity given DO
already low due to natural conditions.
2) The management plan should include the means by which the 0.1 mg/L cap on lowered DO
will be determined. lmportant details to establish and get reviewed by stakeholders include the
model to be used, input parameters, season to be modeled, location for compliance, and
whether compliance is to be based on instantaneous versus average conditions.
3) Modeling reports note that reductions of oxygen consuming waste upstream of the modeled
reach could appreciably improve DO in the modeled reach -- reducing excursions below the 5
mg/L standard. In other words, upstream water quality improvements could positively
influence DO in the lower Cape Fear River. The reclassification may help in addressing
important anthropogenic sources upstream of the modeled reach (e.g., CAFO associated waste
from the Northeast Cape Fear River; large BOD point sources upstream of the modeled reach).
It would be helpful if the management plan included a path forward on howto improve lower
Cape Fear River DO concentrations through watershed-wide waste load modeling, land use
planning, and permitting so water quality restoration is linked to the reclassification.
4) The management plan should discuss how DO use support determinations will be made if
there is no lower bound on the frequency and magnitude of DO concentrations. lt would help
to explain how natural conditions will be differentiated from other conditions such that DO
impairments can be identified and remedied. ln short, some way to define a new floor with
which to evaluate monitoring and compliance data should be established.
There are no federally- listed threatened or endangered species under Service jurisdiction in the
affected reach. Shortnose sturgeon and Atlantic sturgeon are under the jurisdiction of NOAA
Fisheries'Protected Species Division and may be affected bythe action, sowe encourage your
continued coordination with them.
We will be glad to further explore these suggestions so that the outcome results in restoration
ofwaterqualityforthebenefitoffishandpeople. lfyouwouldlikeadditional detailonanyof
our recommendations, please contact me at 919-856-4520x.21'.
Sincerely,
n,4
/ / \ ,ta,$J'l-1rr
Tom AugspdrJ$er Y
Ecologist
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Memo to: NC Division of Water Resources, and NC Environmental Management Commission From: Dr. Michael A. Mallin, Research Professor, Center for Marine Sciences, University of North Carolina Wilmington, Wilmington, NC, 28409 Date: February 9, 2015 Subject: Comment on the proposed reclassification of the lower Cape Fear River and Estuary to Class Sc-Swamp (Sw) classification.
1) I am very supportive of the statement in the reclassification proposal that states that any further municipal point sources will require the highest level of treatment in North Carolina. I would ask for more specifics regarding industrial discharges – at the least setting some limits on biochemical oxygen demanding agents such as biochemical oxygen demand (BOD), ammonia, total nitrogen (TN) and total phosphorus (TP).
2) An important statement that needs to be clarified is found in the narrative standards where it states that DO should not be less than 5.0 mg/L except that “swamp waters, poorly flushed tidally influenced streams or embayments, or estuarine bottom waters may have lower values if caused by natural conditions” . The issue that requires clarification
is who decides, and by what criteria, if such a deviation is caused by “natural” conditions. 3) The proposed CFR reclassification does not adequately address non-point contributions of BOD or nutrients (which lead to BOD increases). If focus on non-point sources potentially contributing to oxygen depletion is continued to be addressed by on-going
water quality programs; based on the summer blue-green algal blooms that occurred annually from 2009-2012, this approach has been inadequate and will continue to be inadequate. 4) In the lower Cape Fear River and Estuary, peer-reviewed research published in
Limnology and Oceanography has demonstrated that BOD is driven by a number of biological and chemical factors (Mallin et al. 2004; Tables 4, 5 and 6) see the following:
• Chlorophyll a (the principal measure of algal bloom strength) has been positively correlated with BOD5 in the mainstem river at Lock and Dam #1 (r = 0.55, p = 0.0001),
Browns Creek (r = 0.45, p = 0.007), Hammond Creek (r = 0.45, p = 0.004), Great Coharie Creek (r = 0.51, p = 0.001), Colly Creek (r = 0.64, p = 0.0001), Barnards Creek (r = 0.37, p = 0.040), Motts Creek (r = 0.42, p = 0.020), and Smith Creek (r = 0.57, p = 0.0009). I note that Browns, Hammond, Barnards and Smith Creeks drain directly into the mainstem river or estuary, while Colly and Great Coharie creeks drain into the lower
Black River, a major 5th order tributary of the 6th order Cape Fear River.
• TN has been positively correlated with either BOD5 or BOD20 or both in the 5th-order Northeast Cape Fear River (r = 0.30, p = 0.02), the Black River (r = 0.45, p = 0.0003), Hammond Creek (r = 0.47, p = 0.0003), Six Runs Creek (r = 0.54, p = 0.0005), Great
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Coharie Creek (r = 0.44, p = 0.006), Little Coharie Creek (r = 0.52, p = p = 0.0008), and
Colly Creek (r = 0.54, p = 0.0005).
• TP has been positively correlated with either BOD5, BOD20 or both in the Northeast Cape Fear River (r = 0.34, p = 0.008) the Black River (r = 0.33, p = 0.010), Browns Creek (r = 0.40, p = 0.012), Hammond Creek (r = 0.42, p = 0.009), Six Runs Creek (r = 0.49, p = 0.002), Great Coharie Creek (r = 0.66, p = 0.0001), and Colly Creek (r = 0.39, p
= 0.015).
• Chlorophyll a represents algal blooms, which upon death and decomposition become highly labile sources of BOD. Nutrients drive BOD in two ways: directly and indirectly. A peer-reviewed article in Ecological Applications by Mallin et al. (2004) showed that for streams in the Black and Northeast Cape Fear River basins, inputs of dissolved
phosphorus directly stimulate BOD5 and BOD20, as well as natural bacteria abundance
(the direct driver of BOD). The data also showed that inputs of dissolved nitrogen (nitrate ammonium, and urea) significantly stimulate algal growth, which in turn significantly stimulates BOD. Thus, the correlation between nutrient loading and BOD is not surprising.

5) The proposed reclassification is based on the Bowen (2009) model predicting DO concentrations in the lower Cape Fear River Estuary
• The Bowen model concludes that further reduction of current point sources would have little effect on DO concentrations – I will accept the model’s conclusions on that matter.
• But, Bowen’s model shows that reducing nutrient, carbon and BOD loads from the
incoming rivers, creeks and wetlands by 30% and 70% would increase median DO from
5.6 mg/L to 5.85 and 6.2 mg/L, respectively – and this assumes sediment oxygen demand (SOD) stays the same regardless of reductions! See Bowen (2009) pages 6-4, 6-8, and 6-22 in particular for more on this topic. • Assuming that such BOD load reduction would similarly reduce SOD, than the model says summer DO violations would decrease from 45% to 22% violations (30% reduction
case), down to 7% (with 50% reduction) and down to only 1% violations (70% reduction case).
• I further note that SOD cannot simply be considered “natural” only. A year-long study of several tidal creeks in New Hanover County was published in the peer-reviewed journal
Hydrobiologia (MacPherson et al. 2007). Results demonstrated that chlorophyll a
concentrations were positively correlated with SOD (r = 0.35, p < 0.05), as well as BOD5 (r = 0.50, p < 0.05). 6) I note that Bowen does not discuss non-point source pollution sources specifically.

7) Yet, non-point runoff plays a major role in the middle to lower basin of the mainstem Cape Fear River, from crop agriculture, urban runoff and some livestock production. In the lower Cape Fear system I note that livestock waste pollution and crop agriculture are the predominant non-point nutrient and BOD sources in the Black and Northeast Cape
Fear River basins.
8) Livestock manures as waste inputs were not even mentioned in Bowen’s model! However, 2012 livestock counts for Brunswick, Pender, Duplin, Sampson, Cumberland
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and parts of Bladen and Onslow Counties (Cape Fear lower watershed) are as follows
(information for counties that are partially within the basin, Bladen and Onslow, are estimates):
• Hogs: approximately 5,000,000
• Turkeys: approximately 21,500,000 • Broiler chickens: > 122,000,000 • Other chickens: > 870,000
• Cattle: approximately 72,000 (from NCDA website September 2014) Livestock wastes are clearly the largest source of BOD-forcing pollutants in the Cape Fear Basin – and remain virtually unregulated (i.e. no required streamside buffers, no required control of
ammonia off gassing, etc.).
9) Industrialized swine farms (CAFOs) are a source of large-scale chronic nitrogen and phosphorus loading to nearby soils and receiving water bodies, nutrients which have been directly correlated to BOD in the blackwater streams and rivers of the Cape Fear Basin
(Mallin et al. 2006). An peer-reviewed analysis by Cahoon et al. (1999) published in
Environmental Science and Technology found that vast quantities of nitrogen and phosphorus feed are imported into the watershed annually to feed swine, poultry, and cattle in production facilities (CAFOs), which in turn annually load large quantities of nutrients as waste into the watershed. This analysis found that for the Cape Fear River
basin alone, CAFOs produce 82,700 tons of nitrogen and 25,950 tons of phosphorus
annually into this watershed. Thus, N and P enter the state as animal feed from elsewhere, but much of it leaves the livestock as manure (or carcasses) and enters soils or waters of the Coastal Plain.
10) Finally, swine waste lagoons, as well as lagoons servicing egg-laying poultry CAFOs,
produce copious amounts of ammonia to the atmosphere; NC Division of Air Quality estimates a swine ammonia emission factor of 9.21 kg/hog-year. 9.21 x 5,000,000 head of swine = 46,050,000 kg or 46,050 metric tons of ammonia released to the airshed of the Cape Fear River basin (and coastal ocean) per year, much of which comes to earth
within 60 miles of the source (Walker et al. 2000; Costanza et al. 2008). Ammonia is
well-known in the environmental engineering literature to exert an oxygen demand (nitrogenous BOD) on waters – that is why it is regulated in wastewater discharges (Clark et al. 1977). Efforts need to be made to control this major source of oxygen-demanding wastes to the Cape Fear system as well.

11) Clearly, non-point sources of BOD, nitrogen, and phosphorus entering the waters of the lower Cape Fear River system are very large and lead to reduced dissolved oxygen levels. I conclude that the proposed reclassification, as it stands, will be inadequate to produce or
maintain proper dissolved oxygen concentrations in the lower Cape Fear River and Estuary
due to the lack of attention to non-point sources of nutrients and BOD. The source of much of this pollution is industrial livestock production, along with unknown inputs from traditional agriculture, and some urban runoff in the Fayetteville and Wilmington areas. Any
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proposed reclassification of the lower Cape Fear River and Estuary must include strong language specifically aimed at reducing such non-point sources of pollution.
Literature Cited
Bowen, J.D., S. Negusse, J.M. Goodman, B. Duclaud, M. Robin and J. Williams. 2009. Development and use of a three-dimensional water quality model to predict dissolved oxygen concentrations in the lower Cape Fear Estuary, North Carolina. Department of Civil Engineering, University of North Carolina Charlotte.
Cahoon, L.B., J.A. Mickucki and M.A. Mallin. 1999. Nutrient imports to the Cape Fear and
Neuse River basins to support animal production. Environmental Science and Technology 33:410-415.
Clark, J.W., W. Viessman, Jr. and M.J. Hammer. 1977. Water Supply and Pollution Control, 3rd Edition. IEP-A Dun-Donnelley Publisher, New York.
Costanza, J.K., S.E. Marcinko, A.E. Goewert and C.E. Mitchell. 2008. Potential geographic distribution of atmospheric nitrogen deposition from intensive livestock production in North Carolina, USA. Science of the Total Environment 398:76-86.
MacPherson, T.A., M.A. Mallin and L.B. Cahoon. 2007. Biochemical and sediment oxygen demand: patterns of oxygen depletion in tidal creeks. Hydrobiologia 586: 235-248.
Mallin, M.A., M.R. McIver, S.H. Ensign and L.B. Cahoon. 2004. Photosynthetic and heterotrophic impacts of nutrient loading to blackwater streams. Ecological Applications 14:823-838.
Mallin, M.A., V.L. Johnson, S.H. Ensign and T.A. MacPherson. 2006. Factors contributing to hypoxia in rivers, lakes and streams. Limnology and Oceanography 51:690-701.
Walker, J., V. Aneja and D. Dickey. 2000. Atmospheric transport and wet deposition of ammonium in North Carolina. Atmospheric Environment 34:3407-3418.

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Kountis, Elizabeth
From:Ashley Daniels <[e-mail]>
Sent:Tuesday, February 24, 2015 5:43 PM
To:Kountis, Elizabeth
Subject:I live here and this is my home.
Dear Ms. Elizabeth Kountis, 

I was born in Southeastern North Carolina and still as an adult I call this place my home.  I am shocked and appalled by the 
decline in our concern for the land on which we all depend and hopefully our children will be able to depend.   

I understand no one can have everything they want all of the time, compromise is necessary but some things simply 
cannot be compromised.   

Classifying the water in lower Cape fear River as swap water would be temporary solution to a permanent problem.  This 
decision will effect the popluations of people who sail paddle and fish in this area.  Surely we can't think that simply 
changing the name will change the consequences that will surely come.  I implore you to do the right thing.  Act 
responsibly in your position, clean up our river. 

Sincerely, 

Ashley Daniels 

823 Strickland Pl 
Apt 1 
Wilmington, NC 28403 

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1601 Mail Service Center, Raleigh, North Carolina 27699-1601
Phone: [phone] \ Internet: www.ncdenr.gov
An Equal Opportunity \ Affirmative Action Employer – Made in part by recycled paper

North Carolina Department of Environment and Natural Resources

Pat McCrory
Governor Donald R. van der Vaart
Secretary

MEMORANDUM:

TO: Elizabeth Kountis, Division of Water Resources, Planning Section

FROM: Shane Staples, DCM Fisheries Resource Specialist

SUBJECT: Proposed Cape Fear Water Quality Resignation from SC to SW

DATE: 3/3/15

A North Carolina Division of Coastal Management (DCM) Fisheries Resource Specialist has reviewed the
proposed swamp reclassification of the Cape Fear River from the mouth of Toomers Creek to a line
across the river between Lilliput Creek and Snows Cut where the Intracoastal Waterway meets the river.
This reach of the Cape Fear River is currently classified SC and is experiencing impairments in the form of
high levels of fecal coliforms and at times low dissolved oxygen levels that can be detrimental to fish and
shellfish in the river. Much of the area is closed to shell fishing due to pollution that can be attributed to
the highly developed watershed. The Cape Fear River is used by nearly all species of estuarine fish and
shellfish found in North Carolina including the federally endangered shortnose sturgeon and Atlantic
sturgeon.

Reducing water quality standards in this reach of the river could have negative effects on fish and shell
fish that use the Cape Fear River. As well as being known habitat for both federally endangered sturgeon
species it is also classified as a Primary Nursery Area (PNA) by the North Carolina Division of Marine
Fisheries. Water bodies classified as PNA’s are habitats that are essential to larval and juvenile fish and
shellfish survival and recruitment. The number and diversity of juvenile fish collected in NDMF sampling
in this section of the Cape Fear show this area to be highly productive; reductions in the water quality
standards for this area could impair its function as a nursery area. Fish kills caused by low dissolved
oxygen levels are a normal summer occurrence in NC estuaries due to already impaired conditions,
reducing the dissolved oxygen standard could exacerbate this problem. Additionally, even though many
of the shellfish harvest closures in the area are due to pollutant runoff the proposed change in water
quality standards could possibly lead to expanded closures in the Cape Fear.

Contact Shane Staples at [phone] or [e-mail] with further questions or
concerns.

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March 3, 2015 Elizabeth Kountis DENR-Division of Water Resources
Planning Section
1611 Mail Service Center Raleigh, NC 27699-1611 Fax: [phone] Email: [e-mail]

RE: Comments on Proposed reclassification of portions of the Cape Fear River Dear Ms. Kountis:
On behalf of the Cape Fear River Watch, Cape Fear Riverkeeper and Waterkeeper
Alliance, we are submitting the following comments pursuant to the Notice issued by your office for the proposal captioned “Proposed Swamp Reclassification with Water Quality Management Plan for Part of Cape Fear River.” This proposed reclassification apparently originated from a request on behalf of persons who had been meeting to
discuss the development and implementation of a Total Maximum Daily Load for the
Lower Cape Fear River.1 Based upon review of the materials presented, as well as readily available peer-reviewed literature, this proposal suffers the following deficits: constitutes an unlawful attempt to evade the Clean Water Act’s directives to correct water quality problems through implementation of Total Maximum Daily Load requirements
and to prevent backsliding on Water Quality Standards once they are set; violates the policy declared by the State’s constitution and implementing statutory directives to the North Carolina Environmental Management Commission (Commission) and the North Carolina Department of Environment and Natural Resources (Department) to protect and conserve the waters of the state for the benefit of all its citizens; fails to correct the water
pollution created by Animal Operations under the regulatory authority of the Commission and CAFOs as regulated by the Clean Water Act, which together are causing impairments for copper, turbidity, pH and low dissolved oxygen (DO); lacks scientific support; and does not comply with the requirements of the North Carolina Administrative Procedures Act (APA).
1 The letterhead of the request is the Lower Cape Fear River Program, but the request is signed by Chris May, identified as the Executive Director of the Cape Fear Council of Governments. We raise this issue in order to preserve, in any subsequent appeal, the question as to whether Mr. May was acting with actual authority on behalf of a person with legal power to make the request.
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I. The Clean Water Act Requires the State of North Carolina to Implement a Total Maximum Daily Load Allocation in the Cape Fear River
The Lower Cape Fear River (LCFR) presents the classic situation that the Clean Water Act (CWA) provisions on Total Maximum Daily Load (TMDL) were designed to address: chronic violations of water quality standards that NPDES-imposed effluent limitations alone are unable to correct. The modern-day CWA was first passed in 1972 in
response to growing concern about the continued degradation of many major rivers under inadequate state regulatory schemes. The CWA’s stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101(a). To achieve this objective, the CWA lays out several goals, including the elimination of the discharge of pollutants into navigable waters. The statute sets up
several programs to achieve these goals, including the TMDL process. A. State Water Quality Standards Must Meet CWA Minimum Requirements and Protect Designated Uses
State water quality standards must be approved by the United States Environmental Protection Agency under § 303 of the Clean Water Act, 33 U.S.C. § 1313. Under the Clean Water Act, water quality standards consist of three elements: (1) one or more existing or designated "uses" of a water body (such as fish and aquatic life, fishing, boating, aesthetic quality, irrigation and water supply), (2) water quality “criteria”
indicating the amount of a pollutant that may be present in the water body while still protecting the uses, and (3) a provision restricting degradation of certain types of waters. When met, these standards must be stringent enough to protect the designated uses. States are responsible for enforcing their water quality standards on intrastate waters. See 33 U.S.C. § 1319(a).
B. North Carolina’s General Statutes Require More Protection of Uses than the CWA Minimum Requirements Under the provisions of Article 21 of Chapter 143, the North Carolina General
Assembly has set forth guidelines for the Commission to use when enacting water quality standards and specifically sets forth criteria more stringent and more specific than the Clean Water Act. North Carolina’s standards must be designed to: 1) protect human health,
2) prevent injury to plant and animal life, 3) prevent damage to public and private property, 4) insure the continued enjoyment of the natural attractions of the State, 5) encourage the expansion of employment opportunities, 6) provide a permanent foundation for healthy industrial development,
7) secure for the people of North Carolina, now and in the future, the
beneficial uses of these great natural resources. See N.C. Gen. Stat. § 143-211(c).
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State water quality standards established under § 303 provide an important
“supplementary basis . . . so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.” EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 n.12 (1976). States therefore may impose more stringent water quality controls. See 33 U.S.C. § 1311(b)(1)(c). The CWA standards are a floor, but states are
expected to set standards to protect uses based on the water quality issues in their waters. For example, North Carolina requires that water quality standards ensure “the ability of an aquatic ecosystem to support and maintain a balanced and indigenous community of organisms . . . . ” 15A NCAC § 2B.0202(11).
Numerous state water quality issues are implicated within the Cape Fear River basin and the State has adopted a broad array of requirements affecting water quality to protect the public welfare and serve the purposes of the Clean Water Act. For the portions of the Cape Fear River system classified as Class SC waters, state regulations provide specific water quality criteria implicated by these classifications. These include
chlorophyll, dissolved oxygen, solids or sludge attributable to wastes, dissolved gases, fecal coliform, pH, oils, temperature, turbidity, toxic substances, pesticides, and metals, among others. See15A NCAC § 02B .0220 The Lower Cape Fear River fails to meet the standards imposed for DO, pH, turbidity, and copper. Consequently, the state is required to identify the sources that contribute to these violations and then take corrective action.
“[S]ources of water pollution which preclude any of these uses on either a short-term or long-term basis shall be considered to be violating a water quality standard.” 15A NCAC § 2B.0211(2). C. CWA Requires North Carolina to Allocate Pollutant Loading From Point Sources,
Including CAFOs, and From Nonpoint Sources Under TMDL
The CWA requires states to address both point sources2 and nonpoint sources in order to protect designated uses. Under the CWA scheme, states must designate uses for waterbodies within the state and then develop water quality standards for those waterbodies to ensure achievement of the designated uses. Effluent limitations must be
imposed on every point source discharger, including concentrated animal feeding operations (CAFOs),3 in an effort to meet the water quality standards and maintain the designated uses. Waterbodies that do not meet their standards are placed on the 303(d) list of impaired waters. For those waterbodies, the states must develop TMDLs for the contaminant(s) causing the violation to return the waters to the standards appropriate for
the designated use. To achieve a TMDL, CWA § 303 requires the state to undergo a
2 CWA § 502(14) defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”
3As discussed more in Section III, North Carolina also regulates all Animal Operations activities involving Animal Waste, even when these operations have not been designated as CAFOs. We do not endorse the Department’s decision to use general permits for Animal Operations in this basin and have previously commented on the inadequacy of those permits to prevent the types of problems seen in the LCFR.
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continuing planning process and determine appropriate load allocations for all sources,
whether categorized as point or nonpoint. The TMDL must consider point and nonpoint sources contributing to impairment and not merely those adjacent to the impaired stretch. The state must incorporate the TMDL waste load allocations into the NPDES permits for each point source discharger and the load allocation for nonpoint sources are to be implemented through regulatory, non-regulatory and voluntary compliance mechanisms
depending on the source. Since 1998, the LCFR segment from upstream of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut has been on North Carolina’s 303(d) list of impaired waters due to low dissolved oxygen (DO). In 2006, the state added
impairment for pH, copper, and turbidity to the 303(d) list for this segment. The CWA requires the state to develop a TMDL for the impairing pollutants and then incorporate the TMDL into NPDES permits for point sources and controls on nonpoint sources necessary to meet the loading limits in the state plans.4 For example, TMDLs are to be incorporated into the state’s Water Quality Management Plan, which must also include
effluent limitations and the regulatory, non-regulatory, and other mechanisms necessary to control nonpoint sources and meet water quality standards. The proposed reclassification would avoid this process and allow the waterbody to violate the 5 mg/L DO standard. In doing so, it fails to further the goals of the CWA and violates its express provisions.
The CWA intends for TMDLs to cover pollution from point and nonpoint sources. The TMDL program sets the total amount of a pollutant that a waterbody can assimilate while still achieving its designated uses. The state must set the TMDL with an eye toward the designated use, and then must manage its contributing point and nonpoint
sources to meet the TMDL. The CWA requires states to incorporate the TMDL into NPDES permits for point sources and into the regulatory, non-regulatory and other actions in state plans for nonpoint sources. Thus, the TMDL process should comprehensively consider all sources, which this proposed reclassification fails to do by ignoring CAFOs and nonpoint sources. Further, CAFOs are defined as point sources
within the CWA (and in more detail by EPA regulations). So, the statute is clearly and explicitly intended for the TMDL process to cover discharges from CAFOs. The proposed reclassification entirely ignores the discharges from these sources, even though there are millions of hogs, poultry, turkeys, and cattle in the basin that contribute to the violations of applicable water quality standards. The proposed reclassification is thus
impermissible.
4 See, e.g. 33 U.S.C. §§1313(e) and 1319; Pronsolino v. Nastri, 291 F. 3d. 1123 (9th Cir. 2002) (Upholding EPA’s TMDL for a waterbody impaired solely by nonpoint source pollution); U.S. EPA What is a TMDL? http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/overviewoftmdl.cfm (“Load allocations (LAs) are implemented by nonpoint sources through a wide variety of state, local, and federal programs (which may be regulatory, non-regulatory, or incentive-based, depending on the program), as well as voluntary action by citizens.”);
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D. The Proposed Reclassification Violates the Anti-Degradation Provisions in Both
State and Federal Law The CWA also includes anti-degradation provisions that prohibit the states from allowing the degradation of navigable waters by lowering the standards to achieve compliance. See 33 U.S.C. § 1313(d)(4). Under the federal antidegradation policy, the
states are required to develop and adopt statewide antidegradation policies that ensure that “existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” 40 C.F.R. § 131.12. North Carolina has incorporated this requirement by reference into its water quality standards, and further adopted the requirement that “[e]xisting uses, as defined by Rule .0202 of this
Section, and the water quality to protect such uses shall be protected by properly classifying surface waters and having standards to protect these uses.” 15A NCAC 02B § .0201 (a) and (b). Existing uses are defined as: “uses actually attained in the water body, in a significant and not incidental manner, on or after November 28, 1975, whether or not they are included in the water quality standards, which either have been actually available
to the public or are uses deemed attainable by the Environmental Management Commission. At a minimum, uses shall be deemed attainable if they can be achieved by the imposition of effluent limits and cost-effective and reasonable best management practices (BMPs) for nonpoint source control.” See 15A NCAC 02B § .0202(30). The proposed reclassification violates both the CWA and the state’s supplemental
antidegradation policy regulations because it will not protect and maintain the existing uses in the LCFR, would weaken water quality standards and would allow for further degradation of water quality. Additionally, EPA regulations prohibit the removal of a designated use where that
use is an existing use, which the EPA regulations define as uses “actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.” 40 C.F.R. § 131.10(h)(1). The EPA regulations deem a use attainable if it “can be achieved by the imposition of effluent limits required [for point sources] under sections 301(b) and 306 of the Act and cost-effective and reasonable best
management practices for nonpoint source control.” 40 C.F.R. §131.10(d). The EPA regulations also prohibit removing a designated use where “[s]uch uses will be attained by implementing effluent limits required under sections 301(b) and 306 of the Act and by implementing cost-effective and reasonable best management practices for nonpoint source control.” 40 C.F.R. § 131.10 (h)(2). As demonstrated by materials submitted by
the proponents of this reclassification and the comments of Dr. Burkholder set forth below, the SW classification protects an existing use and the designated uses for the LCFR can be achieved through reasonable pollution controls. If these prohibitions did not apply, a state could seek to remove a
designated use where naturally occurring pollutant concentrations prevent
the attainment of the use: “States may remove a designated use which is not an existing use, as defined in § 131.3, or establish sub-categories of a use if the State can demonstrate that attaining the designated use is not feasible because: (1) Naturally occurring pollutant concentrations prevent
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the attainment of the use.” See 40 C.F.R. § 131.10(g)(1). The
supplemental Sw “Swamp” classification is an example of such a sub-category of use for SC waters of the LCFR. NC law builds upon these restrictions with supplemental provisions, allowing revision to the water quality standards if the naturally occurring pollutant concentrations are the result of natural background conditions.
Under NC law, “any person subject to the provisions of G.S. 143-215.1 may petition the Commission for a hearing pursuant to G.S. 143-215.4 for a revision to water quality standards adopted pursuant to G.S. 143-214.1 as such water quality standards may apply to a specific stream
segment into which the petitioner discharges or proposes to discharge.” See N.C. Gen. Stat. § 143-214.3. This section also sets forth the procedure and burdens of proof needed in making such a request. However, the provision specifies that revisions to water quality standards are permitted only when the proponent meets particular criteria, including
proving that “natural background conditions on the stream segment preclude the attainment of the applicable water quality standards.” As we set forth in Sections III and IV, the proposed reclassification does not meet that burden.
The Commission must also consider several matters prior to granting a reclassification request, including the following factors: “the use and value of State waters for public water supply, propagation of fish and wildlife, recreation, agriculture, industrial and other purposes, use and value for navigation, and … an estimate … of the environmental impact, the economic and social costs necessary to achieve the proposed
standards, the economic and social benefits of such achievement and an estimate of the date of such achievement.” N.C. Gen. Stat. § 143-214.1(d)(4). Since the CWA and its rules set the minimum requirements, this provision is supplemental to that which is required by the CWA’s anti-degradation policy. It does not appear that the proponent has provided any support for the Commission to conduct such an analysis.
Thus, under the state and federal regulations, DWR would have to establish that the use is not an existing use, that the use cannot be attained by implementing effluent limits and nonpoint source controls, and that low DO in the LCFR is being caused by naturally occurring pollutant concentrations that make attainment of the use infeasible.
This is a burden that cannot be met as set forth in greater detail below in Section III and IV, as well as attached comments by Dr. Joann Burkholder, Ph.D. In any event, because the SC classification includes uses that are specified in CWA Section 101(a)(2), the state cannot remove a designated use or adopt subcategories of uses that require less stringent criteria without conducting a Use Attainability Analysis. See 40 CFR 131.10(j) and
131.3(g). The state has not done so in this instance and, thus, the Commission may not
proceed with the reclassification.
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II. North Carolina Law Requires the Environmental Management Commission to Correct Impairments Including Low Dissolved Oxygen in LCFR
North Carolina’s Constitution and its General Statutes require the Commission to correct pollution in the Cape Fear River to support fish and other aquatic life. The fisheries resources are public trust assets, as are the waters of the Cape Fear River itself.
Now that the Commission has designated uses for the Cape Fear River, studied the causes of its impairment and evaluated measures for correcting the same, the Commission must act to correct the problems identified. Reclassifying the Cape Fear River to swamp waters does not fulfill the duties entrusted to the Commission by North Carolina’s laws.
More generally, a reclassification and a codification of rules that allow for worsened water quality clearly violate North Carolina’s Constitution, which imposes a duty of water quality protection upon this Commission: “It shall be the policy of this State to conserve and protect its lands
and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to
preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.” N.C. Const. Art. XIV, § 5. The Commission must remember that the people have enshrined this duty in the
Constitution of North Carolina. Limiting and controlling pollution is a duty of the State and all its political subdivisions. This provision imposes a duty on the Commission to carry out its powers to protect the lands and waters for the benefit of all its citizenry. Forty years ago, our General Assembly advanced this Constitutional mission by
enacting the General Statutes which protect these values, including the laws which empower the Department and the Commission, such as Chapters: 113, 113A, 113B, 130A, 130B, 132, 139, 143, 143B, 146, 150B, 156, 159, 159A, 159B, 159C, 159G and 162A. Among this comprehensive system of laws is found Article 21 of Chapter 143, captioned, “Water and Air Resources.” Within Article 21, the General Assembly declares
its intent for those laws: “to achieve and to maintain for the citizens of the State a total environment of superior quality. Recognizing that the water and air resources of the State belong to the people, the General Assembly affirms the State's ultimate responsibility for the preservation and development of these resources in the best interest of all its citizens and declares the prudent utilization of these resources to be
essential to the general welfare.” N.C. Gen. Stat. § 143-211(a) (emphasis added).
The General Assembly’s enactments clearly show their intent to clarify the legal points that (a) water and wildlife resources belong to the people and (b) the State bears responsibility to preserve and develop these resources as a public trust. This trust may
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not be devolved to private interests through permits or approvals that give perpetual
rights to pollute and degrade the public trust resources of the people. See N.C. Const. art. I, §§ 32 and 34. Under the provisions of Article 21 of Chapter 143, the North Carolina General Assembly has set forth the guidelines for the Commission to use when enacting these
standards and specifically sets forth criteria more stringent and more specific than the Clean Water Act. At the core of EPA-approved state water quality standards under 33 U.S.C. § 1313, states are responsible for enforcing their water quality standards on intrastate waters. See 33 U.S.C. § 1319(a).
In setting water quality standards, the General Assembly directed the following be considered: “Standards of water and air purity shall be designed to protect human health, to prevent injury to plant and animal life, to prevent damage to public and private property, to insure the continued enjoyment of the natural attractions of the State, to encourage the expansion of employment opportunities, to provide a permanent
foundation for healthy industrial development and to secure for the people of North
Carolina, now and in the future, the beneficial uses of these great natural resources.” N.C. Gen. Stat. § 143-211(c) (emphasis added). These provisions clearly show the recognition of a duty to protect uses of our state’s waters for the benefit of today’s users and those in the future. Removing the protections from the Lower Cape
Fear River does not meet the purposes of North Carolina’s Constitution, Law or Rules.
III. Neither the Low DO Conditions Nor the Animal Wastes That Cause Them are Naturally Occurring
As stated above, the proposed reclassification violates numerous provisions of
state and federal laws relating to TMDLs, water quality standards, antidegradation policies, and the requirements for removing and establishing designated uses. These hurdles cannot be overcome. However, assuming for the sake of discussion that they could, under North Carolina and federal law, the Commission would have to determine that natural background conditions on the stream segment preclude the attainment of the
use in order to consider the proposal. N.C. Gen. Stat. § 143-214.3; 40 C.F.R. 131.10(g)(1). The burden of proof is on the applicant to prove this to the Commission. Neither the applicant nor the Commission can meet this burden, and in any event, the Commission could not classify the LCFR as “swamp waters” as the river does not meet the regulatory definition which requires low velocities, among other things. See 15A
NCAC 02B .0101(e)(2), 15A NCAC 02B .0202(62), 15A NCAC 02B .0301(c), and
Comments of Dr. Burkholder.
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A. North Carolina’s Statutes Regulate Animal Operations, Feedlots and Animal
Waste, Even When Not Designated as CAFOs, and Legally Recognize the Water Quality Problems Created by Livestock Manure5 North Carolina’s General Assembly adopted laws to regulate Animal Operations and Feedlots in response to concerns that growth in the numbers of Animal Operations
harmed water quality. As the General Assembly found, “The growth of animal operations in recent years has increased the importance of good animal waste management practices to protect water quality. It is critical that the State balance growth with prudent environmental safeguards.” N.C. Gen. Stat. § 143-215.10A.
In addition, the General Assembly found the need to control and limit nutrients leaving the Animal Operations by specifying that Animal Waste be applied with careful attention to the both nitrogen and phosphorus as rate limiting elements for applying Animal Waste to land. See N.C. Gen. Stat. § 143-215.10C. The General Assembly also declared that zinc and copper levels in the soils shall be monitored, and alternative crop
sites shall be used when these metals approach excess levels. These legislative requirements reflect specific legislative findings as to the water quality problems caused by excess nitrogen, phosphorus, zinc and copper. These North Carolina legislative findings of fact are supported by studies from
federal agencies. The United States Environmental Protection Agency (“EPA”) and United States Department of Agriculture’s (“USDA”) have identified livestock manure as the largest cause of water quality impairment in the country’s rivers, streams, lakes, ponds, and reservoirs, and the fifth leading contributor to impairment of estuaries.6 They contribute to the impairment of approximately 37% of the nation’s surveyed rivers and
streams.7 North Carolina law defines Animal Waste to include livestock or poultry waste. N.C. Gen. Stat. § 143-215.10B. A feedlot is defined as a lot or building or combination intended for the confined feeding, breeding, raising, or holding of animals. N.C. Gen.
Stat. § 143-215.10B. An Animal Operation is defined as a feedlot involving 250 or more swine, 100 or more confined cattle, 75 or more horses, 1,000 or more sheep, or 30,000 or
5 North Carolina and the federal government provide different definitions for CAFOs, but these specific definitions and thresholds do not change the underlying arguments about the shortcomings of the current proposal. Just because the state has not identified something as a CAFO through its case-by-case assessment does not mean that it is not one. 6 CLAUDIA COPELAND, CONG. RESEARCH SERV., RL31851, ANIMAL WASTE AND WATER
QUALITY: EPA REGULATION OF CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFOS) 4 (2002) (citing U.S. EPA, EPA-841-R-08-001, NATIONAL WATER QUALITY INVENTORY: REPORT TO CONGRESS FOR THE 2004 REPORTING CYCLE 18–19 (2009)).
7 Stephen Harden, Characterization of Surface-Water Quality Associated with
Swine CAFOs in Eastern
North Carolina, Proposal submitted to the N.C. DEP’T OF
ENV’T AND NATURAL RES., DIV. OF
WATER QUALITY 1, 3 (May 9, 2011) (citing the EPA’s 2002 National Water Quality Inventory).
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more confined poultry with liquid waste handling. N.C. Gen. Stat. § 143-215.10B. Thus,
any Feedlot with more than 250 swine is an Animal Operation subject to the Commission’s regulatory authority as related to its handling of Animal Waste. The Commission has the regulatory authority and a duty to act to reduce the impact of livestock manure on the LCFR through its regulation of Animal Operations and Animal Waste. This must also be done through a TMDL in order to correct low DO in the Lower
Cape Fear River. B. Prior to 1999, the LCFR Experienced Explosive Growth in Animal Operations The LCFR was not listed as impaired until large numbers of Animal Operations
had been built in the basin. North Carolina in general, and the Cape Fear River basin in particular, experienced dramatic increases in the number and size of Animal Operations from the mid-1980s through the late-1990s. During that time, the swine population in the counties in the basin increased fourfold, turkey production doubled, chickens increased by 50%, and beef cattle by 25%. According to a study by scientists from the University
of North Carolina at Wilmington, the Cape Fear River basin houses more than half the hog population in North Carolina.8 The surplus nutrients are excreted in the livestock manure, which in turn feeds nutrients into the Cape Fear River through its tributaries. The situation in the basin is so severe that analysts with the USDA’s Natural
Resources Conservation Service (“NRCS”) found that the Cape Fear River basin and surrounding land area was the number one priority watershed in the United States based on its vulnerability to livestock manure nutrient pollution. 9 This finding is consistent with an earlier NRCS review as well.10
The proliferation of CAFOs in the Cape Fear River watershed is the best explanation for the low DO levels in the lower portion of the river, and this explanation is supported by the science. Research from the University of North Carolina at Wilmington shows that ammonium levels have increased in the river since the mid-1990s.11 Ammonium is a form of nitrogen in swine and poultry waste that can be transported via
runoff, subsoil movement, and volatilization and deposition.12 This ammonium can be transported downstream to the section of the LCFR at issue here, where it can cause algal
8 See “Nitrogen and Phosphorus Imports to the Cape Fear and Neuse River Basins to Support Intensive Livestock Production” by Lawrence B. Cahoon, Jill A. Mikucki, and Michael A. Mallin Environ. Sci. Technol., 1999, 33 (3), pp 410–415. 9 See “Potential Priority Watersheds for Protection from Manure Nutrients” by Robert Kellogg, available online at: http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_012227.pdf (Accessed Feb, 17, 2015)
10 See “Manure Nutrients Relative to the Capacity of Cropland and Pastureland to Assimilate Nutrients: Spatial and Temporal Trends for the United States” by Robert Kellogg et al., available online at: http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_012133.pdf (Accessed Feb. 17, 2015)
11 Michael A. Mallin & Lawrence B. Cahoon, Industrialized Animal Production—A Major Source of Nutrient and Microbial Pollution to Aquatic Ecosystems, 24 POPULATION & ENVT. 369, 376 (2003) (internal citations omitted). 12 Id.
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blooms.13 These algal blooms eventually die, and feed bacteria, generating a high
biological oxygen demand (BOD), which in turn causes low DO.14 The single major land use change that could account for this increase in ammonia concentrations (and drop in DO) is the rapid growth of CAFOs during the 1980s and 1990s.15, 16 This research reinforces the NRCS’s finding that this area should be a priority
watershed for protecting against nutrients from livestock manure.Trends showed a significant importation of these nutrients to the Cape Fear River basin from feed grown outside the basin.17 (Early studies by UNC-W’s Center for Marine Science also found a correlation between fecal coliform indicators and biological oxygen demand in the River.)18 The Cape Fear River Basinwide Assessment Report of 1996 went even further,
finding in 1995 that nitrogen and phosphorous from livestock manure exceeded the assimilative capacity of cropland by more than 400% in several counties within the watershed.19 This troubling data caused DENR’s analysts to state: “It should be noted that these figures do not take into account commercial
fertilizer applications in the counties. It is clear based on this information, that animal waste management in a number of counties in the basin is becoming a critical issue, and that the animal carrying capacity of these lands (from a waste disposal standpoint) needs to be closely examined. Alternatives to cropland application need to be considered in these
counties such as application on forest land or transportation/distribution of the collectable manure to counties that have capacity and could use this nutrient source in lieu of commercial fertilizers.” 20 Nutrients imported to the basin in the form of grain to feed the swine create a nutrient
imbalance that this Commission must address. Of course, since 1995, the numbers of swine, turkeys, layers and cattle have only increased in the Cape Fear River Basin. Their numbers are not a naturally occurring condition and their manure is not a naturally occurring pollutant. The record shows the
DO violations are caused by animal feeding operations and other upstream sources, and not by naturally occurring conditions. Accordingly, the Commission must reject the proposed reclassification, and instead take measures to control pollution from animal
13 Id. at 378, and Figure 2.
14 Id. 15 Id.
16 We are not suggesting that CAFOs are the only source of the DO problem, but the state has the obligation to control the contributions of CAFOs rather than move forward with the reclassification.
17 See “Nitrogen and Phosphorus Imports to the Cape Fear and Neuse River Basins to Support Intensive Livestock Production” by Lawrence B. Cahoon, Jill A. Mikucki, and Michael A. Mallin Environ. Sci. Technol., 1999, 33 (3), pp 410–415.. 18 See “Environmental Assessment of the Lower Cape Fear River System: 2002-2003” by Michael Mallin et al. CMS Report 03-03 (2003). 19 See “Cape Fear River Basinwide Water Quality Plan” by NC DENR (1996). Available online at: http://portal.ncdenr.org/web/wq/ps/bpu/basin/capefear/1996 (Accessed Feb. 17, 2015) 20 Id. at 3-17 through 3-19 and referenced figure.
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waste at animal feeding operations and other upstream sources in order to restore water
quality.
IV. The Technical Memoranda Do Not Carry the Burden of Proof on Naturally-Occurring Pollutant or Condition Causing the LCFR Impairments

The proponent for reclassification argues that natural conditions result in levels of DO and pH that excuse the violations of water quality standards and offers four Technical Memoranda (“TM”) as factual support for the proposal. These TM are grossly deficient and misleading, and they omit significant information. While water quality in the Cape Fear River is influenced by the conditions found in the swamp and estuarine areas, low
DO accompanied by high copper levels can be explained only by the contribution of animal waste and other upstream sources. A. Experts Have Shown the Correlation Between Animal Operations and Eutrophication in the Lower Cape Fear
Dr. Joann Burkholder directs the Center for Applied Aquatic Ecology at North Carolina State University. An internationally recognized expert in her field, Dr. Burkholder has studied and published articles in peer-reviewed journals on topics directly relevant to assessing the causes of impairment in the LCFR: chronic effects of nutrient
over-enrichment and other chemical environmental contaminants on aquatic plants; the impacts of cyanobacteria, dinoflagellates, haptophytes, and raphidophytes on aquatic ecosystems; and influences of long-term changes in watershed land use and pollution sources on surface water quality.
Dr. Burkholder reviewed the proposed reclassification, surveyed past literature and research and provided comments regarding the TM and the merits of the proposal itself. These comments, which constitute expert opinion, show that Animal Waste, Animal Operations and CAFOs are the primary cause of impairments for DO, pH, copper and turbidity. A copy of Dr. Burkholder’s review is attached to these Comments and is
incorporated by reference. Dr. Burkholder notes that CAFOs are also point sources, and that they should be treated as such in the modelling, but were not evaluated this way. Even though CAFOs in the LCFR are the most concentrated per unit surface area in the entire nation, they are
not addressed in the TM. Further, even though supporting data and research showing
their contribution to low DO was readily available from peer-reviewed literature, they were not mentioned, evaluated or considered. The TM did not use the best science available, but rather singled-out the information which supported the proposal. The weight of science contradicts the TM and this Commission should reject the Proposal.
The applicants have failed to meet their burden of proof to support a reclassification.

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B. Impairment for Copper in the LCFR and the TMDL Trigger for those
Impairments Also Point to Animal Waste as the Cause The TM selectively present information to support the proposed reclassification, but the record of research in the Cape Fear Basin demonstrates that manure nutrients from Animal Waste are both contributing to the DO deficit and are subject to the
Commission’s control. Copper is recommended to be added to animal feeds to promote growth.21 Professors working at North Carolina State University studied the composition of Animal Waste using samples and the statistics on statewide inventories of livestock animals.22 In this study, Dr. Barker and Dr. Zublena totaled all the nutrients found in all of the Animal Waste in all of North Carolina’s Animal Operations as they existed in
1993. Their published findings show that more than 290 tons of copper per year were present in the Animal Waste produced by North Carolina’s Animal Operations. Subsequent studies showed that nitrogen concentrations had slightly declined between 1995 and 2005, but that copper and zinc values have remained steady, with the highest concentration found in liquid animal waste produced at dairies and swine operations,
followed by litters produced at broiler and turkey operations.23 24 In 2012, North Carolina reported more than 300 miles of streams as impaired for copper on the CWA 303(d) list. The LCFR is part of those stream miles, from just outside Navassa into the area covered by the proposal. A TMDL is needed to address the impairment caused by excess copper.
Neither swamps nor estuaries contribute copper as a naturally occurring pollutant, whereas the scientific literature shows that copper is supplemented in feed to livestock and that hundreds of tons of it are excreted in Animal Waste produced by Animal Operations. Copper impairment on the Cape Fear River is thus a red flag, a fact that the
four TM conveniently omit. Coupled with the impairments for low pH and turbidity, and the TMDL previously identified as needed for the LCFR, all signs point to Animal Waste as a primary cause. (The only exception is mercury impairment). Despite this evidence, the four TM omit any information about the contribution of Animal Waste to impairment; to the extent they insist that DO problems in the LCFR are caused by “natural
conditions,” they are misusing that term.
21 See “Swine Feeding Suggestions” by Clemson University Extension, Circular 505 (1995), available online at: http://www.clemson.edu/psapublishing/pages/ADVS/EC509.PDF (last accessed Feb. 26, 2015)
22 See “Livestock Manure Nutrients in North Carolina” by Dr. J.C. Barker and J.P. Zublena (1996), available online at: http://www.bae.ncsu.edu/programs/extension/evans/assess.html (last accessed Feb. 26, 2015) 23 See “North Carolina Trends in Animal Waste Nutrient Concentrations” by Casteel, S., B. Cleveland, D. Osmond, and C. Hudak-Wise. 2007. In Proc. Soil Science Society of America Natl. Conf. – New Orleans, LA.
24 Researchers and policymakers for the European Commission looking at allowable concentrations of copper supplements in livestock feed found that copper had negligible benefits to animal health except for piglets and recommended research to evaluate environmental impacts of copper excreted in livestock manure.See “Opinion of the Scientific Committee for Animal Nutrition on the use of copper in feedingstuffs” by the European Commission’s Health and Consumer Protection’s Directorate-General (2003) available online at: http://ec.europa.eu/food/fs/sc/scan/out115_en.pdf (last accessed Feb. 26, 2015)
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C. A Proper Interpretation of the Bowen Model Supports the Use of TMDL to
Reduce Loading to the LCFR from sources in the Cape Fear River, Black River and Northeast Cape Fear, Including Animal Operations The modeling effort for predicting how decreasing loading of pollution to the LCFR would impact DO levels was conducted by Dr. Jim Bowen at UNC- Charlotte
(Bowen Model).25 The Bowen Model ran several scenarios that incorporated assumptions obscuring the impacts of loadings from Animal Operations, including CAFOs. Pollution from Animal Operations, including CAFOs, was treated as given input to the modelling. The Bowen Model lumped together all upstream sources, both natural and anthropogenic, in waste load figures from the three major rivers upstream of the
LCFR. Thus, the pollutant load from all sources discharging pollutants into the Northeast Cape Fear River above the LCFR model segment were lumped together into a single pollutant source. This single pollutant load is a combination of types of sources. In developing the load allocations for a TMDL, each of the upstream rivers should be evaluated further to document the contribution from each type of source, including
naturally occurring conditions, whether classified as non-point or point sources. There are several NPDES-permitted facilities, including CAFOs, upstream of the LCFRP.26 Just because the Bowen Model lumps these loads into input categories labeled by the name of their original subbasin, the supporters of the reclassification lumps together with all other upstream sources as “natural.” These permitted facilities are obviously not natural
sources and should be addressed by the state through the TMDL process. In the case of the Northeast Cape Fear River, the Bowen Model labeled the upstream pollutant load under the category upstream river source number 20. Likewise the Cape Fear River and Black River were treated as source numbers 18 and 19,
respectively. (See Bowen Model, Table 9, p. 47) Based on this assumption, no attempt was made to identify the sources of loadings to the Northeast Cape Fear River, Cape Fear River or the Black River. The model did not consider how much of the loads from these upstream rivers came from naturally-occurring pollutants and how much came from NPDES-permitted discharges or from Animal Waste. Thus, the Bowen Model cannot be
used to support any determination that conditions are the result of naturally-occurring pollutants because it lumped the naturally-occurring and anthropogenic pollutants together in each of the three major rivers that flow into the LCFR.
25 See: “Development and Use of a Three-Dimensional Water Quality Model to Predict Dissolved Oxygen Concentrations in the Lower Cape Fear River Estuary, North Carolina available online at: http://webpages.uncc.edu/~jdbowen/LCFR/LCFR_DOModelReport_Final.pdf (last accessed Feb. 26, 2015)
26For example, the following permits appear as NPDES permitted facilities run in connection with livestock operations upstream of LCFR: Godwin Farms Permit no. NCA282225; Dixie Chops, Inc. Permit No. NCA282143; Timothy Smith Farm Permit No. NCA231656; and Troy Sloan Farm Permit No. NCA231655. In addition, the Smithfield Packing Company holds Permit No. NC0078344 allowing up to 3 million gallons per day of water contaminated with pollutants such as those responsible for causing the types of impairments observed in LCFR. In addition, hundreds of Animal Operations in the basin operate under state level permits for handling animal waste. These sources are not naturally occurring and the Bowen Model does not make them such based on its inputs labelling scheme.
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The Bowen Model also treated the estuarine tributaries in the same fashion as the three major rivers. Therefore, the Bowen Model cannot be used to support any determination that conditions there are the result of naturally-occurring pollutants because it lumped the naturally-occurring and anthropogenic pollutants together for these tributaries. A total of 20 wastewater treatment plants (WWTPs) with NPDES permits
were also evaluated. The Bowen Model concluded that reducing loadings from these 20 WWTPs would not correct DO impairment, although they did have an effect on the amount of DO impairment. The Bowen Model can be interpreted to say that reduced loadings from these 20 WWTPs will not correct DO in the LCFR, but stretching the Bowen Model to prove that the LCFR are swamp waters is unsupported scientifically and
is a misreading of the Bowen Model. Significantly, the Bowen Model did conclude that reducing the combined loading from the Northeast Cape Fear River, Cape Fear River, the Black River and the estuarine tributaries would produce significant DO improvement. This Scenario was dubbed the
“Clean River” Scenario. The Report states: “The load reductions of riverine, creek, and wetland inputs were found to have a significant impact on the estimated dissolved oxygen concentrations during the summer months in the impaired region of the
Lower Cape Fear River Estuary. At the 10th percentile level, DO concentrations for the three load reduction scenarios increased by 0.2, 0.3, and 0.4 mg/L respectively, from 4.3 mg/l to either 4.5, 4.6, or 4.7 mg/L (Figure 80). Unlike the scenarios described in the previous section in which wastewater loading decreases were investigated, the level of
increase in DO concentration was maintained at the higher percentiles when reductions in the river, creek, and wetland loadings were made. In fact, for this “clean river” scenario, the median DO concentration increased to even a greater extent than the 10th percentile value, increasing from 5.6 to 5.85 mg/L for the 30% reduction (an increase of
0.25 mg/L), and from 5.6 to 6.2 mg/L (an increase of 0.6 mg/L) for the 70% reduction scenario (Figure 80).” See Bowen Model at page 142, Scenario 6-3. The Bowen Model then concluded that cleaning up the riverine and estuarine
tributaries was still not enough to meet the DO standard. But that was not the end of the modelling efforts. The Bowen team recognized that lowering the inputs from the Black River, Cape Fear River and Northeast Cape Fear River would reduce accumulation of organic materials in the sediments and thus would also reduce Sediment Oxygen Demand (SOD). In most of the model runs, the Bowen Model had held SOD contribution as
constant and as uniform. Dr. Burkholder rightly critiques this assumption as a flaw in the
model. To test whether reducing both loadings from SOD and from the Black River, Cape Fear River and Northeast Cape Fear River would meet DO standards, they ran
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another scenario, dubbed a “Clean River Scenario.” They found that by reducing the
loadings from both SOD and upstream riverine and estuarine sources, 99% of the values achieved compliance with the DO standard. As the Bowen Model report noted: “In this scenario we examine what conditions would be necessary to produce summertime DO concentrations above 5.0 mg/L. In addition, one
limitation of the analysis done previously is that it ignores possible changes that might occur in the benthos if organic matter loadings were reduced. For instance, it is likely that a reduction of 30% or 50% or 70% in organic matter loading would in the long-term also result in lower sediment oxygen demands. The cumulative effect of decreasing both
organic matter loading and sediment oxygen demand are examined in this scenario.” See Bowen Model at page 146, Scenario 6-5. The Bowen Model thus shows that a TMDL would work and the designated uses can be protected. These model runs demonstrated that a reduction in the loadings from
the Cape Fear River, the Black River and the Northeast Cape Fear River, and the Estuarine Tributaries would reduce loading to SOD. Taken together, this approach would correct DO and achieve compliance. Under the Clean Rivers scenario, DO would exceed the standard 99% of the time. Dr. Bowen’s team writes:
“The 50% reduction case had an even lower rate of water quality violations, but these were not completely eliminated. With both SOD and oxygen demanding wastes decreased, approximately 7% of summertime DO concentrations in the impaired region are below 5.0 mg/L, as compared to 27% when only the oxygen demanding wastes are decreased
(Figure 82). There is also a large increase in the minimum predicted DO concentration for this case. The base case had a minimum predicted DO concentration of approximately 3.2 mg/L, whereas the minimum when SOD and oxygen demanding wastes are reduced by 50% is approximately 4.6 mg/L (Figure 82). A decrease in SOD of 70% and a reduction in river
load of 70%, however, does almost completely eliminate dissolved oxygen concentrations below 5.0 mg/L (Figure 82). For this case, only about 1% of the predicted dissolved oxygen concentrations are below the water quality standard value.” See Bowen Model at page 142, Scenario 6-5.
The TM erred in their use of the Bowen Model by treating the Cape Fear River, Black River and Northeast Cape Fear River inputs as naturally-occurring conditions. This faulty position fails to acknowledge that each of these rivers receive large loadings from pollutant sources – mainly Animal Operations and CAFOs themselves. Once you unpack the assumptions built into the Bowen Model, you see that it actually supports a
TMDL effort to reduce the loading impact from the Cape Fear River, Black River and
Northeast Cape Fear River to correct the low DO in the LCFR. Loading from Animal Operations, including CAFOs, in these three tributary rivers clearly have caused an increase in LCFR DO concentrations.
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D. The TM Are Incorrect in Ascribing Large Loading of Pollution to the LCFR
from Riparian Wetlands Dr. Burkholder further noted that the data do not support the assertion that inputs from riparian wetlands are “significant contributors to the tremendous loads of oxygen-demanding materials.” While the Bowen Model treated loadings from the three major
rivers and the estuarine tributaries as if they were discharges from giant WWTPs, the Bowen Model does not attempt to distinguish between the pollutant loading caused by anthropogenic activities and those from naturally-occurring pollutants or conditions. Riparian wetlands often act to reduce the impact of pollutants to surface waters.
Other experts have identified Animal Waste as especially significant for Biological Oxygen Demand (BOD) and Chemical Oxygen Demand (COD) from ammonia, in the Northeast Cape Fear River system (e.g., Mallin et al. 1997). Dr. Burkholder points out that TetraTech focused on the three largest NPDES permitted dischargers and showed that reducing loading from these sources would not correct the
problem. Once again, this does not prove natural conditions. Rather, it proves that the problem can be corrected only by reducing the impact of Animal Waste and the loading coming to LCFR from the Cape Fear River, Black River and the North East Cape Fear River as supported by the Bowen Model.
Similarly, the TM authored by CH2M HILL contains a description of surface water quality conditions in summer that omits any discussion of the massive contribution of organic-rich, oxygen-demanding materials from Animal Waste. Dr. Burkholder’s research, and that of her cited colleagues, shows that Animal Waste is a cause of the impairments currently found in the LCFR: copper, pH, turbidity and low DO. All
available data show that past pollution must be dealt with if the Cape Fear River is to continue to serve its role as a public resource. In order to uphold its duty to the people of this State, the Commission and Department must deny the request.
V. Other Issues Prevent this Commission from Approving the Proposal as Submitted

Other problems with this proposal prevent the Commission from proceeding as proposed and require that the sidetracked TMDL proceed again to a conclusion. Even if a reclassification were an appropriate substitute for a TMDL in this case, two oversights
would have to be corrected first: (1) the state failed to perform a Use Attainability
Analysis (UAA) which could be approved only if the state can show that the current designated use is in fact unattainable; and (2) the fiscal assessment is grossly inadequate. Under EPA regulations, the state must conduct a UAA if it is removing a
designated use or adopting subcategories that impose less stringent water quality criteria.
40 CFR 131.10(j). The proposed reclassification would create a new subcategory for this waterbody, an action that plainly requires the completion of a UAA to demonstrate that attainment of the designated uses is not feasible. The state has not performed a UAA for
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this section of the LCFR, so it has not met its obligations under EPA regulations. If the
state elects to continue pursuing this reclassification, it must perform a UAA before submitting a reclassification proposal. In addition, the state is required to prepare a fiscal note under the NC Administrative Procedures Act (APA). The current fiscal analysis claims that there will
be no “quantifiable” impacts, positive or negative, of the proposal. No factual support or analysis is made for this claim. Where the extent and quantification of fiscal impacts is uncertain, the agency is forbidden from just assuming that there are none. “If an agency is not sure whether a proposed rule change would have a substantial economic impact, the agency shall ask the Office of State Budget and Management to determine whether the
proposed rule change has a substantial economic impact. Failure to prepare or obtain approval of the fiscal note as required by this subsection shall be a basis for objection to the rule under G.S. 150B-21.9 (a)(4).” N.C. Gen. Stat. § 150B-21.4. The fiscal analysis provided for this proposal is plainly insufficient to meet APA requirements.
Here, we provide a few examples of the substantive inadequacies of the current fiscal analysis. First, there would be costs to the implementing agencies, as they would be required to apply the narrative swamp standards and determine whether violations were caused by natural conditions or dischargers. This would be time-intensive, and therefore costly, for the implementing agencies. Second, this proposal poses clear threats to the
environment and ecosystem of the LCFR. These include negative impacts on the fish populations (and the fishing and recreation economies of the area) from the permission of decreased DO concentrations (from the reclassification that will potentially allow more lenient permits based on “natural” conditions and from the codification that will allow new permits to result in a 0.1mg/L drop in DO).
Third, the benefits associated with future planning are created by the codification component of the proposal, and entirely unrelated to the reclassification element of the proposal. Indeed, the reclassification might have the opposite effect because it will be difficult to anticipate how the state will apply the narrative standard for swamp waters.
Fourth, there will plainly be economic benefits to dischargers who will have the option of dropping the DO concentration (based on the proposed codification) and the opportunity to argue that the natural conditions now being recognized also should have been considered at the time of their original permit issuance, making them eligible for an exception to the anti-backsliding policies (based on the reclassification). The economic
analysis even admits that “[d]ischarges (sic) may in the future be granted additional wasteload allocations.” Fifth, there is no discussion of the benefits to CAFOs, Animal Operations and Feedlots. CAFOs and Animal Operations may benefit by avoiding their federal and state obligations under NPDES or under a mandatory state TMDL program.
The Commission is not excused from its duties under the APA when impacts are
difficult to quantify. It is simple to understand where the weight of the impacts resides --doing nothing allows continued harm to the river and allows those who are polluting under the status quo to continue their behaviors. Without quantifying the impacts, it is clear that the reclassification part of the proposal is harming the local communities and
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the environment, while it is benefiting the Animal Operations that are the original source
of the problem. The reclassification is not economically justifiable and should be abandoned. In addition, the current document combines the fiscal analysis of the reclassification and codification components of the proposal. These should be analyzed separately, as they could be separated by the EMC, legislature, or RRC since neither one is necessary for the other. If the proposals are separated in the future, it will be important
to understand if they are independently economically justifiable. The current analysis sheds no light on this issue.
VI. Starting a Conversation or Stopping it Cold

A representative from the LCFRP participated in the oral comment process and mentioned that this proposal was meant to “start the conversation” about problems on the LCFR. The actual proposal will not start a conversation, but end it. Once approved, this proposal will put an end to any discussions of the DO water quality of the LCFR. Once the existing NPDES permit holders are off-the-hook, we should expect new NPDES
applicants to demand the same consideration and eliminate the management protections as the next step. In addition, low DO will continue to worsen as nutrient cycling creates a worse situation in the sediments. The current proposal is an illegal end-run around the TMDL process, which is squarely counter to the CWA’s objectives and scheme. The end point of the CWA was never to surrender to water quality degradation, but to fight for
clean water. Our law requires the Commission to reject this proposal. Very Truly Yours, /s/
Ryke Longest, Director Duke Environmental Law and Policy Clinic

cc: EPA Region IV Administrator

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STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

ADDENDUM TO
REPORT OF PROCEEDINGS ON THE PROPOSED RECLASSIFICATION OF A CAPE FEAR RIVER SEGMENT IN BRUNSWICK AND NEW HANOVER COUNTIES (CAPE FEAR RIVER BASIN) FROM CLASS SC TO SC Sw
WITH A WATER QUALITY MANAGEMENT PLAN

PUBLIC NOTICE DECEMBER 15, 2015 – FEBRUARY 15, 2016
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Table of Contents

Page
SUMMARY AND RECOMMENDATION ....................................................................................1
SUMMARY ...................................................................................................................................1
Public Notice and Comments Received ........................................................................................1
Proposed Language Changes form C0mments & DWR Responses .............................................2
RECOMMENDATION .................................................................................................................2

APPENDICES ............................................................................................................................. a-1
Proposed Revised Version of 2B .0227 .................................................................................... a-2
Public Announcement ............................................................................................................... a-4
Request for Publication (Regarding Public Announcement) Sent to Newspapers ................... a-6
Letters without Proposed Language Changes ........................................................................... a-7
Letters with Proposed Language Changes .............................................................................. a-26
Proposed Revised Version of 2B .0227 with Additional Changes (Made After Published) .. a-36

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SUMMARY AND RECOMMENDATION SUMMARY At the September 2015 Environmental Management Commission (EMC) meeting, the EMC
approved rule amendments reflecting the reclassification of a portion of the Cape Fear River in New Hanover and Brunswick Counties to Class SC Sw with a water quality management plan. The rulemaking involved proposed amendments to 15A NCAC 2B .0227 (2B .0227) and 15A NCAC 2B .0311 (2B .0311) that had been publicly noticed in early 2015. Then the Division of Water Resources (DWR) submitted the EMC approved rule amendments to the Rules Review
Commission (RRC), and RRC legal staff requested technical changes to 2B .0227. The requested changes addressed 2B .0227 rule language primarily in existence prior to the rule amendments approved at the September 2015 EMC meeting. DWR considered the requested changes for the purposes of clarity only, and DWR responded to the requested technical changes with revisions to 2B .0227 that DWR felt did not alter the intent or purpose of the rule. EMC approved the
revisions at its November 2015 meeting to go out to public notice (revised version of 2B .0227 attached as pages a-2 and a-3). Public Notice and Comments Received

Public notice of the revised version of 2B .0227 was published in the December 15, 2015 and
January 4, 2016 editions of the North Carolina Register (Volume 30, Issues 12 and 13) along
with the EMC approved responses to the technical changes. An announcement of the comment
period (announcement attached as pages a-4 and a-5) was sent to the Water Resources Rule-
Making Announcements mailing list, the DWR Rules e-mail list, staff (including library staff) of
the local governments with jurisdiction over land adjacent to the subject waters, wastewater
facilities discharging directly to the subject waters, and to other persons potentially interested in
the proposal, including staff of interest groups such as The Nature Conservancy, Cape Fear River
Watch, Waterkeeper Alliance, and Cape Fear River Assembly, staff of federal and state agencies,
and legislators within North Carolina. The public announcement and request for publication were
submitted on December 18, 2015 to five local newspapers, Coastal Review Online, Brunswick
Beacon, Star News, Wilmington Journal, and Port City Daily (newspaper request for publication
attached as page a-6). The opportunity to request a public hearing was included in the public
notice, but no hearing was requested, and therefore, no hearing was held.

Written comments were accepted from December 15, 2015 through February 15, 2016, and four
written letters were received. Two comment letters, one each from the U.S. Fish and Wildlife
Service and Southern Environmental Law Center (SELC) (two letters attached as pages a-7
through a-25), raise several of the same issues of concern that were raised during the previous
comment period in early 2015, which DWR staff had investigated and responded to in the Report
of Proceedings that was featured as an attachment to the September 2015 EMC meeting agenda
item regarding the proposed reclassification and water quality management plan; these letters do
not provide proposed language changes to 2B .0227. Of the remaining two letters, one letter was
received from SELC and the other letter was received N.C. Division of Marine Fisheries (DMF)
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(two letters attached as pages a-26 through a-35); these two letters provide proposed language
changes to two areas within 2B .0227.

Proposed Language Changes from Comments & DWR Responses

The proposed language changes requested within the comments are as follows:

In regard to the word “significant” in the last sentence of (b)(1):
 “Remove the word “significantly” from the existing language…(or) use
language…relative to SAV in Nationwide 19 General Conditions and Regional
Conditions relating to all Nationwide Permits in the coastal area…(or) use
language…relative in shell bottom and SAV in 15A NCAC 07H .0208…” (NC DMF)
 “…prohibit non-maintenance dredge and fill activities “where shellfish producing habitat
or submerged aquatic vegetation habitat as defined in 15A NCAC 03I .0101(4)(g) and (i),
occurs or would be reduced as a result of such activity.” (SELC)

In regard to the provision for new non-discharge permits in the fifth sentence of (b)(1):
 “(Return) “New non-discharge permits shall be required to meet reduced loading rates
and increased…” (and add)…”setbacks beyond those specified in Subchapter 2T of these
rules... The adjusted loading rates and setbacks shall be determined by the Director on a
case-by-case basis and designed to prevent runoff into surface waters.” (SELC)

DWR had removed the word “significantly” from the last sentence of 2B .0227 (b)(1) (revised
version of 2B .0227 attached as pages a-2 and a-3), an above-mentioned NC DMF suggested
language change. In addition, the proposed language in the SELC comment letter alters the
degree of restrictiveness of 2B .0227; as a reminder, the purpose of the DWR revisions made to
2B .0227 is to address requested technical changes, and not to propose any language that would
make this rule more or less restrictive.

DWR, as well as SELC in their comment letter, noted that a reference in the published version of
the rule needs to be corrected. To remedy this incorrect citation, DWR proposes to remove
“(b)(20)(A) and (B)” from the last sentence of 2B .0227 (b)(1). In addition, the Division
proposes to further clarify this sentence by adding the word “habitat” after “submerged aquatic
vegetation”, removing “a reduction of “ prior to shellfish producing habitat,” and replacing
“which are” with “as” (language changes are highlighted in bold below).

RECOMMENDATION

After careful consideration of the record in this matter, it is the recommendation of DWR staff
that the proposed revisions in 2B .0227 in response to requested technical changes, as proposed
herein, be approved by the EMC in their entirety with the above-mentioned citation correction
and clarifying language, which are shown below in bold (revised version of 2B .0227 with
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additional changes (made after published in December 2015) attached as pages a-36 and a-37).
In making this recommendation, DWR staff has considered applicable requirements within
General Statutes 150B and 143, Rules within 15A NCAC 02B, and the written comments
received.

In taking this action, 2B .0227 will show that the EMC has made revisions to this rule to address
requested technical changes and EMC has made the following additional edits to 2B .0227
(b)(1)(D) in bold (revised version of 2B .0227 with additional changes (made after published in
December 2015) attached as pages a-36 and a-37) :

(E)(D) No dredge or fill activities shall be allowed where significant shellfish or
submerged aquatic vegetation bed resources occur; if those activities would result in a reduction of the beds of submerged aquatic vegetation habitat or shellfish producing habitat which are defined in 15A NCAC 03I .0101, except for maintenance dredging, such as that required to maintain access to existing
channels and facilities located within the protected area or maintenance dredging
for activities such as agriculture. The proposed effective date for all modifications to 2B .0227 that were approved by the EMC at
its September 2015 and May 2016 meetings is July 1, 2016. In addition, given that proposed
amendments to 2B .0227 for a water quality management plan for a Cape Fear River segment
were approved in conjunction with proposed amendments to 2B .0311 for a reclassification of
the same Cape Fear River segment to Class SC Sw, the proposed effective date of the above-
mentioned amendments to 2B .0311 is also July 1, 2016.

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APPENDICES

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15A NCAC 02B .0227 is proposed for amendment as follows (text already adopted by Environmental Management 1
Commission and pending RRC approval appears in italics): 2
3
15A NCAC 02B .0227 WATER QUALITY MANAGEMENT PLANS 4
(a) In implementing the water quality standards to protect the existing uses [as defined by Rule .0202 of this Section] of the 5
waters of the state or the water quality which supports those uses, the Commission shall develop water quality management 6
plans on a priority basis to attain, maintain or enhance water quality throughout the state. Additional specific actions deemed 7
necessary by the Commission to protect the water quality or the existing uses of the waters of the state shall be specified in 8
Paragraph (b) of this Rule. These actions may include anything within the powers of the Commission. The Commission may 9
also consider local actions which have been taken to protect a waterbody in determining the appropriate protection options to 10
be incorporated into the water quality management plan. 11
(b) All waters determined by the Commission to be protected by a water quality management plan are listed with specific 12
actions either in Rules .0601- .0608 of this Subchapter that address the Goose Creek watershed (Yadkin Pee-Dee River Basin) 13
or as follows: 14
(1) The Lockwoods Folly River Area (Lumber River Basin), which includes all waters of the lower 15
Lockwoods Folly River in an area extending north from the Intracoastal Waterway to a line extending from 16
Genoes Point to Mullet Creek, shall be protected by the specific actions described in Parts (A) through (E) 17
(D) of this Subparagraph. 18
(A) New development activities within 575' of the mean high water line which require a 19
Sedimentation 20
Erosion Control Plan or a CAMA major development permit must comply with the low density 21
option of the coastal Stormwater Runoff Disposal Rules [as specified in 15A NCAC 2H 22
.1005(2)(a)]. as specified in 15A NCAC 2H .1005(2)(a). 23
(B) New or expanded NPDES permits shall be issued only for non-domestic, non-industrial process 24
type discharges (such as non-industrial process cooling or seafood processing discharges). such as 25
non-industrial process cooling or seafood processing discharges. A public hearing is mandatory 26
for any proposed (new or expanded) NPDES permit to this protected area. 27
(C) New non-discharge permits shall be required to meet reduced loading rates and increased buffer 28
zones, to be determined on a case-by-case basis. 29
(D)(C) New or expanded marinas must shall be located in upland basin areas. 30
(E)(D) No dredge or fill activities shall be allowed where significant shellfish or submerged aquatic 31
vegetation bed resources occur, if those activities would result in a reduction of the beds of 32
submerged aquatic vegetation or a reduction of shellfish producing habitat as defined in 15A 33
NCAC 03I .0101(b)(20)(A) and (B), except for maintenance dredging, such as that required to 34
maintain access to existing channels and facilities located within the protected area or 35
maintenance dredging for activities such as agriculture. 36
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(2) A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of 18-(71) from upstream 1
mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut shall be protected 2
by the Class SC Sw standards as well as the following site-specific action: All new individual NPDES 3
wastewater discharges and expansions of existing individual NPDES wastewater discharges shall be 4
required to provide treatment for oxygen consuming wastes as described in Parts (A) through (C) of this 5
Subparagraph. 6
(A) Effluent limitations shall be as follows: BOD5 = 5 mg/l, NH3-N = 1 mg/l and DO = 6 mg/l, or 7
utilize site-specific best available technology on a case-by-case basis for industrial 8
discharges.discharges in accordance with Rule .0406 (e) of this Subchapter. 9
(B) Seasonal effluent limits for oxygen consuming wastes will be considered on a case-by-case basis 10
in accordance with Rule .0404 of this Subchapter. 11
(C) Any new or expanded permitted pollutant discharge of oxygen consuming waste shall not cause 12
the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-13
stream dissolved oxygen at total permitted capacity for all discharges. 14
15
History Note: Authority G.S. 143-214.1; 143-215.8A; 16
Eff. October 1, 1995; 17
Amended Eff. November 1, 2015; July 1, 2016; January 1, 1996. 18
19
20
21
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ANNOUNCEMENT FOR PUBLIC COMMENT PERIOD:

REVISED WATER QUALITY MANAGEMENT PLAN
FOR PART OF CAPE FEAR RIVER IN
NEW HANOVER AND BRUNSWICK COUNTIES

HISTORY A Notice of Text was previously published in the 29:13 issue of the North Carolina Register for a proposed water quality management plan and Class Sc Sw reclassification for a part of the Cape Fear River, and it included notice of a public hearing, which was held on February 5, 2015, as well as a comment period. At the September 2015 Environmental Management Commission (EMC) meeting, the EMC considered comments received concerning the rule amendments reflecting the reclassification and water quality management plan, and approved the rule amendments in conjunction with each other. The rulemaking involved proposed
amendments to 15A NCAC 2B .0227 for the water quality management plan as well as to 15A NCAC 2B .0311 for the reclassification. Then the Division of Water Resources (DWR) submitted the rule amendments to the Rules Review Commission (RRC), and RRC legal staff requested technical changes to 2B .0227 but not 2B .0311.
The requested changes primarily addressed 2B .0227 rule language in existence prior to the rule amendments approved at the September 2015 EMC meeting, and DWR considered the requested changes for the purposes of clarity only. DWR responded to the requested technical changes with a revised version of 2B .0227 that EMC
approved at its November 2015 meeting to go out to public notice unaccompanied by 2B .0311.
REVISIONS TO 2B .0227 Revisions made to 2B .0227 in response to the requested technical changes, for which public comment is currently desired, appear underlined or struck-through in the revised rule whereas the September 2015 EMC approved amendments to 2B .0227, for which public comment has already been received, appear in italics in the revised rule. The revisions due to the requested technical changes are as follows: 1. First sentence in (b): Addition of “either in Rules .0601 - .0608 of this Subchapter that address the Goose Creek watershed (Yadkin Pee-Dee River Basin)” to address requested clarification of North Carolina waters deemed by the EMC as protected by a “water quality management plan” 2. Only sentence in (b)(1)(A): Removal of brackets around “as specified in 15A NCAC 2H .1005(2)(a)” to address requested grammatical change
3. First sentence in (b)(1)(B): Removal of parentheses around “such as non-industrial process cooling or seafood processing discharges” to address requested grammatical change
4. Only sentence in (b)(1)(C): Removal of entire sentence and “(C)” to address requested clarification of “reduced loading rates” and “increased buffer zones”
The conditions in this sentence of the rule are difficult to implement as there is no established process or criteria for determining the application rates or setbacks in this rule. In addition, DWR is not considering more restrictive application rates or setbacks for facilities located in any specific basins, or areas in the state, other than what is prescribed in the 2T rules. The 2T rules were adopted in 2006, after the 2B .0227 language regarding the Lockwoods Folly River Area (Lumber River Basin) was adopted, and were intended to provide protection to water resources
by means such as setbacks and application rate restrictions. Lastly, as part of the Session Law 2013-413 process, Rule 2L .0107 Compliance Boundary will be reviewed for potential amendments to provide adequate protection to surface waters currently within the compliance boundary for a spray field.
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5. Only sentence in (b)(1) new (C): Replacement of “must” with “shall” to address requested grammatical change 6. Only sentence in (b)(1) new (D): Replacement of “where significant shellfish or submerged aquatic
vegetation bed resources occur,” with “if those activities would result in a reduction of the beds of submerged aquatic vegetation or a reduction of shellfish producing habitat as defined in 15A NCAC 03I .0101(b)(20)(A) and (B),” to address requested deletion or clarification of “significant”
A technical change was requested for the same existing language in 2B .0225 (c)(2) as part of a triennial review rulemaking about 15 years ago, and given the revision made to address that technical change request became effective in the North Carolina Administrative Code (NCAC),
DWR recommended the same revision be made to 2B .0227.
7. Only sentence in (b)(2)(A): Addition of “utilize” and replacement of “discharges” with “discharges in accordance with Rule .0406(e) of this Subchapter” to address requested clarification of the process for a “case-by-case” determination DWR added the word “utilize” and a reference to 2B .0406(e) to the proposed rule to clarify the required determination process.
8. Only sentence in (b)(2)(B): Removal of “on a case-by-case basis” to address requested clarification of the process for a “case-by-case” determination This part of the proposed rule already references Rule 2B .0404, which states that “the staff shall also provide on a case-by-case basis for seasonal variation in the discharge of oxygen-consuming wastes” and that rule provides the criteria to do so. Because the “case-by-case” language is already provided in the referenced .0404 rule, DWR recommended removal of “on a case-by-case basis” from the proposed rule.
HOT TO SUBMIT COMMENTS The purpose of this announcement is to provide opportunity for comments on the revisions made to 2B .0227, which were made in response to requested technical changes, to be submitted to DWR. You may submit written
comments, data or other relevant information on the proposed 2B .0227 revised rule by February 15, 2016. The EMC is very interested in all comments pertaining to the revisions made to 2B .0227. All persons interested
and potentially affected by the revised rule are encouraged to make comments on the proposed revisions. The EMC may not adopt a rule that differs substantially from the text of the proposed rule published in the North Carolina Register unless the EMC publishes the text of the proposed different rule and accepts comments on the new text. The proposed effective date for this proposed rule is July 1, 2016. Written comments on the proposed revisions to 2B .0227 may be submitted to Elizabeth Kountis of the DEQ/DWR Planning Section at the postal address, e-mail address, or fax number listed below.
FOR ADDITIONAL INFORMATION This announcement and the revised 02B .0227 rule as well as a table of the requested technical changes and resulting DWR responses for 2B .0227 are located on the internet via http://portal.ncdenr.org/web/wq/event-calendar (look under “2015-12-15”) and http://portal.ncdenr.org/web/wq/rules. Further explanations and details on reclassifications may be obtained by writing or calling: Elizabeth Kountis, DEQ/DWR Planning Section
1611 Mail Service Center, Raleigh, NC 27699-1611 phone [phone], fax [phone], e-mail [e-mail]

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1601 Mail Service Center, Raleigh, North Carolina 27699-1601
Phone: [phone] \ Internet: www.ncdenr.gov
An Equal Opportunity \ Affirmative Action Employer – Made in part by recycled paper

      North Carolina Department of Environmental Quality 

Pat McCrory
Governor Donald R. van der Vaart
Secretary
December 18, 2015
TO: Major Newspapers of NC
FROM: Ms. Elizabeth Kountis
Environmental Senior Specialist N.C. Department of Environmental Quality Division of Water Resources
SUBJECT: Publication of “Announcement for Public Comment Period: Revised Water Quality
Management Plan for Part of Cape Fear River in New Hanover and Brunswick
Counties”
“Announcement for Public Comment Period: Revised Water Quality Management Plan for Part of Cape Fear River in New Hanover and Brunswick Counties” is attached. The legal requirements for
notice as required by G.S. 150B-21.2 have been met by publishing this notice in the NC Register.
Publishing this notice in newspapers is not a statutory requirement and has therefore been cut from the Department's budget as non-essential spending. However, we do recognize that newspapers are one of the most effective methods to convey information to the public, and many newspapers contain a public announcement (or similar) section that does not charge a fee to service its readers
with public announcements. Therefore, we are presenting the attached announcement to you for
your information to publish at your discretion. Should you decide to publish this information, it would be greatly appreciated if you would notify us. I can be contacted at any of the following:

By Email: [e-mail] By Fax #: [phone] By postal mail: Ms. Elizabeth Kountis
NCDEQ/DWR-Planning Section 1611 Mail Service Center, Raleigh, NC 27699-1611 By phone: [phone] If you should have any questions, please do not hesitate to contact me. Thank you sincerely for
your consideration. Enclosure

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UnitedStatesDepartmentoftheInteriorFISHANDWILDLIFESERVICERaleighFieldOfficePostOfficeBox33726Raleigh,North Carolina 27636-3726February12,2016ElizabethKountisDEQ/DWRPlanningSection1611MailServiceCenterRaleigh,NC27699-1611DearMs.Kountis:TheU.S.FishandWildlifeService(Service)providesthefollowingcommentsontheproposedwaterqualitymanagementplanandreclassificationforapartoftheCapefearRiver(BrunswickandNewHanoverCounties) fromClass SCtoClassSCSwamp(Sw),announcedintheDecember18,2015CommentPeriodforRevisionsto]5ANCAC2B.0227WaterQuaiityManagementPlans.TheNCEnvironmentalManagement Commission(EMC)isseekingfeedbackonproposed revisionsto 15ANCAC2B.0227inresponsetocommentsreceivedonearlierversionsoftheproposal.Aswritten,theServicedoes notsupporttheproposedreclassificationandmanagementplanbecausetherearenoprovisionstoreduceupstreampointandnonpointsourcesofoxygenconsumingwastethatimpairthissectionoftheriver.Themanagementplanwillnotimprovewaterquality.Therevisionalsohastechnicallimitationsthatmayhavetheunintendedaffectofallowingfurtherwaterqualitydegradation.TheServiceistheprincipalFederalagency responsibleforconserving,protectingandenhancingfish,wildlifeandplantsandtheir habitatsforthecontinuing benefitoftheAmericanpeople.Amongourprioritiesisthehealthandrestorationofdiadromousfishstocksinthearea,includingStripedBass(Moronesaxatilis),AmericanShad(Alosasapidissima),HickoryShad(Alosamediocris), BluebackHerring(Alosaaestivalis),Alewife(Alosapseudoharengus),ShortnoseSturgeon(Acipenserbrevirostrum),AtlanticSturgeon(Acipenseroxyrinchusoxyrinchus),andAmericanEel(Anguillarostrata).Alldiadromousspecieshavecomplexlifecyclesentailinguseoffreshwaterandmarine habitats,sotheproposedreclassificationofthelowerCapeFearRiverisofinteresttousandpartnersworkingonfishrestoration.Inthat regard,our partnersindiadromousspeciesconservationandrestorationincludetheAtlanticStatesMarineFisheriesCommission(ASMFC),andtheSouthAtlantic Fishery ManagementCouncil (SAFMC),onbothofwhichourstaff(Dr.WilsonLaney)serveastheService’sSoutheastRegionrepresentative.TheServicehasengagedintheproposedreclassificationsince April15,2014.OnApril23,2014,weemailedreferencesdocumenting1)fishofspecialmanagementimportanceinthelowerCape FearRiver,withemphasisonthelifestagespresentinlatespring,summerandearlyfallwhen dissolvedoxygen(DO)wouldbelowest;2)referencesdemonstratingadverseeffectstofishearly lifestagesatDOconcentrationslessthanthe5mg/Lstandard;and3)concernthataSwclassification,allowinglowerDOif causedbynaturalconditions,mightmakeitmoredifficulttodetermineusesupportrelatedtoDOinthefuturewithoutaclearlydefinedlowerboundonDO.WeofferedtechnicalsuggestionsandadditionalconcernsinaletterofMarch3,2015 andApp-262A-273
followed-upinameetingwithDivisionofWaterResources(DWR) aboutthoseonApril22,2015.The April23,2014emails(3)andMarch3,2015letterareincorporatedbyreference.OurreviewoftherevisionandReportofProceedingsontheProposedReclassification(postedwithSeptember10,2015materialson theEMC’swebsite) indicateunresolvedconcerns:1)Thereisnoconnectionofthereclassificationtoanywater quality restorationwork.TheReportofProceedingsontheProposedReclassificationstates “Theproposaldoesnot includelanguageaboutcorrectingorreducing pollutionasitisnotdesignedtobeawater qualityrestorationplan.”Weseethatthemanagementplanonlyaddressespointsourcesofpollutioninthereclassifiedreach despitethesupportingmodel’sclearindicationthatreductioninupstreamnonpointandpointsourceswouldbringthesystemfarclosertocompliancewithexistingstandards.Basinwideapproachestonutrient reduction wouldbemoreappropriatetoaddresswaterqualityproblemsinthelowerriverthanthereclassificationalone.Weappreciatethetechnicalfoundationofmonitoringandthree-dimensionalmodelingthatinformtherelativecontributionofvarious sourcesofoxygenconsumingwaste,andwedonotdisagree withtheconclusionthatthepointsourcesinthemodeledreachhavelittleimpactontheDOinthatreach.However,theproposedruleandmanagementplandonotembraceotherconclusionsfromthesamemodel indicatingthatupstreamsourcereductionwillimproveDO--reducingexcursions belowtheSmg/Lstandard.Inother words,upstreamwater qualityimprovementscouldpositivelyinfluenceDOinthelower CapeFearRiver.Withtheuncertaintyinthefewmeasuresofsedimentoxygendemand(SOD)inthemodelandpotentialthatSODmaydiminishfollowingupstreamnutrientloadreductions,thereisthepotentialtoachievethestandards much morefrequentlywithrestoration.Withoutacomponenttoimprove lowerCapeFearRiverDOconcentrationsthroughwatershed-widewasteloadmodeling,landuseplanning,andpermitting,themanagementplanfallsshort.2)Inadditiontonopathwaytoimprovedwaterquality,thereclassificationandmanagementplanasproposedmayallowDOtodecreasefurtherwithalossofwellestablishedCleanWaterActtoolsandregulatorycontrols,furtherdegradinghabitatforallaquaticspecies. Wepreviouslyrecommendedthat themanagementplandiscusshow DOuse-supportdeterminationswillbemadeifthereisnolowerboundonthefrequencyandmagnitudeofDOconcentrations.We haveexpressedconcernthattherewillbeaninabilitytoexplainhownaturalconditionswillbedifferentiatedfromadditionalimpactsassociatedwithdevelopment—aninabilitytoidentifyandremedy furtherDOdegradation.TheReportofProceedingsontheProposedReclassificationagreedthatthisconcernwasvalidandnotedtheneedtodevelopause-supportattainmenttoolforswampwaters.However,noplans,schedulesorcommitmentsweremadetodeveloptheuse-support attainmenttoolforswampwaters.Withoutthat,the rulechangemayproduceanunintendedconsequenceoffurtherdegradingwaterquality.Althoughwebelievethereclassificationneedsto beaccompaniedbybasinwidewater qualityrestoration,wewouldbemuch morecomfortablewiththe actioniftheassociatedmanagementplanincludedanewnumericDO standard.WenotethatthemodelingexpertisepartnershaveprovidedcanbeusedtoestimateaDOconcentrationofabout4.2to4.5mg/Lthatismet 80-90%ofthetimeundercurrentconditions.Whileourpreferenceisforrestorationworktoachievetheexistingstandardoracombinationofrestorationandreclassification,anempirically-derivedlowerboundDOconcentrationwouldbettercharacterizetheexisting conditionandprovideanumericstandard by whichwaterqualitycanbebestevaluatedandmanagedtoprotectaquaticanimalhealth.App-263A-274
Asnotedpreviously,therearenofederally-listedthreatenedorendangeredspeciesunder Servicejurisdictionintheaffectedreach.Shortnose SturgeonandAtlantic SturgeonareunderthejurisdictionofNOAA Fisheries ProtectedSpeciesDivisionandmaybeaffected bytheaction,soweencourageyourcontinued coordinationwiththem.Initscurrentform,thereclassificationandassociatedmanagementplansecurenoimprovementsinwaterqualityandweakenthefoundationtoprotect existingconditions.WeencouragetheDWRandEMCtoembracethesamewaterqualitymodel’sforecastforimprovementsfromwatershed-scalenutrientreductionsinacorresponding basinwidewater qualityrestorationplan.Ifyouwouldlikeadditionaldetailsonanyofourrecommendations,pleasecontactmeat919-856-4520x.21.Sincerely,TomAugspurgerQEcologistcc:LaurenPetter—USEPALisaGordon-USEPAWilsonLaney—USFWSMikeWicker—USFWSFritz Rhode—NOAA FisheriesPaceWilber—NOAA FisheriesRogerPugliese—SeniorFishery Biologist, SAFMC, Charleston,SCLisaHavel—HabitatCoordinator, ASMFC, Arlington,VAPatrickCampfield—ScienceDirector,ASMFC,Arlington,VAApp-264A-275
S OUTHERN E NVIRONMENTAL L AW C ENTER

Telephone [phone] WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NC 27516-2356

Facsimile 919-929-9421

February 12, 2016

VIA ELECTRONIC MAIL
Elizabeth Kountis DENR-DWR Planning Section 1611 Mail Service Center Raleigh, NC 27699-1611 [e-mail]

Re: Cape Fear River Estuary Water Quality Management Plan

Dear Ms. Kountis:

The Southern Environmental Law Center appreciates the opportunity to comment on the
proposed water quality management plan1 for the Lower Cape Fear River (“LCFR”)2 on behalf
of Cape Fear River Watch, Waterkeeper Alliance, and the North Carolina Conservation
Network. Together, these organizations represent thousands of North Carolinians who drink,
fish, swim, and paddle the state’s rivers, including the Cape Fear; who place a high value on the
quality of North Carolina’s water resources; and who will be adversely affected by the
degradation of water quality in the Cape Fear River. As such, these comments are intended to
express concern regarding the agency’s proposed management strategy for the LCFR.
As described in Section I, the strategy represents an abrupt and questionable departure
from years of collaborative efforts to ensure that use of the river by aquatic life would be
supported. In Section II, we document the myriad ways in which the water quality management
plan under consideration appears intentionally designed to have minimal impact and therefore

1 Although the agency specifically solicited comments regarding the proposed changes to the water quality management plan for the Lockwoods Folly River Area, those changes are not the only amendments to 15A N.C. Admin. Code 02B .0227 contemplated in the proposed rule published in the
North Carolina Register on December 15, 2015. We therefore appreciate your consideration of our comments and their inclusion in the rulemaking record. See N.C. Gen. Stat. § 150B-21.2(f) (“An agency must accept comments on the text of a proposed rule that is published in the North Carolina Register and .
. . consider fully any written and oral comments received”); id. § 150B-21.2(i) (“An agency must keep a record of a rule-making proceeding. The record must include all written comments received . . . .”). 2 As used herein, “LCFR” refers to the portion of the Cape Fear River from upstream of Toomers Creek
to a line across the river between Lilliput Creek and Snows Cut.
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Elizabeth Kountis, DENR-DWR Planning Section February 12, 2016 Page 2

afford minimal protection to aquatic life. And, in Section III we emphasize the importance of
preserving the designated use of the LCFR for aquatic life, which we believe should include
efforts to protect endangered species that rely on the river.
I. Retreat Rather than Recovery: TMDL Avoidance in the LCFR
Every two years, the State must assess whether the designated uses3 of a water body are
supported by existing water quality.4 Where existing pollution control requirements are
insufficiently stringent to implement any water quality standard applicable to a water body, the
State must take responsive action.5 First, the water body must be included on the 303(d) list of
impaired waters. Then, in order of established priority, the State must establish a total maximum
daily load (TMDL) of the pollutant(s) impairing the designated use of listed waters; the TMDL
should be calculated to limit pollutant loading to the degree necessary to attain applicable water
quality standards.6 Put more simply, after documenting unacceptable water quality, the State
must take action to improve water quality to the degree necessary to support the water body’s
designated uses.
In Class SC waters like the LCFR, the normal dissolved oxygen standard is 5.0 mg/L.7 In
1998, the State first observed that the designated uses of the Cape Fear estuary were impaired by
low dissolved oxygen (DO) concentrations.8 At the time, responsive measures were already

3 The classification of a water body dictates the applicable water quality standards necessary to protect the “best usage” of the waters with that classification. See N.C. Gen. Stat. 143-214.1(a)(1) (directing the
EMC to develop “a series of classifications and the standards applicable to each such classification”); 15A N.C. Admin. Code 02B .0201 (“Existing uses . . . and the water quality to protect such uses shall be protected by properly classifying surface waters and having standards sufficient to protect these uses.”);
see also 40 C.F.R. § 131.11(a)(1) (“States must adopt those water quality criteria that protect the designated use. . . . For waters with multiple use designations, the criteria shall support the most sensitive use.”). 4 See 33 U.S.C. § 1315(b). 5 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b). Conversely, where existing control strategies for
point and nonpoint source pollution will achieve water quality standards, the law does not mandate such action. 6 33 U.S.C. § 1313(d)(1)(C); see also 40 C.F.R. § 130.7(c)(1) (“TMDLs shall be established at levels
necessary to attain and maintain the applicable narrative and numerical [water quality standard] with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.”). 7 15A N.C. Admin. Code 02B .0220(5). 8 N.C. Dep’t of Env’t and Natural Res. (NC DENR), North Carolina’s 1998 303(d) List T-6 (May 15, 1998) (noting that of the 7,500 acres providing only “partial support” of designated uses, 5,000 were
impaired by DO and listing wastewater treatment plants as a source of the impairment.),
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Elizabeth Kountis, DENR-DWR Planning Section February 12, 2016 Page 3

under consideration; the State opined that “[p]roper technical conditions exist to develop a
TMDL for this water body/pollutant” and that TMDL development was the “[u]sual approach”
for responding to DO impairment.9 A TMDL for Biological Oxygen Demand (BOD) had
already been drafted in 1996 that “proposed using a phased approach to reducing BOD loading
to the lower Cape Fear and highlighted several options that primarily reduce point source
discharges to the river.”10 However, that TMDL was never approved or implemented.
By 2000, the DO impairment had been elevated to a high priority for the agency, which,
by then, was meeting with the “regulated community . . . on a regular basis to discuss the
modeling approach and investigate funding sources for the TMDL addressing low dissolved
oxygen.”11 In 2002, the agency again listed the Cape Fear estuary as a high-priority water body
for which a TMDL was required due to low dissolved oxygen.12 When no TMDL was
developed, the water body was again included on the list of impaired waters in 2004.13
In 2006, the LCFR was again listed as impaired due to low DO.14 The State indicated
that it expected to submit a TMDL to address this impairment “by the beginning of calendar year
2008.”15 Notably, by this time, the use of the LCFR had also become impaired by low pH.16
However, the State remained focused on addressing what was nearly a decade-old DO
impairment.

http://portal.ncdenr.org/c/document_library/get_file?uuid=2284d944-2134-4c57-a2d9-
499c58076d4a&groupId=38364. 9 Id. 10 Id. at 13 (noting the drafting of a BOD TMDL of 80,000 lbs/day BODu for the lower Cape Fear River
below Lock and Dam #1). 11 NC DENR, North Carolina’s 2000 303(d) List 6 (Oct. 2, 2000), http://portal.ncdenr.org/c/document_library/get_file?uuid=20e877f9-81c3-4536-9622-
e605646fcde4&groupId=38364. 12 NC DENR, North Carolina 2002 Impaired Waters List 4 (Feb. 13, 2003),
http://portal.ncdenr.org/c/document_library/get_file?uuid=7cfe0f8a-bde3-4523-9e3e-
cdc44e323123&groupId=38364. 13 NC DENR, North Carolina 2002 303(d) Impaired Waters List-2004 2 (Apr. 26, 2004), available at
http://portal.ncdenr.org/c/document_library/get_file?uuid=1504027b-a8d8-4c2d-83d5-
0b1ac5cec792&groupId=38364. 14 For the 2006 listing, the State first assigned the “assessment units” currently used to define the LCFRE
as the portion of the river from upstream of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut. 15 NC DENR, North Carolina Water Quality Assessment and Impaired Waters List (2006 Integrated
305(b) and 303(d) Report) 54 (May 17, 2007). 16 NC DENR, North Carolina 303(d) List- 2006 19 (June 19, 2007), http://portal.ncdenr.org/c/document_library/get_file?uuid=2648fa39-0975-4b27-8181-
b0927ec2a43d&groupId=38364.
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Elizabeth Kountis, DENR-DWR Planning Section February 12, 2016 Page 4

In October 2008, DENR staff considered five “Options for Addressing Dissolved Oxygen
in the Lower Cape Fear River.”17 One of the options considered was “reclassification” but
agency staff observed “[r]eclassifying the water does not appear to be an option at this time
because no current NC classification ‘fits’ better than the water’s existing SC designation. For
example, Swamp waters have low velocities. The Cape Fear estuary is tidal and well mixed, not
low-velocity.”18 Staff noted that “[a] TMDL with a target of 5.0 mg DO/l is doable, but most
likely could not be successfully implemented.” Ultimately, staff concluded that “[a] site-specific
standard might be appropriate in this case” and noted “[i]f the dischargers in the watershed
request a site-specific standard, DWR would support and oversee their development of the
scientific rationale to derive it.”19 At that point, rather than seek to attain existing water quality
standards, the agency and regulated community began considering strategies to change the water
quality standards.
The DO impairment persisted and water quality in the LCFR worsened while the agency
continued to study the problem.20 Although claiming that TMDL development was a high
priority in 2008,21 2010,22 and 2012,23 the agency continued to evaluate how to avoid
implementing a TMDL. In November 2012, DWQ met with stakeholders to consider a technical
assessment of natural and anthropogenic sources of dissolved oxygen deficit in the Lower Cape
Fear Estuary.24 It was suggested that Kathy Stecker, a DENR staff member, lead the combined
effort. Ms. Stecker indicated that “determining a rationale for site specific criteria was likely the

17 E-mail from Kathy Stecker, NC DENR, to Elizabeth Kountis, NC DENR (May 16, 2014) (noting the options were prepared for a discussion with Coleen Sullins, then-Director of the Division of Water
Quality). 18 Id. Other rejected options included conducting a use attainability analysis or authorizing a temporary variance from water quality standards. Id. 19 Id. 20 By 2008, the LCFR was impaired by violations of standards for DO, pH, nickel, copper, and turbidity. NC DENR), 2008 North Carolina Integrated Report Categories 4 and 5 (Impaired Waters List) 14 (March 10, 2010), http://portal.ncdenr.org/c/document_library/get_file?uuid=9f453bf9-2053-4329-b943-6614bd4e709a&groupId=38364. 21 Id. 22 NC DENR, NC 2010 Integrated Report Categories 4 and 5 Impaired Waters 16 (Aug. 31, 2010), http://portal.ncdenr.org/c/document_library/get_file?uuid=8ff0bb29-62c2-4b33-810c-
2eee5afa75e9&groupId=38364. By 2010, the use of the LCFR was no longer impaired by violations of the water quality standard for nickel. 23 NC DENR, 2012 North Carolina 303(d) Lists- Category 5 20 (Aug. 10, 2012),
http://portal.ncdenr.org/c/document_library/get_file?uuid=9d45b3b4-d066-4619-82e6-ea8ea0e01930&groupId=38364. 24 CH2M Hill, Meeting Summary, Technical Assessment of Natural and Anthropogenic Sources of
Dissolved Oxygen Deficit in the Lower Cape Fear Estuary (Nov. 7, 2012).
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most feasible approach” and would be beneficial because it would “support aquatic life, allow
for effective permitting, and provide acceptable limits for dischargers.”25 The agency and
regulated community continued to evaluate this approach until early 2014.
In January 2014, the Chairman of the Water Quality Committee of the North Carolina
Environmental Management Commission reviewed the list of impaired waters in North Carolina
and opined to DWR staff that it “may be worth taking a look” at “streams that are not classified
as Swamp Waters but probably should be.”26 He expressed concern that “if you do not have the
classification correct then you could call a stream impaired when it is really not and could
require much more [wastewater] treatment for a discharger than may be necessary.”27 In
response, Ms. Stecker noted that reclassification was not necessary to account for naturally low
DO and pH.28 According to Ms. Stecker, the agency accounted for naturally low DO or pH in
other ways when preparing the 303(d) list; she observed:
Our solution doesn’t involve rulemaking. The standards include an “out” for
natural conditions, and we have developed a protocol that EPA concurs with. . . .
We have successfully de-listed waters with naturally low DO and/or pH, and
we’ve found others that really are impaired and developed TMDLs for those. . . .
[I]f we suspect naturally low DO or pH, we don’t put it on the list, but in
Category 3. Those that we’re working on in Category 5 have been there for a
long time.29
Surmising that the WQC Chairman was primarily concerned with protecting dischargers, another
DWQ staff member responded,
The natural waters determination doesn’t always get the dischargers off the hook.
For instance, in the lower Cape Fear it gets tricky because modeling shows that

25 Id. 26 E-mail from Steve Tedder, NC EMC, to Dianne Reid, NC DENR (Jan. 28, 2014). 27 Id.; 15A N.C. Admin. Code 02B .0220(5), (12) (permitting lower pH and DO standards for Class SC
waters with the supplemental “swamp waters” classification). 28 E-mail from Kathy Stecker, NC DENR, to Dianne Reid, NC DENR (Jan. 28, 2014) (responding to Tedder’s suggestion); see also 15A N.C. Admin. Code 02B .0205 (stating that “natural waters may on
occasion, or temporarily, have characteristics outside of the normal range established by the standards” and “water quality standards will not be considered violated when values outside the normal range are caused by natural conditions). 29 Id.
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even if we treat it like swamp water, the combined discharges still lower the DO
too much and need to be further reduced.30
It is unclear whether the WQC Chairman nonetheless suggested the reclassification approach to
the members of the Lower Cape Fear River Program (i.e., the members of the regulated
community with which the agency had been working for years to address the DO impairment in
the LCFR). However, before the next meeting of the WQC, that group submitted a request for
reclassification of the LCFR as “swamp waters.”31
In response, the agency ultimately proposed reclassification of the LCFR as “swamp
waters.” In tandem with this reclassification, the agency proposed the water quality management
plan under consideration. In the following sections, we address concerns regarding this
management plan.
II. Intentional Ineffectiveness: Crafting a Plan to Minimize Required Action
Perhaps the most obvious problem with the proposed management plan is its intentionally
limited effect. Ordinarily, water quality management plans are adopted “to attain, maintain or
enhance water quality” and should include “specific actions deemed necessary . . . to protect the
water quality or the existing uses.”32 Yet the agency concedes that the management plan for the
LCFR is not intended to improve water quality.33 Nor is it truly intended to maintain water
quality: it starts from the premise, derived from the reclassification, that it is acceptable for
standards for pH and DO in the river to be lowered. Instead, the plan was crafted to have the
minimum impact on the regulated community, and hence the least benefit to water quality. So
successful was the agency in this regard that it concedes the management plan will have no effect
whatsoever on the status quo. 34

30 E-mail from Dianne Reid, NC DENR, to Steve Tedder, NC EMC (Jan. 28, 2014). 31 Chris May, Request for Reclassification of a Portion of the Lower Cape Fear River with the
Supplemental Swamp Classification (Mar. 5, 2014). 32 15A N.C. Admin. Code 02B .0227(a). 33 “The proposal does not include language about correcting or reducing pollution as it is not designed to
be a water quality restoration plan.” NC DENR, Report of Proceedings on the Proposed Reclassification
of a Cape Fear River Segment, in Brunswick and New Hanover Counties (Broad River Basin) From SC to
SC Sw with a Water Quality Management Plan 10 (Feb. 5, 2015),
http://portal.ncdenr.org/c/document_library/get_file?uuid=866ee647-ef8a-4912-8d36-06f26e6b1356&groupId=61581. 34 Id. at 11 (“No changes to the current monitoring strategy as well as the current permitting and
compliance strategies for the subject waters will occur due to this proposal.”).
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First, the plan makes no attempt to regulate nonpoint source pollution. Most notably, the
plan does not address the contribution of pollutants from the Concentrated Animal Feeding
Operations (CAFOs) in the Cape Fear River basin, which produce 50 percent of North Carolina’s
swine and large numbers of poultry.35 The State should not disregard scientific analysis showing
that, when waste management practices at CAFOs are poorly regulated, “large amounts of
nitrogen and phosphorus enter the environment through runoff, percolation into groundwater,
and volatilization of ammonia,”36 and can exacerbate low DO (and pH) levels. Indeed,
according to the EPA, hypoxia (i.e., low DO) “is regulated primarily by controlling nutrients
(largely nitrogen) and other oxygen-demanding wastes.”37 North Carolina implicitly agreed with
this observation by proposing a management plan focused exclusively on controlling BOD, DO,
and ammonia from point sources. Yet, the proposed management plan imposes no limit on
nonpoint source loading of nutrients or oxygen-demanding waste in the LCFR; nor does it
address nutrient loading in upstream tributaries.
It is particularly ironic that the plan addresses only to point sources, and disregards
nonpoint sources, since the supposed justification for reclassification of the river was that point
sources were not the cause of observed violations of water quality standards.38 Moreover, the
agency intentionally excluded some point sources from the requirements proposed under the
plan. Most obviously, the plan does not require any pollution reduction from existing facilities.39
Initially, agency staff opined that “whatever goes into place for DO and pH may likely affect all
discharges, whether new, expanding, renewals, etc.”40 However, the plan was revised to exclude
existing facilities when research revealed the inability of existing facilities to comply with the

35 Michael A. Mallin & Lawrence B. Cahoon, Industrialized Animal Production—A Major Source of Nutrient and Microbial Pollution to Aquatic Ecosystems, 24 Population and Environment 369, 369 (2003). 36 Id. at 379. 37 U.S. EPA, Ambient Aquatic Life Water Quality Criteria for Dissolved Oxygen (Saltwater): Cape Cod to
Cape Hatteras, at v (Nov. 2000), http://water.epa.gov/scitech/swguidance/standards/upload/2007_03_01_criteria_dissolved_docriteria.pdf. 38 Chris May, Request for Reclassification of a Portion of the Lower Cape Fear River with the
Supplemental Swamp Classification (Mar. 5, 2014). 39 E-mail from Tom Belnick NC DENR, to Elizabeth Kountis, NC DENR (April 16, 2014) (“I don’t anticipate any changes to current NPDES permit limits.”); e-mail from Ken Pickle, NC DENR, to
Elizabeth Kountis, NC DENR (Apr. 17, 2014) (“I don’t think any of our permittees (stormwater permittees, or wastewater dischargers under a permit administered by the Stormwater Permitting Program of DEMLR) would be impacted by the re-classification.”). 40 E-mail from Elizabeth Kountis, NC DENR, to Jim Gregson, NC DENR (May 19, 2014).
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first draft of the plan.41 Also, before proposing a plan applicable to only new or expanding
facilities, the agency confirmed that there were no pending applications for new or expanded
facilities42 and that the existing facilities anticipating expansion already had permission to
expand.43
The scope of the management plan was further curtailed when concern was expressed
that the plan might apply to facilities authorized to discharge under general permits. Although
early drafts proposed to manage all new or existing NPDES discharges, the plan was modified to
reference only “individual” permits. Yet, even after drastically limiting its applicability, the
agency was not finished reducing the plan’s impact of the plan on the status quo.
The agency concedes that, because the LCFR is designated as a Primary Nursery Area, it
is entitled to additional protection due to its important role in supporting aquatic life.44 However,
although the agency claims the management plan sets limits “similar to the limits for High
Quality Waters,”45 in truth the plan affords less protection.
Ordinarily, new or expanded wastewater discharges into high-quality waters must comply
with the following limitations designed to control the discharge of oxygen-consuming waste:

41 See e-mail from Jim Gregson, NC DENR, to Elizabeth Kountis, NC DENR (May 21, 2014) (“Of the eight existing facilities, the three domestic plants currently have BOD or CBOD limits of 30 and 25,
respectively. . . . None of the three Domestic plants would likely be able to meet a BOD limit of 5 mg/L without significant upgrades including filters. Two of the three domestic plants currently do not have Ammonia limits. The one that does (NC0065480) has a monthly ave. limit of 20 mg/l and a daily max. of
35. . . . I don’t think any of the three domestic plants could currently meet an Ammonia limit of 1 mg/l.”); see also e-mail from Bill Kreutzberger, CH2M, to Jeff Manning, NC DENR (June 5, 2014) (“The problem with the statement is that the current cumulative permitted discharge[s] case a decline of 0.2 to 0.3 mg/L below natural conditions. So the reference needs to be that the increase in loading from new or
expanding dischargers can cause no more than a 0.1 mg/L decline in DO.” (emphasis added)). 42 “I understand that there are no proposed discharge permits for new facilities or expansion of existing facilities that your office is currently working on for this segment.” E-mail from Elizabeth Kountis, NC DENR, to Jim Gregson, NC DENR (May 19, 2014); see also e-mail from Elizabeth Kountis, NC DENR,
to Tom Belnick, NC DENR (July 10, 2014). 43 “Currently there are 4 NPDES-permitted dischargers that discharge oxygen-consuming waste to the proposed SW reclass segment. Of these facilities, 3 have already received phased permit limits for future
expansions.” E-mail from Tom Belnick, NC DENR, to Jeff Manning, NC DENR (June 16, 2014). 44 NC DENR, Report of Proceedings on the Proposed Reclassification of a Cape Fear River Segment, in Brunswick and New Hanover Counties (Broad River Basin) From SC to SC Sw with a Water Quality
Management Plan a 3; see also 15A N.C. Admin. Code 02B .0101(e)(5). 45 NC DENR, Report of Proceedings on the Proposed Reclassification of a Cape Fear River Segment, in Brunswick and New Hanover Counties (Broad River Basin) From SC to SC Sw with a Water Quality
Management Plan a 3.
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Effluent limitations shall be as follows: BOD5= 5 mg/l, NH3-N = 2 mg/l and DO = 6 mg/l. More stringent limitations shall be set, if necessary, to ensure that the cumulative pollutant discharge of oxygen-consuming wastes shall not cause the DO of the receiving water to drop more than 0.5 mg/l below background levels,
and in no case below the standard.46

However, the management plan for the LCFR was designed to impose less stringent limits on
oxygen-consuming waste. First, because industrial dischargers may not be able to meet the
normal BOD and NH3-N limits for HQW waters, an additional provision was added to exempt
them from such limits.47 Even more concerning is the plan’s failure to consider background
levels and/or the actual water quality standards applicable to the river.
Here, the evolution of the relevant language bears emphasis. As initially drafted, the
water quality management plan for the LCFR was designed to prevent a drop in DO “below the
standard.” Then the language was amended to prohibit a drop below the “natural conditions.” A
subsequent draft prohibited a drop below the “modeled natural conditions.” And, finally, the
proposed language eschews any reference to the standards or natural conditions and instead uses
“modeled in-stream dissolved oxygen at total permitted capacity for all discharges” as the
baseline against which to measure the effect of a proposed permit.48
In other words, instead of considering actual standards and real data, the agency proposes
to evaluate the impact of permitted activity based solely on modeling; this approach will have
concerning effects on both permitting decisions and future assessments of use impairments. This
novel approach appears to be a result of the agency’s continued inability (despite a decade of
trying) to determine the natural background levels of DO in the segment.49 Indeed, e-mails

46 15A N.C. Admin. Code 02B .0224(b)(i). 47 E-mail from Tom Belnick, NC DENR, to Elizabeth Kountis, NC DENR (Aug. 3, 2015) (“The site-specific BAT language for industrials goes back to at least the 2000 Cape Fear River Basin Plan, where it
was recognized that industries might not be able to achieve BOD= 5 mg/l and NH3-N = 2 mg/l.”). 48 Notably, the plan does not require consideration of the lower pH that could result from these discharges. 49 The reluctance to rely on data to identify a change in DO of 0.1 mg/L might also result from the margin of error currently allowed for reporting DO results in laboratory tests. DO results must be reported to the nearest 0.1 mg/L with an accuracy of +/- 0.5 mg/L. North Carolina Wastewater/Groundwater Laboratory
Certification Approved Procedure for the Analysis of Dissolved Oxygen (DO) (Apr. 2013).
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exchanged within the agency noted the agency’s inability to identify background conditions50
and stated “using the model would be a totally different thing.”51
Even worse, the agency fails to clarify in the management plan any quality assurance
requirements for the modeling in question. Language was specifically omitted from early drafts
that would have required modeling results to be “demonstrated,” that would have required a
person to “obtain Division of Water Resources review and approval of any monitoring study plan
and description of the modeling framework to be used prior to commencement of such a study,”
and that would have required the study plan and modeling framework to “meet any Division
requirements for data quality and model support or design in place at that time.”
Understandably, the EPA expressed reservations about the approach contemplated in the
proposed water quality plan. One federal regulator noted:
When other states have adopted a 0.1 mg/L type provision, it has been a provision that applies to all implementing programs and has been provided as an amount of
change from background condition. And even then the background condition has to be specifically defined before the provision can be used to deviate from the natural condition.52 Still, for all the aforementioned problems with the contents of the plan, perhaps the most
destructive is the failure to include specific protections for the use of the river by aquatic life.
Again, early drafts considered such provisions, and the agency apparently considered
establishing a threshold for DO below which the river would not be allowed to fall. Indeed,
some drafts even included different DO thresholds designed to protect specific species, including
striped bass and endangered sturgeon. Ultimately, however, none of these laudable attempts to
protect the designated uses of the river was included in the final management plan.
In other words, after years of observing that low DO impaired the use of the LCFR by
aquatic life, the agency now proposes to reclassify the river as swamp waters, removing any
floor for DO, and refrain from establishing a new minimum DO standard through the associated

50 E-mail from Cam McNutt, NC DENR, to Jeff Manning, NC DENR (June 4, 2014) (“We do not know
what natural conditions DO level is so no assessment decision is made.”). 51 E-mail from Cam McNutt, NC DENR, to Jeff Manning, NC DENR (June 5, 2014) (“In the past we have not assess[ed] DO in Sw waters. Using the model would be a totally different thing.”). 52 E-mail from Lauren Petter, US EPA, to Elizabeth Kountis, NC DENR (Aug. 7, 2015).
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management plan.53 In the following section, we address the impropriety of ignoring protection
of aquatic life in the LCFR.
III. Prioritizing Refuse over Use: Sacrificing Aquatic Life Protection to Satisfy Dischargers
The water quality standards associated with the “swamp waters” classification are
designed to protect the use of waters for the propagation and survival of aquatic species that
naturally occur in swamp waters.54 Specifically, the EMC allows certain swamp waters to have
higher acidity (i.e., low pH) and lower dissolved oxygen (DO) concentrations.55 Class SC waters
with the supplemental “swamp waters” classification “may have a pH as low as 4.3 if it is the
result of natural conditions.”56 Though the agency has publicly disavowed plans to lower DO or
pH standards, internal communications reveal that this is the anticipated effect, 57 or even
primary motivation,58 of the proposed action. A water quality management plan presupposing

53 This issue was a particular concern of the US Fish and Wildlife Service. See letter from Tom
Augspurger, USFWS, to Elizabeth Kountis, NC DENR (March 3, 2015) (expressing “concern that a Sw classification, allowing lower DO if caused by natural conditions, might make it more difficult to determine use support related to DO in the future without some mechanism to define a new lower bound
on DO indicative of background conditions”). 54 In contrast, other supplemental classifications result in application of more stringent water quality standards. See, e.g., 15A N.C. Admin. Code 02B .0211(4) (more stringent freshwater chlorophyll-a
standards for nutrient-sensitive waters and trout waters); id. 02B.011(6) (more stringent DO standards for trout waters); id. 02B .0211(19) (toluene standard applicable only to trout waters); id. 02B .0211(21) (more stringent turbidity standard for trout waters); id. 02B .0220(3) (more stringent saltwater
chlorophyll-a standards for nutrient sensitive waters and trout waters); id. 02B .0223 (requiring development of nutrient control strategies in nutrient sensitive waters); id. 02B .0224 (stating standards applicable to high-quality waters); id. 02B .0225 (stating standards for outstanding resource waters). The State’s anti-degradation policy is also stricter for waters classified as high-quality waters or outstanding resource waters. Id. 02B .0201. 55 15A N.C. Admin. Code 02B .0211(6), (14) (permitting lower pH and DO standards for Class C waters with the supplemental “swamp waters” classification); 15A N.C. Admin. Code 02B .0220(5), (12) (permitting lower pH and DO standards for Class SC waters with the supplemental “swamp waters”
classification). 56 Id. 57 See e.g., e-mail from Elizabeth Kountis, NC DENR, to Jim Gregson, NC DENR (May 19, 2014)
(“Please note that this reclassification will most likely result in something less strict than what is currently required for DO and pH, so those facilities having a difficult time reaching 5 mg/l and the acceptable pH levels now may get some relief.”); e-mail from Elizabeth Kountis, NC DENR, to Tom Belnick, NC
DENR (Apr. 17, 2014) (“My understanding is that a Sw reclass . . . would remove the DO and pH impairments for 18-(71)a.”). 58 E-mail from Elizabeth Kountis, NC DENR, to Jeff Manning, NC DENR (May 9, 2014) (“Kathy
mentioned that an impairment couldn’t be lifted via use of .0227 only, that there would need to be
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reclassification of the LCFR as swamp waters should include measures to ensure that the
permissive lowering of DO and pH standards will not impair use of the water for aquatic life
propagation and survival.
Mindful of the potential for lowering DO limits, a number of scientists expressed concern
about the effects that the agency’s proposed reclassification and associated water quality
management plan for the LCFR would have on aquatic life. DEQ’s own Division of Marine
Fisheries objected to the proposed action because of anticipated impacts on fish species.59 A
rather blunt assessment was offered by the National Oceanic and Atmospheric Association
(NOAA): “Reclassifying the lower Cape Fear is a bad idea.”60
For the most part, the concern centered around effects that the proposal would have on
anadromous species. In late winter, species including striped bass, Atlantic sturgeon, and
American shad migrate from the ocean and lower Cape Fear estuary to spawn upstream in the
main stem of the Cape Fear River.61 Although adult fish return to the ocean or lower estuary
after spawning, juveniles remain in nursery habitats through the summer before migrating
seaward in late fall.62 As previously noted, the LCFR includes habitat designated as primary
nursery areas by the Division of Marine Fisheries (DMF).63 Primary nursery areas (PNAs) are
those “in the estuarine system where initial post-larval development takes place” and
“populations are uniformly early juveniles.”64 The affected segment is also designated as an
anadromous fish spawning area (AFSA) by DMF and the Wildlife Resources Commission.65
This means “evidence of spawning anadromous fish has been documented in [DMF] sampling

something tagged onto a water’s current classification and/or a change in the classificaiton [sic] in order to have it delisted (that tag could reference .0227 perhaps).”) 59 E-mail from Anne Deaton, NC DENR, to Elizabeth Kountis, NC DENR (July 8, 2014) (“DMF does not
support the reclassification due to the concentration of not only sturgeon in the river, but use by a diversity of other anadromous and estuarine fish species.”). 60 E-mail from Fritz Rohde, NOAA, to Stephania Bolden, NOAA (May 20, 2014) (asking recipient for “reports that document impacts of low DO and low pH on sturgeon”). 61 Cape Fear River Partnership, Cape Fear River Basin Action Plan for Migratory Fish 18 (April 2013),
available at http://www.habitat.noaa.gov/protection/capefear/pdf/CapeFearActionPlan.pdf. 62 Id. 63 15A N.C. Admin. Code 03R .0103. 64 15A N.C. Admin. Code 03I .0101; see also 15A N.C. Admin. Code 02B .0202 (“Primary Nursery Areas (PNAs) are tidal saltwaters which provide essential habitat for the early development of commercially important fish and shellfish and are so designated by the Marine Fisheries Commission.”). 65 15A N.C. Admin. Code 03R .0115(25); see also Division of Marine Fisheries, Anadromous Fish Spawning Areas (AFSA): Cape Fear River Area, Map 7, http://portal.ncdenr.org/c/document_library/get_file?uuid=f810ae29-ea4d-4801-a04f-
850ff2bc4467&groupId=38337.
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records through direct observation of spawning, capture of running ripe females, or capture of
eggs or early larvae.” 66
Low dissolved oxygen levels can be particularly harmful in spawning and nursery areas
because hypoxia “causes substantial mortality of developing embryos.”67 For this reason, EPA
recommends more stringent dissolved oxygen criteria for the early life stages of both coldwater
and warmwater fish.68 Multiple scientists commenting on the proposed management strategy for
the LCFR expressed concern about its impact on fish in early life stages.69
In addition to playing a role in the life cycles of multiple fish species, the lower Cape
Fear River is home to two endangered species of sturgeon, suggesting a need for more stringent
environmental protection.70 “Maintenance and recovery of the water quality conditions required
to sustain and recover federally-listed threatened and endangered aquatic animal species

66 Anadromous fish spawning areas are those “where evidence of spawning anadromous fish has been documented in Division sampling records through direct observation of spawning, capture of running ripe
females, or capture of eggs or early larvae.” 15A N.C. Admin. Code 03I .0101(4)(b). 67 Denise L. Brietburg et al, Hypoxia, Nitrogen, and Fisheries: Integrating Effects Across Local and Global Landscapes, 1 Annual Review of Marine Science 333 (2009) (“Developing embryos are
particularly sensitive because they lack the ability to behaviorally respond to low oxygen and because oxygen must diffuse across the chorion that encases the embryo.”), http://moritz.botany.ut.ee/~olli/eutrsem/Breitburg09.pdf. 68 US EPA, Ambient Aquatic Life Water Quality Criteria for Dissolved Oxygen (Saltwater): Cape Cod to
Cape Hatteras, app. I (Nov. 2000), http://water.epa.gov/scitech/swguidance/standards/upload/2007_03_01_criteria_dissolved_docriteria.pdf. 69 E-mail from Tom Augspurger, US FWS, to Elizabeth Kountis, NC DENR (April 23, 2014) (“[P]ublished information on desirable levels of dissolved oxygen for good striped bass production indicate survival of striped bass eggs and larvae are reduced at dissolved oxygen levels from 4 to 5 mg/L (Bain and Bain 1982) and that optimal ranges for larvae and juveniles are >6 to 12 mg/L (Hill et al. 1989; Nicholson et al. 1990).”); id. (“DO concentrations higher than the standard of 5 mg/L are desirable for
spawning areas. The national dissolved oxygen criteria for sensitive life-stages in non-salmonid waters is a daily minimum of 5 mg/L and a weekly average of 6 mg/L. . . . At concentrations below these, larval mortality, altered growth, and behavioral changes have been reported in both field and lab studies.”); e-
mail from Brian Kreiser, Univ. of Southern Miss., to Gary Kreiser, NC DENR (May 22, 2014) (“I don’t know where potential spawning grounds might be relative to the area they want to classify as a swamp, but that would be an important consideration. The early life stages are probably not going to be as
hypoxia tolerant as adults or won’t be able to behaviorally avoid those areas.”). 70 See Mary L. Moser & Steve W. Ross, Habitat Use and Movements of Shortnose and Atlantic Sturgeon in the Lower Cape Fear River, North Carolina, 124 Transactions of the American Fisheries Society 225
(1995).
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contributes to the support and maintenance of a balanced and indigenous community of aquatic
organisms and thereby protects the biological integrity of the waters.”71
First, the lower Cape Fear is home to the Atlantic sturgeon, a species that NOAA’s
National Marine Fisheries Service first listed as endangered in 2012. Although the harvest of
Atlantic sturgeon has been banned since 1991, the Atlantic States Marine Fisheries Commission
(ASMFC) has stated that fishery management measures alone will not sustain stocks of Atlantic
sturgeon without sufficient quality and quantity of habitat. As such, it bears emphasis that the
estuarine waters of the lower Cape Fear river are precisely the type where juvenile Atlantic
sturgeon “for months to years before emigrating to open ocean.”72 Moreover, ASMFC studies
demonstrate that DO concentration is a “key habitat parameter[] for the structuring of juvenile
Atlantic sturgeon habitat.”73
The Lower Cape Fear also hosts a population of shortnose sturgeon, a species recognized
by the federal government as endangered in 1967 and subject to a fishing moratorium since
1991. Juvenile shortnose sturgeon tend to locate in estuarine waters such as those in the LCFR.
Consequently, “protection of essential habitats, especially nursery/summer habitats, from human
caused dissolved-oxygen reductions and other impacts is critical.”74
A number of scientists urged the agency not to subject endangered sturgeon species to
additional environmental stress by allowing lower dissolved oxygen in the LCFR. One sturgeon
specialist noted, “given their benthic nature, DO requirements, and tendency for the Cape Fear to
have lower DO events I would imagine they are already often experiencing DO close (or low
enough) to killing them.”75 A NOAA scientist observed that, “In habitats with DO less than 4.7
mg/L, young of year Atlantic sturgeon experience a loss in growth.”76 Another noted that “DO

71 15A N.C. Admin. Code 02B .0110. 72 Atlantic Marine Fisheries Commission, Habitat Addendum IV to Amendment I to the Fishery
Management Plan for Atlantic Sturgeon 2 (Sept. 2012), http://www.asmfc.org/uploads/file/sturgeonHabitatAddendumIV_Sept2012.pdf. 73 Id. at 3. 74 Mark R. Collins et al, Primary Factors Affecting Sturgeon Populations in the Southeastern United States: Fishing Mortality and Degradation of Essential Habitats, 66 Bulletin of Marine Science 917, 917 (2000), available at 75 E-mail from Joseph Facendola, NC DMF, to Bennett Wynne, NC WRC (June 2, 2014) (e-mail forwarded by Chip Collier, NC DMF to Adriene Weaver, NC DENR on June 4, 2014); see also id. (opining that “reduced WQ standards in the lower cape fear will have negative impacts on the sizes of
sturgeon that we have movement data for, and I suspect that it could have a greater impact on YOY that we have no data for (and are far less mobile).”). 76 E-mail from Fritz Rohde, NOAA, to Elizabeth Kountis, NC DENR (May 13, 2014) (citing Secor and
Niklitshcek 2001)).”
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levels below 5.0 mg/L and ph of 4.3 would be problematic for sturgeons of either species” in the
river because “[f]undamentally, sturgeons are adapted for life in big, well-flowing rivers with
good oxygenation 6-9 mg/L and ph with[in] 0.5 units of neutral.”77
To protect aquatic life, the agency should fight against degrading water quality in the
LCFR instead of capitulating at the behest of the regulated community. While polluters want the
State to quit trying to protect the LCFR for use by aquatic life that requires “normal” pH levels
above 6.8 and/or DO levels of above 5.0 mg/L, the agency should strive to manage the LCFR so
as to provide for the best usage of the water body.
IV. Conclusion For more than 30 years, the State has determined that the best usage of the lower Cape
Fear by aquatic life is protected by the water quality standards for pH and DO associated with
Class SC waters. For more than 15 years, the State has recognized that usage of the lower Cape
Fear River by aquatic life is impaired by low DO concentrations. The State should not abandon
efforts to return these waters to the conditions that support their best usage. Rather than adopt a
water quality management plan that is designed to avoid necessary efforts to improve water
quality, the State should continue to strive to “maintain, protect, and enhance water quality
within North Carolina.78 Accordingly, we urge the agency to reject the proposed management
plan.
Thank you for the opportunity to comment on this important matter.
Sincerely,

Will Hendrick Associate Attorney Southern Environmental Law Center
cc (by e-mail):

77 E-mail from Kenneth Sulak, USGS, to Fritz Rohde, NOAA (May 20, 2014). This e-mail was forwarded to NC DENR on May 20, 2014. See e-mail from Fritz Rohde, NOAA, to Elizabeth Kountis, NC DENR (May 20, 2014). 78 N.C. Gen. Stat. § 143-215.2(b).
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Frank Yelverton, Cape Fear River Watch Grady McCallie, North Carolina Conservation Network Gray Jernigan, Waterkeeper Alliance Kemp Burdette, Cape Fear River Watch
Lauren Petter, USEPA- Region 4

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S OUTHERN E NVIRONMENTAL L AW C ENTER

Telephone [phone] WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NC 27516-2356

Facsimile 919-929-9421
February 12, 2016

VIA EMAIL
Ms. Elizabeth Kountis DEQ-DWR Planning Section 1611 Mail Service Center Raleigh, NC 27699-1611
[e-mail]
Re: Proposed Amendments to 15A N.C. Admin. Code 02B .0227 – Water Quality Management Plans
Dear Ms. Kountis:
The Southern Environmental Law Center submits these comments on behalf of the North
Carolina Coastal Federation (“the Federation”) in response to the proposed amendments to the
provisions of 15A N.C. Admin. Code 02B .0227 (“the Rule”) comprising the water quality
management plan for the Lockwoods Folly River watershed.

I. Water Quality Management in the Lockwoods Folly River Basin

The Lockwoods Folly River drains a 153-square-mile watershed in southeast Brunswick County, one of the fastest growing counties in the nation.1 This surging development has had noticeable effects on water quality in the river; for instance, the percentage of shellfish beds in the river closed to shell fishing tripled between 1980 and 2010.2 Notably, rapid growth in the
area is “expected to continue, increasing the degree of threat to watershed functions from increased nonpoint source pollutant loading and loss of aquatic and terrestrial habitat.”3 It is critical that water quality management strategies be designed to combat this threat.
1 “Since 1980 the county’s population has more than tripled to over 95,000 and another 30,000 or so residents are expected to make this last bastion of undeveloped southeastern NC their home by 2020 . . . .” Mike Giles, Water Quality Strategy for the Lockwoods Folly River: A Partnership For An Ailing River (2010), available
at http://aquaticcommons.org/3903/1/Giles_papers.pdf. 2 Id. (noting an increase from 18% closure in 1980 to 60% closure in 2010). In 2006, the Lockwoods Folly River was listed on the 303(d) list because high concentrations of fecal coliform bacteria impaired designated uses of the river. 3 N.C. Ecosystem Enhancement Program, Lockwoods Folly River Local Watershed Plan: Detailed Assessment and
Targeting of Management Report 1.3 (2007) (hereinafter “Watershed Plan”), http://portal.ncdenr.org/c/document_library/get_file?uuid=b1e27660-7128-4198-99f5-3c9c55ffe4eb&groupId=60329.
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February 15, 2016 Page 2 In recent years, the North Carolina Coastal Federation has partnered with representatives
from local, state, and federal governments on a number of efforts designed to improve water
quality in the Lockwoods Folly River. The Federation was a founding member of the
Lockwoods Folly Watershed Roundtable organized in 2005 to identify and recommend strategies
to protect and restore water quality in the river.4 In cooperation with the Roundtable, the North
Carolina Ecosystem Enhancement Program adopted a watershed management plan for the basin
in 2007.5 In 2010, a fecal coliform TMDL was adopted for the basin, thanks in part to years of
research sponsored by the Federation.6

It bears emphasis that the North Carolina Coastal Federation was also instrumental in the
creation of the Lockwoods Folly River watershed water quality management plan. As originally
designed, the plan was intended to affect multiple activities impacting water quality, including
the density of development, discharge and non-discharge permitting, marina expansion, and
dredge and fill operations. It is concerning that proposed revisions to that water quality
management plan appear contrary to the efforts that had been undertaken to improve water
quality in the basin. Before elaborating on those concerns, however, it is helpful to summarize
the rulemaking efforts that resulted in the proposed amendments.

II. Regulation by Afterthought: Background on the Proposed Amendments

On January 2, 2015, the EMC proposed an amendment to the Rule that would, in a new
subsection (b)(2), add a water quality management plan for a portion of the lower Cape Fear
River.7 After the conclusion of the public comment period, the hearing officer recommended
adoption of the amendment.8 The amendment was approved unanimously by the EMC, and in
no way affected the Lockwoods Folly River watershed water quality management plan.9
4 The Roundtable included representatives from the Federation, Brunswick County Board of Commissioners, EPA, and the N.C. Ecosystem Enhancement Program. 5 Watershed Plan, supra note 3. 6 The TMDL was approved by EPA on September 7, 2010. The TMDL document is available at http://ofmpub.epa.gov/waters10/attains_impaired_waters.show_tmdl_document?p_tmdl_doc_blobs_id=73402. 7 29 N.C. Register 1604-09 (Jan 2, 2015). The EMC simultaneously proposed to reclassify the same portion of the Lower Cape Fear River as swamp waters. Id. On February 5, 2015, a hearing was held to provide an opportunity for the public to comment on the proposed amendment to the Rule. 8 N.C. DENR, Report of Proceedings on the Proposed Reclassification of a Cape Fear Segment, In Brunswick and New Hanover Counties (Broad River Basin) from SC to SC Sw with a Water Quality Management Plan (2015), http://portal.ncdenr.org/c/document_library/get_file?uuid=866ee647-ef8a-4912-8d36-06f26e6b1356&groupId=61581. The report contained no discussion of changes to the water quality management plan for the Lockwoods Folly River watershed. 9 The only proposed changes to subjection (b)(1) of the Rule were the replacement of language referencing “Subparagraphs (1) through (5) of this Paragraph” with language referencing the identical rule provisions as “Parts (A) through (E) of this Subparagraph.” Id. at 1605.
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February 15, 2016 Page 3 After its adoption by the EMC, the amended rule was submitted to the Rules Review
Commission (“RRC”) for review.10 Although the EMC only sought to amend part of the Rule,
the RRC was statutorily authorized to review the entire rule for consistency with the RRC’s
standards.11 RRC staff conducted a preliminary review and concluded that there were a number
of technical changes that should be made to increase the clarity of the Rule.12 Accordingly,
before the rule was presented for RRC review, a member of the RRC staff submitted a “Request
for Technical Change” to the EMC on October 9, 2015.13
At that point, the RRC raised, for the first time in the rulemaking proceedings, questions
about the water quality management plan for the Lockwoods Folly River watershed.
Specifically, to ensure that the amended Rule was clear and unambiguous prior to recodification,
the RRC staff asked clarifying questions about, and proposed changes to, that management plan.
The “Request for Technical Change” included the following questions and suggested edits:
In (b)(1)(C), what do you mean by “reduced loading rates” and “increased buffer
zones.” Is there a rule or statute that provides what the typical loading rates and buffer
zones are? Also, how is this determination made? Please include factors that will be
used in making this decision. Also, by whom will this determination be made? Please
provide additional information.
…
In (b)(1)(E), please delete or define “significant.”14

In response to these questions, DWR now proposes substantive amendments to the water quality
management plan for the Lockwoods Folly River watershed. In the following sections, we
review and recommend revision of those amendments.

10 See N.C. Gen. Stat. § 150B-21.2(g) (“An agency must submit an adopted rule to the Rules Review Commission within 30 days of the agency’s adoption of the rule.”). 11 N.C. Gen. Stat. § 150B-21.8 (“When the [RRC] reviews an amendment to a permanent rule, it may review the entire rule that is being amended.”). 12 See N.C. Gen. Stat. § 150B-21.9 (requiring the RRC to determine whether a rule “is clear and unambiguous”); Ultimately, the Commission extended the period for reviewing the rule, having determined it needed “additional information on the rule to be able to decide whether the rule meets the standards of review.” See N.C. Gen. Stat. § 150B-21.10. 13 http://portal.ncdenr.org/c/document_library/get_file?uuid=db0c57c2-2cf4-4044-959b-18d105710635&groupId=61581 A request for technical change submitted by RRC staff is distinguishable from a request for technical change by the RRC itself. See N.C. Gen. Stat. § 150B-21.10 (“In reviewing . . . an amendment to an existing rule, the Commission may request an agency to make technical changes to the rule and may condition its approval of the rule on the agency’s making the requested technical changes.”) 14 The subsections of the Rule that were referenced by the RRC staff – (b)(1)(C) and (b)(1)(E) – state provisions of the water quality management plan for the Lockwoods Folly River watershed.
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February 15, 2016 Page 4
III. Duplication Rather than Clarification: Limiting Dredge and Fill Activities

First, rather than simply deleting or defining the word “significant” in (b)(1)(E), DWR
proposes to alter the nature of limits on dredge and fill activities imposed under the Rule. As
currently codified, the Rule prohibits dredge or fill activities, except for maintenance dredging,
“where significant shellfish or submerged aquatic vegetation bed resources occur.”15 The
proposed amendment would instead prohibit dredge or fill activities, other than maintenance
dredging, “if those activities would result in a reduction of the beds of submerged aquatic
vegetation or a reduction of shellfish producing habitat as defined in 15A NCAC 03I
.0101(b)(20)(A) and (B).”

Rather than clarifying existing language in the Rule, it appears that DWR simply copied
language from another rule specifying water quality management strategies and proposed to
insert it into the Lockwoods Folly River watershed management plan.16 Ironically, this only
increased confusion, since the copied provision contains outdated cross-references.17 At
minimum, before the EMC is asked to adopt amendments to the Rule, these cross-references, if
retained, should be updated.

More importantly, the proposed amendment also injects uncertainty into the Rule by
shifting from a management strategy that limits activity based on the presence of certain natural
resources to one that limits activity based on prediction of its impact on those same resources.
Ideally, the Rule would be easy for regulators, the regulated community, and the public to
understand and apply. It is much easier to document accurately whether/where a specific natural
resource exists than it is to predict accurately the impacts to that resource that may be caused by
future activity. While the latter exercise relies on educated guesswork, the former can be
completed through “marine and estuarine survey sampling” and associated collection of data.18
Rather than hypothesizing about the extent of damage that, once caused, may be irreparable, the
agency should simply protect resources from damage by prohibiting activity that can cause it in
locations where such damage is untenable.
15 15A N.C. Admin. Code 02B .0227(b)(5). 16 See 15A N.C. Admin. Code 02B .0225(c)(2) (“No dredge or fill activities shall be allowed if those activities would result in a reduction of the beds of submerged aquatic vegetation or a reduction of shellfish producing habitat as defined in 15A NCAC 03I .0101(b)(20)(A) and (B), except for maintenance dredging, such as that required to maintain access to existing channels and facilities located within the designated areas or maintenance dredging for activities such as agriculture.”). 17 The undersigned confirmed that DWR intended to reference definitions of “shellfish producing habitat” and submerged aquatic vegetation habitat” codified at 15A N.C. Admin. Code 03I .0101(4)(g) and (i) respectively. 18 See 15A N.C. Admin. Code 03I .0101(4) (observing that “shellfish producing habitat” and “submerged aquatic vegetation habitat” is determined through “marine and estuarine survey sampling”).
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February 15, 2016 Page 5
That said, one benefit of referencing the (correct) definitions in 15A N.C. Admin. Code
3I .0101 would be the potential expansion of protection to both existing and historic natural
resources. Under the Rule as currently codified, shellfish producing habitat and submerged
aquatic vegetation (SAV) habitat is only protected from dredging where those resources now
“occur.” In contrast, 15A N.C. Admin. Code 03I .0101 defines “shellfish producing habitat” to
include “historic and existing” areas used by shellfish to “reproduce and survive.”19 Given the
recent rate of closures in the Lockwoods Folly River, it is particularly notable that the rule’s
definition of “shellfish producing habitat” also explicitly includes “those shellfish producing
areas closed to shellfish harvest due to pollution.”20 Similarly, the definition of “submerged
aquatic vegetation habitat” in 15A N.C. Admin. Code 03I .0101 includes submerged lands
currently vegetated with specified species and, in some cases, submerged lands vegetated where
those species grew in the last 10 years.21 We believe the water quality management plan should
strive to protect historic and existing aquatic habitat critical to preserving the designated uses of
the river. Therefore, we are not wholly opposed to the incorporation of cross-references to the
definitions in 15A N.C. Admin. Code 03I .0101.

Similarly, there may be value to augmenting the “presence” test with the proposed
“prediction” test. After all, the impacts of non-maintenance dredge and fill activities may not be
confined to the location where they are conducted.22 If such activities are not proposed where
valuable natural resources are located, but would nonetheless result in a reduction of such
resources, they should be prohibited. Based on the foregoing, we recommend amending the Rule
to prohibit non-maintenance dredge and fill activities “where shellfish producing habitat or
submerged aquatic vegetation habitat, as defined in 15A NCAC 03I .0101(4)(g) and (i), occurs
or would be reduced as a result of such activity.”

IV. Retreat Rather than Revision: Limiting New Non-discharge Permits

When asked to clarify limitations on dredge and fill activities, DWR proposed new
language. In contrast, rather than answering any of the questions posed by RRC staff regarding
limitations on new non-discharge permits, DWR proposes to delete that part of the Rule entirely.
The Rule currently states, “New non-discharge permits shall be required to meet reduced
loading rates and increased buffer zones, to be determined on a case-by-case basis.”23 The
19 15A N.C. Admin. Code 03I .0101(4)(g). 20 Id. 21 Id. at 03I .0101(4)(i)(i), (ii). 22 For instance, sediment re-suspended as a result of dredging activities may affect habitat downstream. 23 15A N.C. Admin. Code 2B .0227(b)(3).
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Elizabeth Kountis
February 15, 2016 Page 6 proposed amendment would strip the water quality management plan of any specific limits on
the issuance of new non-discharge permits. We strenuously object to the agency’s decision to
forego water quality protection rather than define its scope.

As previously mentioned, to clarify language regarding dredge and fill activities, DWR
referenced existing provisions of 15A N. C. Admin. Code 02B .0225. Notably, that rule contains
identical language to that proposed to be deleted from 15A N. C. Admin. Code 02B .0227. This
provides some evidence of the value of supplementing standard limitations on the issuance of
new non-discharge permits where nearby water bodies are in need of additional protection.
Notably, the RRC letter did not object to this additional protection; rather, staff reviewing the
Rule for clarity simply wanted to identify (1) the baselines from which “reduced” loading rates
and “increased” buffer zones were determined; (2) how departure from those baselines would be
calculated; and (3) who would conduct the calculations.

The Lockwoods Folly River watershed can certainly benefit through additional protection
from nonpoint sources pollution in the permitting process. As observed in the recently adopted
TMDL, which was designed to prevent fecal coliform concentrations from impairing designated
uses of the river, “the data indicates that the major contributions of fecal coliform loads are
nonpoint source runoff.”24 The TMDL also observes that “[t]he availability of fecal coliform for
runoff is highly variable between sites and depends upon factors such as soils, vegetated buffer
condition, slope, and setbacks.”25 In other words, the greatest threat to water quality in the river
is not direct discharge of pollutants, but rather insufficient prevention of pollutant runoff from
land. Therefore, reducing the loads of pollutants applied to land and increasing the distance
between that application and the nearest water body are activities meriting inclusion in a water
quality management strategy specific to the Lockwoods Folly River. Water quality in the
Lockwoods Folly should not be put at risk through the rote application the standard limitations
placed on non-discharge permits under Subchapter 2T of the Chapter 15A of the North Carolina
Administrative Code.

Notably, when the Rule was first codified, a separate rule then-codified at 15A NCAC 2H
.0219 stated minimum design requirements for permitted non-discharge facilities and required,
for “treatment works and disposal systems,” maintenance of “buffer zones” of “at least”
specified distances from various types of waters “and greater where necessary to comply with
24 NC DENR, Total Maximum Daily Loads of Fecal Coliform for the Shellfish Harvesting Areas in the Lockwoods
Folly River, Lumber River Basin, Brunswick County, North Carolina ix (August 2010), available at http://ofmpub.epa.gov/waters10/attains_impaired_waters.show_tmdl_document?p_tmdl_doc_blobs_id=73402 25 Id. at 60.
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Elizabeth Kountis
February 15, 2016 Page 7 Section 2H .0400 of this Subchapter or to address particular site or waste characteristics.”26 In
other words, the agency recognized the need for additional protection in coastal systems (hence
the reference to Section 2H .0400, governing Coastal Waste Treatment Disposal) and also
realized that the “buffer zones” might need to be wider to address site- or waste-specific
characteristics.

Although the rules administered by the agency have been reorganized and these “buffer
zones” are now called “setbacks” (presumably to distinguish from other required riparian
buffers),27 their utility in preserving water quality remains unquestioned and the agency should
have flexibility to widen them as needed to protect the Lockwoods Folly River. Notably, over
the years, the agency has adjusted setbacks based on the relevant waste characteristics.28
However, the agency should also be authorized to impose greater setbacks in the Lockwoods
Folly River watershed on a site-specific basis. After all, the primary purpose of establishing a
water quality management plan is to impose site-specific management controls. By deleting the
provision currently ensuring the availability of such site-specific controls, the agency jeopardizes
water quality in an area where special action is needed to preserve water quality.

Rather than remove provisions in the Rule governing the issuance of new non-discharge
permits in the Lockwoods Folly River watershed, DWR should answer the questions posed by
RRC staff. To do so, we recommend amending the provision in question to state as follows:
“New non-discharge permits shall be required to meet reduced loading rates and increased
setbacks beyond those specified in Subchapter 2T of these rules. The adjusted loading rates and
setbacks shall be determined by the Director on a case-by-case basis and designed to prevent
runoff into surface waters.” This revision will provide the clarity requested by RRC staff
without sacrificing important water quality protections in the Rule.

V. Conclusion

Thank you for your consideration of the foregoing comments. The North Carolina
Coastal Federation appreciates this opportunity to once again suggest action we believe
necessary to protect water quality in the Lockwoods Folly River.

Sincerely,
26 15A N.C. Admin. Code 2H .0219 (1995). 27 See, e.g., 15A N.C. Admin. Code 2T .0506, .0606, .0706, .0806. 28 Id.
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Elizabeth Kountis
February 15, 2016 Page 8
Will Hendrick
Associate Attorney Southern Environmental Law Center
CC: Mike Giles, N.C. Coastal Federation
DWH/lap

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15A NCAC 02B .0227 has been amended with changes as published in 30:12 NCR 1277-1278 as follows (text already 1
adopted by Environmental Management Commission and pending RRC approval appears in italics): 2
3
15A NCAC 02B .0227 WATER QUALITY MANAGEMENT PLANS 4
(a) In implementing the water quality standards to protect the existing uses [as defined by Rule .0202 of this Section] of the 5
waters of the state or the water quality which supports those uses, the Commission shall develop water quality management 6
plans on a priority basis to attain, maintain or enhance water quality throughout the state. Additional specific actions deemed 7
necessary by the Commission to protect the water quality or the existing uses of the waters of the state shall be specified in 8
Paragraph (b) of this Rule. These actions may include anything within the powers of the Commission. The Commission may 9
also consider local actions which have been taken to protect a waterbody in determining the appropriate protection options to 10
be incorporated into the water quality management plan. 11
(b) All waters determined by the Commission to be protected by a water quality management plan are listed with specific 12
actions either in Rules .0601- .0608 of this Subchapter that address the Goose Creek watershed (Yadkin Pee-Dee River Basin) 13
or as follows: 14
(1) The Lockwoods Folly River Area (Lumber River Basin), which includes all waters of the lower Lockwoods 15
Folly River in an area extending north from the Intracoastal Waterway to a line extending from Genoes 16
Point to Mullet Creek, shall be protected by the specific actions described in Parts (A) through (E) (D) of 17
this Subparagraph. 18
(A) New development activities within 575' of the mean high water line which require a Sedimentation 19
Erosion Control Plan or a CAMA major development permit must comply with the low density 20
option of the coastal Stormwater Runoff Disposal Rules [as specified in 15A NCAC 2H 21
.1005(2)(a)]. as specified in 15A NCAC 2H .1005(2)(a). 22
(B) New or expanded NPDES permits shall be issued only for non-domestic, non-industrial process 23
type discharges (such as non-industrial process cooling or seafood processing discharges). such as 24
non-industrial process cooling or seafood processing discharges. A public hearing is mandatory 25
for any proposed (new or expanded) NPDES permit to this protected area. 26
(C) New non-discharge permits shall be required to meet reduced loading rates and increased buffer 27
zones, to be determined on a case-by-case basis. 28
(D)(C) New or expanded marinas must shall be located in upland basin areas. 29
(E)(D) No dredge or fill activities shall be allowed where significant shellfish or submerged aquatic 30
vegetation bed resources occur, if those activities would result in a reduction of the beds of 31
submerged aquatic vegetation habitat or shellfish producing habitat which are defined in 15A 32
NCAC 03I .0101, except for maintenance dredging, such as that required to maintain access to 33
existing channels and facilities located within the protected area or maintenance dredging for 34
activities such as agriculture. 35
(2) A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of 18-(71) from upstream 36
mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut shall be protected 37
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by the Class SC Sw standards as well as the following site-specific action: All new individual NPDES 1
wastewater discharges and expansions of existing individual NPDES wastewater discharges shall be 2
required to provide treatment for oxygen consuming wastes as described in Parts (A) through (C) of this 3
Subparagraph. 4
(A) Effluent limitations shall be as follows: BOD5 = 5 mg/l, NH3-N = 1 mg/l and DO = 6 mg/l, or 5
utilize site-specific best available technology on a case-by-case basis for industrial 6
discharges.discharges in accordance with Rule .0406 (e) of this Subchapter. 7
(B) Seasonal effluent limits for oxygen consuming wastes will be considered on a case-by-case basis 8
in accordance with Rule .0404 of this Subchapter. 9
(C) Any new or expanded permitted pollutant discharge of oxygen consuming waste shall not cause 10
the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-11
stream dissolved oxygen at total permitted capacity for all discharges. 12
13
History Note: Authority G.S. 143-214.1; 143-215.8A; 14
Eff. October 1, 1995; 15
Amended Eff. November 1, 2015; July 1, 2016; January 1, 1996. 16
17
18
19
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January 9, 2020
Addendum to Regulatory Impact Analysis for 2017 “Swamp waters” Reclassification of the
Lower Cape Fear River
The attached Regulatory Impact Analysis (RIA) was completed in support of the rules which added the
“Swamp waters” (Sw) classification to a segment of the Lower Cape Fear River and an associated water
quality management plan. The current (January 2020) proposed action is to reverse the 2017
reclassification and a portion of the associated water quality management strategy. This proposed
action is in response to a Petition for Rulemaking received by the Division of Water Resources in January
2019. The Petition requests that the Environmental Management Commission (EMC) amend Rule 15A
NCAC 02B .0311 (Cape Fear River Basin) to remove the supplemental “Swamp waters” classification
from a segment of the Lower Cape Fear River in New Hanover and Brunswick Counties. The EMC
granted the Petition on July 11, 2019; as such, the EMC is required to initiate rulemaking per NC General
Statute 150B-20(c).
Notwithstanding the Petition, the current proposed action is necessary to comply with the requirements
of the federal Clean Water Act. Federal code 40 CFR 131.21 specifies that water quality standards are
not effective until approved by the U.S. Environmental Protection Agency (EPA). In July 2018, the EPA
disapproved the EMC’s 2017 supplemental “Swamp waters” reclassification as well as part of the
associated water quality management strategy. In effect, this means that the “Swamp waters”
classification and components of the management strategy for the Lower Cape Fear River were not and
cannot be used for Clean Water Act purposes, such as setting effluent limits in NPDES permits.
Essentially, the “Swamp waters” reclassification in the Lower Cape Fear River never went into effect; as
such, there will be no regulatory or economic impact from removing the classification from the North
Carolina Administrative Code. The original RIA is attached to the current proposed rulemaking package
to provide context.
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Regulatory Impact Analysis
Rule Citation Numbers: 15A NCAC 2B .0227 Water Quality Management Plans and 15A NCAC 2B .0311
Cape Fear River Basin
Rule Topic: Proposed Reclassification of a Segment of the Cape Fear River in New Hanover and
Brunswick Counties (Cape Fear River Basin) from Class SC to Class SC Sw with a Water
Quality Management Plan
DENR Division: Division of Water Resources
Staff Contact: Elizabeth Kountis: Environmental Senior Specialist, Division of Water Resources (DWR)
[phone]
[e-mail]
Jucilene Hoffmann: Economist II, Division of Water Resources (DWR)
[e-mail]
[phone]
Impact Summary: State government: No
Local government: No
Private entities: No
Substantial Impact: No
Federal government: No
Necessity: The proposed water quality management plan associated with the proposed reclassification
codifies the current permitting policy already in existence for new individual NPDES
wastewater discharges and expansions of existing individual National Pollutant Discharge
Elimination System (NPDES) wastewater discharges to the subject waters. In addition, the
proposed reclassification in partnership with the proposed management plan provides a path
forward for new individual NPDES wastewater discharges and expansions of existing
individual NPDES wastewater discharges, thus enabling the local community to plan
accordingly.
1.Summary
The Lower Cape Fear River Program has submitted a surface water reclassification request for a
portion of the Cape Fear River. This portion of the Cape Fear River of interest is proposed to be
reclassified from Class SC to Class SC Swamp with a water quality management plan.
The proposal codifies the current permitting policy already in place for new wastewater
discharges and expansions of existing wastewater discharges to the subject waters. In addition,
the proposal provides a path for the subject water’s discharges, and thus for local communities,
for future planning purposes. Finally, the proposal may positively impact the subject water’s
current water quality impairments.
There are no quantifiable impacts of the proposed rulemaking according to this fiscal analysis.
The expected reclassification effective date is November 1, 2015.
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2. Background
The area that would be impacted by this proposal is the portion of the Cape Fear River from
upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut.
This river segment flows along the border of Brunswick and New Hanover counties. In these waters
as well as adjacent waters, there are several tidal saltwater species, including the federally
endangered Shortnose Sturgeon and Atlantic Sturgeon, and the associated Marine Fisheries
Commission designations of Primary Nursery Area, or PNA; PNA waters are by definition High
Quality Waters, or HQW, per 15A NCAC 2B .0101. In addition, the types of land cover occurring
adjacent to the proposed river segment are comprised of wetlands, some developed lands, other
open waters, forest lands, and shrub/scrub lands. Furthermore, the segment of the Cape Fear River
directly above and below the river segment to be reclassified is classified C Swamp and SC,
respectively, and the named tributaries flowing to this river segment are currently classified either
SC Swamp, WS-IV, SC, or C Swamp.

Several tidal saltwater species, including the federally endangered Shortnose Sturgeon and federally
endangered Atlantic Sturgeon, and the striped bass live in the subject waters. The NC Division of
Marine Fisheries (DMF) has a tagging program for striped bass and sturgeon in this vicinity. This is
an area of diverse and abundant fish use, partially since salinity fluctuates widely. When salinity is
lower, fresh-brackish water species such as catfish and gar can be found, while during high salinity
times, spotted red drum and spadefish have been documented.
There are currently eight NPDES individual permitted wastewater discharges within this segment.
According to the 2012 North Carolina 303(d) list, the river segment is impaired for water quality
parameters including dissolved oxygen (DO) and pH.

According to the reclassification request, “…the DO standard of 5 mg/l for the Lower Cape Fear River
Estuary is not appropriate since it is not achieved a significant portion of the time as a result of
natural drainage from riverine wetlands and salt marshes. Modeling results indicate that the current
DO standard of 5 mg/L is not attained about 30 percent of the time during the summer months and
that point sources in this segment are a minor contributor to overall dissolved oxygen depletion.
Subsequent modeling and data analyses have indicated that drainage and the wetting and drying of
floodplain wetlands and salt marshes are the most significant contributor to the waterbody’s not
meeting the DO standard for non-swamp classified waters. From a regulatory standpoint, a
straightforward way to recognize the natural influence on standards is to reclassify the area with the
supplemental Sw classification. “

The regulations applicable to Class SC waters, which include the subject waters, provide a base of
protection to all of the state’s tidal saltwaters and allow for lower dissolved oxygen and pH values
under natural conditions for SC waters that carry the supplemental Swamp designation. For Class SC
waters, currently the dissolved oxygen standard is 5 mg/l, and the pH standard is a range between
6.8-8.5; if this segment is reclassified to include the Swamp designation, then the pH can be as low
as 4.3 if caused by natural conditions, and the dissolved oxygen can be lower than 5.0 mg/l if caused
by natural conditions. These regulations are located in rule, 15A NCAC 02B .0220.

The proposed management plan to accompany the proposed Swamp designation contains effluent
limits that new individual NPDES wastewater discharges and expansions of existing individual NPDES
wastewater discharges within the river segment would have to meet regarding oxygen consuming
wastes. These limits are similar to the limits for High Quality Waters (HQW), and the subject waters
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are HQW by virtue of being designated as Primary Nursery Areas. Effluent limits of 5 mg/l for
biochemical oxygen demand (BOD), 1 mg/l for Ammonia, and 6 mg/l for dissolved oxygen would
apply. For industrial discharges, site specific best available technology on a case by case basis would
be utilized to determine the limits for BOD, Ammonia and DO.

For new individual NPDES facilities and expansions of existing individual NPDES facilities, the
management plan includes consideration of seasonal effluent limits on a case by case basis in
accordance with 15A NCAC 2B .0404. The plan also includes the following stipulation: Any new or
expanded individual NPDES pollutant discharge of oxygen-consuming waste shall not cause the
dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the modeled in-stream
dissolved oxygen at total permitted capacity.

The proposed management plan is consistent with the current permitting policy already in place for
new individual NPDES wastewater discharges and expansions of existing individual NPDES
wastewater discharges to the subject waters. Furthermore, there is no known plans for new NPDES
wastewater discharges and there is one planned expansion of an existing NPDES wastewater
discharge in the reclassification area (Cape Fear Public Utility Authority Southside Wilmington, NC),
which already meets the proposal’s requirements. Finally, the proposed management plan in
conjunction with the Swamp designation provides a path for the subject waters’ dischargers, and
thus for local communities, for future planning purposes, and also may, in a positive fashion, impact
the subject water’s current impairments. As a result, this proposal serves the environment and
public interest per Executive Order #70 and complies with G.S. 150B-19.1.

3. Costs
(i.) New and Existing Individual NPDES Wastewater Discharges
There are eight existing individual NPDES wastewater discharges. For now, there are
currently no known planned new individual NPDES wastewater discharges and one
planned expansion of an existing individual NPDES wastewater discharge in the
reclassification area, which already meets the proposal’s requirements. The proposed
management plan to accompany the proposed Swamp designation contains effluent
limits that new individual NPDES wastewater discharges and expansions of existing
individual NPDES wastewater discharges within the river segment would have to meet
regarding oxygen consuming wastes. These limits are similar to the limits for High
Quality Waters, and the subject waters are HQW by virtue of being designated as
Primary Nursery Areas. Effluent limits of 5 mg/l for BOD, 1 mg/l for Ammonia, and 6
mg/l for dissolved oxygen would apply. For industrial discharges, site specific best
available technology on a case by case basis would be utilized to determine the limits for
BOD, Ammonia and DO. In sum, the proposed regulations would not have any impact on
current or future wastewater discharges.
(ii.) Implementing Agencies
The proposed rulemaking will have no cost to the State implementing agency
(DWR/DENR). These amendments will not require DWR to revise its existing procedures
nor will they require DWR to procure additional staff. Therefore, this proposed
rulemaking will have no economic impact to the implementing agency.

(iii.) Environment/Ecosystem
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Like it was mentioned in the summary above, according to the reclassification request,
“…the DO standard of 5 mg/l for the Lower Cape Fear River Estuary is not appropriate
since it is not achieved a significant portion of the time as a result of natural drainage
from riverine wetlands and salt marshes. From a regulatory standpoint, a
straightforward way to recognize the natural influence on standards is to reclassify the
area with the supplemental Sw classification….” As a result of the Sw reclassification,
ambient (in-situ) standards for DO and pH would be allowed to reflect natural
conditions rather than standards reflected solely by the SC classification. Water quality
monitoring may reflect DO and pH at levels below solely SC requirements. It is uncertain
if and/or to what extent the DO and pH levels will change over time once the proposal
becomes effective.

4. Benefits
(i.) Humans
This reclassification does not provide a direct benefit to humans. No changes to local
government programs are required, and there are no existing or proposed activities
affected by the proposal.

(ii.) New Individual NPDES and Existing Individual NPDES Wastewater Discharges
New individual NPDES and existing individual NPDES wastewater discharges will not
incur any direct benefits from the proposal, other than more accurately describing the
characteristics of the waters in this river. There are no existing or known proposed
discharges affected by the proposal. However, the proposed management plan codifies
the current permitting policy already in place for new individual NPDES wastewater
discharges and expansions of existing individual NPDES wastewater discharges to the
subject waters, cementing permitting expectations for those discharges. In addition, the
proposed management plan in conjunction with the Swamp designation provides a path
for the subject waters’ discharges, and thus for local communities, for future planning
purposes. Finally, as a result of the Sw reclassification, ambient (in-situ) standards for
DO and pH would be allowed to reflect natural conditions rather than standards
reflected solely by the SC classification. Water quality monitoring may reflect DO and
pH at levels solely below SC requirements. Discharges may in the future be granted
additional wasteload allocations; the amount, if any, of additional wasteload allocations
can only be determined with additional water quality monitoring and analysis. This
analysis would also reflect if the reclassification has any positive impact on the subject
water’s current impairments. It is uncertain if and/or to what extent the DO and pH
levels will change over time once the proposal becomes effective.

5. Total Economic Impact
The economic impacts of the proposed rulemaking, both in terms of cost and benefit, are
not quantifiable as measured from the baseline conditions. Consequently, there were no
specific cost or benefit estimations to report in this fiscal note.
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(2) A part of the Cape Fear River (Cape Fear River Basin) comprised of a section of Index No.18-(71) 1
from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows 2
Cut shall be protected by the Class SC Sw standards as well as the following site-specific action: 3
All new individual NPDES wastewater discharges and expansions of existing individual NPDES 4
wastewater discharges shall be required to provide treatment for oxygen consuming wastes as 5
described in Parts (A) through (C) and (B) of this Subparagraph. 6
(A) Effluent limitations shall be as follows: BOD5 = 5 mg/l, NH3-N = 1 mg/l and DO = 6 mg/l, 7
or utilize site-specific best available technology on a case-by-case basis for industrial 8
discharges in accordance with Rule .0406 (e) of this Subchapter. 9
(B) Seasonal effluent limits for oxygen consuming wastes shall be considered in accordance 10
with Rule .0404 of this Subchapter. 11
(C) Any new or expanded permitted pollutant discharge of oxygen consuming waste shall not 12
cause the dissolved oxygen of the receiving water to drop more than 0.1 mg/l below the 13
modeled in-stream dissolved oxygen at total permitted capacity for all discharges. 14
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(t) The Cape Fear River Basin Classification Schedule was amended effective June 30, 2017 with the reclassification 1
of a section of 18-(71) from upstream mouth of Toomers Creek to a line across the river between Lilliput Creek and 2
Snows Cut from Class SC to Class SC Sw. A site-specific management strategy is outlined in 15A NCAC 02B .0227. 3
(u)(t) The Cape Fear River Basin Classification Schedule was amended effective September 1, 2018 with the 4
reclassification of a portion of Sandy Creek [Index No. 17-16-(1)] (including tributaries) from a point 0.4 mile 5
upstream of SR-2481 to a point 0.6 mile upstream of N.C. Hwy 22 from WS-III to WS-III CA. The reclassification 6
resulted in an updated representation of the water supply watershed for the Sandy Creek reservoir. 7
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PROPOSED REMOVAL OF SWAMP CLASSIFICATION &
PORTION OF WATER QUALITY MANAGEMENT PLAN FROM
PART OF CAPE FEAR RIVER:
PUBLIC HEARING SET FOR OCTOBER 2020

Removal of the supplemental Swamp (Sw) classification and removal of a portion of a water quality management plan from a portion of the Cape Fear River in Brunswick and New Hanover Counties (Cape Fear River Basin) has been proposed. A public hearing is going to be conducted
to receive public comments on this proposal.
WATERS TO BE AFFECTED The proposed actions would affect the portion of the Cape Fear River from the upstream mouth of Toomers Creek to
a line across the river between Lilliput Creek and Snows Cut, where the Intracoastal Waterway (ICW) meets the river. No tributaries to this section of the river are to be
affected by the proposal. Wetlands, developed lands, other open waters, forest lands, shrub/scrub lands, and primarily Class Sw tributaries exist directly adjacent to
these waters. In these waters are tidal saltwater species, including the federally endangered shortnose sturgeon and federally endangered Atlantic sturgeon, and eight (8) existing NPDES wastewater discharges.

ASSOCIATED REGULATIONS The purpose of the entire water quality management plan was to help implement the current permitting policy for
new, and expansions of, individual NPDES wastewater discharges. The management plan in conjunction with the Sw designation was intended to help provide a path forward for these wastewater discharges, and thus for local communities, for future planning purposes.
The proposal is a result of the N.C. Environmental Management Commission (EMC) granting a petition from the Cape Fear River Watch and Waterkeeper Alliance to remove the Sw classification from these waters, and is a result of the U.S. Environmental Protection Agency (EPA) disapproving the Sw
classification and portion of the associated water quality management plan for these waters. EPA requires that water quality standards, including classifications, that are adopted by states must be approved by EPA, and thus, there would be no regulatory impact from removing the Sw classification or associated portion of the management plan for these waters due to EPA disapproval. Lastly, the proposed rulemaking would provide clarity and transparency regarding the rules applicable to these waters.

ONLINE PUBLIC HEARING In the abundance of caution, and to address protective measures to help prevent the spread of COVID-19, the hearing will be held online.
Date: Tuesday, October 20, 2020
Time: 6:00 p.m.
(The hearing can be joined starting at 5:45 pm.) WebEx link: https://tinyurl.com/yxo91csz WebEx password: bpKhm8bjP32
WebEx phone number: 1-415-655-0003
WebEx access code: 161 082 1972 (Please see information below regarding registering for, joining, and commenting at the public hearing.)
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ASSOCIATED REGULATIONS (CONTINUED) If removal of the Sw classification from these waters becomes effective, then the allowable pH and DO standards for Sw
waters under natural conditions, of as low as 4.3 and lower than 5.0 mg/l, respectively, would no longer apply. Furthermore, the DO standard of 5 mg/l, and the pH standard range of between 6.8-8.5, which are associated with the primary saltwater (SC) classification of these waters, would not be affected by the proposal. In addition, if removal of the part of the water quality management plan for these waters becomes effective, then for new individual NPDES wastewater facilities and expansions of existing individual NPDES wastewater discharges, the following stipulation would no longer apply: Any new or expanded permitted pollutant discharge of oxygen-consuming waste shall not cause the DO of the receiving water to drop more than 0.1 mg/l below the modeled in-stream DO at total permitted capacity. There are no known planned new individual NPDES wastewater discharges to these waters, and no planned expansions of existing individual NPDES wastewater discharges that require permitting. The proposed effective date for this proposed reclassification is July 1, 2021.
MEETING FEDERAL TRIENNIAL REVIEW REQUIREMENTS The public hearing and comment period are to be held in accordance with the federal Clean Water Act that requires States, at least every three years, to review and revise water quality standards. These standards are provided in existing rules NCAC 15A 02B .0100 and .0201 through .0228. The process is in accordance with the Triennial Review and includes an assessment
and revision of the designated uses of waters (classifications) and the water quality criteria (standards), which are based on the designated uses. More specifically, this public hearing and comment period are to address the potential removal of a Sw classification and portion of a water quality management plan to a portion of the Cape Fear River. This proposal will result
in fewer water quality standards applicable to these waters.

HOW TO REGISTER BEFORE THE HEARING AS WELL AS LISTEN TO THE HEARING
All persons interested and potentially affected by the proposal are encouraged to read this announcement, attend the hearing, and make comments on the proposal. The EMC may not adopt a rule that differs substantially from the text of the proposed rule published in the North Carolina Register unless the EMC publishes the text of the proposed different rule and accepts comments on the new text.
To register for the hearing and provide a preference about speaking at the hearing, visit https://tinyurl.com/y6g9hf7a; registration must be completed by 12:00 pm on
October 20, 2020. If you have any problems registering online, please call 919-707-9011 by the registration deadline of 12:00 pm on October 20, 2020.
To listen online, please use the above-mentioned WebEx link and password. Testing your computer's WebEx capabilities is highly recommended prior to the hearing at https://www.webex.com/test-meeting.html. For instructions about digital ways to join the public hearing, please refer to the WebEx Help Center online at https://help.webex.com/en-us/ .
To listen by telephone, please use the above-mentioned WebEx phone number and access code.
HOW TO SUBMIT COMMENTS
To comment during the hearing after your name is called as a registered speaker and/or after the hearing officer asks if any people wish to comment following the registered speakers: - If you join the hearing by phone, press *3 to “raise your hand,” speak once called upon to do so, and press *3 again to
“lower your hand.” - If you join the hearing online, press the hand icon to “raise your hand,” speak once called upon to do so, and press the hand icon again to “lower your hand.” - The Hearing Officer may limit the length of time that you may speak, so that all those who wish to speak may do so.
To comment in writing: Comments will be accepted until November 2, 2020, and may be submitted to Elizabeth Kountis, Division of Water Resources (DWR) Planning Section, at the postal
address and/or e-mail address below.
FOR ADDITIONAL INFORMATION
- about this proposal, visit https://deq.nc.gov/news/events/public-notices-hearings (look under “2020-10-20”) - about classifications and reclassifications, contact Elizabeth Kountis at [e-mail], DEQ-DWR, Planning Section, 1611
Mail Service Center, Raleigh, NC 27699-1611, phone [phone]

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ENVIRONMENTAL MANAGEMENT COMMISSION
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
Dr. A. Stan Meiburg Chairman Dr. Suzanne Lazorick Vice-Chair Roy Cooper, Governor David W. Anderson Robert Gillespie Michael S. Regan, Secretary Shannon M. Arata Patrick K. Harris Yvonne C. Bailey Steve Keen Charles Carter John McAdams Donna L. Davis Margaret C. Monast Marion Deerhake Dr. Donald van der Vaart

July 9, 2020

To: Margaret C. Monast
From: Dr. A. Stan Meiburg, Chairman Subject: Hearing Officer Appointment

A public hearing has been scheduled for October 20, 2020 at 6:00 PM via WebEx. The purpose of this hearing is to receive comments on proposed amendments to rules 15A NCAC 15A NCAC 02B .0227 and .0311 to remove the EPA disapproved Swamp designation and portion of the management plan from a section of the lower Cape Fear River in New Hanover
and Brunswick Counties.
I am hereby appointing you to serve as hearing officer for this hearing. Please receive all relevant public comments and report your findings and recommendations to the Environmental Management Commission.

If you have any questions, please feel free to contact me. cc: Lois Thomas Margaret C. Monast Hearing Record File
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Name Environmental Management CommissionMarion Deerhake Chair, Water Quality CommitteeMargaret Monast Hearing Officer
Div. of Water Resources (CSRRB = Classifications & Standards Rules Review Branch)Elizabeth Kountis Classifications, CSRRB, Water Planning SectionPeter Johnston Environmental Technician, CSRRB, Water Planning Section
Adriene Weaver WQC Coordinator, CSRRB, Water Planning SectionBridget Shelton Groundwater Water Quality Standards Coordinator, CSRRB, Water Planning SectionChris Ventaloro Water Quality Standards Co-Coordinator, CSRRB, Water Planning Section
Julie Ventaloro Economist, CSRRB, Water Planning SectionConnie Brower Water Quality Standards Coordinator, CSRRB, Water Planning Section
Jeff Manning Branch Chief, CSRRB, Water Planning SectionKaren Higgins Section Chief, Water Planning SectionNora Deamer Cape Fear River Basin Planner, Basin Planning Branch, Water Planning Section
Andy Painter Water Quality Modeling, Modeling & Assessment Branch, Water Planning SectionChloe Lloyd Permit Writer, Non-Discharge Permitting Unit, Water Qualtiy Permitting SectionBrianna Young Permit Writer, NPDES Compliance & Expedited Permitting Branch, Water Quality Permitting Section
Jenny Graznak Assistant Regional Supervisor, Water Quality Regional Operations Section, Winston-Salem Regional OfficeSue Homewood Permit Writer, Water Quality Regional Operations Section, Winston-Salem Regional OfficeCitizens Registered Name Entity Representing City County Speaker Attended RegisteredBilly Richardson NCGA House - District 44/Cape Fear (Upstream)Fayetteville, NC Cumberland Yes Yes Yes
Brooks Rainey Pearson Southern Environmental Law Center Chapel Hill, NC Orange Yes Yes YesHarper Peterson NCGA Senate - District 9 Raleigh NC Wake No Yes YesWill Hendrick Waterkeeper Alliance Chapel Hill, NC Orange Yes Yes Yes
Kemp Burdette Cape Fear River Watch Wilmington, NC New Hanover Yes Yes YesLauren Petter EPA Region 4 Sharpsburg, GA Cowetta No Unsure YesCindy Simpson NC Wildlife Resources Commission Raleigh, NC Wake No Unsure YesSarah Waickowski NC State University Raleigh, NC Wake No Unsure YesDana Sargent Cape Fear River Watch Wilmington, NC New Hanover No Yes YesAlex Elkan Brooks Pierce Greensboro, NC Guilfrod No Unsure YesMary Maclean Asbill Southern Environmental Law Center Chapel Hill, NC Orange No Yes YesJon Blanchard NC State Parks Raleigh, NC Wake No Yes YesNoah Johnson Starnews Wilmington, NC New Hanover No Yes YesShelley Ray Citizen Wilmington, NC New Hanover No Unsure YesSandy Rowe PATH Wilmington, NC New Hanover No Unsure YesPhilip Prete Self Brunsick Co., NC Brunswick No Unsure YesLeigh Lawrence NCGA - House District 44 Raleigh, NC Wake No Yes YesKim Fail International Paper Riegelwood, NC Columbus No Yes YesSabrina Manero University of Wisconsin-Madison Madison, WI Dane No Yes YesStephen Currie Retired Kure Beach, NC New Hanover No Unsure YesKerr T. Stevens Stevens Lobby and Consulting, Inc.Durham, NC Durham No Yes YesKeith Larrick NC Farm Bureau Raleigh, NC Wake No Yes NoChristopher Butler NA NA NA No Yes No3 people (no name) NA NA NA No Yes No
PROPOSED REMOVAL OF SWAMP CLASSIFICATION & PART OF WATER QUALITY MANAGEMENT PLAN FOR CAPE FEAR RIVER SEGMENT
LIST OF ATTENDEES: ONLINE PUBLIC HEARING OCTOBER 20, 2020 App-309
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Summary of Oral Comments Given at the Lower Cape Fear River Classification Public Hearing
on October 20, 2020
Overview
Four speakers gave comments during this hearing, all of which were in favor of removing the swamp
water classification of the relevant section of the Lower Cape Fear River (LCFR). The comments of each
of those speakers is summarized below.
Rep. Billy Richardson, Representative from NCGA District 44
The word swamp creates a misconception about how we enforce and execute environmental policy, and
the section of the LCFR river at issue should be called something else other than a swamp. Also, we
should be intelligent and careful about allowing discharges into public waters, as there have been
numerous bacteria warnings in the mouth of the Cape Fear. These warnings happened because we
aren’t keeping the river clean. We shouldn’t allow further discharges that make the problem worse.
North Carolina should protect its estuarine system for the benefit of our children and grandchildren.
Brooks Rainey Pierson, legislative counsel for Southern Environmental Law Center (SELC)
The SELC, representing Cape Fear River Watch and the Waterkeeper Alliance, filed the petition asking
for this instant rulemaking, and we ask DEQ to move forward with this rulemaking without further delay.
Conditions in the LCFR river have worsened; there are issues with dissolved oxygen, pH, turbidity, and
copper. A TMDL has never been developed for the Lower Cape Fear River. Non point sources are the
main contributors to the problem in the Cape Fear River. The swap rule classification has been rejected
by EPA and is unworkable as codified, so this rulemaking is needed to accurately reflect the classification
of the LCFR. The proper classification is tidal salt water.
Will Hendrick, Waterkeeper Alliance
Waterkeeper Alliance petitioned the EMC for the rulemaking being considered tonight, and it fully
supports the proposed amendments. Water quality standards in this context that aren’t approved by
EPA can’t be relied upon in the implementation of the Clean Water Act (CWA), and the EPA has rejected
that swap water classification. We are asking the EMC to change the NC code to match the reality of
how the CWA must be implemented.
Kemp Burdette, Cape Fear Riverkeeper for Cape Fear River Watch
The Cape Fear is a special river, the largest in North Carolina, and one in five North Carolinians gets their
drinking water for its basin. While the Cape Fear is many things to many people, the section of the river
at issue is not a swamp. It is over 60 feet deep in some spots and almost two miles wide in others.
According to NOAA data from over 350 station locations, the LCFR ebbs faster (2.9 knots) than every
other point in NC, SC, and GA, except for two. The river still has significant problems, despite its size.
Cape Fear River Watch asks that the swamp designation be removed and the LCFR be classified as a
river.

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Written Comments Received
[External] Cape Fear River
MARY CARROLL <[e-mail]>
Wed 10/14/2020 9:35 AM
To: Kountis, Elizabeth
I am writing this in support of declassifying the Cape Fear River as swamp waters. This classification is a detriment to reducing the pollution of this river, a body of water that is the source for drinking water for many locations in southeastern NC.
Mary Carroll
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[External] Cape Fear River Clean up
John Kowalchuk [e-mail]
Wed 10/14/2020 10:16 AM
To: Kountis, Elizabeth
As a new resident in Brunswick County I hope you vote to clean up this beautiful resource in our
area. Please help ensure that big business stops dumping into our waters.
Best Regards
John Kowalchuk
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[External] comments on Cape Fear River sW classification
Mallin, Michael A. <[e-mail]>
Thu 10/15/2020 10:08 AM
To: Kountis, Elizabeth
Dear Ms. Kountis,
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Attached please find my comments on the sW reclassification of the Lower Cape Fear River. I focus in on the unfortunate lack of non-point source N and P controls in this ecosystem,
thank you, Mike Mallin
Dr. Michael A. Mallin Research Professor
Center for Marine Sciences University of North Carolina Wilmington Wilmington, N.C. 28409 Phone: [phone] Email: [e-mail]
Memo to: NC Division of Water Resources, and NC Environmental Management Commission
From: Dr. Michael A. Mallin, Research Professor, Center for Marine Sciences, University of North Carolina Wilmington, Wilmington, NC, 28409
Date: October 14, 2020
Subject: Comment on the proposed removal of the supplemental Swamp (Sw) classification and
removal of a portion of a water quality management plan from a portion of the Cape Fear River.
I am supportive of removing the Sw classification for the mainstem Cape Fear River and its estuary. I am dismayed, however, that the State of NC has not sufficiently dealt with non-point source pollution to this river system, and there appears to be no imminent plans to do so.
Related Comments:
1) I am supportive of the idea that any further municipal point sources in the lower Cape FearRiver basin will require the highest level of treatment in North Carolina. I further believe thatmore specifics are needed regarding industrial discharges – at the least setting some limits onnon-traditional agents that lead to increased biochemical oxygen demand (BOD), such as nitrate,total nitrogen (TN) and total phosphorus (TP).
2) Neither the current classification nor proposed CFR reclassification adequately addresses non-point contributions of BOD or nutrients (which lead to BOD increases). Runoff of organicmaterials is of course a source of BOD. Nutrient loading (N or P) can lead to increased BODindirectly by stimulating algal blooms and hence creating labile BOD, or by directly stimulating
(by P loading) bacterial growth, which increases heterotrophy and subsequently BOD (see
below).
3) In the lower Cape Fear River and Estuary, peer-reviewed research published in Limnologyand Oceanography has demonstrated that BOD is driven by a number of biological and chemicalfactors (Mallin et al. 2004 - Tables 4, 5 and 6) see the following:
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• Chlorophyll a (the principal measure of algal bloom strength) has been positively correlatedwith BOD5 in the mainstem river at Lock and Dam #1 (r = 0.55, p = 0.0001), Browns Creek (r =
0.45, p = 0.007), Hammond Creek (r = 0.45, p = 0.004), Great Coharie Creek (r = 0.51, p =0.001), Colly Creek (r = 0.64, p = 0.0001), Barnards Creek (r = 0.37, p = 0.040), Motts Creek (r= 0.42, p = 0.020), and Smith Creek (r = 0.57, p = 0.0009). I note that Browns, Hammond,Barnards and Smith Creeks drain directly into the mainstem river or estuary, while Colly andGreat Coharie creeks drain into the lower Black River, a major 5th order tributary of the 6th
order Cape Fear River.
• TN has been positively correlated with either BOD5 or BOD20 or both in the 5th-orderNortheast Cape Fear River (r = 0.30, p = 0.02), the Black River (r = 0.45, p = 0.0003), HammondCreek (r = 0.47, p = 0.0003), Six Runs Creek (r = 0.54, p = 0.0005), Great Coharie Creek (r =0.44, p = 0.006), Little Coharie Creek (r = 0.52, p = p = 0.0008), and Colly Creek (r = 0.54, p =
0.0005).
• TP has been positively correlated with either BOD5, BOD20 or both in the Northeast CapeFear River (r = 0.34, p = 0.008) the Black River (r = 0.33, p = 0.010), Browns Creek (r = 0.40, p= 0.012), Hammond Creek (r = 0.42, p = 0.009), Six Runs Creek (r = 0.49, p = 0.002), Great
Coharie Creek (r = 0.66, p = 0.0001), and Colly Creek (r = 0.39, p = 0.015).
• Chlorophyll a represents algal blooms, which upon death and decomposition become highlylabile sources of BOD. Nutrients drive BOD in two ways: directly and indirectly. Peer-reviewedarticles in Ecological Applications by Mallin et al. (2004) and in BioScience by Mallin andCahoon (2020) showed that for streams in the Black and Northeast Cape Fear River basins,inputs of dissolved phosphorus directly stimulate BOD5 and BOD20, as well as natural bacteria
abundance (the direct driver of BOD). The data also showed that inputs of dissolved nitrogen(nitrate ammonium, and urea) significantly stimulate algal growth, which in turn significantlystimulates BOD. Thus, the correlation between nutrient loading and BOD is not surprising.
6) The reclassification to Sw was based on the Bowen (2009) model predicting DOconcentrations in the lower Cape Fear River Estuary
• The Bowen model concludes that further reduction of current point sources would have littleeffect on DO concentrations – I will accept the model’s conclusions on that matter.
• But, Bowen’s model shows that reducing nutrient, carbon and BOD loads from the incomingrivers, creeks and wetlands by 30% and 70% would increase median DO from 5.6 mg/L to 5.85
and 6.2 mg/L, respectively – and this assumes sediment oxygen demand (SOD) stays the same
regardless of reductions! See Bowen (2009) pages 6-4, 6-8, and 6-22 in particular for more onthis topic.
• Assuming that such BOD load reduction would similarly reduce SOD, than the model sayssummer DO violations would decrease from 45% to 22% violations (30% reduction case), downto 7% (with 50% reduction) and down to only 1% violations (70% reduction case).
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• Whereas SOD can be strongly affected by sediment organic composition, I note that SODcannot simply be considered “natural” only. A year-long study of several tidal creeks in New
Hanover County was published in the peer-reviewed journal Hydrobiologia (MacPherson et al.2007). Results demonstrated that chlorophyll a concentrations were positively correlated withSOD (r = 0.35, p < 0.05), as well as BOD5 (r = 0.50, p < 0.05).
4) Note that the Bowen model did not discuss non-point source pollution sources specifically.
5) Yet, non-point runoff plays a major role in the middle to lower basin of the mainstem Cape
Fear River, from crop agriculture, urban runoff and livestock production. In the lower Cape Fearsystem I note that livestock waste pollution and crop agriculture are the predominant non-pointnutrient and BOD sources in the Black and Northeast Cape Fear River basins.
6) Livestock manures as waste inputs were not even mentioned in Bowen’s model! However,2014/2015 livestock counts for the CFR basin are as follows:
• Hogs: approximately 5,772,000
• Poultry: approximately 57,906,600
• Cattle: approximately 31,788
(from Patt (2017))
Livestock wastes are clearly a large source of BOD-forcing pollutants in the Cape Fear Basin –
and remain virtually unregulated (i.e. no required streamside buffers, no required control of ammonia off gassing, etc.).
7) Industrialized swine farms (CAFOs) are a source of large-scale chronic nitrogen andphosphorus loading to nearby soils and receiving water bodies, nutrients which have beendirectly correlated to BOD in the blackwater streams and rivers of the Cape Fear Basin (Mallin et
al. 2006). An peer-reviewed analysis by Cahoon et al. (1999) published in EnvironmentalScience and Technology found that vast quantities of nitrogen and phosphorus feed are importedinto the watershed annually to feed swine, poultry, and cattle in production facilities (CAFOs),which in turn annually load large quantities of nutrients as waste into the watershed. Thisanalysis found that for the Cape Fear River basin alone, CAFOs produce 82,700 tons of nitrogen
and 25,950 tons of phosphorus as animal waste annually into this watershed. Thus, N and P enterthe state as animal feed from elsewhere, but much of it leaves the livestock as manure (orcarcasses) and enters soils or waters of the Coastal Plain.
8) Recent research using established isotopic techniques (Brown et al. 2020) has established thatnitrogen produced by CAFOs can be detected dozens of km downstream from areas of origin.
Further, that research demonstrated that during times of elevated river discharge CAFO-sourcednitrogen can be detected as far downstream as the upper Cape Fear estuary, in some cases over100 km from the source CAFO areas. Finally, that paper demonstrated a highly significantcorrelation between nitrate and elevated 15N (an isotopic signature of swine waste) indicating
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that non-point source animal waste is a major source of inorganic N in the lower Cape Fear River basin.
9) As noted above, the NC DWR has estimated approximately 58,000,000 head of poultry in theCape Fear River basin (Patt 2017). These are nearly all confined in CAFOs, wherein the poultrywaste is applied as dry litter to adjoining fields, where it is exposed to rainfall and subject torunoff (about 4% of the poultry are in facilities that use lagoons – Patt 2017). Thus, poultrywaste in this basin represents a huge potential source of N and P to the Cape Fear waterways,
which can stimulate production of BOD, as well as be a direct source of BOD in the case oforganic N and P. Additionally, poultry waste produces ammonia, which is aerosolized (Patt 2017and see below).
10) Finally, swine waste lagoons, as well as poultry CAFOs, produce copious amounts of
ammonia to the atmosphere. According to NCDWR data (Patt 2017) CAFOs from Bladen,
Duplin, and Sampson Counties combined produced 0ver 61,000 tons annually of ammonia fromlivestock waste to the airshed of the Cape Fear River basin (and coastal ocean). Much of thisCAFO-generated ammonia comes to earth within 60 miles of the source (Walker et al. 2000;Costanza et al. 2008). Ammonia is well-known in the environmental engineering literature to
exert an oxygen demand (nitrogenous BOD) on waters – that is why it is regulated in wastewater
discharges (Clark et al. 1977). Efforts need to be made to control this major source of oxygen-demanding wastes to the Cape Fear system as well.
11) Clearly, non-point sources of BOD, nitrogen, and phosphorus entering the waters of thelower Cape Fear River system are very large and lead to reduced dissolved oxygen levels. Theserural non-point sources remain currently unregulated.
I do not support a Sw classification for the lower Cape Fear River. In addition, I feel that a regulatory approach solely based on point sources will be inadequate to produce or maintain proper dissolved oxygen concentrations in the lower Cape Fear River and Estuary due to the lack of attention to non-point sources of nutrients and BOD. The source of much of this pollution is industrial livestock production, along with unknown inputs from traditional agriculture, and
some urban runoff in the Fayetteville and Wilmington areas. Any proposed reclassification or other regulatory action focused on the Cape Fear River and Estuary must include strong language specifically aimed at reducing such non-point sources of pollution.
Literature Cited
Bowen, J.D., S. Negusse, J.M. Goodman, B. Duclaud, M. Robin and J. Williams. 2009.
Development and use of a three-dimensional water quality model to predict dissolved oxygen concentrations in the lower Cape Fear Estuary, North Carolina. Department of Civil Engineering, University of North Carolina Charlotte.
Cahoon, L.B., J.A. Mickucki and M.A. Mallin. 1999. Nutrient imports to the Cape Fear and Neuse River basins to support animal production. Environmental Science and Technology
33:410-415.
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Clark, J.W., W. Viessman, Jr. and M.J. Hammer. 1977. Water Supply and Pollution Control, 3rd Edition. IEP-A Dun-Donnelley Publisher, New York.
Brown, C.N., M.A. Mallin and A.N. Loh. 2020. Tracing nutrient pollution from industrialized animal production in a large coastal watershed. Environmental Monitoring and Assessment 192:515 https://doi.org/10.1007/s10661-020-08433-9
Costanza, J.K., S.E. Marcinko, A.E. Goewert and C.E. Mitchell. 2008. Potential geographic distribution of atmospheric nitrogen deposition from intensive livestock production in North
Carolina, USA. Science of the Total Environment 398:76-86.
MacPherson, T.A., M.A. Mallin and L.B. Cahoon. 2007. Biochemical and sediment oxygen demand: patterns of oxygen depletion in tidal creeks. Hydrobiologia 586: 235-248.
Mallin, M.A. and L.B. Cahoon. 2020. The hidden impacts of phosphorus pollution to streams and rivers. BioScience. 70:315-329.
Mallin, M.A., M.R. McIver, S.H. Ensign and L.B. Cahoon. 2004. Photosynthetic and heterotrophic impacts of nutrient loading to blackwater streams. Ecological Applications 14:823-838.
Mallin, M.A., V.L. Johnson, S.H. Ensign and T.A. MacPherson. 2006. Factors contributing to hypoxia in rivers, lakes and streams. Limnology and Oceanography 51:690-701.
Patt H. 2017 A Comparison of PAN and P2O5 produced from Poultry, Swine and Cattle Operations in North Carolina. Division of Water Resources, North Carolina Department of Environmental Quality.
Walker, J., V. Aneja and D. Dickey. 2000. Atmospheric transport and wet deposition of
ammonium in North Carolina. Atmospheric Environment 34:3407-3418.
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[External] Reg. Removal of Swamp Classification on the Cape Fear River
Ulrich Alsentzer <[e-mail]>
Thu 10/15/2020 10:27 AM
To: Kountis, Elizabeth
Dear Ms. Kountis,
We wanted to take this opportunity provided by your office to voice our support for the removal
of the SWAMP CLASSIFICATION of the stretch of the Cape Fear from Toomers Creek to the
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line between Snows Cut and Lilliput Creek.
Mary Alsentzer Ulrich Alsentzer
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[External] Cape fear river swamp classification
Julia berger <[e-mail]>
Mon 10/19/2020 8:23 AM
To: Kountis, Elizabeth
Good morning Ms kountis:
Please add my name in support of "DO NOT CLASSIFY LOWER CAPE FEAR RIVER AS
SWAMP WATERS" Thank you Julia berger Wilmington nc
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[External] CF River Reclassification public comment from COW
Tony McEwen <[e-mail]>
Mon 10/19/2020 4:19 PM
To: Kountis, Elizabeth
Please find the attached Resolution from the City of Wilmington City Council passed in 2018
regarding the Cape Fear River reclassification. The Resolution remains thebperspectove of our
Council as to their opposition to the Lower Cape Fear River being classified as "Swamp Water" Thank You!
Tony McEwen
Legislative Affairs
City of Wilmington
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[External] Please deny the Swamp Water classification for any part of the Cape Fear
River
Beau McCaffray <[e-mail]>
Tue 10/20/2020 2:37 PM
To: Kountis, Elizabeth
Hello Ms. Kountis,
I write today as a part of the public comment period on the proposed reclassification of a portion
of the waters of the Cape Fear River.
Please REMOVE the swamp classification from the almost 79,000 acres of Cape Fear River in
New Hanover and Brunswick counties that runs upstream of Toomers Creek to a line across the
river between Lilliput Creek and Snows Cut.
The “SC” waters classification (tidal salt waters protected for recreation activities such as
fishing, boating and other activities) must be maintained for the health and enjoyment of the
public who depend on water quality for drinking water and recreation.
Thank you and Stay Healthy!
Edmund "Beau" McCaffray 7512 Dunbar Rd.
Wilmington, NC 28411
910 367-9425
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[External] Lower Cape Fear reclassification
Leslie Antos <[e-mail]>
Wed 10/21/2020 10:28 AM
To: Kountis, Elizabeth
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Hello,
I am a 3 year resident of the Lower Cape Fear region. I am not a scientist but having spent many weekends walking the Wilmington Riverwalk and taking riverboat tours up and down the river with guests and friends, I can tell you that this part of the river does not resemble any swamp that I have ever seen. Shouldn't the speed of the moving water alone tell us that this is not a swamp? Please change this classification.
Leslie Antos 306 Coral Drive Wrightsville Beach, NC 28480
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[External] Swamp designation for the Lower Cape Fear River
Clarice Reber <[e-mail]>
Wed 10/21/2020 12:14 PM
To: Kountis, Elizabeth
Dear Ms. Kountis,
I am writing to support the removal of the Swamp Water designation to the Lower Cape Fear River. The Lower Cape Fear is clearly a river, not a swamp. That has been established. More
importantly, this change needs to be done quickly. No more feet dragging. New water discharge permit applications are coming and we need the new designation in place to prevent further pollution of our waters, which we in New Hanover County use as the source of our drinking water. Thank you for your attention.
Clarice Reber 7919 Blue Heron Drive W, #305 Wilmington, NC 28411.
Clarice Reber
[e-mail]
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[External] Lower Cape Fear River Reclassification Beth
Hansen <[e-mail]>
Wed 10/21/2020 2:44 PM
To: Kountis, Elizabeth
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The League of Women Voters of the Lower Cape Fear supports reclassifying the Lower Cape
Fear River, thereby removing the designation as swamp waters. The flow rate alone makes a "swamp water" designation totally inappropriate. We urge you to make this change promptly. New industrial water discharge and storm water management permits are forthcoming making the need for an expeditious change in designation critical.
Thank you, Beth Hansen, Chair Environmental Action Team League of Women Voters of the Lower Cape Fear
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[External] The Cape Fear Region is NOT a swamp
Priscilla and Raoul Rebillard <[e-mail]>
Wed 10/21/2020 5:50 PM
To: Kountis, Elizabeth
Dear Ms. Kountis,
The EPA has rejected the NCDEQ classification of the lower Cape Fear as "swamp waters". Clearly this region is not swamp and it is now time that we remove that designation so that the state can move forward with a strategy which appropriately addresses the water quality issues in the lower Cape Fear.
Respectfully submitted,
Priscilla and Reb Rebillard 6209 Motts Village Rd.
Wilmington, NC 28412
910 444-1560
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[External] Reclassification Hearing for the LCFR
Merritt, James <[e-mail]>
Tue 10/27/2020 10:56 AM
To: Kountis, Elizabeth
Cc: Beth Eckert <[e-mail]>
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Elizabeth,
Thanks for attending the Lower Cape Fear River Program and providing information regarding the NCDENR classification of the Lower Cape Fear River. Since the Lower Cape Fear River Program submitted the original request to add the Swamp Supplemental Classification to the Lower Portion of the Cape Fear River, I have attached the original request and justification that
was submitted. I am also sending a hard copy by US Mail.
The Lower Cape Fear River Program has not discussed the matter and so my comments do not reflect the view of the organization, but my personal view.
The swamp supplemental classification was removed from the Lower Cape Fear River some years ago which ultimately resulted in the need for a TMDL to be developed because the DO standard was not met. I have been involved for over 20 years with this issue and with the modeling performed by the NC Division of Water Quality. Since modeling showed that the river would not consistently meet the 5 ppm dissolved oxygen (DO) standard even if there were no
dischargers on the Lower Cape Fear River, the two alternatives left to recommend were, to propose the re-application of the swamp supplemental classification or develop a biological standard to apply to this portion of the river.
Both methods were reviewed and the proposal to recommend re-application of the swamp
supplemental classification was pursued because the biological method appeared to be too costly. The “swamp” supplemental classification to sections of the Lower Cape Fear River accounts for all the natural wetlands and marshes that border and flow into the river. Fresh water segments upstream already have the “swamp” classification. With the swamp supplemental classification, the water quality standard for DO is still 5 ppm unless lower
concentrations are demonstrated due to natural causes. It also requires that new or expanding discharges must meet high levels of treatment and cause no more than 0.1 ppm drop in DO and the net effect is that any increase in discharge from municipal growth or other point sources must meet these standards.
The swamp supplemental classification has the effect of recognizing the influence of waters upstream on the water quality in the lower river and encourages the state to develop management strategies to reduce the non-point sources of pollutants that enter the Lower Cape Fear River.
The proposal submitted by the Lower Cape Fear River Program to add the swamp supplemental
classification was intended to resolve the problem with the requirement to develop a TMDL and to focus attention on the Lower Cape Fear River water quality and encourage efforts to manage and reduce the upstream impacts.
Therefore, I support leaving the swamp supplemental classification in place unless there is a
biological standard established to replace it.
Sincerely,
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Jim
James F. Merritt, Ph. D Director Emeritus Center for Marine Science, UNCW
5600 Marvin K. Moss Lane Wilmington, NC 28409 Telephone [phone] Fax [phone]
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[External] Remove the "swamp waters" designation for the Cape Fear River
Howard Ferguson <[e-mail]>
Wed 10/28/2020 8:07 PM
To: Kountis, Elizabeth
Hi
I would like to voice my opinion for DEQ-DWR to remove the “swamp waters” designation so
that the state can move forward to address the water quality in the lower Cape Fear River.
Thank you, Howard L. Ferguson
5103 Celline Ct.
Wilmington, NC 28409
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[External] The Cape Fear River: it is not a swamp!
Bridget Tarrant <[e-mail]>
Wed 10/28/2020 10:53 PM
To: Kountis, Elizabeth
Ms. Kountis,
Please remove the classification of the Cape Fear River as a swamp. Doing so will allow the state to finally move forward with developing a strategy to address the water quality issues in the lower Cape Fear. Those of us who live in the region deserve to have a clean source of drinking water from our taps.
Thank you for your time and assistance,
Bridget Tarrant 111 S 9th St, Wilmington, NC 28401
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[External] Cape Fear River Sw Classification comments
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Keith Larick <[e-mail]>
Mon 11/2/2020 1:43 PM
To: Kountis, Elizabeth
Hi Elizabeth,
Please see the attached comments from North Carolina Farm Bureau regarding the proposed
removal of the supplemental Swamp (Sw) classification for a portion of the lower Cape Fear River.
Thanks,
Keith
--------------------------------------------------- Keith Larick Natural Resources Director
North Carolina Farm Bureau Federation
Phone: [phone] Cell: [phone] www.ncfb.org
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[External] Comments on Proposed Removal of Swamp Classification and Portion of
Water Quality Management Plan from Part of Cape Fear River
Augspurger, Tom <[e-mail]>
Mon 11/2/2020 11:35 PM
To: Kountis, Elizabeth
Hello Elizabeth,
Comments from US Fish and Wildlife Service are attached. Please email me if you have any questions (our phones aren't working at present).
I hope all is well with you and those you hold close through the challenges of the pandemic,
Kind regards,
Tom
--------------------------------
Please note that our office phone system is in repair. Email is the best way to reach me.
Tom Augspurger
Deputy Field Supervisor
US Fish and Wildlife Service Eastern North Carolina Ecological Services
551-F Pylon Drive
Raleigh, NC 27606
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November 2, 2020
Elizabeth Kountis
DEQ/DWR Planning Section
1611 Mail Service Center Raleigh, NC 27699-1611
Dear Ms. Kountis:
The U.S. Fish and Wildlife Service (Service) provides the following comments on the proposed removal of swamp (Sw) classification and a portion of the water quality management plan from
part of the lower Cape Fear River. We reviewed the proposal as described in the October 2020
public hearing notice, and we support the proposed removal of the supplemental Sw classification.
Among Service priorities is the health and restoration of diadromous fish stocks in the area, including Striped Bass (Morone saxatilis), American Shad (Alosa sapidissima), Hickory Shad (Alosa mediocris), Blueback Herring (Alosa aestivalis), Alewife (Alosa pseudoharengus),
Shortnose Sturgeon (Acipenser brevirostrum), Atlantic Sturgeon (Acipenser oxyrinchus
oxyrinchus), and American Eel (Anguilla rostrata). All diadromous species have complex life cycles entailing use of freshwater and marine habitats, so water quality management in the lower Cape Fear River is of interest to us and partners working on fish restoration.
The Service has engaged in the proposed reclassification since April 15, 2014. On April 23,
2014, we emailed references documenting 1) fish of management importance in the lower Cape
Fear River; 2) references noting adverse effects to fish early lifestages at dissolved oxygen (DO) concentrations less than the 5 mg/L standard; and 3) concern that a Sw classification might make it more difficult to determine use-support related to DO. We offered technical suggestions and additional concerns in a letter of March 3, 2015, and we advised in a February 12, 2016 letter
that we did not support the then-proposed Sw classification and management plan for technical
as well as practical reasons. The April 23, 2014 emails (3) and March 3, 2015 and February 12, 2016 letters are incorporated by reference.
The proposed removal of the Sw classification will address concerns we raised as well as those of the U.S. Environmental Protection Agency in their disapproval of the Sw classification. The
monitoring and modelling work as well as extensive stakeholder input have the stage set for
water quality restoration planning throughout the basin which will be a good next step following the removal of the Sw classification.
Thank you for the opportunity to comment on the proposal. If we can answer any questions about our comments, please contact me at [e-mail].
Sincerely,
Tom Augspurger Supervisory Fish and Wildlife Biologist
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