March-10-2021-Water-Quality-Committee-Meeting Minutes Approved 05-12-2021 as amended

Taken: March 10, 2021
Amended: May 12, 2021
Commissioner John McAdams
Approved: May 12, 2021

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WATER QUALITY COMMITTEE MEETING MINUTES March 10, 2021
WQC MEMBERS IN ATTECE
WQC MEMBERS IN ATTENDANCE
Ms. Marion Deerhake, WQC Chair Mr. Mitch Gillespie
Ms. Patricia Harris, WQC Vice-Chair Mr. John McAdams
Ms. Donna Davis Ms. Maggie Monast
Mr. Charles Carter Dr. Stan Meiburg, Ex-Officio, EMC Chair
EMC MEMBERS & COUNSEL IN ATTENDANCE
Mr. Phillip Reynolds, EMC Counsel Dr. Suzanne Lazorick, EMC Vice-Chair
Ms. Yvonne Bailey Dr. Donald van der Vaart
Mr. Steve Keen
DEQ STAFF & OTHERS IN ATTENDANCE
Mr. Danny Smith, DEQ-DWR Director Ms. Trish D’Arconte, Ms. Sue Homewood, and Mr. Klaus Albertin, DEQ-DWR
Ms. Julie Gryzb, DEQ-DWR Deputy Director Mr. Brian Wrenn, DEQ-DEMLR and Ms. Julie Henshaw, North Carolina Department of Agriculture and Consumer Services

MEETING BRIEF
During the March 10, 2021 web conference meeting of the North Carolina Environmental
Management Commission’s (EMC or Commission) Water Quality Committee (WQC or Committee),
the WQC:
• Approved the draft January 13, 2021, WQC meeting minutes.
• Approved to proceed to the EMC with Neuse & Tar-Pamlico Model Program (Local Program
Guide, Model Ordinance, and Stormwater Management Template) for New Development
Stormwater.
• Approved to proceed to the EMC with Proposed Temporary Rules 15A NCAC 02H .1400 (.1401
through .1405) (New) and 15A NCAC 02H .1301 (Revision) and to recommend to the EMC the 30-
day waiver by-law.
• Heard two informational presentations: Executive Order No. 80: North Carolina’s Commitment to Address Climate Change and Transition to a Clean Energy Economy and the North Carolina Soil and Water Conservation Commission’s Cost Share Programs to Address Nonpoint Source Pollution.

Taken: March 10, 2021
Amended: May 12, 2021
Commissioner John McAdams
Approved: May 12, 2021

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I. Preliminary Matters

• The Committee meeting was called to order at 1:00 p.m. with Chair Deerhake presiding. She
took a voice roll call of the members in attendance and confirmed a quorum existed.
• Chair Deerhake read the State Government Ethics Act - G.S. 163A-159(e) “Conflicts of
Interest” notice. No Committee members responded that they had a conflict of interest with any
action or information item on the agenda. • The Committee unanimously approved the draft January 13, 2021, WQC meeting minutes
without discussion. (Motion by Commissioner Davis; seconded by Vice-Chair Harris)
II. Action Items 1. Request Approval to Proceed to the EMC with the Neuse/Tar-Pamlico Model Program
for New Development Stormwater
Description The amended Neuse and Tar-Pamlico New Development Stormwater Rules (15A NCAC 02B
.0711 and 15A NCAC 02B .0731, respectively), effective April 1, 2020, require Division of
Water Resources (DWR) staff to develop a new Model Program (Program) in consultation with
local governments and receive EMC approval. The Program was developed in collaboration with
the local governments, those with (current) and without (new) a National Pollutant Discharge
Elimination System (NPDES) Municipal Separate Storm Sewer System plan (referred to as an
MS4 plan). The program provides guidance and information templates to assist local
governments in developing their own Local Programs to implement the rules. By local
government request, the program provides an example for integrating local NPDES MS4 plans
into their Neuse or Tar-Pamlico Stormwater programs. Ms. Trish D’Arconte with the DWR’s
Nonpoint Source Planning Branch provided an overview of the Neuse & Tar-Pamlico Model
Program (Local Program Guide, Model Ordinance, and Stormwater Management Template) for
New Development Stormwater and requested WQC approval to proceed to the EMC the next
day with this Program. The Model Program does not require a 30-day waiver presentation to the
EMC because it is not a rulemaking matter.

Discussion
Commissioner Carter asked why the new local communities were not previously in the Program.
Ms. D’Arconte explained the original Neuse and Tar-Pamlico rules included a set of local
communities that had the greatest volume of development. The local communities that were
added are those with extensive expansion projects and not already been participating in a MS4
program. As noted by Ms. D’Arconte in the presentation, the Model Ordinance is based on the
original Falls Lake watershed model ordinance prepared by the University of Chapel Hill School
North Carolina School of Government (School). The original ordinance was modified to adapt it
Taken: March 10, 2021
Amended: May 12, 2021
Commissioner John McAdams
Approved: May 12, 2021

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to the Neuse and Tar-Pamlico watersheds. The Chair asked whether the UNC School of
Government reviewed the current draft Model Ordinance to assure it was legally defensible for
the communities. Ms. D’Arconte said DWR did not have the time for the School of Government
to review it, and there is a disclaimer in the Model Program document on this. Also, the Chair
requested staff to re-check the table numbering in the Stormwater Management Template. She
also asked if DWR’s Nonpoint Source Planning Branch will create an audit system for approved
local programs. Ms. D’Arconte indicated there is nothing in the rules that specifies how to go
about developing an audit program. She said each local program will be required to submit an
annual report to DWR, and the local program could identify problems they are having with
implementing the rules.
Motion Vice Chair Harris moved that the WQC grant DWR’s request to proceed to the EMC for
approval of the Neuse and Tar-Pamlico Model Program for New Development Stormwater.
Commissioner McAdams seconded the motion. The motion was passed unanimously by the Committee without further discussion. 2. Request Approval to Proceed to the EMC with Proposed Temporary Rules 15A NCAC
02H .1400 (.1401 through .1405) (New) and 15A NCAC 02H .1301 (Revision)Discharges to Federally Non-Jurisdictional Wetland and Classified Surface Waters; and Request for Recommendation to the EMC for a waiver of the 30-day rule Description On April 21, 2020, the U.S. Environmental Protection Agency (EPA) and the United States
Corps of Engineers (Corps) published the Navigable Waters Protection Rule in the Federal Register to finalize a revised definition of “waters of the United States” under the Clean Water Act (“federal rule”). The new federal rule became effective on June 22, 2020. As a result of the new federal rule, a subset of wetlands classified under State law are no longer subject to Federal Clean Water Act jurisdiction. These classified wetlands remain protected by 15A NCAC 02B
.0231 - Wetland Standards but because of the new federal rule, there is no permitting mechanism available to authorize impacts. DWR proposed temporary rules (15A NCAC 02H .1401 - .1405) to provide a regulatory mechanism to authorize impacts to Federally Non-Jurisdictional wetlands that are not isolated wetlands and to provide regulatory certainty. Prior to the federal rule, DWR deferred to the Corps to define “Isolated” wetlands. After the federal rule, the term “Isolated” is
no longer used by the Corps. (The December 2, 2008 Memorandum for the Supreme Court’s decision in the United States v. Rapanos indicates that the Corps makes the determination of “Isolated”.) The proposed temporary rule 15A NCAC 02H .1301 provides a definition for “Isolated” to be consistent with what was previously used by the Corps. DWR requested approval from the WQC to proceed to the EMC to initiate temporary rulemaking and the WQC
to recommend that the EMC waive the 30-day rule on this item to expedite the rulemaking process. Discussion Commissioner McAdams commended Ms. Homewood and DWR for providing a clear
Taken: March 10, 2021
Amended: May 12, 2021
Commissioner John McAdams
Approved: May 12, 2021

4

presentation and one that sets the context for the proposed temporary rules. He said there is great merit in what DWR proposed. Commissioner McAdams continued, stating the federal regulations removed jurisdiction from isolated wetlands and yet those wetlands still exist in the
state regulations. He said the proposed temporary rules have high thresholds, and there is consistency with the existing Isolated Wetland rules. Therefore, the regulated communities and the consultants that serve them will have familiarity with these proposed rules. The temporary nature of the proposed rules is to make them available so that certain economic development projects can take place while permanent rulemaking proceeds. Commissioner McAdams found
DWR’s proposed action very commendable. Commissioner Davis also commended Ms. Homewood for the thorough presentation and asked what percentage of wetlands fall in this permitting gap because of the federal regulatory change. Ms. Homewood said that DWR is not have able to estimate how many subject wetlands exist or are expected to come before DWR for permitting because the majority of the project proponents have not submitted applications, given
the regulatory uncertainty. Commissioner Gillespie asked if there are wetlands outside the 16 categories identified in the NC Wetland Assessment Manual that will be covered under the proposed temporary rules. Ms. Homewood said no, explaining that all the wetlands in NC, whether Federally Jurisdictional or not, should fall into one of those 16 categories. Commissioner Gillespie also asked if the federal rule’s exclusions will be included in the new
proposed rule. Ms. Homewood explained that the excluded wetlands that are the category of wetlands addressed by DWR’s proposed rules are not Federally Jurisdictional but they are still wetlands and still are covered under state wetland standards. She explained that DWR is proposing a wetlands permitting mechanism because the subject wetlands are excluded from the federal permitting program. Only the Federally-excluded “natural” wetlands would be included
in the proposed temporary rules. The other waters excluded in the federal rule should fall under either not being a classified surface waters (i.e., ephemeral channel or upland ponds) and/or exempted in the 2H .1400 rules as drafted (for instance, man-made non-jurisdictional ponds and man-made waste features, i.e., wastewater pond or lagoon). Most of these waters should be excluded from permitting in the North Carolina also. Only a natural wetland excluded from
Federal Jurisdiction based on connectivity is the wetland type for which DWR is trying to provide a permitting mechanism. Commissioner Gillespie asked Mr. Reynolds if the general permit number 1WOP100000 is in effect now. Mr. Reynolds said yes. In a follow-up question, Commissioner Gillespie asked if the general permit covers non-jurisdictional wetlands that are isolated and surface waters. Mr. Reynolds said yes. Commissioner Gillespie followed that if so,
then why isn’t the North Carolina using the general permit to permit projects under one acre of cumulative impact. Mr. Reynolds explained that the DEQ’s policy and interpretation of the way the general permit is written is that isolated wetlands and other federally Non-Jurisdictional wetlands have meant the same thing when the permit was developed. Commissioner Gillespie mentioned that DEQ has the authority to issue permits for Federally Non-Jurisdictional wetlands
under one acre but they have not because they have not interpreted it that way. Ms. Homewood responded to Commissioner Gillespie’s comment by stating that the isolated wetlands general permit is promulgated through the 2H .1300 rules which delegates that DWR can permit activities affecting isolated wetlands under the category of “deemed permitted” (small threshold) or by using a general permit or an individual permit. The proposed temporary 2H .1400 rules
will have all the threshold levels that the 2H .1300 rules have and will cover a different category
Taken: March 10, 2021
Amended: May 12, 2021
Commissioner John McAdams
Approved: May 12, 2021

5

of wetlands (Federally Non-Jurisdictional wetlands). A general permit can be used to permit any project under one acre of wetlands across the state. This is how DWR proposed to update a general permit that would apply to the new category of Federally Non-Jurisdictional wetlands. Motion Commissioner McAdams moved that the WQC proceed to the EMC with Proposed Temporary Rules 15A NCAC 02H .1400 (.1401 through .1405) (New) and 15A NCAC 02H .1301 (Revision). Commissioner Davis seconded the motion. The motion was passed unanimously by
the Committee without further discussion. Commissioner McAdams moved that the WQC recommend the EMC approve the 30-day waiver. Commissioner Monast seconded the motion. The motion was passed unanimously by the Committee.
III. Additional DWR actions items for the March 11, 2021 EMC Agenda Items are listed below. There was no discussion on any of these items as no WQC member expressed to do so.
1. Request Approval of the Neuse/Tar-Pamlico New Development Stormwater Model
Program -Trish D’Arconte, Division of Water Resources, Nonpoint Source Branch 2. Request Approval of 2021 Chowan River Basin Water Resources Plan - Forest Shepherd, Division of Water Resources, Basinwide Planning Branch
3. Request Approval to Proceed to Public Notice and Hearing with Proposed Surface Water Triennial Review amendments to select rules in 15A NCAC 02B .0200 and .0300 and Regulatory Impact Analysis - Chris Ventaloro, Division of Water Resources, Classifications, Standards and Rules Review Branch
4. Request Approval of 30-day Waiver and to Proceed to Public Notice and Hearing for Proposed Temporary rules 15A NCAC 02H .1301 (Revision) and 15A NCAC 02H .1400 (.1401 through .1405) - Sue Homewood, Division of Water Resources, 401 Permitting and Buffer Branch
5. Request Issuance of Water Quality Special Order of Consent S19-010 to address 1,4-Dioxane in the Effluent Discharge at City of Greensboro’s T.Z. Osborne Wastewater Treatment Plant - Brianna Young & Jenny Graznak, Division of Water Resources, Water Quality Permitting Branch
IV. Information Items 1. Executive Order NO. 80: North Carolina’s Commitment to Address Climate Change and Transition to a Clean Energy Economy
Taken: March 10, 2021
Amended: May 12, 2021
Commissioner John McAdams
Approved: May 12, 2021

6

Description Executive Order No. 80 was signed October 29, 2018. It directs the North Carolina cabinet agencies “to evaluate the impacts to understand climate change on their programs and integrate
climate change mitigation and adaptation practices into their programs and operations”. The 2020 Climate Risk Assessment and Resiliency Plan, a component of the EO 80, called for the development of a study to understand climate change impacts specific to North Carolina. The North Carolina Institute for Climate Studies led the study with input from higher education institutions and subject matter experts. The study findings were included in the North Carolina
Climate Science Report. Mr. Klaus Albertin (DWR Water Supply Planning Branch) presented, summarizing potential climate change impacts in NC and the impacts to DWR programs. In consideration of increased rainfall and rainfall intensities across NC, Division of Energy, Mineral, and Land Resources (DEMLR) Director Brian Wrenn presented programmatic initiatives to address land disturbing activities with a high risk of sediment loss. Planned steps
include updates to precipitation predictive modeling and storm recurrence interval volumes, increased inspection frequencies, and risk-based permitting using topography and other erosion control criteria. Discussion
The Chair commented that she thinks it would be beneficial if staff performed a comprehensive review of water quality regulations to determine if there are any improvements needed to help facilitate timely implementation of EO 80. EMC WQC Chair thanked Mr. Albertin and Mr. Wrenn for providing informative presentations. 2. Voluntary Approaches to Address Nonpoint Source Pollution Description Julie Henshaw with the Nonpoint Source Program in the North Carolina Department of
Agriculture and Consumer Services provided general information on the North Carolina Soil and
Water Conservation Commission’s Cost Share Programs, particularly the Agriculture Cost Share
Program, their successes, and how voluntary programs can complement water quality
regulations.

Discussion
Chair Deerhake commented that she as well as Vice-Chair Harris and Commissioner Monast
have experienced successful projects where voluntary measures were adopted by the agricultural
community, reducing nutrient and sediment loads to surface waters. The Chair asked Ms.
Henshaw to work with DWR’s Nonpoint Source Planning Branch to share relevant information
on voluntary best management practices adoption by river basin or hydrologic unit and that the
Nonpoint Source staff analyze the information and report to the WQC. Ms. Henshaw said that
one of her division’s staff currently works with DWR basin planners and provides data as
requested. The agencies will continue to share data and work collectively.

3. Future Committee Interests
Taken: March 10, 2021
Amended: May 12, 2021
Commissioner John McAdams
Approved: May 12, 2021

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The Chair reminded the members that she distributed a “topics of interest” list to them in
February 2021, recounting WQC activities to date on each topic. She encouraged members to
notify her of any topics they wish to add to the list or any updates to the existing list of topics.

4. Director’s Remarks (Danny Smith, Division of Water Resources)
Director Smith reported that DWR staff participated in a virtual NC Manufacturers Association workshop
on Water Quality Compliance in February 2021. The topics covered at the workshop included
information from DEQ’s General Counsel Office, surface water standards, PFAS, National Pollutant
Discharge Elimination System (NPDES) permitting, non-discharge permitting, and inspections. Also, he
said the regional offices have been following up with NPDES permittees about excessive amounts of
precipitation which present challenges for spray irrigation and land application and which can cause
inflow and infiltration issues in the collection systems, as well as challenge wastewater treatment systems
and lagoons’ freeboard. He closed, announcing that the proposed High Rock Lake rules will be presented
at the May 2021 WQC meeting.
V. WQC Closing Remarks
Commissioner Carter asked why the Greensboro Special Order by Consent (SOC) was coming
before the EMC the next day since SOCs are ordinarily signed off by the DWR. Director Smith
explained that when DWR holds a public hearing for an SOC, it is presented to the EMC for
decision-making.
Commissioner Davis expressed her gratitude to staff for the excellent presentations.
Commissioner Gillespie – no comment
Commissioner McAdams – no comment

Commissioner Monast reminded WQC members that she is the Hearing Officer for the proposed
rulemaking to remove the Swamp Classification and part of a water quality management plan for
a portion of the Cape Fear River. In May, the EMC will be asked to act on the Hearing Officer’s
recommendation. Commissioner Monast said she will reach out to any members who have
questions.

Vice Chair Harris expressed thanks to the presenters.
Chair Deerhake adjourned the meeting and announced the next meeting will be May 12, 2021.