WQ0018708_Advisory Opinion_20070412

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Comments 4Y18/2007
ADVISORY OPINION
TO: Alan Klimek, Director, Division of Water Quality
FROM: Mary Penny Thompson, General Counsel
1 '
DATE: April 12, 2007`Draft
RE: Advisory Opinion: \SSewer Moratoriums
N.C. Gen. Stat. § 14312115.67
On January 12, 2007, I met with your staff to discuss sewer'moratorium issues. Three distinct
questions were raised. First, can approvals be issued that allocate flow be and the design flow of
a wastewater treatment plant? Second, can thDivision issue sewer ex nsion permits during the
45-day notice period of the moratorium? Third,,can the Division issue no -flow or "dry line"
sewer extension permits during a moratorium? I a4'ise that the. s 'er to all three questions' is
generally no because all three actions are in contra ei�tion of sta;�story language that prohibits
discharges of wastes to a disposal system in excess of"the cal6ity� of the disposal system.
1. Allocations Beyond Design Flow.
It has come to the Division's attention that several locaYgov ments have allocated flow beyond
the flow limit set in their permits. The Water and A,i(QualityReporting Act prohibits any person
subject to water quality permitting from willfullyausing or allo ing the discharge of any wastes
to a waste -disposal system in excess of the,cap city of the dispos system. N.C. Gen. Stat. §
143-215.67(a). In some instances, a local go ernment has allocated wo to three times the
amount of flow authorized to discharge in ' the disposal system.' Alt ough a local government
may not be discharging flow ("actual flo ") in excess of it's permitted ow ("design flow"), the
excess allocations create a situation in/Which the local government has pro ised to accept waste
which it know it cannot process. ,A4'eveloper receives the local governmen romise and acts in
reliance upon that promise. By the time the actual flow reaches the disposal s stem, the local
government may not be able to/evoke its promises, thereby causing wastes to e ter the system in
excess of its capacity. For these reasons, I advise that allocating flow beyond des gn flow is
prohibited by the Watery -Air Quality Reporting Act. \
Two exceptions to the/general prohibition exist for units of government. The first exceRtion'
allows additional w stes to be discharged to a treatment works operated by a public utility or unit
' For example, Up}�on County holds a permit with a flow limit of 2.4 Million Gallons Per Day ("MGD"), but has.`
allocated over 6'MGD to various developers. New Bern holds a permit with a flow limit of _ MGD, but has \
allocated over. _ MGD. Wilmington, a city with several sewer line breaks last year, holds a permit with a flow \
limit of AvIGD, but has allocated over _ MGD.

Draft — For Discussion PurposerOnly
Advisory Opinion: Sewer Morapriums
April 12, 2007
Page 2 of 3
of local government by a person who halds a -valid building permit issued prior to the date
notice of moratorium if the Division findkthat the discharge of waste will not result in a
significant degradation in water quality. DWQ should not initiate a review of individu building
permits but should evaluate under single review all outstanding building permits (pr ected
tributary totals) issued prior to the date of a notice of moratorium N.C. Gen. Stat. 143-
215.67(a). The second exception allows a unit ofgovernment to accept additio l wastes to its
waste -disposal system if the Division finds that (i)'the government has secure) financingfor
planning, design, or construction of a new or improved system that will adeAtately treat the
waste and (ii) the additional waste will not result in any,significant degra &ion of water quality.
N.C. Gen. Stat. § 143-215.67(b). Since this new flow will be,in excess design and permit
limits this should be accomplished via a Special Order by Consent. /
When allocation of design flow (paper flow) approaches full caps ity, the Division should
initiate actions to prompt the owner to keep wastes within its system's capacity. If full capacity
has not yet been.reached, but is close, the Division should not y the owner of the consequences
•
of reaching full capacity without taking preventative action. hose1/4aonsequences include denial
of sewer line permits, e-fe14 moratorium, civil penalties, iunction or criminal penalties. N.C.
Gen. Stat. § 143-215.67 and :69. If a permittee applies;br a sewer extension permit that will
cause the sum of its actual and design flow to teach the system's capacity4e Division should
indicate in its response that no additional sewer lines/will be permitted until\the permittee can
demonstrate the system will have capacity to handadditional flow. (similar''to language in the
80/90 rule) If a permittee applies for a sewer ex nsion permit that exceeds the -design flow and
does not fit into the exceptions for a valid buil Ong permit or an anticipated improvement to the
system, the application will be denied. Once he Division determines that the system is at
capacity, (actual + paper) it may give notic, of its intention to impose a moratorium 'at least 45
days prior to the effective date of theof t e moratorium. N.C. Gen..Stat. § 143-215.67(c).
During the 45-day period, the treatmen works owner may continue to issue approvals over which
it has authority. However, if such ap ovals violate the Water and Air Quality Reporting Act by
causing the discharge of waste in e ess of the capacity of the system, (& permit) then the \
Division may (should) pursue its forcemeat remedies, i.e., criminal penalties, civil penalties,
and injunctive relief N.C. Gen. tat. § 143-215.69.
2. Sewer Extension During Notice Period. . ' \
Some system owners havequested sewer line permits during the 45-day notice period of a , \\
moratorium. However, t} plain language of the Water and Air Quality Reporting Act prohibits ,
such permits. Aside frail government exemption when adequate financing and water'quality _ _ -\-.
are assured, the Wateand Air Quality Reporting Act prohibits issuing a permit for a
sewer line that willonnect to a treatment works incapable of treating additional waste
"from the date ony which the Commission determines that the treatment works is incapable
of treating additional waste until the moratorium on the addition of waste to the treatment
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Draft —For Discussion Purposes Only
Advisory Opinion: Sewer Moratoriums
April 12, 2007
Page3 of 3
works is lifted." N.C. Gen. Stat. § 143-215.6T(c). Although the moratorium's effec(ve date'has
not arrived, I read the statute to direct the Division to stop issuing sewer line peimi
immediately. Processin• of a .lications that are al?eadv in-house rrior to issuane of the'
moratorium notice is acce.table .rovided these a).licetions will not cause or ntribute to
permit violations or in stream impacts.
3. Dry Line Sewer Extensions During Moratorium.
Once a moratorium is in place, developers often ask Whether'key can ' stall dry lines on tithe
condition that they will not discharge wastes into them, i.e., kekth• dry, until the moratorium
is lifted and additional permits are obtained. 1 advise against issu •g such dry line permits in
order to avoid a vested right argument or development pressure 'ter\ Under common law, a
vested right will be obtained when a person makes substantial xpenditures in good faith :reliance
upon a governmental approval. [case law cite] Although a operly-c\ditioned permit could
avoid a vested right, the situations in which a developer wi invest moneyin dry lines, other
infrastructures, and potentially buildings that cannot be r couped until the developer obtains a
full sewer approval is too close for comfort. Besides t legal risk, the pressure to provide relief
to the developer would increase daily along with the terest on construction fancing. Even' if
the Division could resist the pressure to provide rel.f, the development may faiIRfrom the sheer
burden of financial investment with no return. Cl' arly, the better public policy wkod beito
permit only the infrastructure that can be suppo ed by the system's capacity.
3.1 Dry Line Sewer Extensions Not Under oratorium
As noted in #3. above under common lay . a vested right will be obtained when a person't`al:'es
substantial expenditures in eood faith r: lance upon a governmental approval. (case law;cite\
not to mention the process of permitti e the activation of the line and associated tracking D W Q
will perntit dry line sewers only for to following unique situations:
a public highway project is lanned and installation will avoid future waste of public
monies.
A unit of government is equirina the dry line to be installed for all projects. public and
private. at the time of�roiect initiation for future use. This is only acceptable if \\%aste
disposal needs for thL project will be accommodated with onsite waste disposal (septi''e
tanks) at the time of'project initiation.
perthitting. if you have any questions or
ation, please do not hesitate to contact me.'
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