2022 NC IR Comments

StormWater.CharMeck.org
600 East 4th Street
Charlotte, NC 28202 February 28, 2022
NCDEQ; Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Subject: 2022 Draft 303(d) List and Integrated Report
To Whom It May Concern:
Charlotte-Mecklenburg Storm Water Services (CMSWS) appreciates the opportunity to provide input on
the N.C. Division of Water Resources (NCDWR) 2022 Draft 303(d) List and Integrated Report. After
reviewing these documents and the data that accompanied the listing decisions, we identified a few
recommendations for improvement as well as a few potential typos and errors that we would like to
share for your consideration before the list is finalized.
Our primary recommendation and request would be to consolidate small reaches of the same name into
a single reach on the 303(d) list and Integrated Report, determine listings for the entire consolidated
reach based on the most recent monitoring data collected at the downstream end of the consolidated
reach, and apply TMDLs which contain one or more small reaches to the larger consolidated reach.
CMSWS collected monitoring data at the downstream end of named reaches between January 2016 and
December 2022 and submitted this data to the State to inform the 2022 303(d) listing decisions. Some
examples of reaches that should be consolidated, and TMDLs that should be applied to the consolidated
reaches, include:
•Little Sugar Creek – consolidate 11-137-8a, 11-137-8b, and 11-137-8c and apply the data
collected and submitted by CMSWS for the 2022 303(d) list to the entire reach. Currently, 11-
137-8a is listed on 303(d) as impaired for total copper as of 2008, whereas dissolved copper data
collected downstream by CMSWS from January 2016 – December 2020 showed zero instances
of exceeding the dissolved copper standard. The total copper listing on 303(d) should be
removed based on the more recent dissolved copper monitoring downstream. Also, on the
Integrated Report, all three reaches (or the consolidated reach) should be listed as having an
approved TMDL for turbidity rather than only 11-137-8c as is currently the case.
•Sugar Creek – consolidate 11-137a, 11-137b, and 11-137c and apply the fecal and turbidity
TMDLs to the entire consolidated reach on the Integrated Report rather than just 11-137c.
•McAlpine Creek – consolidate 11-137-9a, 11-137-9b, 11-137-9c, 11-137-9d and apply the fecal
and turbidity TMDLs to the entire consolidated reach. The fecal TMDL is not currently being
applied to 11-137-9d on the Integrated Report. Also, on the Integrated Report reach 11-137-9c
is also listed as 4b for benthos and fish while the reach upstream (11-137-9b) is listed as
category 5 and on 303(d) for both parameters and 11-137-9d is listed as impaired on 303(d) for
benthos.
•Long Creek – consolidate 11-120-(0.5) and 11-120-(2.5) and apply the total suspended solids
approved TMDL to the entire reach on the Integrated Report.
2/28/22 Page 2
•McDowell Creek – consolidate 11-115-(1), 11-115-(1.5)a, 11-115-(1.5)b and 11-115-(5) into one
reach and apply the 4b category to the entire reach on the Integrated Report.
•Goose Creek – consolidate 13-17-18a and 13-17-18b into one reach and apply the fecal coliform
TMDL to the entire reach on the Integrated Report.
We also noticed that some reaches were listed on 303(d) for the same parameters two or three times.
Some of these would be removed anyway if the reaches are consolidated as recommended above, but
duplicate and triplicate entries observed on 303(d) include:
•Little Sugar Creek (11-137-8a) – triplicate entries for copper, fish, benthos
•Little Sugar Creek (11-137-8c) – duplicate entries for benthos and fish
•McAlpine Creek (11-137-9b) – duplicate entries for benthos and fish
•Catawba River (11-(75)) – duplicate entries for PCB fish tissue advisory and turbidity
•North Fork Crooked Creek (13-17-20-1) – duplicate entries for benthos and turbidity
Additionally, we observed that Lake Norman (AU 11-(75)) is listed as category 5 for turbidity in the Draft
2022 303(d) List. Based on public data obtained from the National Water Monitoring Council, NCDEQ’s
Ambient Lakes Monitoring Program collects water quality data from Lake Norman every five years at
eight monitoring locations (CTB079A, CTB082A, CTB082AA, CTB082B, CTB082BB, CTB082M, CTB082Q,
CTB082R). CMSWS reviewed turbidity data collected by NCDEQ on Lake Norman from the past four
sampling events (2002, 2007, 2012, and 2017) and could not identify any turbidity concentrations above
the 15A NCAC 02B turbidity standard for reservoirs (25 NTU). The highest turbidity concentration
observed by NCDEQ during this time was 11 NTU, collected from CTB079A on 5/17/2007. CMSWS
performs bi-monthly water quality monitoring at several locations in lower Lake Norman and has never
observed a turbidity exceedance. Based on NCDEQ’s data, CMSWS is requesting that AU 11-(75) be
removed from the 303(d) list for turbidity. CMSWS data can also be provided to NCDEQ if needed to
help inform this decision.
Thank you for taking these comments into consideration before finalizing the 2022 303(d) list and
Integrated Report. If you have any questions, please contact Jason Hunt at 704-432-5572 or
[e-mail] to discuss.
Thank you,
Jordan Miller
Surface Water Quality and Environmental Permitting Program Manager
City of Charlotte
Rusty Rozelle
Water Quality Program Manager
Mecklenburg County
CC: Kruti Desai, Mike Davis
February 22, 2022
NC Division of Water Resources
512 North Salisbury Street
1617 Mail Service Center
Raleigh, N.C. 27699-1617
To whom it may concern:
The City of Durham Public Works Department is pleased to provide comments on the draft 2022 303(d) List. This
list was provided for public comment on January 11, 2022. As a National Pollutant Discharge Elimination System
(NPDES) Phase I municipality, the City of Durham is required to develop plans for each surface water with a
USEPA approved Total Maximum Daily Load (TMDL). Therefore, the Public Works Department reviews the
303(d) List decisions carefully to ensure that precious resources are expended appropriately.
The Public Works Department appreciates the effort by the state to provide not only the 303(d) List, but also the
entire Integrated Report for public review. This enables the public, including regulated communities, to track
movement of waterbody segments. This transparency is particularly important when TMDLs have been
developed and waterbody segments are moved to Category 4. It is common for members of the public and the
development community to believe a waterbody is “fixed” when the waterbody no longer appears on the 303(d)
list. By publishing both the Integrated Report and the 303(d) List concurrently, the status of a waterbody is
easier to determine.
The City of Durham Public Works Department continues to be engaged in water quality issues raised at the state
level. We appreciate the opportunity to provide comments to the NC Division of Water Resources (DWR) and
the ability to review the Integrated Report in conjunction with the 303(d) List. If you have any questions about
these comments, please contact me at [phone], ext. 30311.
Sincerely,
John V. Loperfido
Assistant Water Quality Manager
Enclosure
C: Michelle Woolfolk, Water Quality Manager
Paul Wiebke, Assistant Director of Public Works

Comments related to Durham streams:

Third Fork Creek
One Assessment Unit (AU) in Third Fork Creek, 16-41-1-12-(2) [From a point 2.0 miles upstream of NC HWY. 54
to New Hope Creek], is listed for benthos, category 5 in the draft 2022 303(d) List. This AU is also listed for
copper (category 5), which is an aquatic life parameter. Based on the 2020 Integrated Report Category
Assignment Procedure document, it states that for an AU, if there is an aquatic life parameter that is rated
category 5 or 4t, then benthos for should be assigned as category 4s. Is the same procedure being used for 2022
classifications? If so, then the Third Fork Creek AU should have benthos listed as category 4s, correct? Please see
the similar comment for Little Lick Creek – benthos below.

Two AUs in Third Fork Creek, 16-41-1-12-(1) [From source to a point 2.0 miles upstream of NC Hwy. 54] and 16-
41-1-12-(2) [From a point 2.0 miles upstream of NC HWY. 54 to New Hope Creek], have an approved TMDL due
to impairments for turbidity. In 2020, the Public Works Department collected monthly turbidity samples from
seven different locations in Third Fork Creek. Of the 67 samples collected, only 5 results exceeded 50 NTUs, an
exceedance rate of 7.5%. This suggests that that measures implemented by the Public Works Department have
reduced sediment pollution from entering the MS4 and the creek. This monitoring supports the turbidity-
category 1i listings in the draft 2022 Integrated Report.

Little Lick Creek
AUs in Little Lick Creek, 27-9-(0.5) [From source to a point 0.4 mile upstream of Durham County SR 1811] and
27-9-(2) [From a point 0.4 mile upstream of Durham SR 1811 to Falls Lake, Neuse River], are included on the
draft 2022 303(d) List for Benthos, category 5. This is a category change from 4s as listed in the 2020 Integrated
Report. These AUs also have turbidity, an aquatic life parameter, listed under category 5. The benthos listings for
these Little Lick Creek AUs be category 4s, correct?

The NC Department of Transportation East End Connector project that began in 2014-2015 has continued
activity in the Little Lick Creek watershed with lane-paving possibly occurring in 2022. This project and its
relevance to the AUs listed above was noted in previous comments provided by the Public Works Department.
Monthly turbidity values measured by the Public Works Department at two stations in the watershed averaged
60 NTU and 93 NTU in 2020. High turbidity that remains in the watershed is likely linked to land disturbance
from the East End Connector project which would impact benthic macroinvertebrates in the stream.

Two Little Lick Creek AUs are listed for dissolved oxygen, 27-9-(0.5)ut2 [From source to Little Lick Creek] and
Little Lick Creek, 27-9-(0.5) [From source to a point 0.4 mile upstream of Durham County SR 1811]. The Public
Works Department conducts monthly water quality sampling at two locations on these AUs near Mineral Springs
Road and Stallings Road. All 19 measurements of dissolved oxygen made during 2020 at these locations were
above 5 mg/L. Data collected by the Public Works Department support the listings for dissolved oxygen in these
AUs to be removed from the draft 2022 303(d) List. Dissolved oxygen data are available upon request.

Little River Reservoir
Little River (Little River Reservoir), 27-2-21-(3.5) [From a point 0.1 mile upstream of Durham Co SR 1461 to dam
at Little River Reservoir (32.4 FW acres)] is listed for Chlorophyll a, category 5. It should be noted that Little River
Reservoir is currently included in the existing Falls Lake Nutrient Management Strategy and the Neuse River
TMDL. Together, these efforts aim to reduce nitrogen and phosphorus, the likely problem pollutants associated
with chlorophyll a in Little River Reservoir, and new management strategies are not needed for the Little River
Reservoir.

Northeast Creek - Copper
Northeast Creek has listings for copper that are based on legacy total metals assessments. This includes AUs 16-
41-1-17-(0.7)a [From N.C. Hwy. 55 to Durham Triangle WWTP] and 16-41-1-17-(0.7)b2 [From Kit Creek to a point
0.5 mile downstream of Panther Creek] that are listed for total copper. Both of these AUs are downstream of an
industrial facility that processes copper. From the EPA TRI 2020 dataset, this facility reported annual air
emissions of copper compounds totaling 8,404 pounds in 2020, down from 13,851-10,104 pounds, reported
between 2014-2019. Copper discharged in surface water from this facility to Northeast Creek was 51 pounds in
2020. This compares to the annual discharges of 46-136 pounds reported between 2014-2019.
From:Cardenal, Ellie
To:TMDL303dComments
Cc:Behm, Pamela; Mcnutt, Cam
Subject:[External] 303d Delisting - Upper Little Cross Creek
Date:Friday, January 14, 2022 12:23:15 PM
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an
attachment to Report Spam.
Hi there,

Please allow this email to serve as my official comment on the 303d Upper Little Cross Creek on Fort
Bragg, NC. This tributary and surrounding area were categorized as Good-Fair in 1998. There has
been no development in this area and no modifications to land cover since this categorization and as
such, Upper Little Cross Creek should be delisted as a 303d impaired stream. Coordination with
Division of Water Resources confirmed that a correction was needed to reflect accurate locational
data.

Please let me know what else is needed to resolve this matter.

Thank you for your consideration.

Ellie Cardenal, MSc, GIT
She, her, hers
Geologist II | Water | East
M [phone]
[e-mail]
Click here to connect with me on LinkedIn
AECOM
5438 Wade Park Blvd
Suite 200
Raleigh, NC 27607, USA
aecom.com​
Delivering a better world
LinkedIn | Twitter | Facebook | Instagram

February 28, 2022
Cam McNutt
Department of Water Resources
[e-mail]
1617 Mail Service Center
Raleigh, NC 27699-1617
Comments re: Draft 2022 303(d) List: Haw River Watershed delistings
Haw River Assembly is the Waterkeeper organization tasked with monitoring, protecting,
and advocating for the improvement of all waterways within the Haw River watershed. With
over 1000 members and nearly 1 million people that depend on the watershed for swimming,
fishing, recreation, and drinking water, our organization prioritizes advocacy efforts that promote
effective change to benefit water quality throughout the watershed.
Though we would like to see all of our streams meeting or exceeding water quality
standards, many of our streams need regulatory guidance in order to prevent further degradation
and promote better practices to result in improved stream health. The impaired waterways list
provides that regulatory guidance for streams at risk. We recognize the importance of an
impaired status as the impetus for setting Total Maximum Daily Limits to address the pollutant
sources. It is for this reason that we are submitting comments to urge the Department to
reconsider delisting two stream segments within the Haw River watershed. These segments are
13755: Stoney Creek Reservoir- Buttermilk Creek to 0.4 miles upstream of dam, and 3996: New
Hope Creek from SR 2220 to I-40.
Stoney Creek Reservoir: 13755 Buttermilk Creek to 0.4 miles upstream of dam
This stream segment has been proposed to be delisted due to additional information
regarding the chlorophyll A pollutant. However, the four samples taken during the four year
window does not provide enough of a sample population to conclusively say that the chlorophyll
A pollutant issue has been resolved. This segment of stream is also in the 3a IR category for
seven other water quality parameters, indicating that there is a significant lack of information on
this waterway to adequately assess the health of the reservoir. The proposal would remove the 5
categorization (exceeding criteria and TMDL required) and instead classify this segment as a 3a
categorization (data is insufficient to determine if a parameter is meeting or exceeding the
criteria). Because there is not enough data to conclusively determine that water quality has
improved, the stream should not be delisted. Additionally, no Total Maximum Daily Loads have
been issued or used by the local municipalities to address this impairment.
Other stream segments leading into this segment are also listed for lacking information.
Buttermilk Creek also has a 3a IR category rating for benthic criteria. Jordan Creek has 3a IR
category rating for fecal bacteria. Stoney Creek (Lake Burlington) has a 3a IR category rating for
hardness. Stoney Creek above Lake Burlington has a 5 (impaired) category rating for benthic
life. All of these streams need a significant increase in monitoring in order to conclusively
determine water quality has improved and a TMDL is no longer needed. None of these
tributaries have been improved or delisted, and therefore there is not enough information to
remove this segment from the 303 d impair list.
The impaired waterway status, accompanied with a TMDL, provides protections for a
water body when potential threats to water quality are proposed upstream. Aside from being a
source of drinking water for the City of Burlington, Stoney Creek Reservoir is a resource for
fishing and hiking, and provides habitat for a wide variety of wildlife and plants. There are
several developments proposed that threaten the health of this reservoir. The proposed Mountain
Valley Pipeline Southgate Extension is a fracked gas pipeline project that would bore under
Stoney Creek Reservoir, resulting in sedimentation and incision in the process of construction
and potentially destroy aquatic habitat. In Anderson, a proposed asphalt plant would have
stormwater runoff directly into tributaries of Stoney Creek Reservoir, which could include high
flows resulting in incision and sedimentation, and particulates from the asphalt production which
threatens benthic health.
We have found no documentation of a TMDL set for chlorophyll A by the City of
Burlington. Because all of these tributaries are a larger part of the Jordan Lake watershed,
nutrient management, especially chlorophyll a, needs to be addressed. The power of the 303d
impaired waterways list is to set those TMDLs in order to achieve the water quality goals. We
request that this segment of stream remain on the impaired waterways list until a TMDL has
been established, and adequate sampling has been conducted to conclusively determine that
water quality standards are being met.
New Hope Creek - 3996 From SR 2220 to I40 3.5 FW miles
This stream segment has been proposed to be delisted due to additional information
regarding the turbidity pollutant. Unlike the previous segment discussed, many samples have
been collected on this segment and nearly 90% of those samples fall within the water quality
standards. Yet, this stream segment has still been proposed to be delisted to a 3a IR (insufficient
data) categorization. If the department determines that there is not enough data to make a
conclusive determination of that parameter meeting criteria, it should not be removed from the
303 (d) list. The City of Durham has many ongoing projects, studies, and improvement plans on
the New Hope Creek watershed. This segment of New Hope Creek is also listed as exceeding
criteria for Dissolved oxygen and benthos, both of which are parameters directly influenced by
turbidity. The turbidity assessment is still listed in the integrated report as exceeding criteria,
though the recategorization no longer requires a TMDL. Without adequate data to conclusively
determine the health of this stream has improved, it should not be removed from its impaired
status.
Segment 2998 of New Hope Creek is currently impaired for benthic health. This segment
is directly above the segment under evaluation. This watershed is in an urban area and the threat
of ongoing development contributes to degraded water quality for turbidity, benthic health, and
dissolved oxygen. Until both of these segments have enough data to conclusively show water
quality has improved, the segment should maintain its impaired status and the accompanying
TMDL.
We thank you for the opportunity to provide these comments on this Draft 2022 303(d)
List. This is a vital tool for protecting water quality in our state in order to meet water quality
standards, and we hope you will take these comments opposing the delistings into consideration.
Emily Sutton
Haw Riverkeeper
Haw River Assembly
[e-mail]
www.hawriver.org

Lower Neuse Basin Association® Neuse River Compliance Association® Post Office Box 1410 Clayton, North Carolina 27528 - 1410 February 28, 2022
Ms. Robin Smith, Chair, NC EMC, and
NC Environmental Management Commission Members
1611 Mail Service Center
Raleigh, N.C. 27699- 1617

Dear Chairman Smith and Commissioners:

On behalf of the Lower Neuse Basin Association ("LNBA") and the Neuse River Compliance Association
("NRCA") (collectively the “Associations), I respectfully submit the attached comments on the North
Carolina Draft 2022 303(d) List and Draft 305(b) Integrated Report (“IR”). The Neuse River Estuary TMDL
was developed by the state and approved by EPA in 2002 to achieve the standard for chlorophyll-a. The
LNBA/NRCA NPDES dischargers have met their nutrient reduction goals to attain the chlorophyll-a water
quality standard. Because the Neuse Estuary is no longer on the 303(d) list the DWR draft 2022
Integrated Report (IR) is of great interest to the LNBA/NRCA.

The Associations recognize that both assessment reports are requirements under the Clean Water Act
Sections 303(d) and 305(b). The Associations appreciate the monumental challenges placed upon DWR
to provide an accurate and informative assessment of surface waters meeting or not-attaining water
quality standards in North Carolina. With millions of water quality observations collected each assessment
period, we recognize that it is a difficult goal to get each, and every assessment absolutely correct. We
offer our comments to assist with that goal.

To facilitate the Associations’ review of the draft reports, DWR provided summary Fact Sheets. The Fact
Sheets are very helpful and provide a level of detail that enhances our understanding of the 2022
assessment. DWR staff should be commended for providing this information in a timely manner.
However, one of the shortcomings, of the NC 303(d) and 305(b) assessment process, is that placing a
water on the 303(d) list relies primarily on the frequency of a parameter exceeding a water quality
standard, as opposed to a consideration of the magnitude of exceedance values above the water quality
standard before a water is placed on the 303(d) list for a that parameter.

The Associations’ comments are based on a detailed review of the DWR 2022 Draft Reports, and the
summary Fact Sheets of individual assessment units provided by DWR. We have not reviewed the
detailed raw data as that is beyond our current resources. Our comments focus on potential errors in the
assessment reports due to technical mistakes and our confusion in understanding the applicability of the
Ms. Robin Smith, Chair Page 2.
new DWR Data Tiers implemented after the May 13, 2021 EMC approval of the methodology. How the
new DWR Data Tiers are used or not used in each of the assessment reports (303(d) and IR) is quite
confusing, as we have described in the attached comments.
Thank you for the opportunity to submit our comments. If you require additional information or have
questions about our comments, please contact Haywood Phthisic, LNBA/NRCA Executive Director.
Sincerely,
Barry Parks, Chairman
cc: DWR Director S. Daniel Smith
LNBA/NRCA Boards
Haywood Phthisic
LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
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1. DWR has newly implemented the use of Water Quality Data Tiers, that are divided into
three groups, to assess North Carolina waters for the 303(d) list and the 305(b) Integrated
Report. See: https://deq.nc.gov/water-quality/planning/tmdl/303d/general/data-
tiers/download

TIER 1 - Education, Environmental Health Screening
TIER 2 - Basin Planning, Research, Effectiveness Monitoring, Targeting of Management Actions
TIER 3 - Regulatory Assessments of Water Quality Standards Attainment

The Associations are confused about the use of the Water Quality Data Tiers, especially
since the EMC has not approved the use of the Water Quality Data Tiers, in either the
2022 303(d) Listing and Delisting Methodology, or the DWR Integrated Report Category
Assignment Procedure. According to the Water Quality Data Tiers, Tier 1 and Tier 2 data
cannot be used for regulatory purposes. Tier 3 data, which must meet the same quality
assurance and control as data collected by DWR, and which requires a DWR-approved
Quality Assurance Project Plan (“QAPP”), can be used for regulatory purposes, and can be
included in the biannual statewide assessment under Sections 305(b) and 303(d) of the
Clean Water Act.
However, the Fact Sheets provided by DWR to the Associations, which summarize
observations and criteria exceedances used for the Draft 303(d) and Draft 305(b)
Integrated Reports, included both Tier 3 data and Tier 2 data collected by the UNC
Institute of Marine Sciences (IMS) ModMon Program. The Associations understand that
the IMS ModMon program, like many research universities, does not have a DWR-
approved QAPP or DWR-certified laboratory, and DWR has previously utilized ModMon
data for 303(d) and 305(b) purposes. If the ModMon data is considered Tier 2 this data
should not be considered in the Fact Sheets for the 303(d) and 305(b) reports.
The Associations are confused by the new process and would like to know what the
established methods are for considering both Tier 2 and Tier 3 data in the Integrated
Report. What are the methods for evaluating conflicts between Tier 2 and Tier 3 data in
the Integrated Report? The Fact Sheets should be limited to only Tier 3 data; and question
whether the Tier 2 data can be used for the 303(d) list and the 305(b) Integrated Report,
since these assessments are made for regulatory purposes. The 303(d) list and the 305(b)
Integrated Report are assessing the attainment of water quality standards based on an
assessment methodology approved by the EMC. DWR needs to clarify the appropriate
use of Water Quality Data Tiers in the 303(d) list and Integrated Report and associated
Fact Sheets.
Furthermore, the DWR Fact Sheet summaries include a column for identifying the
appropriate Tier. However, most of this column information is blank except for Tier 2
notations for the ModMon data. If DWR Monitoring Coalitions are included as Tier 3
data, the Associations strongly recommend that the DWR "Water Quality Data Tiers "
document be revised and explicitly indicate that Coalitions with Memoranda of Agreement
(“MOAs”) are included in Tier 3 even though the Coalitions do not have individual
QAPPs. The EMC-approved assessment methodology (May 13, 2021) includes decision
LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
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charts for meeting, exceeding, and inconclusive assessments. Each of these decisions are
made in both the 303(d) and (305(b) Integrated Report assessments.
2. The Draft 2022 303(d) report appropriately contains no listings for non-attainment of
Total Nitrogen. However, the Draft 305(b) Integrated Report includes many non-attainment
listings for Total Nitrogen. These IR spreadsheet listings are not limited to just the Neuse
Estuary. NC has no numerical water quality standards for total nitrogen concentrations
except for water supply. Any reference to exceeding water quality standards for nitrogen
should be removed from the IR. Rather, the Associations recommend that DWR provide a
narrative summary of the attainment or non-attainment of total maximum daily loads
(“TMDLs”) and other Management Strategies in a narrative form that better informs of the
progress or lack of progress including an assessment of the goals attained or not attained. The
2022 EMC-approved 303(d) assessment methodology (May 13, 2021) does not indicate a
method for assessing Total Nitrogen concentrations. The Environmental Protection Agency
(“EPA”)-approved TMDL for the Neuse Estuary (and most other TMDLs) does not include an
evaluation level for Total Nitrogen concentrations. It only includes an evaluation level for
Total Nitrogen Load reductions. The 303(d) list and the IR spreadsheets are intended to
evaluate attainment of water quality standards using approved methods. These spreadsheets do
not adequately explain the progress of attainment or non-attainment of TMDL goals. The 2022
Fact Sheets offer no indication of how this criterion was assessed using nitrogen data from
2016-2020. There is no indication of how many samples exceed a Total Nitrogen criterion or
the established evaluation level for total nitrogen concentrations. The Total Nitrogen
assessments should be removed from the Draft 305(b) Integrated Report as they are
inconsistently applied to individual assessment units. Total nitrogen is not a water quality
standard, and thus the Draft 305(b) Integrated Report is inappropriately suggesting that a
standard for nitrogen has been exceeded.
3. Legacy “total metals” issues are complex, and the relatively new water quality metals
standards adopted based on “dissolved metals” most often results in the 303(d) delisting of
legacy “total metals” decisions. The Associations recommend that DWR prioritize its
monitoring resources to resolve these legacy listings and to conduct new monitoring
assessments to appropriately consider de-listing these legacy issues.
4. The Associations have attached the Draft 2022 newly listed 303(d) waters for the benefit of our
members to assist their individual reviews of the Draft materials. The ten new listings noted
by the Associations in the Neuse Basin below Falls Lake include three for benthic
macroinvertebrates, six for pH levels below a pH of 6, and one for low dissolved oxygen. The
Associations suspect that many of these new listings may be related to the influence of swamp
like waters.
5. Attached below, for your consideration, the Associations provide several potential errors based
on our review of the individual assessment units within the Neuse River Estuary.

LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
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Summary Review 2022 DWR Draft New 303(d) listings
Neuse River Basin below Falls Lake Assessment 2016 – 2020
Crabtree Creek (Crabtree Lake)
27-33-(3.5)b1 From Cary WWTP to mouth of Richlands Creek
Benthos (Nar, AL, FW) Category 5 Exceeding Criteria Fair, Poor or Severe Bioclassification 2022
Marks Creek (Lake Myra) Near Knightdale NC
27-38 From source to Neuse River
Benthos (Nar, AL, FW) Category 5 Exceeding Criteria Fair, Poor or Severe Bioclassification 2022
Mill Creek (Moorewood Pond) Near Erwin NC
27-52-(1)b From source to Stone Creek
pH (6 su, AL, FW) Category 5 Exceeding Criteria 2022
Hannah Creek
27-52-6a1 From source to Allens Crossroads NC 96
Dissolved Oxygen (4 mg/l, AL, FW) Category 5 Exceeding Criteria 2022
Hannah Creek
27-52-6a2 From source to Allens Crossroads NC 96
pH (6 su, AL, FW) Category 5 Exceeding Criteria 2022
Falling Creek
27-54-(3.5)b From Wayne County SR 1006 to Thoroughfare Swamp
pH (6 su, AL, FW) Category 5 Exceeding Criteria 2022
Little River (Tarpleys Pond)
27-57-(8.5)b From Little Buffalo Creek to Spring Branch
pH (6 su, AL, FW) Category 5 Exceeding Criteria 2022
Buffalo Creek (Wendell Lake)
27-57-16-(3)a 200 feet upstream from West Haywood Street near Wendell to UT on west side of creek
0.8 miles south of Wendell Lake
pH (6 su, AL, FW) Category 5 Exceeding Criteria 2022
Walnut Creek (Lake Wackena, Spring Lake)
27-68 From source to Neuse River
pH (6 su, AL, FW) Category 5 Exceeding Criteria 2022
Little Creek (East Side)
27-86-2-5 From source to Moccasin Creek
Benthos (Nar, AL, FW) Category 5 Exceeding Criteria Fair, Poor or Severe Bioclassification 2022

LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
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Potential Error Review of the NC 2022 Draft Integrated Report (IR)
with a Focus on Chlorophyll-a and Nitrogen
Main Stem Neuse River Estuary Chlorophyll-a 2016-2020

27-(85) Neuse River From mouth of Contentnea Creek to Streets Ferry
Includes Stations: J7850000, and J7930000
2020 IR Chlorophyll-a Category 1 Meeting Criteria
2022 Draft IR Chlorophyll-a Category 1 Meeting Criteria
Potential Error: Fact Sheets indicate 95 composite integrated water samples for chlorophyll-a
(Chla_IWS) from Station J7930000. However, there is no indication of how many samples exceed
criteria 2016-2020. It is unclear if this Tier 2 information was included in the assessment.
27-(96)a Neuse River Estuary (First Assessment Unit in Neuse River included in Estuary TMDL)
From Streets Ferry to Bachelor Creek (river model segment)
Includes Station: J8250000
2020 IR Chlorophyll-a Category 1i Meeting Criteria
2020 IR Total Nitrogen Category 1t Meeting Criteria TMDL
2022 Draft IR Chlorophyll-a Category 1i Meeting Criteria
2022 Draft IR Total Nitrogen Category 1t Meeting Criteria Approved TMDL
Potential Error: Fact Sheets indicate Total Nitrogen is MEETING the criteria at this location.
Note that Total Nitrogen is NOT meeting the criteria at other locations. Nothing explains the
inconsistency in meeting or not meeting the criteria. NC does not have an approved water quality
standard for nitrogen concentrations. The 2022 EMC approved 303d assessment methodology (May 13,
2021) does not indicate a method for assessing Total Nitrogen. The EPA approved TMDL for the Neuse
Estuary does not include an evaluation level for Total Nitrogen concentrations only annual Total
Nitrogen Load reductions. The 303(d) list and the IR are intended to evaluate attainment of water
quality standards using approved methods. The Fact sheets offer no indication of how this criterion was
assessed using data from 2016-2020. There is no indication of how many samples exceed a Total
Nitrogen criterion or the established evaluation level for total nitrogen concentrations from 2016-2020.
The Total Nitrogen assessments should be removed from the Integrated Report as they are
inconsistently applied to individual assessment units. Rather, it is suggested to provide a summary of
the attainment or non-attainment of TMDL's and other Management Strategies in a narrative form that
includes an assessment of the goals attained or not attained.
(This comment will be referred to as "Remove Total Nitrogen Assessment").
27-(96)b1a Neuse River Estuary
From Bachelor Creek to a line across the river from Renny Creek to 0.5 miles north of Mills Br.
Includes Station: J8290000
2020 IR Chlorophyll-a Category 1i Meeting Criteria
2020 IR Total Nitrogen Category 1t Meeting Criteria TMDL
2022 Draft IR Chlorophyll-a Category 1i Meeting Criteria
2022 Draft IR Total Nitrogen Category 1t Meeting Criteria Approved TMDL
Potential Error: "Remove Total Nitrogen Assessment"

LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
6 | P a g e

27-(96)b1b NEUSE RIVER Estuary
From a line across the river from Renny Creek to 0.5 miles north of Mills Branch to a line across the river
from Jack Smith Creek to 0.5 miles south of Mills Branch
2020 IR Chlorophyll a Category 1i Meeting Criteria
2020 IR Total Nitrogen Category 4t Meeting Criteria Approved TMDL
2022 Draft IR Chlorophyll-a Category 1i Meeting Criteria
2022 Draft IR Total Nitrogen 4t Meeting Criteria Approved TMDL
Potential Error: 2022 IR Fact Sheets contain no information on stations or supporting data for Nitrogen
or Chlorophyll-a.
Potential Error: Total Nitrogen is listed as Category 4t and Meeting Criteria. Category 4 is typically
reserved for "Exceeding Criteria" only. Inconsistencies are evident.
Potential Error: "Remove Total Nitrogen Assessment"
27-(96)b1c NEUSE RIVER Estuary
From a line across the river from Jack Smith Creek to 0.5 miles south of Mills Branch to Trent River.
Previously 2020 assessment included Station: J8570000,
2020 IR Chlorophyll-a Category 1i Meeting Criteria
2020 IR Total Nitrogen Category 1t Meeting Criteria Approved TMDL
2022 Draft IR Chlorophyll-a Category 1i Meeting Criteria
2022 Draft IR Total Nitrogen Category 4t Meeting Criteria Approved TMDL
Potential Error: Chlorophyll-a is listed as Meeting Criteria. Fact Sheets for J8570000 indicate Tier 3
chlorophyll-as follows:
Chlorophyll-a observations =45 Confidence Exceeding Criteria=33%
Number Exceeding Criteria= 4 Confidence Meeting Criteria= 47%
% Exceeding criteria = 9% N observations 2019-2020 = 16
N exceeding criteria 2019-2020 = 3
Confidence Meeting 2019-2020 = 7%
Tier 3 Recommended Assessment Methodology Results = Category 3i Data Inconclusive
Tier 2 chlorophyll-a data for integrated water samples indicate 102 observations no details are provided
for the number of samples exceeding the 40ug/l criteria. Did the Tier 2 data contribute to the
assessment of Category 1i Meeting Criteria?
Potential Error: Total Nitrogen is listed as Category 4t and Meeting Criteria. Category 4 is typically
reserved for "Exceeding Criteria" only. Inconsistencies are evident.
Potential Error: "Remove Total Nitrogen Assessment"
27-(96)b2 NEUSE RIVER Estuary
From Trent River to a line across Neuse River from Johnson Point to McCotter Point (part of upper
model segment)
Includes Station: J8900800
2020 IR Chlorophyll a Category 3i Data Inconclusive
2020 IR Total Nitrogen Category 4t Meeting Criteria Approved TMDL
2022 Draft IR Chlorophyll-a Category 4i Data Inconclusive
2022 Draft IR Total Nitrogen Category 4t Meeting Criteria Approved TMDL
Potential Error: Chlorophyll-a is listed in Category 4i with Data Inconclusive. Category 4 is typically
reserved for "Exceeding Criteria" only. Inconsistencies are evident.
Potential Error: Chlorophyll-a is listed as 4i Data Inconclusive. Fact Sheets for J8900800 indicate Tier 3
chlorophyll-as follows:
Chlorophyll-a observations =44 Confidence Exceeding Criteria=55%
LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
7 | P a g e

Number Exceeding Criteria= 5 Confidence Meeting Criteria= 28%
% Exceeding criteria = 11% N observations 2019-2020 = 16
N exceeding criteria 2019-2020 = 2
Confidence Meeting 2019-2020 = 21%
Tier 3 Recommended Assessment Methodology Results = Category 3i Data Inconclusive
Tier 2 chlorophyll-a data for integrated water samples indicate 102 observations no details are provided
for the number of samples exceeding the 40ug/l criteria. Did the Tier 2 data contribute to the
assessment of Category 4i Data Inconclusive?
Potential Error: Total Nitrogen is listed as Category 4t and Meeting Criteria. Category 4 is typically
reserved for "Exceeding Criteria" only. Inconsistencies are evident.
Potential Error: "Remove Total Nitrogen Assessment"
27-(104)a1 Neuse River Estuary
From a line across Neuse River from Johnson Point to McCotter Point to a line across the river from 0.6
miles north of Otter Creek and 0.7 miles south of Goose Creek
Includes Station: J8902500
2020 IR Chlorophyll-a Category 4i Exceeding Criteria
2020 IR Total Nitrogen 4t Exceeding Criteria Approved TMDL
2022 Draft IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
Note: Tier 3 Chlorophyll-a data support the Category 4i Exceeding Criteria.
Tier 2 Chlorophyll-a data indicate 102 observations for integrated water column results. However, no
details are presented for the number of observations exceeding the criteria of 40ug/L.
Potential Error: "Remove Total Nitrogen Assessment"
27-(104)a2 NEUSE RIVER Estuary
From a line across the river from 0.6 miles north of Otter Creek and 0.7 miles south of Goose Creek to
0.5 miles upstream of Beard Creek
Includes Stations J8910000 and J8920000
2020 IR Chlorophyll a Category 4i Exceeding Criteria
2020 IR Total Nitrogen 4t Exceeding Criteria Approved TMDL
2022 Draft IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
Potential Error: "Remove Total Nitrogen Assessment"
27-(104)b NEUSE RIVER Estuary
From a line across Neuse River from 1.2 miles upstream of Slocum Creek to 0.5 miles upstream of Beard
Creek to a line across Neuse River from Wilkinson Point to Cherry Point (bend model segment)
2020 IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
2020 IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
Potential Error: It is unclear from the Fact Sheets for this AU where the Chlorophyll-a and Nitrogen data
have come from. No Tier 3 data are presented for chlorophyll-a. Tier 2 data for J8925000 chlorophyll-a
are presented but only as "grab samples" either at the surface or bottom – no integrated water column
samples (IWS) are presented. Tier 2 "grab sample data" should not be used to make chlorophyll-a
assessments. If previous assessments from the 2020 IR or even earlier IR's were used for the
LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
8 | P a g e

assessment then it is recommended to include this information under the Column Heading of "REASON
FOR RATING"
Potential Error: "Remove Total Nitrogen Assessment"
27-(118)a1 NEUSE RIVER Estuary
Note: The 2020 IR and the Draft 2022 IR reference Segment 27-(118)a1 is identified as From a line
across Neuse River from Wilkinson Point to Cherry Point to a line across the river From Adams Creek to
Wiggins Point (part of lower model segment). And Segment 27-(118)a1a is identified as the Swim beach
at Camp Don Lee.
Note: There is no 2022 Fact Sheet for Segment 27-(118)a1 and the 2022 Fact Sheets for segment 27-
(118)a1a is identified as From a line across Neuse River from Wilkinson Point to Cherry Point to a line
across the river From Adams Creek to Wiggins Point (part of lower model segment) rather than the
Swim beach at Camp Don Lee. This provides confusion as the Draft 2022 Fact Sheets location
description is not consistent with the IR's. Perhaps the Assessments for these two AU's have somehow
been mis-aligned.

2020 IR Chlorophyll-a Category 4i Exceeding Criteria
2020 IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
2022 Draft IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
Potential Error: It is unclear from the Fact Sheets where the Chlorophyll-a and Nitrogen data have come
from. There are no Tier 3 or Tier 2 data presented. Suggest Category 3a perhaps.
See 27-(118)a1a immediately below
Suggest Categories 3a if no data otherwise recommend "carry forward assessment perhaps
Potential Error: "Remove Total Nitrogen Assessment"
27-(118)a1a NEUSE RIVER Estuary from the 2020 IR Previously Swim beach at Camp Don Lee
Now Identified in 2022 Draft IR as: Segment 27-(118)a1a
From a line across Neuse River from Wilkinson Point to Cherry Point to a line across the river From
Adams Creek to Wiggins Point (part of lower model segment)
It is unclear from the Fact Sheets where the Chlorophyll-a and Nitrogen data have come from.
See 27-(118)a1 immediately above
Suggest Categories 3a if no data otherwise recommend "carry forward assessment" perhaps
Potential Error: "Remove Total Nitrogen Assessment"
27-(118)a2a NEUSE RIVER Estuary
From a line across Neuse River from Adams Creek to Wiggins Point to line across Neuse River from east
mouth of Orchard Creek (northside) across to east mouth of the South River (southside).
Includes Station J9810000
2020 IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
2020 IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Chlorophyll-a Category 3i Exceeding Criteria
2022 Draft IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
Potential Error: Chlorophyll-a Category 3i is inconsistent with Exceeding Criteria. Category 4 is
associated with "exceeding" while Category 3 is associated with "data Inconclusive".
Potential Error: Tier 3 Chlorophyll-a data assessment for station J9810000 follows.
Station J9810000 2016-2020
Chlorophyll-a observations =36 Confidence Exceeding Criteria=29%
Number Exceeding Criteria= 3 Confidence Meeting Criteria= 49%
LNBA/ NRCA Comments on the 2022 Draft 303(d) list and 305(b) Integrated Report
9 | P a g e

% Exceeding criteria = 8% N observations 2019-2020 = 13
N exceeding criteria 2019-2020 = 0
Confidence Meeting 2019-2020 = 75%
Tier 3 Recommended Assessment Methodology Results = Category Meeting Criteria, Category 1i
Tier 2 chlorophyll-a data suggests 102 samples from the appropriate Integrated Water Samples (IWS).
However, no data is provided summarizing the number of samples that exceed the 40ug/L criteria.
Potential Error: "Remove Total Nitrogen Assessment"
27-(118)a2b NEUSE RIVER Estuary
From a line across Neuse River from east mouth of Orchard Creek (northside) across to east mouth of
the South River (southside) to Pamlico Sound (mouth of Neuse River described as a line running from
Maw point to Point of Marsh).
2020 IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
2020 IR Chlorophyll a Category 3i Data Inconclusive.
2022 Draft IR Chlorophyll-a Category 3i Data Inconclusive
2022 Draft IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
Note: Fact Sheets include Station J9900000. It is unclear from the Fact Sheets where the Chlorophyll-a
and Nitrogen data have come from to make the assessments. No Tier 3 data are presented in Fact
Sheets. Tier 2 data does not include any integrated water samples (IWS) for chlorophyll-a. Tier 2 data
for surface and bottom grab samples should not be used for assessment. Suggest Category 3i is
appropriate for chlorophyll-a.
Potential Error: "Remove Total Nitrogen Assessment"
27-(118)f NEUSE RIVER Estuary
Prohibited area at Cherry Branch Minnesott Ferry Landing south side of river
Includes station J9530000
2020 IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
2020 IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Chlorophyll-a Category 4i Exceeding Criteria
2022 Draft IR Total Nitrogen Category 4t Exceeding Criteria Approved TMDL
Potential Error Chlorophyll-a Assessment based on Fact Sheets
Tier 2 Chlorophyll-a data indicates 102 integrated samples (IWS), no data indicating exceedances.
Tier 3 Chlorophyll-a data assessment for station J9530000 2016-2020 follows
Chlorophyll-a observations =36 Confidence Exceeding Criteria=85%
Number Exceeding Criteria= 6 Confidence Meeting Criteria= 6%
% Exceeding criteria = 17% N observations 2019-2020 = 13
N exceeding criteria 2019-2020 = 1
Confidence Meeting 2019-2020 = 38%
Recommended Assessment Methodology Results = data Inconclusive, Category 3i
Potential Error: "Remove Total Nitrogen Assessment"

February 28, 2022

Daniel Smith, Director
NC Division of Water Resources
1611 Mail Service Center
Raleigh, NC 27699

Dear Mr. Smith,

Please accept these comments on behalf of the North Carolina Coastal Federation in response to
the North Carolina Division of Water Resources’ (DWR) January 11, 2022 request for public comments
on the state’s draft Section 303(d) list of impaired waters under the U.S. Clean Water Act. For additional
context, I am attaching a letter that we submitted jointly with The Pew Charitable Trusts in August 2021
on the related issue of North Carolina’s Triennial Review.

We request that DWR use the 2022 comment period on the 303(d) list as an opportunity to
make progress on its commitments to the EPA and demonstrate accountability with respect to adopting
nutrient criteria for Albemarle Sound and prioritizing estuaries statewide that could provide a basis for
303(d) listings and scheduling regular and sufficient meetings of the Scientific Advisory Council and
Criteria Implementation Committee for this purpose. Specifically, at an upcoming meeting of the NC
Environmental Management Commission (EMC), DWR should provide a revised and reliable timeline for
completing the following Nutrient Control Development Plan (NCDP) 2019 tasks that appear to have
fallen behind schedule, and for keeping the public informed of progress:
4. Estuaries – Chowan River/Albemarle Sound, Task #12: The SAC, CIC, and DWR evaluate
new monitoring, research and modeling information in addition to findings from the Phase I
report. Nutrient criteria recommendations are developed and documented in a phase II
report. Upon completion of the phase II report, the SAC and CIC will have advised DWR [sic]
all causal and response variables in Table 1 for use as nutrient criteria. April 2022.
6. Activities proposed to prioritize estuaries statewide, Task #4: Prioritize specific estuaries
for nutrient criteria and confirm approaches proposed in the Albemarle Sound nutrient
criteria development process with SAC involvement. October 2021.1

We also request that DWR examine coastal waters designated as Nutrient-Sensitive Waters
(NSW) to decide whether their NSW designation together with the latest monitoring data justify their
addition to the NC 303(d) list. North Carolina has in place a NSW surface water classification. NSW is “a
supplemental water classification applied to waters that are experiencing, or are subject to, excessive

1 NCDWR (North Carolina Division of Water Resources). 2019. North Carolina Nutrient Criteria Development Plan V. 2. Report to
the US Environmental Protection Agency Region 4. North Carolina Department of Environmental and Natural Resources,
Division of Water Resources, Raleigh, NC.

2
growths of microscopic or macroscopic vegetation. The NC Environmental Management Commission
(EMC) defines excessive vegetative growth as that growth which can substantially impair the use of a
waterbody for its best usage as determined by the classification applied to that waterbody (Rule 15A
NCAC 02B.0223)”2

An EPA guidance document3 contains the following language:
Waterbodies "Not Expected to Meet" Water Quality Standards 40 CFR section 130.2(j)
defines water quality-limited segments as those waterbodies "where it is known that
water quality does not meet applicable water quality standards, and/or is not expected
to meet applicable water quality standards" (emphasis added). 40 CFR section
130.7(b)(4) requires States to identify, in each section 303(d) list submitted to EPA, the
"pollutants causing or expected to cause violations of the applicable water quality
standards" (emphasis added). In addition, 40 CFR section 130.7(b)(5)(1) requires States
to consider waters identified in the State's most recent section 305(b) report as
"threatened" as part of the "existing and readily available water quality-related data
and information" considered when developing the section 303(d) list.
This EPA language appears to imply that waterbodies designated NSW are at least “expected not to
meet standards”, are impaired for one or more specific uses, and that impairment is due to nutrients. In
fact, waterbodies like the Chowan and Albemarle Sound are often “green” with algae, and yet they are
not listed as impaired on the 303(d) list. A clear determination by DWR as to whether all NSW-
designated waterbodies in NC should be added to the 303(d) list will help streamline the state-federal
process for protecting the health of North Carolina’s critical water bodies and the ecosystems and
communities that depend on them while ensuring compliance with the spirit and the letter of the Clean
Water Act as well as state environmental laws and regulations.

Finally, we urge DWR to incorporate relevant information and Recommended Actions from the
North Carolina Coastal Habitat Protection Plan (CHPP) – 2021 Amendment,4 which prioritizes water
quality improvements for habitat protection and coastal resiliency in the face of climate change. New
analysis contained in the CHPP shows recent declines in high-salinity submerged aquatic vegetation
(SAV) as high as 10% (Bogue Sound) and declines in low-salinity SAV as high as 33% (Albemarle Sound
and Pamlico and Neuse Rivers) relative to historical extent, with water quality degradation noted as a
major cause of SAV loss.5 The CHPP lays out nine SAV regions that fall within the geographic scope of the
NCDP (2019) tasks cited above as well as certain waters designated as NSW that have lost SAV to varying
degrees. It also provides a conceptual framework for the steps needed to restore SAV through water

2 NCDWR (North Carolina Division of Water Resources. Supplemental Guide to North Carolina's Basinwide Planning: Support
Document for Basinwide Water Quality Plans. Chapter 11 – Nutrients and Water Quality Impacts, pp. 170-171.
3 U.S. Environmental Protection Agency. Office of Wetlands, Oceans, and Watersheds. 1997. National Clarifying Guidance For
1998 State and Territory Section 303(d) Listing Decisions.
4 North Carolina Department of Environmental Quality. 2021. North Carolina Coastal Habitat Protection Plan (CHPP) – 2021
Amendment.
5 Ibid, p. iii.

3
quality improvements that DWR staff, other CHPP implementation agencies, and external partners can
follow to efficiently and collaboratively achieve restoration goals.6
Finally, a Stakeholder Workgroup Report (included in the CHPP as Appendix A) concluded,
among other things, that:
“9. Some areas of North Carolina such as portions of Albemarle Sound appear to have reached a
critical pollutant loading threshold. North Carolina needs to guard against exceeding critical
pollutant loads. The state should act promptly to adopt effective management measures that
will reduce water quality degradation and stabilize aquatic systems.
10. Nutrient-reducing management actions are necessary throughout sensitive watersheds that
drain into North Carolina’s coastal waters. For marine systems which have somewhat small
watersheds (e.g., Bogue, Stump and Topsail Sounds), management actions need to be focused
near the estuary. For Albemarle and Pamlico Sounds, it is necessary to reduce nutrient inputs
from the river basins that drain from hundreds of miles inland.
11. In the next five years, North Carolina should consider the benefits of developing more
protective water quality standards in tandem with nonregulatory actions to decrease nutrient,
sediment, pathogen, and other pollutant loadings to coastal estuaries.”7

Thank you for the opportunity to provide comments on this important process.

Sincerely,

Todd Miller
Executive Director

6 Ibid, Figure 4.10, p. 73.
7 North Carolina Department of Environmental Quality. 2021. North Carolina Coastal Habitat Protection Plan (CHPP) – 2021
Amendment, p. 246.

Page 1 of 8

August 3, 2021

Christopher Ventaloro, NC DEQ-DWR Planning Section
1611 Mail Service Center
Raleigh, NC 27699

Dear Christopher Ventaloro,

The North Carolina Coastal Federation (NCCF) and The Pew Charitable Trusts (Pew)
request that the current Triennial Review that is being conducted include an examination of
how water quality can be better protected and restored to protect one of our coast’s most
valuable and impaired “existing uses”— the productivity of coastal fishery habitats including
submerged aquatic vegetation (SAV) in our estuaries. As part of this review, we request that
the Environmental Management Commission (EMC) honor its past commitments with EPA
regarding the development and adoption of new nutrient criteria for coastal estuaries. It
appears that deadlines set in a formal agreement with EPA to adopt such criteria by 2018 have
not been met.

The NCCF and Pew have been partnering to foster stakeholder and expert engagement
in the process of updating the Coastal Habitat Protect Plan (CHPP). This update has revealed
that progress in controlling polluted runoff containing nutrients, sediment and pathogens is
insufficient to protect water quality in many coastal estuaries, and as a result, the productivity
and health of coastal fish habitats are becoming more degraded and compromised.

The CHPP is designed to enable the EMC to work in coordination with the Coastal
Resources Commission (CRC) and Marine Fisheries Commission (MFC) to protect and restore
fishery habitats. The 1997 Fisheries Reform Act created the CHPP to encourage North Carolina’s
regulatory commissions to protect fisheries habitats, including such oyster reefs, salt marshes,
submerged aquatic seagrass and the water column itself. The EMC is mandated to use its legal
authorities to safeguard the future of our fisheries from water quality impairments. These
fishery habitats are “existing uses” under the federal and state “Antidegradation” policies, and
they should be protected and restored by the state’s water quality classifications and
standards.

The U.S. EPA requires the EMC to review its approach to water quality protection at
least once every three years. In specific, the review should take into account whether existing

Page 2 of 9
water quality standards and regulations are sufficient in light of any new information that helps
the state to more fully address the purposes of the federal Clean Water Act. Under the Clean
Water Act, as well as state water quality standards, aquatic habitats such as SAV are a
protected “existing use” under federal and state Antidegradation Policies.1

Much of the work by DEQ to update the CHPP is focused on the relationship between
water quality degradation and the health of SAV. These plants occur in two distinct
environments along our coast – in high salinity waters found around the Outer Banks and in the
sounds as well as lower salinity areas, such as those nearer to shore and at river mouths. From
the analysis conducted by DEQ to update the CHPP, it is clear that since 1981 there have been
significant declines in low salinity SAV in our state, and less significant but still worrisome
declines in some locations of the high salinity SAV habitats.

In recent decades, the CRC and MFC have taken aggressive steps to protect SAV from
direct damage caused by physical activities such as dredging and fishing practices. In the
process of updating the CHPP, there is a scientific consensus that the declines in acreage now
taking place are caused by water quality impairments. Simply put, when the water becomes too
turbid or cloudy for light to penetrate, these plants don’t get enough sunlight to thrive and/or
survive. The causes of turbid or cloudy water are mostly related to nutrient and sediment levels
that are too high in our estuaries. Hydrologic modifications of watersheds upstream of
estuaries result in more surface runoff that contains unacceptably high levels of nutrients and
sediments.

The information collected as part of the update of CHPP indicates that historically (1981
to 2015) SAV grew in 191,155 acres of North Carolina’s estuaries, though not necessarily all at
the same time. Of this total, approximately 39,066 acres within our coastal rivers and upper
estuaries supported low-salinity SAV. The information collected to update the CHPP includes
recent surveys, which indicate approximately a 62 percent reduction of the historical acreage,
or about 24,221 acres of SAV lost. For the high salinity areas (152,089 acres historically), there
have been less dramatic declines than occur in low sanity areas. The most worrisome decline of
high salinity SAV is in the southern region of the coast around Bogue and Back Sounds, which
suffered declines of over 10 percent per year and which are projected by the information
collected to update the CHPP to potentially result in a 20 percent loss of SAV habitat by 2025
due to water quality degradation.

In addition to the SAV issue paper prepared by DEQ for the 2021 CHPP update,
researchers at the UNC Institute of Marine Sciences recently submitted photos of the Chowan
River and Albemarle Sound and water quality data from the Neuse River estuary to DEQ to be
used in developing the 2022 303(d) list of Impaired Waters under the Clean Water Act (H. Paerl,

1https://www.epa.gov/sites/production/files/2018-10/documents/questions-answers-antidegradation.pdf:

1. Aquatic plants that provide fisheries habitat are an “existing use” that is protected by the Antidegradation
Policy.
2. An existing aquatic community composed entirely of plants must be protected by applying a set of water
quality standards necessary to safeguard its ability to thrive and propagate.
3. An “existing use” (i.e. submerged aquatic vegetation) can be established by demonstrating that it actually
occurred since November 28, 1975.

Page 3 of 9
personal communication, July 30, 2021). This includes data from several monitoring sites on the
Neuse River estuary that show violations of the EMC’s chlorophyll-a standard. It is clear in the
photos they provided that the Chowan River and Albemarle Sound have excessive growths of
microscopic or macroscopic vegetation (see Appendix). These waters (except for Albemarle
Sound) have been designated by the EMC as “Nutrient Sensitive Waters” (NSW) since algae
blooms can impair best usage as determined by the classification applied to such waters.2

None of the NSW in the estuarine stream segments of the Neuse, Chowan, Tar-Pamlico
or Albemarle Sound are listed as “impaired” for nutrients on the state’s current 303(d) list
because the state does not have a numeric standard for nutrients. However, the consequences
of nutrient pollution are intended to be captured by standards for chlorophyll-a, pH, and
dissolved oxygen. Despite the recent resurgence of cyanobacteria blooms in the Chowan River
and clear upward trends for both chlorophyll-a and total nitrogen throughout the Albemarle
Sound region (NC DEQ), DEQ has not determined that either the Chowan or Albemarle Sound
are in violation of the state’s chlorophyll a standard. Many of the blooms that are occurring
likely exceed >40 ug/L chlorophyll-a (Moorman et al. 2017) but they are very patchy and thus
haven't been caught in >10% of the samples collected by the state or researchers (N. Hall,
personal communication, July 30, 2021). Clearly, current reliance on the chlorophyll-a standard
is not providing sufficient water quality protection to avoid impairments caused by algae
blooms.

Given the information collected by DEQ to update the CHPP plan as well as the data and
pictures submitted to DEQ by UNC researchers, it’s clear that water quality impairments are
causing a measurable decline in the acreages of SAV as well as excessive growths of microscopic
and macroscopic vegetation that impair the use of coastal estuaries for their best usage as
determined by their water quality classifications. As part of the Triennial Review, the EMC
should examine the CHPP issue paper on SAV prepared by DEQ staff and any data and
information submitted by third parties (such as UNC researchers), and evaluate its progress in
adopting new nutrient criteria as laid out in its 2014 agreement with EPA. New approaches to
protecting and restoring coastal estuaries from nutrient inputs are urgently needed to protect
SAV and the productivity of coastal estuaries.

Thank you for your consideration of this request.

Sincerely,

Todd Miller Leda Cunningham
Executive Director Officer
North Carolina Coastal Federation The Pew Charitable Trusts

2EMC definition of NSW Nutrient Sensitive Waters: Waters that experience or are subject to excessive growths of
microscopic or macroscopic vegetation. Excessive growths are growths which the Commission determines impair
the use of the water for its best usage as determined by the classification applied to such waters.

Page 4 of 9

cc:
Phillip Reynolds, EMC Counsel
Dr. Stan Melburg, Chairman,
Yvonne Bailey, CHPP Steering Committee and EMC member
David Anderson, CHPP Steering Committee and EMC member
Danny Smith, Director, Division of Water Resources
Kathy Rawls, Director, Division of Marine Fisheries
Braxton Davis, Director, Division of Coastal Management

Bibliography
Moorman, M.C., S.A. Fitzgerald, L. N. Gurley, A. Rhoni-Aref, and K.A. Loftin. 2017. Water quality
and bed sediment quality in the Albemarle Sound, North Carolina, 2012–14: U.S.
Geological Survey Open-File Report 2016 –1171, 46 p.,
https://doi.org/10.3133/ofr20161171.

NC DEQ. (2021). DRAFT 2021 Pasquotank River Basin Water Resources Plan. Chapter 6
DRAFT 2021 Pasquotank River Basin Water Resources Plan. Retrieved 07 30, 2021, from
https://files.nc.gov/ncdeq/Water%20Quality/Planning/BPU/BPU/Pasquotank/Pasquota
nk%20Plans/2021-plan/Chapter-06-Albemarle-Sound.pdf

Page 5 of 9
Appendix

Documentation of algae blooms in the Chowan and Albemarle Sound, taken by students in the
Paerl lab at the University of North Carolina’s Institute of Marine Science in Morehead City, NC

Chowan Beach, NC, July 7, 2020

Chowan Beach, NC, July 7, 2020

Page 6 of 9

Chowan Beach, NC, July 7, 2020

Chowan Beach, NC, July 7, 2020

Page 7 of 9
Chowan Beach, NC, July 7, 2020

Arrowhead Beach Canal, NC, August 13, 2019

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Arrowhead Beach Canal, NC, August 13, 2019

Chowan extending into the Albemarle Sound, August 6, 2018

Page 9 of 9
August 29th, 2020

July 4, 2020

February 28, 2022

Via First Class U.S. Mail and Electronic Mail

Cam McNutt
N.C. Department of Environmental Quality
Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1167
[e-mail]

Re: Comments on North Carolina’s Draft 2022 §303(d) List

Dear Mr. McNutt:

On behalf of North Carolina Wildlife Federation, North Carolina Trout Unlimited, and
MountainTrue we are submitting comments on North Carolina’s draft 2022 § 303(d) list of
impaired waters. The proper identification of impaired waters is essential to improving the
quality and preserving the best use of the State’s waters. This is critical for people who rely on
these waters for their economic livelihoods, for spiritual renewal, and for recreation. Identifying
impaired waters is also critical for species that depend on clean water, like Southern Appalachian
brook trout. For too long, the Department of Environmental Quality (“DEQ”) has ignored
exceedances of the temperature standard for trout streams when preparing its 303(d) list. As a
result, the causes of these exceedances are never assessed and remediated through preparation of
a Total Maximum Daily Load (“TMDL”)—all to the detriment of anglers, fishing guides, and,
most importantly, trout and other species that rely on cold, clean water. Climate change will only
exacerbate this problem. It is past time for DEQ to begin listing waters on its 303(d) list that are
exceeding the temperature standard for trout waters, consistent with DEQ’s listing
methodology.1

DEQ should also explain how it applies narrative water quality standards when preparing
its 303(d) list and fix longstanding problems with its listing and delisting methodology and water
quality monitoring program.

1 See N.C. Dep’t of Envtl. Quality, 2022 303(d) Listing and Delisting Methodology (May 13, 2021). Using this
methodology, DEQ will list a stream as impaired if (1) sample size is greater than nine and (2) there is a greater than
10% exceedance rate with at least 90% statistical confidence, or there is a greater than 10% exceedance rate with
less than 90% confidence and there are more than three excursions with 90% confidence in newer data that have not
been previously assessed. Id. at 4. For purposes of the 2022 303(d) list, “newer data” consists of data collected in
2019 and 2020.
2

I. The 303(d) listing process is critical to protecting the integrity of North
Carolina’s waters.

Congress passed the Clean Water Act (“CWA”) in 1972 to “to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To that
end, Congress charged states with identifying “designated uses” for each jurisdictional
waterbody within its boundaries. 33 U.S.C. § 1313(d); 40 C.F.R. § 131.10. States then set
“criteria necessary to protect the uses” as water quality standards. 40 C.F.R. § 130.3.2 Water
quality standards “should, wherever attainable, provide water quality for the protection and
propagation of fish, shellfish and wildlife and for recreation in and on the water and take into
consideration their use and value for public water supplies.” Id. “Such standards serve the dual
purposes of establishing the water quality goals for a specific water body and serving as the
regulatory basis for establishment of water quality-based treatment controls and strategies
beyond the technology-based level of treatment required by sections 301(b) and 306 of the
[CWA].” Id. States “are required to set water quality standards for all waters within their
boundaries regardless of the sources of the pollution entering the waters.” Pronsolino v. Nastri,
291 F.3d 1123, 1127 (9th Cir. 2002). In other words, water quality standards are set without
regard to existing or future sources of pollution.

Water quality standards must be approved by the Environmental Protection Agency
(“EPA”) and are reviewed at least every three years. See 33 U.S.C. § 1313(a)–(c). If a new or
revised state-promulgated water quality standard is insufficient to meet the purposes of the
CWA, EPA must promulgate a sufficient water quality standard in its stead. 33 U.S.C. §
1313(c)(3).

Every two years, states must identify “water quality limited segments” of jurisdictional
waters within their borders and list them on their CWA § 303(d) list. See generally 33 U.S.C. §
1313(d). A “water quality limited segment” is any “segment where it is known that water quality
does not meet applicable water quality standards, and/or is not expected to meet applicable water
quality standards.” 40 C.F.R. § 130.2(j). More specifically, states must identify water quality
limited segments for which:

(i) Technology-based effluent limitations required by [the CWA];
(ii) More stringent effluent limitations (including prohibitions) required by
either State or local authority preserved by section 510 of the Act, or
Federal authority (law, regulation, or treaty); and
(iii) Other pollution control requirements (e.g., best management practices)
required by local, State, or Federal authority are not stringent enough to
implement any water quality standards applicable to such waters.

40 C.F.R. § 130.7(b) (emphasis added). “Water quality standard,” as used here, includes
“numeric criteria, narrative criteria, waterbody uses, and antidegradation requirements.” Id. §
130.7(b)(3). States must also list water quality limited segments “for which controls on thermal

2 North Carolina implements this procedure by classifying waterbodies and assigning water quality standards for
each classification. See N.C. Gen. Stat. § 143-214.1; 15A N.C. Admin. Code 2B.0101, .0301.
3

discharges under section 301 [of the CWA] or State or local requirements are not stringent
enough to assure protection and propagation of a balanced indigenous population of shellfish,
fish and wildlife.” Id. § 130.7(b)(2).

Once prepared, states submit draft 303(d) lists to EPA for approval. Id. § 130.7(d). EPA
may not approve a list that does not meet “the requirements of [40 C.F.R.] § 130.7(b).” Id. §
130.7(d)(2). If EPA disapproves a list, it must add wrongfully omitted water quality limited
segments back to the state’s 303(d) list. Id.

States are obligated to “establish TMDLs for the water quality limited segments
identified” on that state’s final 303(d) list. Id. C.F.R. § 130.7(c)(1). Total Maximum Daily Loads
are developed based on a waterbody’s “loading capacity” which is the “greatest amount of
loading that a water can receive without violating water quality standards.” 40 C.F.R. § 130.2(f).
A “load” is an “amount of matter or thermal energy that is introduced into a receiving water” and
“loading” is the act of introducing that matter or thermal energy into a receiving water. Id. §
130.2(e). “Loading may be either man-caused (pollutant loading) or natural (natural background
loading).” Id.

Once the TMDL determines the “loading capacity” of a waterbody, it allocates allowable
levels of pollutant discharges among nonpoint and point sources3 via load allocations4 and
wasteload allocations,5 respectively. The TMDL is the sum of the load allocations (including
background conditions) and wasteload allocations. It thus protects the overall health of
waterbodies by ensuring that point and nonpoint discharges are reduced to ensure compliance
with water quality standards.

TMDLs are also subject to EPA approval. Id. § 130.7(d). Once an approved TMDL is in
place, a waterbody no longer must be listed as “impaired” on the 303(d) list. In summary,
inclusion on the 303(d) list is the first step toward assessing water quality-limited segments and
determining load allocations and wasteload allocations through the TMDL process to ensure
water quality standards are not violated and designated uses of waterbodies are protected.

II. North Carolina’s 303(d) list wrongfully excludes stream segments that violate
the temperature standard applicable to classified trout waters.

For decades, North Carolina has had a temperature water quality standard specific to
classified trout streams. Compliance with the standard is critical for keeping these streams cool
enough to sustain trout populations. Many trout waters are increasingly exceeding this

3 A “point source” is “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.” 33 U.S.C. § 1362(14). Point
source discharges are regulated by National Pollutant Discharge Elimination System permits. Nonpoint source
pollution is pollution that enters waterbodies but not via “discernible, confined, discrete conveyances.”
4 A “load allocation” is the “portion of a receiving water's loading capacity that is attributed either to one of its
existing or future nonpoint sources of pollution or to natural background sources.” 40 C.F.R. § 130.2(g).
5 A “wasteload allocation” is the “portion of a receiving water's loading capacity that is allocated to one of its
existing or future point sources of pollution.” 40 C.F.R. § 130.2(g).
4

temperature standard, threatening trout viability. Nevertheless, DEQ has consistently refused to
list these impaired streams on its 303(d) list by a combination of (1) interpreting the trout waters
temperature standard to only apply when thermal point sources discharge into the relevant stream
segment, but then (2) failing to investigate the presence of thermal point source dischargers. This
interpretation is contrary to the plain wording of the trout waters temperature standard, and
inconsistent with the requirements of the CWA and how DEQ applies the standard outside of the
303(d) context. Just last year, DEQ initiated an enforcement action in North Carolina Superior
Court alleging violations of the trout waters temperature standard even when no thermal point
source discharges were present. DEQ correctly applied the trout waters temperature standard in
that instance —the same standard it applies when preparing its 303(d) list.

A. North Carolina trout depend upon cool, clean water.

North Carolina is home to three types of trout: brook trout, rainbow trout, and brown
trout. Only brook trout are native to the state. Recent studies “suggest that the native brook trout
found in the southern Appalachians, including the mountains of western North Carolina,
represent a unique strain called Southern Appalachian brook trout.”6 These trout “have endured
in North Carolina since the last ice age more than 10,000 years ago.”7 “North Carolina mountain
streams once teemed with Southern Appalachian brook trout” but 19th- and 20th-century logging
practices decimated populations.8 “Extensive erosion and siltation from land disturbing activities
limited spawning success by smothering eggs and restricting their oxygen supply, and streams
that historically supported coldwater fishes were warmed due to lost canopy cover.”9 Stocking of
rainbow, brown, and northern-strain brook trout also began around 1900.10 These introduced
species often outcompeted native brook trout, leading to further declines.11 Today, “the future of
the wild brook trout is of concern, and since 1900, the brook trout range is thought to have
declined by about 80 percent.”12

Brook trout, brown trout, and rainbow trout require cold, clean, oxygen-rich water to
survive and thrive. Past and ongoing land management practices continue to threaten trout
habitats and these threats are exacerbated by climate change. By 2060, western North Carolina is
predicted to see 10–20 more days each year with air temperatures above 35º C (95º F), increasing
the chances that water temperatures will rise above 21.1º C (70º F)—levels that can be lethal to

6 N.C. Wildlife Res. Comm’n, Brook Trout: North Carolina Wildlife Profiles,
https://www.ncwildlife.org/Portals/0/Fishing/documents/BrookTrout.pdf, Attach. 1.
7 Doug Besler, Return of the Native?,
https://www.ncwildlife.org/portals/0/Learning/documents/WINC/Sample_07/sample_April07.pdf, Attach. 2.
8 Supra note 6.
9 Id.
10 Id.
11 Id.
12 Id.
5

trout.13 This combination of past habitat loss, ongoing poor land management practices, and
climate change poses an existential threat to many western North Carolina trout populations.

Declines in trout populations will also hurt local economies. The total economic benefit
of trout fishing in North Carolina is estimated at $383.3 million annually, supporting nearly
3,600 jobs.14 If trout habitats are further reduced, these economic benefits will be at risk.

B. North Carolina has specific temperature standards for trout waters.

Consistent with its obligations under the CWA, DEQ has classified some mountain
streams and lakes as “trout waters.” See 15A N.C. Admin. Code 2B.0202(55) (defining “trout
waters”). To protect that condition, DEQ assigned trout waters a temperature standard: Their
temperature “shall not be increased by more than 0.5 degrees C (0.9 degrees F) due to the
discharge of heated liquids, but in no case to exceed 20 degrees C (68 degrees F).” 15A N.C.
Admin. Code 2B .0211(18); see also id. 2B.0301 (explaining that the “water quality standards
applicable to each classification assigned are those established in the rules of Section .0200 of
this Subchapter.”).15 For purposes of compiling its 303(d) list, DEQ considers waters to be
impaired when state water quality criteria—including temperature—are exceeded in more than
10% of samples with greater than or equal to 90% statistical confidence.16 Waterbodies that meet
this numeric criterion must be listed;17 those that do not may still need to be listed if certain other
conditions are met.18 DEQ’s application of these requirements in compiling its draft 2022 303(d)
report falls short for at least two reasons. First, it fails to apply the trout waters temperature
standard to multiple classified trout waters. Second, it refuses to list trout waters as impaired
even when the underlying data demonstrates impairment using DEQ’s listing methodology.

13 Emma Johnson, Climate Change Challenges Trout Industry in North Carolina, Carolina Public Press (Feb. 17,
2021), https://carolinapublicpress.org/42527/climate-change-challenges-trout-industry-in-north-carolina/ Attach. 3;
see also Kunkel, K.E., et al., 2020: North Carolina Climate Science Report, https://ncics.org/wp-
content/uploads/2020/10/NC_Climate_Science_Report_FullReport_Final_revised_September2020.pdf, Attach. 4.
14 N.C. Wildlife Res. Comm’n, Mountain Trout Fishing: Economic Impacts on and Contributions to North
Carolina’s Economy at iv (2015), https://www.ncwildlife.org/Portals/0/Fishing/documents/Mountain%20Trout%
20Fishing%20Economic%20Impacts%20on%20and%20Contributions%20to%20North%20Carolinas%20Economy.
pdf, Attach. 5.
15 In waters that are not classified trout waters, stream temperatures are “not to exceed 2.8 degrees C (5.04 degrees
F) above the natural water temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain and
upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal plain Waters.” 15A N.C.
Admin. Code 2B .0211(18).
16 See supra note 1.
17 North Carolina carves out small exceptions for dissolved oxygen and pH in swamp waters if exceedances are due
to natural conditions. Id. at 5.
18 For example, pollutants with exceedance levels above 10% with less than 90% statistical confidence must still be
listed if at least three newer samples exceeded criteria with at least 90% statistical confidence. Id. at 3–4.
6

C. DEQ is applying the wrong temperature standard to numerous trout streams.

DEQ recognizes a 20º C limit for some trout waters in its draft 2022 303(d) list,19 but it
omits this criterion for at least forty other classified trout water segments and instead applies the
temperature standard for non-trout mountain and upper piedmont streams.20 This is the wrong
standard. Classified trout waters incorrectly assessed for compliance with the 29º C standard
applicable in mountain and upper piedmont streams generally—but not the correct 20º C trout
waters limit—include: Broad River (12498),21 Cedar Creek (12537), First Broad River (12758),
Catawba River (317), Wilson Creek (1034), French Broad River (10925), Davidson River
(11278), Avery Creek (11290), Mills River (11421), Pigeon River (10565), Allen Creek (10607),
Jonathans Creek (10684), Cataloochee Creek (10798), North Toe River (11971 and 11974),
South Toe River (12079), Cane River (12270), Valley River (3278), Cullasaja River (6497),
Nantahala River (7235 and 7236), Tuckaseegee River (8610 and 8611), Board Cove Branch
(8906), Wolf Creek (9098), Little Tennessee River (5606 and 5607), Flattop Branch (122),
Norris Branch (204), Buffalo Creek (233), Brush Creek (290), Crab Creek (299), Dan River
(6481),22 Horsepasture River (10512), Watauga River (13574 and 13605), Buckeye Creek
(12430), and Yadkin River (13904, 14027, and 14028).23 North Carolina must revise its 303(d)
list and sampling approach to assess compliance with the correct temperature standard—which,
in classified trout streams, is 20º C.

Application of the correct standard can decide whether a stream segment is listed as
impaired and therefore whether the sources of impairment will be addressed through a TMDL or
another process. For example, the draft 2022 303(d) list applies the temperature standard for
mountain and upper piedmont waters of 29º C to the First Broad River (WS-V, Tr; AU
ID:12758) and concludes that it complies relying on data from monitoring station A4800000.
That data shows that this segment was sampled 53 times during the relevant time period and
none of those samples exceeded 29º C.24 But twenty of those samples exceeded the trout waters
temperature standard of 20º C—a 38% exceedance rate at 99% confidence.25 Applying the
correct standard, this stream should be listed as impaired for temperature. DEQ must revise its
approach to apply the correct temperature standard to classified trout waters and include
waterbodies on its 303(d) list that are exceeding that standard consistent with its listing
methodology.

19 See, e.g., N.C. Dep’t of Envtl. Qual., North Carolina 2022 Draft Integrated Report at 289,
https://edocs.deq.nc.gov/WaterResources/DocView.aspx?dbid=0&id=2167748&cr=1 [hereafter “2022 Draft
Integrated Report”] (finding that Shooks Creek—a classified trout water— is “[m]eeting” the “20ºC” water
temperature criteria based on legacy random ambient monitoring data).
20 See supra note 15.
21 The numbers provided in parentheses are the “AU ID” from the 2022 Draft Integrated Report.
22 Compounding its error, DEQ assesses compliance for this segment using the temperature standard applicable to
lower piedmont and coastal plain waters (32º C).
23 For hundreds of other classified trout waters, the 2022 Draft Integrated Report provides no indication about which
temperature standard DEQ applies.
24 See N.C. Dep’t of Envtl. Qual., BasinSummAMSMCPALMP20162020and20192020_20210820.
25 Id.
7

D. North Carolina must list trout streams that are exceeding the temperature standard.

The First Broad River is not the only trout stream exceeding the trout waters temperature
standard but omitted from the draft 2022 303(d) list. The data DEQ used to prepare the draft
2022 303(d) list shows that multiple classified trout waters with ten or more sample results are
exceeding the trout waters temperature standard more than 10% of the time at greater than 90%
confidence level. DEQ must list these streams on its 2022 303(d) list. Monitoring locations
showing exceedances of the trout waters temperature standard include:

 First Broad River (A4800000)26 – 38% exceedance with 99% confidence level
 Cane River (E9850000) – 32% exceedance with 99% confidence level
 North Toe River (E8100000) – 28% exceedance with 99% confidence level
 Valley River (F4000000) – 25% exceedance with 97% confidence level
 French Broad River (E0150000) – 25% exceedance with 99% confidence level
 Pigeon River (E54950000) – 23% exceedance with 99% confidence level
 Davidson River (E0850000) – 21% exceedance with 98% confidence level
 South Toe River (E8200000) – 21% exceedance with 95% confidence level
 Horsepasture River (H6000000) – 20% exceedance with 93% confidence level
 North Toe River (E7000000) – 18% exceedance with 92% confidence level.

E. North Carolina’s trout waters temperature standard is not dependent on the presence
of thermal dischargers.

Many of these streams have exceeded the trout waters temperature standard for multiple
303(d) listing cycles but have never been listed.27 Indeed, members of the public have been
raising this concern with DEQ since at least 2008.28 In response, DEQ has explained that it
“interprets [the trout waters temperature] standard to only be assessed with thermal discharges,”
i.e., thermal point source discharges subject to National Pollutant Discharge Elimination System
(“NPDES”) permits.29 This interpretation is contrary to the plain wording of the standard and the
requirements of the CWA, and it is inconsistent with how DEQ and other state agencies apply
the standard outside of the 303(d) context.

First, the plain wording of the temperature standard leaves no doubt that it applies
regardless of the presence of thermal discharges. In full, the standard states:

26 Data was collected at the monitoring stations provided in parentheses.
27 See N.C. Dep’t of Envtl. Qual., 2020 303(d) list Integrated Report Data, BasinSummAMSCoalit1418and1718,
https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020_DATA.zip.
28 N.C. Dep’t of Env’t and Nat. Res., Responsiveness Summary on the Draft 2008 303(d) (Category 5) List
Submitted April 1, 2008, at 13, https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/Draft%
26Revised2008ResponseSummaries.pdf, Attach. 6.
29 Id.; N.C. Dep’t of Envtl. Qual., North Carolina 2020 Draft 303(d) List Public Comment Responsiveness Summary
Submitted June 3, 2021, at 51, https://deq.nc.gov/media/20453/download (the trout waters temperature standard
“applies in its entirety to the evaluation of heated discharges”).
8

Temperature: not to exceed 2.8 degrees C (5.04 degrees F) above the natural water
temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain
and upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont
and coastal plain waters; the temperature for trout waters shall not be increased by
more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but
in no case to exceed 20 degrees C (68 degrees F).

15A N.C. Admin. Code 2B .0211(18) (emphasis added). This standard embeds two prohibitions,
only the first of which is dependent on the presence of thermal dischargers. The first prohibition
is that thermal dischargers may not increase stream temperature by more than 0.5º C. For
example, heated discharges that cause stream temperatures to increase from 17 to 18º C are not
allowed. The second prohibition is that stream temperatures shall “in no case”—i.e., under no
circumstances—exceed 20º C. The second prohibition is not dependent on the presence of
thermal discharges but provides a temperature threshold that shall not be exceeded “in any case.”

This is consistent with the grammatical structure of the standard, which consists of two
clauses. The first clause, related to the discharge of heated liquids, is separated from the second
by a comma and a “but.” The comma indicates a break from the preceding language. And use of
“but” indicates that the second clause applies “notwithstanding” the first.30 In other words,
notwithstanding the limit on temperature increases caused by thermal discharges, the temperature
shall “in no case” exceed 20º C.

The first half of the general surface-water temperature standard lends even more
contextual support for enforcing the 20º C limit regardless of whether thermal point source
discharges are present. The full standard starts by setting a delta limit applicable to thermal
discharges: Temperature may not be increased by more than 2.8º C above baseline.31 It then
immediately pivots to a limit applicable to all waters: Temperatures are “in no case to exceed” 29
or 32º C, depending on location. The trout waters standard is functionally identical: It sets a delta
limit applicable to thermal discharges—temperature may not be increased by more than 0.5º C—
then immediately pivots to a limit applicable to all trout waters: temperatures are “in no case to
exceed 20 degrees C.” DEQ does not suggest that the 29 and 32º C limits only apply to thermal
point source discharges. Given this context, DEQ cannot say that functionally identical language
in the 20º C limit commands a completely different result.

Understanding the 20º C limit to apply regardless of the presence of thermal point source
dischargers is also the most logical interpretation of the trout waters temperature standard. Trout
waters are subject to a more stringent temperature standard because high stream temperatures are
lethal to trout. It makes little sense to subject trout to high stream temperatures attributable to

30 But, Merriam Webster (11th ed. 2003), https://www.merriam-webster.com/dictionary/but.
31 Although this clause does not itself mention discharges of heated liquids, DEQ interprets this standard to prohibit
thermal dischargers from increasing water temperatures by more than 2.8º C. See, e.g., Dep’t of Envtl. Quality,
NPDES Permit NC0000396 at 5 (Apr. 9, 2020), https://files.nc.gov/ncdeq/Coal%20Ash/2020-actions/NC0000396-
Final-Permit.pdf. EPA also understands the 2.8º C limit to apply to thermal discharges. See EPA, NC Thermal
Water Quality Standards, https://www.epa.gov/sites/default/files/2014-12/documents/nc-thermal-wqs.pdf (“The rule
limits thermal discharges to 2.8 degrees C (5.04 degrees F) above the natural water temperature and includes further
restrictions based on geographic regions of the state”).
9

nonpoint source discharges but prohibit the same increases in temperature attributable to point
source discharges. To the contrary, the standard applies regardless of whether the pollution is
caused by point or nonpoint sources.

Second, DEQ’s interpretation cannot be squared with the requirements of the CWA. As
discussed above, the CWA requires states to identify designated uses for waterbodies and then
set criteria to protect those uses. See 40 C.F.R. § 130.3. “Water quality standards reflect a state's
designated uses for a water body and do not depend in any way upon the source of pollution.”
Pronsolino, 291 F.3d at 1137. DEQ’s interpretation turns this on its head by arguing that
application of North Carolina’s trout waters temperature standard—and therefore protection of
designated uses—turns on whether pollution is coming from point sources. North Carolina could
not promulgate, and EPA could not approve, a water quality standard that restricts point source
temperature pollution but allows unlimited nonpoint source temperature pollution to enter a
stream because that standard would not protect the designated uses of the waterbody. North
Carolina state law reaches this same conclusion: “[W]ater quality standards relate to the
condition of waters as affected by the discharge of sewage, industrial wastes, or other wastes
including those from nonpoint sources and other sources of water pollution.” 15A N.C. Admin.
Code 02B .0205 (emphasis added).

Neither can DEQ argue that its trout waters temperature standard applies to point and
nonpoint sources generally except in the 303(d) context where only point source discharges are
relevant. States must list waterbodies on 303(d) lists that are exceeding water quality standards
regardless of “whether a water body receives pollution from point sources only, nonpoint sources
only, or a combination of the two.” Pronsolino, 291 F.3d at 1132–33. This is consistent with
EPA’s “long-standing interpretation of section 303(d)” that the “listing requirement applies to
waters impaired by point and/or nonpoint sources.”32 Specific to temperature, EPA has
previously advised that:

[W]aterbodies that do not meet an applicable State water quality criterion for
temperature or a designated use due to temperature should be listed. Listing is
appropriate because the applicable water quality standard is not met. Heat, the cause
of the impairment, is defined as a “pollutant” under section 502(6) of the Clean
Water Act and can be allocated. It is immaterial to the listing decision whether the
source of the temperature-related impairment is a thermal discharge or solar
radiation. Both are sources of heat, and the heat can be allocated through the TMDL
process.33

32 U.S. Envtl. Protection Agency, Decision Document for the Approval of the North Carolina Department of
Environmental Quality 2018 Section 303(d) List at 4 (May 22, 2019),
https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/20190522-NC-208-303d-Approval-
Package.pdf.
33 U.S. Envtl. Protection Agency, National Clarifying Guidance for the 1998 State and Territory Section 303(d)
Listing Decisions at 5, https://www.epa.gov/sites/production/files/2015-10/documents/lisgid.pdf, Attach. 7.
10

Indeed, EPA recently prepared a TMDL to address exceedances of temperature water
quality standards promulgated to protect salmon and steelhead in the Pacific Northwest.34 That
analysis noted, as an example, that “temperature TMDLs typically identify loss of riparian shade
as a nonpoint source of heat.”35

In short, to comply with the CWA, North Carolina may not 1) interpret its trout waters
temperature standard as only applicable to temperature increases caused by point source
discharges or 2) otherwise exclude effects from nonpoint source discharges when preparing
303(d) lists.

Third, DEQ’s interpretation of the trout waters temperature standard as only relating to
temperature increases attributable to thermal point source discharges is inconsistent with how
DEQ and other state agencies apply the standard outside of the 303(d) context. For instance, the
North Carolina Forest Service has promulgated “performance standards for the protection of
water quality during silvicultural activities.” 2 N.C. Admin. Code 60C.0101. One performance
measure requires “[s]hade . . . [to] be retained to protect [perennial] streams from temperature
fluctuations that result in a violation of a water quality standard of the Environmental
Management Commission as contained in Rule 15A NCAC 2B .0211.” Id. 60C.0208 (emphasis
added).36 While the performance measure is not specific to trout waters, it shows that the North
Carolina Forest Service understands that nonpoint source pollution can cause a violation of
stream temperature water quality standards.

Elsewhere, DEQ itself has confirmed that the 20º C trout waters temperature standard is
an absolute prohibition regardless of whether a stream is heated by point or nonpoint source
discharges. With funding from EPA, DEQ completed a study in 2013 to assess risks to streams
from headwater impoundments.37 There, DEQ confirmed that trout waters “have a maximum
allowable [temperature] value of 20°C.”38 The study ultimately found that “[d]esignated trout [ ]
waters showed extremely high levels of exceedences [sic] of the 20°C maximum” with no
discussion of whether those exceedances were attributable to point or nonpoint source
discharges.39

Finally, and most significantly, DEQ has filed enforcement actions against private
landowners for causing exceedances of the trout waters temperature standard even when no
thermal point source discharges were involved. These enforcement actions thus relied on an

34 See U.S. Envtl. Protection Agency, Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load
(Aug. 13, 2021), https://www.epa.gov/system/files/documents/2021-08/tmdl-columbia-snake-temperature-
08132021.pdf, Attach. 8.
35 Id. at 33 n.9 (emphasis added).
36 See also North Carolina Forestry Best Management Practices Manual to Protect Water Quality,
https://www.ncforestservice.gov/publications/BMP2021/2021NCFSBMPManual.pdf.
37 See N.C. Dept’ of Env’t Qual, Assessing Impacts Due to Small Impoundments in North Carolina to Support 401
Certification Policies (Feb. 28, 2013), http://www.ncwetlands.org/wp-content/uploads/Impacts-Due-to-Small-
impoundments-2013-report.pdf, Attach. 9.
38 Id. at 23.
39 Id. at 41.
11

interpretation of the temperature standard DEQ has sought to disclaim in the 303(d) listing
context.

On June 30, 2021, DEQ issued a Notice of Violation to a landowner in Surry County,
North Carolina, for violations of water quality standards stemming from widespread clearing of
forested lands. DEQ did not allege that the clearing activities resulted in a point source discharge
but did state that:

Title 15A North Carolina Administrative Code 2B .0211 (18) requires
“Temperature: not to exceed 2.8 degrees C (5.04 degrees F) above the natural water
temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain
and upper piedmont waters …; the temperature for trout waters shall not be
increased by more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated
liquids, but in no case to exceed 20 degrees C (68 degrees F);” Forested buffers
adjacent to streams are important measures in regulating water temperature of
streams, particularly in shallow tributaries as exists on the subject Parcels. Clearing
of the vegetated buffers may results in increased temperatures of surface waters
draining to Ramey Creek and Big Pine Creek. Temperature field readings collected
by DWR staff on June 28, 2021 constitute violations of NC Water Quality
Standards.40

The landowner failed to rectify the violations and on August 6, 2021, DEQ filed a
Verified Complaint and Motion for Preliminary Injunctive Relief in Surry County Superior
Court.41 The Complaint states:

Forest buffers adjacent to streams are important measures in regulating water
temperature of streams. Clearing of the vegetated buffers may result in increased
temperatures. In Trout Waters, the temperature is not to, in any case, “exceed 20
degrees C (68 degrees F).” 15A NCAC 2B .0211(18).42

The Verified Complaint continued by explaining that on “June 28, 2021, [DEQ] staff
conducted water quality sampling. [DEQ]’s water quality samples show several temperature
exceedances above the maximum allowable temperature of 20°C. 15A NCAC 2B .0211(18).”43
It explained that “clear-cutting trees near the border of streams removes shade and can cause
water temperature to exceed the regulatory limit for trout waters.” Shade removal is not a point
source thermal discharge, though DEQ still recognized that it could contribute to violations of
the temperature standard for trout waters.44 The Verified Complaint concluded by alleging that

40 Attach. 10 (emphasis added). On October 5, 2021, DEQ issued a Notice of Continuing Violation related to
activities on the same parcels of land and stating more explicitly that “[t]emperature readings above 68 degrees . . .
[constitute] violations of NC Water Quality Standards.” Attach. 11. Sixty-eight degrees is the maximum temperature
allowed in classified trout waters.
41 Attach. 12.
42 Id. at ¶ 15 (emphasis added).
43 Id .at ¶ 43.
44 Id.
12

the landowner remained in violation of North Carolina’s water quality laws, including the
temperature standard applicable to trout streams, and asking the court to order the landowner to
prepare a “Temperature Restoration Plan” to “restore streams to the proper temperature for
trout.”45

We applaud DEQ for taking action to resolve the water quality violations in Surry
County. But the enforcement action removes any doubt that DEQ understands the trout waters
temperature standard to apply in situations where thermal point source discharges are not present
and to prohibit all exceedances of the 20°C temperature standard. DEQ cannot take the opposite
position now as it compiles its 2022 303(d) list. It must list streams as impaired where data
shows the streams exceeding the trout waters temperature standard consistent with DEQ’s listing
methodology.

F. Point source dischargers are present on or upstream of several North Carolina trout
streams exceeding the trout waters temperature standard.

Based on this faulty application of the trout waters temperature standard when compiling
past 303(d) lists, DEQ has listed some trout streams as “Category 3a” in its 2022 Draft Integrated
Report.46 Category 3a is reserved for instances “where data are insufficient to determine if a
parameter is meeting or exceeding criteria.”47 Presumably, these streams have been listed under
Category 3a because DEQ did not assess the presence of thermal point source dischargers when
compiling its 303(d) list and, because it interpreted the standard to only apply when a thermal
point source discharger was present, concluded it had insufficient data to know whether the
standard was exceeded. As explained above, this interpretation of North Carolina’s temperature
standard for trout waters is inconsistent with the CWA and DEQ’s application of the standard
outside of the 303(d) arena. But even under DEQ’s incorrect interpretation of the standard, DEQ
should have listed more segments because point source dischargers are, in fact, present on or
upstream of multiple segments exceeding the trout waters temperature standard. The list
provided below is not comprehensive and was compiled using information available on DEQ’s
“Online GIS Permits Map.”48 It also does not encompass general NPDES permits.

Data relevant to the French Broad River (AU ID 10925) is collected at monitoring station
E0150000. That data shows a 25% exceedance rate of the trout waters temperature standard at
99% confidence level.49 NPDES Permit Nos. NC0000311,50 NC0021946,51 NC0024295,52

45 Id. at ¶¶ 52–56; Prayer for Relief ¶ 2.
46 See, e.g., 2022 Integrated Report, Little River (AU ID 538) (listed as Category 3a for trout waters temperature
standard).
47 N.C. Dep’t of Envtl. Quality, 2020 Integrated Report Category Assignment Procedure at 5,
https://deq.nc.gov/media/17840/download.
48 See https://data-ncdenr.opendata.arcgis.com/apps/ncdenr::permits-map/explore
49 Supra note 24.
50 Attach. 13.
51 Attach. 14.
52 Attach. 15.
13

NC008622353 all appear to discharge into or upstream of this stream segment. None of these
permits impose limits, aside from monitoring requirements, related to temperature except Permit
No. NC0000311, which states that the “temperature of the effluent shall be such as not to cause
an increase in the temperature of the receiving stream of more than 0.5°C and in no case cause
the ambient water temperature to exceed 20°C.”

Data relevant to the Horsepasture River (AU ID 10512) is collected at monitoring station
H6000000. That data shows a 20% exceedance rate of the trout waters temperature standard with
93% confidence.54 NPDES Permit Nos. NC005942155 and NC005943956 discharge into,
upstream, or into tributaries upstream of this stream segment. Neither of these permits imposes
limits related to temperature except for monitoring requirements.

There are two monitoring stations on the North Toe River (E7000000 and E8100000).
They both show greater than 10% exceedance of the trout waters temperature standard at greater
than 90% confidence level.57 Multiple hard rock mines discharge into the North Toe River.
These mines have some combination of general permits, NPDES stormwater permits, and
NPDES wastewater permits including but not limited to NPDES Permit Nos. 0000175, 0000361,
0084620, 58 0085839, 0000400, and 0000353.59 None of these wastewater permits appear to
impose any limitation related to temperature beyond monitoring. NPDES Permit No. 0021423
also discharges into the North Toe River and lacks requirements related to temperature beyond
monitoring.60

The single monitoring station on the Valley River (F4000000) also documents 25%
exceedance of the trout waters temperature standard with 97% confidence.61 NPDES Permit No.
NC0020800 discharges into the Valley River and includes no limitation on temperature
discharges beyond monitoring.

In conclusion, DEQ has for too long ignored its obligation to include on its 303(d) list
stream segments that are exceeding the temperature standard applicable to trout waters. DEQ’s
data shows this standard has been exceeded more than 10% of the time at greater than 90%
confidence level on multiple trout waters that DEQ has refused to list as impaired. These
exceedances may be attributable to a combination of point and nonpoint source discharges. DEQ
must list these streams as impaired on its 303(d) list as a first step towards addressing these
exceedances.

53 Attach. 16.
54 Supra note 24.
55 Attach. 17.
56 Attach. 18.
57 Supra note 24.
58 Attach. 19
59 Attach. 20.
60 Attach. 21.
61 Supra note 24.
14

III. DEQ must explain how it assesses compliance with narrative water quality
standards.

When preparing its 303(d) list, DEQ must list those waterbodies for which existing
requirements “are not stringent enough to implement any water quality standards applicable to
such waters” including water quality standards based on “narrative criteria.”40 C.F.R. §
130.7(b). DEQ’s draft 2022 303(d) list and listing methodology fail to disclose how narrative
criteria are considered in the 303(d) process. DEQ must correct this oversight.

Of particular importance, North Carolina’s toxic substances standard requires that “the
concentration of toxic substances, either alone or in combination with other wastes, in surface
waters shall not render waters injurious to aquatic life or wildlife, recreational activities, public
health, or impair the waters for any designated uses.” 15A N.C. Admin. Code 2B.0208(a).
Compliance with this standard is critical especially for emerging contaminants, such as per- and
polyfluoroalkyl substances (“PFAS”), for which DEQ has yet to promulgate a numeric water
quality standard. EPA recently recognized PFAS as “an urgent public health and environmental
issue facing communities across the United States.”62 And DEQ has recognized that PFAS “meet
the definition of ‘toxic substance’” under North Carolina law.63 DEQ must disclose how it is
applying its narrative toxic substances water quality standards to ensure that waterbodies
contaminated by PFAS (and other emerging contaminants that lack numeric water quality
criteria) are properly listed on the state’s 303(d) list.

IV. DEQ’s delisting methodology remains statistically unsound.

For several years, multiple groups have pointed out flaws in DEQ’s delisting
methodology. Those concerns remain, and we incorporate previous comments by reference
here.64

Briefly, North Carolina’s methodology for delisting waters that are impaired for non-
toxic pollutants is flawed because it fails to reverse the null hypothesis used for listing decisions.
Stated differently, while it is appropriate to complete statistical analysis assuming stream
segments are not impaired when evaluating whether a segment should be listed, that assumption
must be reversed when evaluating whether a segment should be delisted because already listed
segments must be presumed impaired until proven otherwise. Instead, DEQ applies the same
method for both listing and delisting—whether waterbodies exceed criteria more than 10% of the
time with more than 90% confidence—and attempts to cure the imbalance in statistical
confidence by adding a second step to its delisting decisions. But this second step fails to cure

62 EPA, PFA Strategic Roadmap: EPA’s Commitments to Action 2021–2024, at 1, available at
https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.
63 Amended Complaint, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 32 (N.C. Super. 2018),
Attach. 22 (stating that “the process wastewater from [Chemours’] Fluoromonomers/Nafion® Membrane
Manufacturing Area contains and has contained substances or combinations of substances which meet the definition
of ‘toxic substance’ set forth in 15A N.C.A.C. 2B .0202,” referring to GenX and other PFAS).
64 See Letter from Spencer Scheidt, SELC, to Andy Painter, DEQ at 1-9 (Apr. 2, 2021), Attach. 23.
15

the fundamental flaw with the analysis—failure to reverse the null hypothesis—and allows DEQ
to remove impaired waterbodies from the list with less statistical confidence than required to list
them in the first place.

At the second step, DEQ allows previously listed waters with an exceedance rate greater
than 10% with but less than 90% statistical confidence to be delisted “if there are less than 2
excursions of the criterion in newer data that have not been previously assessed.” 65 For those
previously listed waters with less than a 10% exceedance rate, waters are delisted “if there is
greater than 40% statistical confidence that there is less than a 10% exceedance of the criterion
or if there are less than 3 excursions of the criterion in newer data that have not been previously
assessed.”66 On their own, these exceedance limits are arbitrary and fail to account for sample
size. They also fail to bring the delisting methodology to the 90% confidence level required for
sound statistical analysis.67

This has real consequences. The Cane River is an important trout stream and is also home
to the endangered Appalachian elktoe mussel, both of which are threatened by turbidity and
sediment deposition. In 2018, the Cane River was listed as impaired for turbidity. For the 2020
303(d) listing cycle, DEQ assessed data from forty-nine sampling events, eight of which
demonstrated violations of the turbidity standard.68 Applying DEQ’s listing methodology this
translates to a 16.3% exceedance level with 88.8% confidence, just shy of the required 90%. Had
DEQ appropriately reversed the null hypothesis, these same numbers would translate to a
delisting decision confidence level of 5.2%.69 Yet because the Cane River had a greater than
10% exceedance rate with just under 90% confidence, DEQ moved to step two of its delisting
methodology to consider whether “there are less than 2 excursions of the criterion in newer data
that have not been previously assessed.” Of the sixteen newer samples related to the 2020 303(d)
list, only one demonstrated an exceedance of the turbidity standard, leading DEQ to delist the
Cane River to Category 3a (insufficient data). Notably, DEQ would have needed to show one
exceedance out of at least thirty-eight samples to reach a 90% confidence level for its delisting
decision based on this “newer” data only.

This 303(d)-listing cycle, the “newer data” under DEQ’s methodology shows the Cane
River was sampled eleven times and two of those samples exceeded the water quality standard
for turbidity—an exceedance rate of 18%.70 Thus the Cane River continues to exceed water

65 N.C. Dep’t of Envtl. Quality, 2022 303(d) Listing and Delisting Methodology at 4 (May 13, 2021),
https://deq.nc.gov/media/19374/download.
66 Id.
67 Any “statistical conclusion that has a confidence level of less than 90% is considered not acceptable by most
statistics practitioners.” Pi-Erh Lin, Duane Meeter, & Xu-Feng Nui, A Nonparametric Procedure for Listing and
Delisting Impaired Waters Based on Criterion Exceedances at 7 (2000),
https://www.waterboards.ca.gov/water_issues/programs/tmdl/records/state_board/2003/ ref1913.pdf.
68 See N.C. Dep’t of Envtl. Quality, Div. of Water Res., BasinSummAMSCoalit1418and1718 [hereinafter “2020
Data”], https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020_DATA.zip.
69 The delisting “level of confidence” was calculated using the Excel BINOM.DIST function: 1-
[BINOM.DIST(#exceedances, #samples, 10% exceedance rate, TRUE)].
70 Supra note 24.
16

quality standards more than 10% of the time, but DEQ proposes to keep it listed under Category
3a based on its faulty delisting methodology. Had DEQ used a statistically sound delisting
approach, the Cane River would never have been removed from the impaired list in the first
instance and the reasons for its turbidity impairment should have been assessed and mitigated
through preparation of a TMDL. Instead, it continues to routinely exceed water quality standards
but remains indefinitely listed in Category 3a to the detriment of species like Appalachian elktoe
that require cool, clean water to survive.

DEQ also relies on the 10% exceedance rate to assess impairment for toxic pollutants. As
EPA has explained, this approach is inappropriate for toxics.71 Nevertheless, DEQ has never
“provided a scientifically defensible rationale to support [its] Listing Methodology for toxics.”72
DEQ has failed to do so again as part of its draft 2022 303(d) list. During each of the past four
303(d) cycles EPA has rejected DWR’s toxics findings and independently reviewed North
Carolina’s water quality data to determine whether all waterbody impairments were identified—
it will be required to do so again in 2022.

V. DEQ must collect data at times and locations that reveal the full extent of
pollution.

Finally, we reiterate and incorporate the concerns raised by several groups in comments
on the 2020 303(d) list related to deficiencies in DEQ’s monitoring network and sampling
approach.73 Specifically, an ambient monitoring program that samples at arbitrary intervals and
allows sampling to be delayed for “bad weather” with no limitation is likely to underreport
exceedances for pollutants like turbidity. DEQ’s ambient monitoring locations also appear to
avoid some of the most problematic areas, resulting in underreporting pollution and unjustified
delistings. We are mindful of limitations in agency resources and competing agency priorities,
but we encourage DEQ to work to develop a more representative monitoring network.

VI. Conclusion

We appreciate the opportunity to submit comments on North Carolina’s draft 2022
303(d) list. We request a meeting with DEQ to discuss the trout waters temperature standard. In
particular, we would like to better understand DEQ’s position regarding application of the
standard and discuss ways to mitigate rising temperatures in trout streams.

71 U.S. Envtl. Protection Agency, Decision Document for the Partial Approval of the North Carolina Department of
Environment Quality 2016 Section 303(d) List at 12 (Dec. 8, 2016),
https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/NC2016_303dDecisionPackage20161208
%20%28003%29.pdf.
72 Id. at 22.
73 See supra note 64 at 15–17.
17

Sincerely,

Patrick Hunter
Managing Attorney
[e-mail]

Susannah Knox
Senior Attorney
[e-mail]

cc via email only:
Lauren Petter, EPA Region 4, [e-mail]
February 25, 2022
North Carolina Department of Environmental Quality -Division of Water Resources
TM [e-mail]
Subject: Draft 2022 303d List -Public Comment
Cary's Utilities Department appreciates the opportunity to comment on proposed additions
to the 303d impaired waters list. We are writing to provide comments and request that you
reconsider the addition of Crabtree Creek to your proposed list of impaired waters. We have
studied previous reports from the stream corridor and provide the following review for your
consideration.
The 2022 draft 303d list of impaired waters and draft integrated report includes a new
Category 5 -Exceeding Criteria impairment for a benthos assessment in Crabtree Creek
with Assessment Unit (AU) ID -13881 and includes a proposal to split the existing stream
segment 27-33-(3.5) b into two separate segments 27-33-(3.5) b1 and 27-33-(3.5) b2.
However, the current 2020 Integrated Report lists the combined stream segment 27-33-(3.5)
b (AU 13881 and 13882) as a Category 1 -Excellent, Good, Natural, Good-Fair Condition
that used the Biological Assessment Branch (BAB) sample site JB035. On August 27, 2020,
the BAB conducted a onetime special study that assessed site JB035 and JB157. Site JB035
is regularly monitored for water quality approximately every 5 years and is traditionally used
for assessing the water body segment that resulted in good-fair benthos assessments.
JB157 was last monitored 26 years ago in April 1994 with a benthos assessment of fair
condition.
Assessment site JB157 is limited to approximately 0.25 miles downstream of the Crabtree
Lake dam discharge into Crabtree Creek. Considering the near proximity of the assessment
site to the dam discharge, the benthos assessment conducted August 27, 2020, at site
JB157 should be considered Category 3C as described below and defined by the 2020
Integrated Report -Category Assignment Procedure due to the proximity of the sample site
to the dam discharge and no identifiable pollutant.
CATEGORY 3C ASSESSMENTS are assigned when a parameter is assessed as data inconclusive due to the presence of a water control structure such as a dam. In such cases where there is no identifiable pollutant, a TMDL is not required.
We assert that conditions immediately downstream of a dam may likely impact the diversity
and distribution of macroinvertebrates and should be considered inconclusive with the 2022
Integrated Report and therefore not listed as a Category 5 impaired stream.
400 James Jackson Avenue • Cary, NC 27513 • PO Box 8005 • Cary, NC 27512-8005
tel [phone] • fax [phone] • www.townofcary.org
NC DEQ -Division of Water Resources
Draft 2022 303d List -Public Comments
February 25, 2022
Page 2.
In summary, we appreciate the opportunity to review and provide comments on the draft
2022 303d list of impaired waters and integrated report. We welcome the opportunity to
further discuss our comments. Please don't hesitate to contact me at 919-469-4303 or via
e-mail at [e-mail] if I can provide any additional information or
assistance.
Sincerely,

February 18, 2022

To: North Carolina Environmental Management Commission
North Carolina Division of Water Resources
Address: [e-mail]
Subject: UNRBA Comments on: NC’s Draft 2022 303(d) List and 2022 Draft Integrated Report I am pleased to offer the attached comments on North Carolina’s Draft 2022 Integrated Report and 303(d) list. The UNRBA appreciates the opportunity to
provide comments. The spreadsheets that represent the 303(d) list (260 pages) and the Integrated Report (1342 pages) represent an enormous amount of information and a significant effort on the part of DWR to get each assessment unit accurately reported. Our comments are offered to help assist with that effort. Our comments provided input to address issues noted in our review. Our comments do make
specific recommendations on how these assessment reports can be improved.
The UNRBA is focused on the protection of the Falls Lake's designated uses. Our member organizations are pleased that all of Falls Lake's designated uses are currently being met, including water supply, recreation, and fish & wildlife propagation. Nonetheless we note that the DWR 2022 draft Integrated Report
indicates that most of Falls Lake is not fully attaining the chlorophyll-a standard. Ever since Falls Lake was conceptualized and designed by the Army Corps of Engineers and authorized by Congress, Falls Lake was anticipated to have eutrophic (nutrient rich) characteristics – including elevated levels of chlorophyll-a.
In 2008, DWR’s policy decisions first placed Falls Lake on the 303(d) list that
required a TMDL or management strategy to attain compliance with the chlorophyll-a standard. The Falls Lake Rules adopted in 2011 represent the required management strategy. The UNRBA believes it is essential that the Falls Lake 303(d) and 305(b) Integrated Report assessment methodology provide
consistency with the Management Strategy Rules and the morphological and
geological characteristics of this body of water. Currently this harmony is not achieved. The Draft 2022 Integrated Report assignment of 12 assessment units are at odds with the attainment provisions of the Falls Lake Rules which divides the lake into only six units. Additionally, the individual assessment units (12) do not
properly reflect the physical, morphological and limnological characteristics of Falls
Lake. Within the next few years, the UNRBA's re-examination recommendations to sustain Falls Lake's designated uses will incorporate a proposal for site-specific water quality standards with a site-specific assessment methodology.
Attached you will find our detailed comments on the 2022 Draft Integrated Report.
We note that the EMC's approved 303(d) assessment methodology is a one-size-fits-
all approach. Small streams, large streams, large rivers, lakes, and estuaries all are assessed using the same decision flow chart. This approach has resulted in a

Forrest Westall
Executive Director
[e-mail]
PO Box 270
Butner, NC 27509
Phone: [phone]

On the Web:
http://unrba.org

Town of Butner
City of Creedmoor
City of Durham
Durham County
Franklin County
Granville County
Town of Hillsborough
Orange County
Person County
City of Raleigh
Wake County
Town of Stem
Town of Wake Forest
South Granville Water
and Sewer Authority

UPPER NEUSE RIVER
BASIN ASSOCIATION
Page 12
significant number of subdivisions in the Classified Water Segments sometimes resulting in
assessment units (AU's) for individual monitoring stations based on highly variable monitoring
results rather than management units. This approach has created circumstances that discourages
extensive monitoring and makes it easier for individual monitoring locations to be in non-attainment
of water quality standards. The 2022 assessment of Falls Lake included more than 1700 individual
chlorophyll-a measurements from more than 25 locations. The more monitoring stations, the greater
difficulty to attain compliance at each individual location — even when the average condition of the
waterbody may ultimately meet the criterion. The assessment methodology should promote a better
understanding of the waterbody — through more monitoring.
We continue to promote a more appropriate assessment methodology that includes a methodology
tailored to the needs of all lakes and estuaries but more specifically for Falls Lake. The UNRBA
recommends long-term management assessment units be established using all data (at all stations)
within assessment units. Assessment Units should be independent of the year-to-year variability of
individual parameter concentrations. Assessment Units should be based on morphometric and
limnologic features consistent with EPA guidance. Consistent assessment units are essential for
determining the success of any management strategies.
The UNRBA local government members are focused on sustaining the designated uses and
improving the water quality in Falls Lake by applying scientifically supportable,
technically feasible, and economically achievable actions that balance the level of
investment with the level of water quality improvement.
We hope that our attached comments will result in a new approach for assessing water quality
standards in Falls Lake and in reservoirs and estuaries across NC. In lakes and estuaries, unlike
streams, water does not flow in one single direction and individual monitoring stations are not
independent of each other. The spatial extent of an Assessment Unit can be the prime factor in
attainment or non-attainment of water quality standards. Consistent management assessment
units represented by multiple stations result in larger data sets and more reliable and
representative results.
Thank you again for the opportunity to provide comments. If you have any questions, please
contact Mr. Forrest WesTh.11, UNRBA Executive Director. We welcome the opportunity to
discuss our co emits with you.
Sincere
Sig Hutchinson, Chairman
Board of Director
UNRBA Comments on North Carolina's 2022 Draft 303(d) and Integrated Reports
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UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports
UNRBA Detailed Comments
February 18, 2022
Public Notice of Availability of the DRAFT 2020 303(d) List and Integrated Report

1. The UNRBA recommends that the Environmental Management Commission and the Division of Water Resources convene a work group to modernize the current NC Water Quality Standard for chlorophyll-a consistent with the High Rock Lake recommendations of the Scientific Advisory Council. The Falls Lake assessment units in the Draft 2022
Integrated Report represent extensive water quality monitoring by DWR and North Carolina
State University (NCSU) researchers. The Draft five-year assessment includes more than 25 monitoring locations and approximately 1700 observations for chlorophyll-a. It is not surprising that the 2022 Draft assessment noted a number of observations greater than the 40µg/L water quality standard. We note that NC's chlorophyll standard, a "not to be exceeded" value, is the
only one in the country that is evaluated with a 10% exceedance frequency. The UNRBA has
been heavily engaged in the NC Nutrient Criteria Development processes and the recommendations of the DEQ Scientific Advisory Council's (SAC) site-specific recommendations for High Rock Lake. The recommendations of the SAC were not in concert with the "never to exceed" current NC chlorophyll-a standard and clearly supported a central
tendency approach using a geometric mean. Further, the fundamental scientific efforts of the
International Organization for Economic Co-operation and Development (OECD) in the 1980's and 1990's supported the scientific consensus that trophic categories are best described with probability evaluations rather than maximum values. The two figures below represent the concept probability distributions for both average chlorophyll and maximum chlorophyll in lakes
– suggesting that Falls Lake or High Rock Lake (eutrophic reservoirs) are likely to exceed a
water quality average of 40µg/L about 20% of the time. Also leaving little hope of ever attaining a standard expressed as a "never to be exceeded" value. Average Chlorophyll Maximum Chlorophyll

Page | 4

UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports
2. Consistent Assessment Units should be established based on limnologic / morphologic and hydrologic characteristics consistent with EPA guidance. The UNRBA has noted the
consistency in the number of Assessment Unit's (AU's) in the 2020 and the 2022 Integrated
Reports for Falls Lake - 12 Assessment Units. However, DWR staff has informed us that the lowest assessment unit (near the Dam) may be subdivided. The Division of Water Resources changes AU's within Falls Lake based on the variability of observed water quality measurements in a station-by-station manner.

The current dynamic assessment approach (changing AU's) represents a moving target and results in considerable confusion about attaining and maintaining compliance with the water quality standard. Consistent Assessment Units should be established based on the lakes limnologic / morphologic characteristics consistent with EPA guidance. It is also important that
the assessment approach be aligned with the management strategy laid out in the Falls Lake
Rules. The Draft IR now includes 12 assessment units (7 upstream and 5 downstream of Highway 50). Falls Lake has a robust monitoring program performed by both the Division of Water Resources and the Center for Applied Aquatic Ecology. Combined, this effort represents approximately 28 monitoring stations in the lake. Applying the current Assessment
Methodology continues to increase the number of Assessment Units and challenges the ability of
ever attaining the water quality standard for chlorophyll-a in Falls Lake. This “station-by-station” approach doesn’t properly reflect the physical morphology of the lake. Since the 2008 water quality assessment the number of AU's for Falls Lake has changed from two to twelve. The increasing number of units has not been due to changes in standards or classification or even
designated uses. Rather, it represents the expansion of data collection and the variability of the
monitoring results.
Falls Lake Assessment Reports by year and Assessment Units (excluding Beaverdam Reservoir) 2008 2 Assessment Units 2016 10 Assessment Units 2010 3 Assessment Units 2018 11 Assessment Units
2012 3 Assessment Units 2020 12 Assessment Units
2014 6 Assessment Units 2022 12 Assessment Units ? 3. DWR staff have implemented a new and rather confusing Data Tier System for the Draft
assessment reports. The UNRBA suggests that the Data Tier program undergo a more
detailed review and approval process. The DWR Water Quality Data Tiers are divided into
three levels based on appropriate use. Of the three Data Tiers, only Tier 3 data is specifically
identified for use for regulatory assessments of water quality standards attainment and thus
requires a DWR-approved QAPP and data must also be processed by a state certified laboratory.

However, the DWR Fact Sheets associated with the Falls Lake individual assessment units,
identifies the use of both Tier 2 and Tier 3 data from the NCSU CAAE program. The Data Tiers
document (2 pages, attached) also indicates "Some Tier 2 assessment information can be used in
Integrated Reporting if associated with watershed improvement projects". Data quality and
reliability does not improve just because it is collected for a "watershed improvement project".
This is very confusing and difficult to interpret. Further, it is not clear why locations with
Page | 5

UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports
chlorophyll-a measurements were placed in Tier 2 as the NCSU CAAE program has an approved
QAPP and a certified laboratory. We are further concerned that the Tier Data document does not
explicitly identify NPDES Coalitions with Tier 3 Data. This “tiering” of data was not a part of
the Division’s assessment methodology placed before the EMC for approval.

The Tier Data system in concert with a review of the DWR Fact Sheets for Falls Lake suggest
some additional confusion and possible inconsistencies between the NCSU CAAE Tier 3 and
Tier 2 designations and the CAAE QAPP methodology for Falls Lake sampling sites. Falls Lake
Fact Sheet's identify chlorophyll-a sampling sites and these are summarized by AU's in Table 1
below. The Tier 2 CAAE chlorophyll-a sample locations are shown in "red" and include six
locations:
FLIN_1 FL50_1 FL85_1 FL50C FL85C, FL85LW_1.
Based on a review of the NSCU CAAE QAPP (revision F), it is understandable that CAAE
locations that include an "_#", such as FL50_1 reflect chlorophyll-a samples collected at specific
depths and are not collected using a composite sample of the 2X-Secchi photic zone. However,
locations FL50C and FL85C according to the CAAE QAPP are indeed collected from the 2X-
Secchi photic zone which should make them eligible for designation in Tier 3 data. Furthermore,
we note that CAAE locations FL1, FL2, FL4, FL5, FL6, are identified as Tier 3 data but the
CAAE QAPP identifies these locations as samples collected in the upper photic zone which is
inconsistent with normal DWR lake practices. It is all rather confusing. Perhaps CAAE has
revised their QAPP or perhaps the Tier Data System or the Fact Sheets need some additional
improvements. We recommend revisions to the “tiered” approach and the opportunity to review
this with DWR staff before it is used to establish assessment results.

4. The New Draft 2022 303(d) listings for chlorophyll-a standards above Falls Lake Dam
include three waterbodies that are located within the Falls Lake drainage area. Similarly,
the 303(d) list includes Ledge Creek (Lake Rodgers) in category 5 for chlorophyll-a. These
four waterbodies have a management strategy because they are all included in the Falls
Lake Rules under 15A NCAC 02B .0275. Therefore, they should be listed in the Integrated
Report in category 4 rather than category 5 of the 303(d) list.

15A NCAC 02B .0275 SCOPE AND LIMITATION. "Falls of the Neuse Reservoir is hereafter
referred to as Falls Reservoir. All lands and waters draining to Falls Reservoir are hereafter
referred to as the Falls watershed. The Falls nutrient strategy rules require controls that reduce
nitrogen and phosphorus loads from significant sources of these nutrients throughout the Falls
watershed."

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UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports

New 303d Listings
Beaverdam Creek Reservoir
From backwaters of Beaverdam Creek Reservoir to 1.5 miles upstream of dam
AU ID #13867 Neuse River Basin Segment 27-12-(0.7)b
Beaver Dam Creek Reservoir 291.7 Acres
Chlorophyll a (40 μg/l) Category 5 Exceeding Criteria 303(d) Listing Year 2022

Little River (Little River Reservoir)
From a point 0.1 mile upstream of Durham County SR 1461 to dam at Little River Reservoir
AU ID #8032 Neuse River Basin Segment 27-2-21-(3.5) 32.4 Acres
Chlorophyll a (40 μg/l) Category 5 Exceeding Criteria
Reason for Rating: Data Assessment Inconclusive 303(d) Listing Year 2022
East Fork Eno River (Lake Orange) From source to Eno River
AU ID # 13765 Neuse River Basin Segment 27-2-3b 143.6 Acres
Chlorophyll a (40 μg/l) Category 5 Exceeding Criteria 303(d) Listing Year 2022
Older 303d Listing
Ledge Creek (Lake Rogers) From 0.5 miles upstream of dam to dam at Creedmoor Reservoir
AU ID # 13743 Neuse River Basin Segment 27-10-(1)c 106.3 Acres
Chlorophyll a (40 μg/l) Category 5 Exceeding Criteria 303(d) Listing Year 2018

5. The IR listing for Falls Lake AU 27-(5.5)b2 (Ledge Creek Arm) should be re-evaluated.
According to the EMC approved evaluation methodology the UNRBA review results
suggest this AU Meets the Criteria. The Draft 2022 Integrated Report for chlorophyll-a places
this AU in Category 3b Data Inconclusive. UNRBA methodology review results suggest this AU
meets the criteria for chlorophyll-a. Based on the supplied Fact Sheets for this AU, there is only
one monitoring station. This location designated as DWR's LC01 shows 53 Observations for
years 2016 – 2020. 5 of these 53 observations exceeded 40 ug/L or 9% exceeded. Confidence
that Criteria was Exceeded was 38% and Confidence that criteria was attained 44%. Station
LC01 shows 22 Observations for years 2019 – 2020. Only 2 observations exceeded the 40ug/L
criteria. According to the EMC approved evaluation methodology the UNRBA review results
suggest this AU Meets the Criteria.

• >10% Exceed Evaluation Level? – NO (9% exceed evaluation level)
• 70% Confidence in meeting criteria? – NO (44% confidence in meeting criteria)
• Listed on Previous 303d? – NO (2020 303d list does not include, 2020 IR category 3b)
• <40 % Confidence in meeting criteria? – NO (Confidence meeting criteria is 44%)
• 2 Excursions in New Data Years – NO AU Meets the Criteria

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UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports

6. The IR chlorophyll listing for Falls Lake AU 27-(5.5)b4d2 (Barton Cr Arm to Falls Dam)
may be split into two AU's. The 2022 Draft Integrated Report places this AU in Category 4b
but the Criteria Status is listed as Meeting Criteria”. Category 4 listings are normally reserved
for parameters with a Criteria Status of exceeding criteria. Fact Sheets indicate that this AU
includes three monitoring stations: DWR NEU020D, NCSU FLINC, NCSU FL7C. Combined
the three stations have recorded 264 Observations for chlorophyll during the assessment period
2016-2020. Combined the three stations have 29 observations for chlorophyll exceeded the
40µg/L evaluation level 2016 – 2020 (10.9%) resulting in a 67% confidence level for exceeding
the criteria. Individual station fact sheets for:
FL7C indicated 58 observations, 10 exceeded (or 17% exceeded with 94% conf. in exceeding);
FLINC 150 observations, 15 exceeded (or 10% exceeded with 46% conf. in exceeding)
NEU020D 56 observations, 4 exceeded (or 7% exceeded with 18% conf in exceeding;
Combining all three locations yields an assessment of Category 4, Exceeding Criteria because
there were greater than 3 observations in New Data Years 2019-2020. The UNRBA has been
advised that "The lower most AU in Falls will likely be split due to assessment differences
between the intake stations and the CAAE site just up reservoir”. If station FL7C is split into a
different AU, it will likely be assessed in Category 4 Exceeding Criteria for chlorophyll-a. If
stations FLINC and station NEU020D are combined in one AU with 206 observations, 19
exceeding the chlorophyll-a criteria of 40ug/L, results suggest that it will be assessed in Category
3 with a Criteria Status of Data Inconclusive.

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UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports

Table 1. Summary of Falls Lake Draft 2022 Integrated Report Assessment Units
(from Draft 2022 Fact Sheets) for Chlorophyll-a.
(Chlorophyll-a Tier 3 shown in black, Tier 2 Stations shown in Red)
27-(1) From source (confluence of Eno
River Arm of Falls Lake and Flat
River Arm of Falls Lake) to I-85
bridge
Monitoring Stations (3):
FL4, FL85_1, FL85C,
Chlorophyll-a Category 4
27-(5.5)a From I-85 bridge to Panther Creek Monitoring Stations:(2)
FL5, NEU013B,
Chlorophyll-a Category 4b
27-(5.5)b1 From Panther Creek to Ledge
Creek Arm
Monitoring Stations (7):
FL6, FL85LW_1, FL85LWC, FL6C, FL10C, LLC01, NEU017B,
Chlorophyll a Category 4b
27-(5.5)b2 Ledge Creek Arm Monitoring Stations (1):
LC01
Chlorophyll-a Category 3b
27-(5.5)b3 From Ledge Creek Arm to Lick
Creek Arm
Monitoring Stations (3):
FL9C, NEU018C, NEU018E,
Chlorophyll-a Category 4b
27-(5.5)b4a Lick Creek Arm Monitoring Stations (2):
LC1, LI01
Chlorophyll-a Category 4b
27-(5.5)b4b1 From Lick Creek Arm to Hwy 50
Bridge
Monitoring Stations(2):
FL50_1, FL50C,
Chlorophyll-a Category 4b
27-(5.5)b4b2 From Hwy 50 Bridge to New Light
Creek Segment
Monitoring Stations (2):
FL2, NEU019E,
Chlorophyll-a Category 4b
27-(5.5)b4c New Light Creek Segment Monitoring Stations (1)
FL8C
Chlorophyll-a Category 4b
27-(5.5)b4d1 From New Light Creek Segment to
Lower Barton Creek
Monitoring Stations (4):
FL1, FL1C, NEU019L, NEU019P
Chlorophyll-a Category 4b
27-(5.5)b4d2 From Lower Barton Creek Arm to
Falls Lake Dam
Monitoring Stations (4):
FLINC, FLIN_1, FL7C, NEU020D
Chlorophyll-a Category 4b
27-(5.5)b4e Lower Barton Creek Arm Monitoring Stations (1):
FL11C
Chlorophyll-a Category 4b

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UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports

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UNRBA Comments on North Carolina’s 2022 Draft 303(d) and Integrated Reports