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HomeMy WebLinkAbout2022 NC DWR Response to Comments1 North Carolina 2022 Draft 303(d) List Public Comment NC Division of Water Resources Responsiveness Summary Submitted to EPA April 1, 2022 Comments received from: Charlotte Mecklenburg Stormwater ............................................................................................................. 2 City of Durham Public Works Department ................................................................................................... 4 Fort Bragg ...................................................................................................................................................... 6 Haw River Assembly ...................................................................................................................................... 7 Lower Neuse Basin Association/Neuse River Compliance Association ........................................................ 9 North Carolina Coastal Federation ............................................................................................................. 18 Southern Environmental Law Center .......................................................................................................... 20 Town of Cary ............................................................................................................................................... 22 Upper Neuse River Basin Association ......................................................................................................... 23 These comments with NC Division of Water Resources (DWR) responses in italics are provided below. NOTE: #Comment indicates a non-303(d) related comment. DWR has provided responses to non-303(d) related comments in an effort to fully respond to commentors. 2 Charlotte Mecklenburg Stormwater Comment: Consolidating Reaches. 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 11-137-9cis 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. • 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. DWR Response - DWR now has the ability to consolidate assessment units in areas where assessment results are consistent and classifications are the same. However, all monitoring stations will continue to be monitored and assessed (instead of solely the downstream location as suggested in the comment) and if there are differences in assessment results, the reaches will continue to be listed separately. This is consistent with the Environmental Management Commission’s approved Assessment Methodology for 2022. As such, DWR has consolidated reaches as much as possible as follows. For Sugar Creek, three AUs were combined into one AU_ID=14110 all the assessments from the previous AU were applied to the entire length. Little Sugar Creek three AUs to one. Little sugar Creek was split based on the desire to limit the extent of total metals impairments. Since that time, the assessments are now all the same. Dissolved metals were extended to both the upstream and downstream reaches as that was done initially with total metals data. RAMS assessments were applied to the entire Little Sugar Creek from Source to NC/SC state line. Turbidity TMDL and fecal Coliform TMDL were applied to the entire Creek as well. The previous total 3 copper assessment should have been delisted in 2020 and is corrected with the 2022 assessment. New AU_ID 14111 at 14.2 miles with all previous assessments assigned to the entire length. McAlpine Creek. AU_ID’s 665, 666, 667, 668 all have the same assessments and have been combined into a new AU_ID 14112 at 20.4 miles. Long Creek AUs are classified segments and cannot be combined. DWR made the assessments for both AUs the same as there is only one station for both. McDowell Creek AU_ID 370 (11-115-(1)) and AU_ID 373 (11-115-(5)) are classified segments and cannot be combined. AU_IDs 371 (11-115-(1.5)a and 372 (11-115-(1.5)b) have differing ecological integrity assessments for fish community and benthos community. DWR will reassess these upon the next monitoring events. Goose Creek- AU ID 2241(13-17-18a) and 2242(13-17-18) will be combined into AU_ID 14112 with all assessments from both AUs being the same. Comment: 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 DWR Response - Triplicate and duplicate assessments are due to an underlying query issue on the report these are not actual triplicates and duplicates. DWR will rebuild the Fact Sheet reports query to resolve this issue. Comment: 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. DWR Response - Lake Norman turbidity listing was based on 5 of 23 excursions at station C3615000. This station is a Random Ambient Monitoring Station. This assessment should be on a UT to the Catawba River. DWR will move this assessment to the correct AU and delist the turbidity assessment for Lake Norman. 4 City of Durham Public Works Department Comment: 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. DWR Response- Category 4s is no longer being used. The recategorization of these assessments to Category 5 is not considered a new listing for 2022. The original listing year has been restored. Category 4s was first used to limit the number of listings and lower the priority for TMDL development to address ecological impairments (fish and benthic community measures). Since that time there is new voluntary approach to address ecological impairments through watershed action plans. The category 4s assessments made these a lower priority for plan development and reduced potential funding sources to address ecological impairments. The Copper category 5 assessments are considered legacy and will be prioritized for confirmation sampling using dissolved copper as the parameter. Regarding references to data collected by the City of Durham Public Works Department, as noted in DWR's Response to Comments on the 2018 and 2020 303(d) Lists: DWR continues to work towards implementation of the new dissolved metals standards and welcomes data submittal from the City as there is already an approved QAPP. DWR does not actively harvest water quality data regardless of data quality. As DWR has pointed out to the commenter on previous lists, data used in the assessment must go through the public review process. For DWR to use data in the assessment, it must be submitted using the process described on our website: https://deq.nc.gov/about/divisions/waterresources/planning/modeling-assessment/water-quality-data- assessment. It is good to hear that potential watershed improvement projects associated with the turbidity TMDL appear to be successful and DWR strongly encourages the City to consider submitting data to support tracking of implementation efforts. DWR is happy to meet with the City to work through that process. It would also be beneficial to have TSS data to compare to reductions called for in the TMDL. Comment: 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 5 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. DWR Response- Refer to response to comments on Third Fork Creek above. Comment: 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. DWR Response- DWR can meet with stakeholders to begin the process of evaluating if Little River Reservoir chlorophyll a assessments can be recategorized to 4b or 5r based on existing rules and activities currently being implemented. Note a recategorization to 4b requires EPA approval and will have to show that implementation of the Falls Lake rules is occurring upstream of the Little River Reservoir. Comment: 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. DWR Response- See response to Third Fork Creek comments regarding Category 4s, legacy Copper assessments and data submittal. 6 Fort Bragg Comment: Requested a delisting of Little Cross Creek due to errors in locational data: 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. DWR Response- The upper reach of Little Cross Creek drains an area of Fort Bragg that is in active recovery with no building or other activities. The original assessment for this segment was based on a downstream benthic sample below two dams on Little Cross Creek. A more recent sample in a nearby tributary was rated Not Impaired. This AU (18-27-4-(1)a) will be delisted. 7 Haw River Assembly Comment: 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 DWR Response- This AU will remain in Category 5 for Chlorophyll-a. The delisting was due to an error in assessment and has been corrected. Comment: 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 8 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. DWR Response- This AU will remain in Category 3a for the 2022 assessment based on EMC methods for listing and delisting parameter/AU combinations. Note Category 3 is best interpreted as “data inconclusive” meaning the data indicates that the water is not necessarily meeting criteria, but also does not indicate that the water is impaired. 9 Lower Neuse Basin Association/Neuse River Compliance Association # Comment: 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 charts for meeting, exceeding, and inconclusive assessments. Each of these decisions are made in both the 303(d) and (305(b) Integrated Report assessments. DWR Response: During the approval process for the 2022 303(d) listing and delisting methodology with the EMC, DWR committed to providing more information on the website for third party data submittal. As such, DWR provided information on Data Tiers on the Modeling and Assessment Branch website to provide more clarity on third-party data submittals in advance of the 2022 Water quality assessment. It 10 should be noted that this is not a new system and is consistent with how data have been used for assessment since 2002 and is consistent with other programs such as the Chesapeake Bay. Data and information from all Tiers can be used for assessment purposes. DWR is hoping that accepting Tier 2 data (high quality data collected under a QAPP) will encourage more data submittals. The most common examples of Tier 2 data are nutrients, monthly fecal coliform bacteria data and data and information collected to monitor effectiveness of various watershed improvement projects large and small. DWR will also note the data quality and reliability are not necessarily associated with lab certification either. DWR will edit the data submittal website to better define the tiers and include examples from the 2022 Assessment. Coalition and DWR data are identified as Tier 3 data. DWR will continue to update the Data Submittal guidance to clarify remaining areas of confusion. DWR is happy to meet with the association to further discuss the process for third party data submittal. # Comment: 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. DWR Response: This concern was addressed in the 2020 Response to Comments, Page 9. The assessments for parameters without a numeric water quality standard (such as total nitrogen) are for tracking implementation and for properly accounting for TMDLs and Management Strategies. In the Neuse River Estuary example the TMDL/Rule reduction targets are not being met, thus the category 4t assessments for TN. It is important for NC to track TMDL parameters separately from indicator parameters. Narrative summaries of implementation are available in basin plans. Maintaining tracking in a database is needed to assure that EPA and NC databases are tracking parameter/AU assessments in the same way. DWR will provide more information in the IR Category assignment document to clarify this issue. The EMC methodology only provides the mechanism for adding and removing Parameter/combinations to and from the Category 5 (303(d) list). 11 Comment: 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. DWR Response: DWR responded to this comment in the 2020 Response to Comments, Page 10 and again encourages the LNBA to reconsider adding dissolved metals to their coalition monitoring program. Comment: 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. DWR Response: Thank you for this information. DWR will share this comment with the Neuse Basin Planner for incorporation into the next update of the Neuse Basin Plan. Waterbody Specific Comments – NOTE none are 303(d) listings and most are just fact sheet clarifications #Comment: 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. DWR Response: Based on examination of the raw submitted data, there were no exceedances of the chlorophyll a standard at this station. The same was true for DWR data collected at this station and at J7850000. #Comment: 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 12 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"). DWR Response: See response to total nitrogen assessments above. The 1t assessment in this AU has been changed to 4t indicating that the TN reductions called for in the TMDL have not been met. #Comment: 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" DWR Response: See response to total nitrogen assessments above. The 1t assessment in this AU has been changed to 4t indicating that the TN reductions called for in the TMDL have not been met. #Comment: 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" DWR Response: Meeting Criteria for total nitrogen is established during the annual total nitrogen trend analysis at Streets Ferry. Until a 30% reduction is observed at that location all TMDL segments will remain in 4t for TN. #Comment: 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. 13 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" DWR Response: AU ID 13820. Assessment Criteria Status has been updated for all Category 4 assessments to “exceeding criteria”. There were 7 excursions of 102 samples. Combined data at this station indicate Chorophyll a is meeting criteria with 82% confidence. #Comment: 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% 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. 14 Potential Error: "Remove Total Nitrogen Assessment" DWR Response: Combined data at J8900800 indicate “Data Inconclusive” assessment. The assessment category has been changed to 3i for Chlorophyll a. #Comment: 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" DWR Response: AU_ID 13761. Data from three stations in this AU indicate “Exceeding Criteria”. #Comment: 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 assessment then it is recommended to include this information under the Column Heading of "REASON FOR RATING" Potential Error: "Remove Total Nitrogen Assessment" 15 DWR Response: Station J8910000 in this AU is Exceeding Criteria for Chlorophyll a. Only DWR data were used to make assessments in this AU. J8925000 data were assessed in a different AU. DWR will work with IMS to verify station locations prior to the 2024 assessment. #Comment: 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" DWR Response: DWR will resolve the AUs for the 2024 assessment after estuary remapping is rectified with DMF shellfish sanitation prohibited areas. #Comment: 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" DWR Response: Previous assessment was carried forward this small AU is a cutout to identify pathogen indicator exceeding criteria. The assessment is based on the larger 27-(118)a1 assessment discussed above. 16 #Comment: 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% % 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" DWR Response: DWR will work with IMS to assure excursions information is included in the final fact sheets. #Comment: 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" DWR Response: DWR will work with IMS to assure excursions information is included in the final fact sheets. #Comment: 27-(118)f NEUSE RIVER Estuary Prohibited area at Cherry Branch Minnesott Ferry Landing south side of river Includes station J9530000 17 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" DWR Response: DWR will work with IMS to assure excursions information is included in the final fact sheets. Combined data at J9530000 indicate 25 excursions of 138 with excursion rate of 18.2 percent with 99% confidence. 18 North Carolina Coastal Federation #Comment: 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. DWR Response: This comment is outside the scope of the 303(d) list/Integrated Report and will be shared with the Nutrient Criteria Development Plan (NCDP) team for follow-up. Comment: 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 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)” An EPA guidance document 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 19 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. DWR Response: DWR does not have a methodology to assess NSW waters in Category 5 or the 303(d) list unless a numeric parameter is exceeding criteria. This comment will be shared with the NCDP team for follow-up and consideration as nutrient criteria are established. As part of that process, DWR is exploring the possibility of developing a methodology to assess for the narrative standard and welcomes suggestions from interested stakeholders. #Comment: Finally, we urge DWR to incorporate relevant information and Recommended Actions from the North Carolina Coastal Habitat Protection Plan (CHPP) – 2021 Amendment, 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. 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 quality improvements that DWR staff, other CHPP implementation agencies, and external partners can follow to efficiently and collaboratively achieve restoration goals. 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.” DWR Response: This comment is outside the scope of the 303(d) list/Integrated Report and will be shared with the NCDP team for follow-up as the recommendations contained within the CHPP are being considered as the NCDP process moves forward with establishing nutrient criteria for estuaries. 20 Southern Environmental Law Center Comment: North Carolina’s 303(d) list wrongfully excludes stream segments that violate the temperature standard applicable to classified trout waters. This issue was responded to in 2020 and is really a question of the wording or interpretation of the wording of the standard. NC has not implemented this standard in water quality assessment due to the lack of background monitoring and lack of thermal discharges outside of 316a demonstrations at power plants. The first step should be to clarify in plain language what the standard says and make it say that. Currently the standard basically says not to exceed 20. If an assessment methodology is developed (or if the trout water temperature standard is included in the EMC listing and delisting methodology) would result in in 11 of 23 assessments into Category 5. Many if not all of these would need to be addressed through a combination of riparian restoration, removal of no-permitted discharging amenity ponds, and perhaps dealing with climate change. There would likely be very few permitted discharges involved as they are likely to have addressed thermal issues via the Trout permit limit or a 316a demonstration. The facilities in the comments need to be checked to see if they are potential contributors to thermal issues. DWR Response- DWR has previously responded to this comment in the 2020 Response to Comments. DWR had recommended the SELC take advantage of the Standards Triennial Review process that had just started and provide comments on the Temperature standard for Trout Waters. DWR is disappointed that the SELC chose not to include this concern in their extensive comments submitted on the most recent Standards Triennial Review, where an official review of the standard would have been triggered and potential clarifications could have been codified in the standard. The 303(d) List is not the place to review standards and DWR assessment staff rely on the DWR standards staff to ensure that assessment follows the standards appropriately. However, we will share this comment with the DWR Permitting Branch to review the mentioned waters and existing discharges to determine if any permitting actions need to be taken. Comment: 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.” And DEQ has recognized that PFAS “meet the definition of ‘toxic substance’” under North Carolina law. DEQ must disclose how it is applying its narrative toxic substances 21 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. DWR Response- The assessment methodology for listing and delisting is an EMC approved process. DEQ/DWR staff cannot change the listing and delisting methods without EMC approval. DEQ is actively working through several issues related to PFAS. We will share this comment with the PFAS Workgroup to consider moving forward. Comment: DEQ’s delisting methodology remains statistically unsound. DWR Response: DWR has provided extensive responses to this comment in previous responses to comments: see 2018 Response to Comments and 2020 Response to Comments. Comment: DEQ must collect data at times and locations that reveal the full extent of pollution. DWR Response- This comment was responded to in the 2020 Response to Comments, beginning page 51. DWR would also include the response that DWR regularly implements special studies ahead of TMDLs and management plan development to further refine pollutant and pollution reduction targets. Often this results in straight to implementation objectives that require Watershed implementation projects designed to reduce all loads regardless of downstream targets. 22 Town of Cary 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. DWR Response: As a result of this comment, DWR will split the assessment unit at the state park boundary and assess the exceeding criteria benthos site at I-40 into Integrated Report Category 4c (impairment due to hydrologic modification) as the site is less than 0.25 miles from a dam. The AU directly downstream of the dam will still considered to be exceeding criteria but because it will be in Category 4c no action will be required. DWR will continue to evaluate potential impacts from the dam, the wastewater treatment plant and the proposed quarry expansion. 23 Upper Neuse River Basin Association #Comment: 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. DWR Response- This comment is regarding development of new water quality standards and is outside of the Integrated Reporting and 303(d) process. This comment will be forwarded to the Nutrient Criteria Development Plan Team. #Comment: Consistent Assessment Units should be established based on limnologic/morphologic and hydrologic characteristics consistent with EPA guidance. DWR Response- This comment has been addressed in three previous comment periods (refer to 2016 Response to Comments, 2018 Response to Comments, and 2020 Response to Comments). In an attempt to increase understanding, DWR presented information on segmentation to the UNRBA in April 2021. DWR acknowledges that the UNRBA is currently in the process of developing updated models for Falls Lake and has also conducted special studies to further the ecological understanding of the lake. These studies will support the development of any future site specific approach(es), through the rules readoption process. Following rules readoption, DWR will determine if a site specific assessment approach is called for and adjust the Integrated Report Category Assignment Procedure as necessary. DWR now has the capability to retire assessment units and has done so for several AUs in the Charlotte area- however the Falls Lake AUs continue to have differing assessments for turbidity between Category 5 and 3a. Of some concern is that turbidity violations appear to be increasing. If not for these differences, the Category 4b chlorophyll a assessments could be combined into a single AU from Lick Creek to Horse Creek. As noted in DWR’s presentation to the UNRBA in April 2021, reducing or increasing the number of assessment units continues to have no (zero) impact on compliance evaluation of the Falls rules. DWR has split the lowest Falls Lake AU into two different AUs to reflect assessments differences between Station FL7C and the intake stations. For the 2022 assessment, all but 2 AUs in Falls are Exceeding Criteria for Chlorophyll a- (Ledge Creek and the intake area). #Comment: 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. # DWR Response- During the approval process for the 2022 303(d) listing and delisting methodology with the EMC, DWR committed to providing more information on the website for third party data submittal. As such, DWR provided information on Data Tiers on the Modeling and Assessment Branch website to provide more clarity on third-party data submittals in advance of the 2022 Water quality assessment. It should be noted that this is not a new system and is consistent with how data have been used for assessment since 2002 and is consistent with other programs such as the Chesapeake Bay. Data and information from all Tiers can be used for assessment purposes. DWR is hoping that accepting Tier 2 data (high quality data collected under a QAPP) will encourage more data submittals. The most common examples of Tier 2 data are nutrients, monthly fecal coliform bacteria data and data and information collected to monitor effectiveness of various watershed improvement projects large and small. DWR will also note the data quality and reliability are not necessarily associated with lab certification either. DWR 24 will edit the data submittal website to better define the tiers and include examples from the 2022 Assessment. The UNRBA does not submit third-party data, but staff did meet with third-party submitters to explain the process and answer any questions. Coalition and DWR data are identified as Tier 3 data. DWR will continue to update the Data Submittal guidance to clarify remaining areas of confusion. DWR is happy to meet with the association to further discuss the process for third party data submittal. FL50C and FL85C data have been identified as Tier 3 Data. According to the metadata, stations FL1, FL2, FL4, FL5 and FL6 data were collected as photic zone composite samples except for three samples at each station collected in 2016. None of these samples were excursions and made no difference in the assessments. Falls Lake data were not used to assess waters into or out of Category 5 so Tier 2 data can be used for effectiveness monitoring as there are no regulatory decisions being made regarding listing or delisting. #Comment: 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. DWR Response- DWR can meet with stakeholders to begin the process of evaluating if Little River Reservoir chlorophyll a assessments can be recategorized to 4b or 5r based on existing rules and activities currently being implemented. Note a recategorization to 4b requires EPA approval and will have to show that implementation of the Falls Lake rules is occurring upstream of the reservoirs. However, because Beaverdam Creek drains directly into Falls Lake, it will be listed as Category 4b. #Comment: 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 DWR Response- DWR has re-evaluated and assessed this AU into category 1b (meets criteria) for Chlorophyll a. #Comment: 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. DWR Response: DWR agrees and has split the lowest Falls Lake AU into two different AUs to reflect assessments differences between Station FL7C and the intake stations.