NCG010000_SELC Comment Letter_20091001

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST FRANKLIN STREET, SUITE 330 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2559
VIA ELECTRONIC MAIL & US MAIL
Boyd DeVane
Stormwater Permitting Unit
North Carolina Division of Water Quality
1617 Mail Service Center
Raleigh, NC 27699-1617
Email: boyd.devanegncdenr.gov
Re: Draft General Permit for Stormwater Discharges Associated
With Construction Activities; Permit No. NCGO10000
Dear Mr. DeVane:
These comments are submitted on behalf of American Rivers, Catawba Riverkeeper Foundation,
Cape Fear Coastkeeper, Cape Fear Riverkeeper, Clean Water for North Carolina, Conservation Council of
North Carolina, Eno River Association, Environment North Carolina, French Broad Riverkeeper, Friends
of the Rocky River, Haw River Assembly, Mountain Voices Alliance, Neuse Riverkeeper Foundation,
New River Foundation, North Carolina Conservation Network, North Carolina State Council of Trout
Unlimited, North Carolina Wildlife Federation, Pamlico -Tar River Foundation, People Advocating for
Real Conservancy, Pisgah Chapter Trout Unlimited, Rocky River Trout Unlimited, Upper Watauga
Riverkeeper, Waccamaw Riverkeeper, Waterkeeper Alliance, White Oak -New Riverkeeper, Southern
Environmental Law Center, Triangle Fly Fishers, and Yadkin Riverkeeper to address the draft general
permit NCGO10000 for stormwater discharges associated with construction activities ("NCGO1" or "the
draft permit"). We appreciate the opportunity to submit these comments on the draft.1
All of the organizations represented herein are concerned about the adverse impacts to our state
waters caused by construction stormwater discharges. Many of the organizations represented are
watershed organizations, each dedicated to protecting a specific watershed in North Carolina.2 Other
organizations are national, regional, or state -based organizations who are equally concerned about
protecting water quality in North Carolina. North Carolina's waterways are invaluable resources. Our
waters supply drinking water, support trophy fisheries, and provide recreational opportunities for many.
The shared objective for all of the organizations submitting these comments is to advocate from more
' All supporting documents cited in this letter that cannot be expected to be on file with the North Carolina
Department of Environment and Natural Resources ("DENR") are attached as exhibits. Documents presumed to be
on file with DENR are fully incorporated herein by reference. For citations to books, we assume DWQ's ability to
obtain these books, and incorporate them by reference as well. However, should DWQ be unable to obtain the
DENR documents presumed to be on file or the books cited, please do not hesitate to ask us to provide copies where
necessary.
2 The Riverkeeper organizations represented herein are all part of the Muddy Water Watch project ("MWW").
MWW is a statewide initiative to reduce stormwater runoff from construction sites by providing training workshops
and materials developed specifically for citizens on the NC Sedimentation Pollution Control Act (and NCG01)
requirements associated with construction activity. To date, 830 volunteers have attended MWW trainings and 513
of those have been certified under the program. These trained volunteers have submitted more than 300 site report
cards for construction activities. Out of those sites reported, there were: 98 F's, 89D's, 67 C's, 26 B's, 4 A's.

October 1, 2009
NCGO1 Comments
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stringent controls and alternative practices that will reduce or eliminate polluted stormwater runoff from
construction sites.
Sediment -laden stormwater runoff is a leading cause of pollution in our waters.3 The Division of
Water Quality ("DWQ") has identified sedimentation as the most widespread cause of stream degradation
and potential impairment in the State.4 In addition, stormwater runoff from land disturbing activities
causes significant turbidity problems and carries with it other construction -related pollutants such as
nutrients. North Carolina needs an effective general permit for construction stormwater discharges. We
urge DWQ, in drafting the final permit, to establish clear requirements that can be implemented through
an effective regulatory scheme.
I. POLLUTION FROM CONSTRUCTION SITES CAUSES SIGNIFICANT
PROBLEMS IN NORTH CAROLINA'S WATERS.
Construction activity is the largest source of sediment loads to our waters and a significant source
of pollutants that adhere to sediment, including nutrients and fecal coliform. Annually, around 80 million
tons are directly discharges from construction activities.5 Construction activities and the resulting
development alters the natural processes that normally treat stormwater and protect our waters from
receiving large amounts of stormwater runoff. During construction, native vegetation is removed. Large
construction equipment compacts, excavates, and otherwise displaces soil. These construction activities
increase erosion and stormwater runoff, increasing sediment transportation to receiving waters. During
construction, sediment loads can increase from 2 to 40,000 times over pre -construction levels.6
Pursuant to Clean Water Act ("CWA") §§303(d) and 305(m), DWQ must regularly compile and
publish a report identifying waters within the state that do not meet their designated uses, and the types
and sources of pollutants that cause these impairments. The most recent North Carolina Water Quality
Assessment and Impaired Waters List (2006 Integrated 305(b) and 303(d) Report) was approved on May
17, 2007.' This report documents numerous lakes, streams, rivers, and coastal waters in North Carolina
that are impaired because of excessive levels of the types pollutants associated with construction site
runoff including:
• 246 miles of freshwater streams impaired for turbidity,
• 10,450 acres of freshwater lakes, reservoirs, and impoundments impaired for turbidity,
• 325 miles of freshwater streams impaired for fecal coliform,
• 54,480 acres of estuarine and salt water bays, inlets, and tidal areas impaired for fecal coliform,
3 United States Environmental Protection Agency, Office of Water, National Water Quality Inventory — 2004 Report
to Congress, EPA 841-R-08-001, 14-15 (2009) (Exhibit 1).
4 See, e.g., North Carolina Division of Water Quality, Broad River Basinwide Assessment (May 2006) (on file with
DWQ) (identifying sediment as a concern throughout the basin); North Carolina Division of Water Quality,
Basinwide Assessment Report Catawba River (April 2008) (on file with DWQ) (attributing extremely low habitat
scores throughout the basin to sedimentation).
5 Goldman, S.J., et. al, Erosion and Sediment Control Handbook (McGraw-Hill, Inc., 1986).
6 Id.
7 NC Division of Water Quality, Final North Carolina Water Quality Assessment and Impaired Waters List (2006
Integrated 305(b) and 303(d) Report) (2007) (on file with DWQ).
2

October 1, 2009
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• 10,450 acres of freshwater lakes, reservoirs, and impoundments impaired for chlorophyll a (i.e.
nutrients), and
• 46,398 acres of estuarine and salt water bays, inlets, and tidal areas impaired for chlorophyll a.'
The detrimental impacts from construction stormwater discharges on aquatic habitats through the
release of sediment and other pollutants into the water column is well documented. Coarse and fine
sediments, which typically settle out of suspension after some period of travel, have a broad range of
impacts on aquatic species and their habitat. Increased turbidity greatly impacts macroinvertebrate and
fish communities by reducing their ability to feed and reducing their reproductive rates.9
Many species of fish and macroinvertebrates use the interstitial spaces at the bottom of
streams to lay their eggs. Reproductive success is severely affected by sediment
deposition particularly in benthic spawning fishes. The primary mechanisms of action
are through increased egg mortality, reduced egg hatch, and a reduction in the successful
emergence of larvae. The cause of egg survival rates and egg death are due to reduced
permeability of streambed and from burial by settled particles. Thin coverings (a few
millimeters) of fine particles are believed to disrupt the normal exchange of gases and
metabolic wastes between the egg and water. Sediment deposition has caused a 94
percent reduction in numbers and standing crop biomass in large game fish, because of
increased vulnerability of their eggs to predation in gravel and small rubble, reduction in
oxygen supply to eggs, and increased embryo mortality. It can also cause reduced larval
survival because of armoring (crusting) of the sediment surface, which traps the larvae.
Suspended and bedded sediments also have a negative affect on the survival of
freshwater mussels. Increased levels of [sediment] impair ingestion rates of freshwater
mussels in laboratory studies. ... Many of the endangered freshwater mussel species
have evolved in fast flowing streams with historically low levels of suspended sediment.
Such species may not be able to actively select between organic and inorganic particles in
the water column. Therefore, even low levels of sediment may reduce feeding and, in
turn, reduce growth and reproduction.10
These impacts correlate with relatively low levels of turbidity. The specific responses to sediment and
turbidity include:
• Significant reductions in diversity, density, and biomass in benthic invertebrates at as low as 4
Nephelometric Turbidity Units ("NTU"),11
• Reduced feeding success in young bass has been observed at 70 NTU,12 and
'Id. at 46-47.
9 United States Environmental Protection Agency, What are Suspended and Bedded Sediments (SABS)?,
http://www.epa.gov/warsss/sedsource/sabs.htm (Exhibit 2).
10 Id.
11 Lemly, A. D., Modification of benthic insect communities in polluted streams: combined effects of sedimentation
and nutrient enrichment, 87 Hydrobiologia 229-245 (1982) (Exhibit 3).
12 Reid, S. M., et. al, Influence of turbidity on piscivory in largemouth bass (Micropterus salmoides), 56 Can. J.
Fish. Aquat. Sci. 1362-1369 (1999) (Exhibit 4).

October 1, 2009
NCGO1 Comments
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• Moderate to major physiological stress in freshwater non-salmonids at doses less than or
comparable to typical construction site runoff values.13
Additionally, the increased volume and velocity of discharges from construction and development
activities causes modification of aquatic habitats. Receiving waters immediately adjust their cross -
sectional areas through incision, widening, or both, to accommodate larger flows. This accelerates
sediment transport and destroys habitat. Channels become increasingly unstable, which then leads to
direct channel modification through straightening, or hardening with concrete or rock.
The following photographs taken by volunteers monitoring construction sites illustrate the
massive sediment problems associated with construction stormwater runoff.
(Top left photo of sediment pollution in Little Sugar Creek was taken by Jeff Cravotta; top right photo of
sediment pollution in Little Creek entering the mainstem of the Catawba River was taken by David
Merryman, Catawba Riverkeeper; bottom photo of an Asheville construction site was taken by Skip
Matheny.)
13 Newcombe, C.P., and J.O.T. Jensen, Channel suspended sediment and fisheries: a synthesis for quantitative
assessment of risk and impact, 16 North American Journal of Fisheries Management 693-727 (1996) (Exhibit 5);
Newcombe, C.P., and D.D. MacDonald, Effects of suspended sediments on aquatic ecosystems, 11 North American
Journal of Fisheries Management 72-82 (1991) (Exhibit 6).
2

October 1, 2009
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II. NCGO1 CONTAINS SEVERAL IMPORTANT IMPROVEMENTS OVER THE CURRENT
PERMIT.
NCGO1 has been improved in several ways, and we applaud DWQ for these improvements.
We agree that sites discharging to 303(d) listed streams should at times be required to implement
additional control measures and conduct additional monitoring. However, we believe this
requirement may not be triggered without advance review of Erosion and Sediment Control plans
("E&SC plans") by DWQ. In addition, we believe that coverage under the general permit may be
inappropriate for streams impaired for turbidity that do not yet have a final Total Maximum Daily
Load ("TMDL").
• We are also glad to see that DWQ added language specifying that it can require a site -specific
Stormwater Prevention Plan, in addition to the E&SC plan, if sediment reaches a stream or
wetland.
We applaud DWQ's decision to require the special "Design Standards in Sensitive Watersheds"
found in 15A N.C. Admin. Code 04B .0124 for construction activities with a potential to impact a
federally listed threatened or endangered species. However, we believe this requirement should
also be tied to any site -specific management plans for each species that DWQ is required to
develop pursuant to 15A N.C. Admin. 0213.0110. Again, meaningful implementation will require
advance review of E&SC plans by DWQ.
III. DWQ IS RESPONSIBLE FOR ENSURING THAT NCGO1 COMPLIES WITH THE
FEDERAL CLEAN WATER ACT.
Pursuant to the CWA, a State, "desiring to administer its own permit program for discharges into
navigable waters within its jurisdiction may submit to the Administrator [of the US Environmental
Protection Agency] a full and complete description of the program it proposes to establish and
administer."14 The most recent Memorandum of Agreement for the National Pollutant Discharge
Elimination System ("NPDES") program ("NPDES MOA") requires that North Carolina "administer
NPDES in accordance with Section 402 of the CWA, this Agreement, applicable State legal authority,
applicable Federal regulations, and the annual State Program Plan."15 The NPDES MOA also listed
"State Responsibilities," including the duty to "[c]omprehensively evaluate and assess compliance with
compliance schedules, effluent limitations, and other conditions in these permits," and "[m]aintain a
vigorous program of taking timely and appropriate enforcement action in accordance with the CWA." 16
Currently, the North Carolina Division of Land Resources ("DLR") or a delegated local program
implements NCGO1 through the review and approval of an E&SC plan. Under normal circumstances,
facilities wishing to be covered by a NPDES general permit would submit a notice of intent to apply for
coverage that included information such as who the facility is, where it is located, and why it fits the
category of activities covered by the general permit.17 The submission of an E&SC plan takes the place
of a notice of intent. When an E&SC plan is approved, DLR or the delegated local program attaches a
copy of NCGO 1 to the approved plan.
14 33 U.S.C. § 1342(b).
15 National Pollutant Discharge Elimination System Program Memorandum of Agreement between North Carolina
and the Environmental Protection Agency (revised 1994) (on file with DWQ).
16 Id. at 2.
17 40 C.F.R. § 122.28(b)(2).
5

October 1, 2009
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Region IV of the Environmental Protection Agency ("EPA") has previously addressed issues
regarding the implementation of NCGO I. In reviewing the 2000 draft permit, EPA expressed concern
over what it perceived as a delegation from DWQ to DLR and requested that DWQ clarify how the two
divisions would coordinate to ensure compliance with federal requirements." Specifically, EPA
questioned whether DWQ could rely on DLR to issue coverage under the stormwater general permits
because there has been no formal delegation of NPDES permitting authority to DLR.19 DWQ responded
that no formal delegation was necessary because DLR does not have NPDES permitting authority, stating
DWQ continues to be the authority that writes and issues the construction general permit
for stormwater discharges. DWQ also continues to be the enforcement authority for the
permit as well. We have however, partnered with the DLR to provide copies of the
permits to owners/operators of construction activities disturbing 5 acres or more of
land. zo
In other words, DWQ affirmed its responsibility for issuing and enforcing the general permit. EPA
responded that DLR "appears to be the implementing arm for the State, with regards to inspections,
enforcement and permit tracking. ,21 EPA requested that DWQ provide, "additional clarifications or
mechanisms in place between the DLR and DWQ, via an enforcement agreement or other means that will
ensure a blanket approach in addressing possible water quality violations and other onsite deficiencies."22
With these instructions, DWQ and DLR agreed to set forth a Memorandum of Understanding ("MOU") to
clarify and address some of these issues.
The MOU, signed in 2002, acknowledges the need for the offices to "closely coordinate activities
in order to meet public needs by fulfilling the intent of the regulations," and "establish formal
understanding and recognition of the relationships" between the two divisions. 21 In the MOU, DWQ
agreed, among other things, to "continue to work with [DLR] to develop a data management tracking
system for Construction General Permits and Erosion and Sedimentation Control plans.i24 Additionally,
DWQ agreed to provide language for the E&SC plans that "clarifies that an applicant is also receiving the
NPDES stormwater General Permit for land disturbance activity." Additionally, the 2002 MOU noted,
"that this is a starting point and is intended to be revised as the coordination methods are developed and
continually improved.i25 The MOU states that it is to be "considered a `living' document and is intended
to be reviewed annually and revised accordingly. ,26
18 See Letter from Roosevelt Childress, Chief, NPDES and Biosolids Permits Section, US Environmental Protection
Agency Region IV, to Bradley Bennett, Supervisor, Stormwater and General Permits Unit, DWQ (June 30, 2000)
(on file with DWQ).
19 Id.
20 Letter from Bradley Bennett, Supervisor, Stormwater and General Permits Unit, DWQ to Roosevelt Childress,
Chief, NPDES and Biosolids Permits Section, US Environmental Protection Agency Region IV (August 11, 2000)
(on file with DWQ).
21 Letter from Roosevelt Childress, Chief, NPDES and Biosolids Permits Section, US Environmental Protection
Agency Region IV, to Bradley Bennett, Supervisor, Stormwater and General Permits Unit, DWQ (September 14,
2000) (on file with DWQ).
22 Id. at 2.
23 2002 Memorandum of Understanding Between Land Quality Section of the Division of Land Resources and
Water Quality Section of the Division of Water Quality (May 2002) (on file with DWQ).
24 Id. at 2.
25 Id. (emphasis added).
26 Id. (emphasis added).
on

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Although the joint implementation approach was intended to simplify the process for issuing
coverage under NCGO1, it did not guarantee that the E&SC plans would comply with the federal CWA.
Despite the coordination between two divisions, NCGO1 must comply with the requirements of the CWA.
Thus, since the E&SC plans take the place of notices of intent, DWQ retains the responsibility of ensuring
that each E&SC plan complies with the CWA. To ensure that NCGO1 protects water quality and
complies with the CWA, we recommend the following revisions.
IV. NCGO1 MUST PROVIDE FOR PUBLIC AND DWQ REVIEW OF PROJECTS.
A. NCGO1 Must Provide for Better Review by to Ensure That OnlyAppropriately Eligible
Projects Receive Coverage.
Although E&SC plans effectively serve as an applicant's notice of intent to be covered by
NCGO1, current DLR and DWQ implementation does not provide for public notice or advance notice or
review by DWQ. Persons who propose to disturb more than one acre of land submit an E&SC plan at
least 30 days prior to beginning construction. These plans are submitted to one of DLR's seven regional
offices or to one of the locally delegated program offices. The plans are reviewed for compliance with
the Erosion and Sediment Control Planning and Design Manual. If the plans comply with the manual, the
E&SC plan is approved and a copy of NCGO 1 is attached for the developer. There is no public review.
There is no review by DWQ.
This procedure has a number of implications for water quality and for the public. NCGO1
includes only the broad requirements to obtain an E&SC plan approval and to implement this plan. The
permit contains no criteria to shape the E&SC plan, other than references to other state laws and rules.
The detailed description and specifications for how sediment will be controlled are found in the E&SC
plan. Because DWQ does not review the E&SC plan, the permit issuing authority for the NPDES
program never actually reviews the pollution control measures at any given site. Further, because neither
DWQ nor DLR provides public notice of individual authorizations or E&SC plans, the public is given no
notice or opportunity to comment on the large number of construction activities that discharge into North
Carolina's rivers and streams.
B. DWQ Must Provide for Better Public Participation in Permitting Construction Activities under
NCGO1 to Comely With the Federal Clean Water Act.
The current approach of cutting off public review of activities seeking coverage under NCGO1 is
inconsistent with the CWA. The Act clearly contemplates a large role for citizens in reviewing these
types of activities. 33 U.S.C. § 1251(e) states that:
Public participation in the development, revision, and enforcement of any regulation,
standard, effluent limitation, plan, or program established by the Administrator, or any
State under this chapter shall be provided for, encouraged, and assisted by the
Administrator and the States.
Pursuant to §402(a)(1), a permit can only be issued "after opportunity for a public hearing." Furthermore,
§402(b)(3) commands that state permits must allow for public notice of "each application for a permit"
and provide an opportunity for a public hearing. Requirements for public participation are included
throughout the sections of the CWA and its regulations regarding the NPDES program. 40 C.F.R. § 25.4
mandates basic requirements for participation under the CWA; 40 C.F.R. § 124.10 governs public notice
of permit actions; and, 40 C.F.R. § 124.11 outlines the requirements for public comment. Under NCGO1,
7

October 1, 2009
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DWQ authorizes a large number of discharges without any notice to the public that the discharge is
proposed and without any opportunity for the public to comment on the individual control measures for
each site.
In addition to the clear language of the CWA, courts have also interpreted the CWA to require
public notice and comment for coverage issued under NPDES general permits. In 2003, the Ninth Circuit
Court of Appeals held that the CWA requires that the public be given an opportunity to participate in,
review, and comment upon a municipality's stormwater management plan or notice of intent, prepared
pursuant to a general permit for small municipal separate stormwater sewer systems. In Environmental
Defense Center, Inc. v. EPA, the court held that municipal stormwater programs must be "in every
instance, [] subject to meaningful review by an appropriate regulation entity to ensure that each such
program reduces the discharge of pollutants to the maximum extent practicable.i27 Thus, the court also
held that "clear Congressional intent requires that [notices of intent] be subject to the Clean Water Act's
public availability and public hearings requirement. ,28
The Second Circuit Court of Appeals has also held that public notice and comment are required
for individual authorizations under general permits.29 In Waterkeeper Alliance, Inc. v. EPA, the court
held that a NPDES general permit program for concentrated animal feeding operations violated the CWA
in failing to provide opportunity for public comment and hearings on individual animal waste
management plans.30 The court there explained that the public has a right to assist in the development,
revision, and enforcement of the nutrient management plans, which play a similar role in animal operation
permitting that E&SC plans play under NCGO1. The court ruled that the nutrient management plans are
the equivalent of effluent limitations required by the CWA, as are E&SC plans, and that the public must
be provided an opportunity to meaningfully comment on them.
Several other state agencies comply fully with the CWA in this regard by providing opportunities
for public notice and comment on individual authorizations under their general permits for construction
activities. The Oregon Department of Environmental Quality's general permit for construction activities
requires a 14-day public review period for all complete applications. 3 1 The Washington Department of
Ecology's Construction Stormwater General Permit requires a 30-day public review and comment period
for all construction sites seeking coverage.32 The Vermont Department of Environmental Conservation
posts all notices of intent with the necessary Erosion Prevention and Sediment Control plans on its
website and provides a 10-day public comment period.33 Pennsylvania also provides notice of individual
requests for coverage under its general permit.34 Indeed, even DWQ maintains a list of those seeking
coverage under other general permits on its website but not for NCG01.35
27 344 F.3d 832, 856 (9th Cir. 2003).
28 Id. The Court rejected the notice that notices of intent were "publicly available" because they could be requested
under state public records laws finding that such a cumbersome process does not meet the standard for
"encouraging" public participation under the CWA.
29 See Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005).
31 Id. at 504.
31 Oregon Department of Environmental Quality, General Permit No. 1200-C, pg. 2 (Exhibit 7).
32 Washington Department of Ecology, Construction Stormwater General Permit, Part S2.(Exhibit 8).
33 Vermont Department of Environmental Conservation, General Permit 3-9020 (2006) for Stormwater Runoff from
Construction Sites, Parts 2.3, 3.3, and 11 (making it a permit violation if notice is not provided to the public)
(Exhibit 9).
34 25 Pa. Code § 92.83(a)(3) (Exhibit 10).
35 NC Division of Water Quality, NPDES Public Notices and Hearings: List of Active General Permits (Permits
Beginning with NCG5), http://h2o.enr.state.nc.us/NPDES/PublicNotices.html.

October 1, 2009
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We recognize that DWQ has determined that a general permit is the appropriate approach because
it is "the most efficient method to handle the large number of construction stormwater permit
applications."36 We also acknowledge that any additional public review would require additional staffing
on the part of DLR or DWQ depending on which agency administered the review process. But even
taking these considerations into account, an additional review process is still needed to comply with the
CWA. Such additional review could be conducted without the need for a full blown individual permitting
process and would potentially improve compliance and reduce pollution. These options include:
Posting E&SC plans on DLR or DWQ's website and allowing a short period for public comment,
Providing more extensive periods for comment and review of large sites (5 acres or more), sites
on steep slopes, and sites directly adjacent to waters of the State, and
Providing more extensive periods for comment and review where DWQ has determined that
additional best management practices (`BMPs") may be required for discharges into impaired
waters (see more below).
V. COVERAGE UNDER NCGO1 SHOULD BE LIMITED TO CLASSES OF "MINOR
ACTIVITIES."
Under North Carolina law, general permits may be issued only for prescribed types of activities.
North Carolina limits NPDES general permits to "classes of minor activities.i37 In addition to
determining that the activities in question are "minor," DWQ must weigh the appropriateness of a general
permit by considering the following factors:
(1) the environmental impact of the activities,
(2) the frequency of the activities,
(3) the need for individual permit oversight, and
(4) the need for public review and comment on individual permits.38
While many stormwater discharges may be appropriate for general permits, hundreds or even
thousands of projects are authorized under the construction general permit, involving innumerable acres
of land disturbance, coupled with the potential for severe, adverse environmental impacts.39 At some of
these sites, the need for greater site -specific oversight in some circumstances makes the general permit
inappropriate for some construction activities. The risk of water quality standard violations is greatest
where projects drain to certain 303(d) listed waters without a TMDL. For all such sites, the general
permit should not be available and an individual permit should be required so that DWQ can assess
36 NC Division of Water Quality, Draft Fact Sheet: General Permit to Discharge Stormwater From Construction
Activities (August 2009) (on file with DWQ).
37 N.C. Gen. Stat. § 143-215.1(b)(4)(d).
38 Id.
39 It is also worth noting that DWQ has a non -discretionary statutory duty to "act on all permits so as to prevent
violations of water quality standards due to cumulative effects of permit decisions." N.C.G.S. § 143-215.1(b)(2).
Cumulative effects are those "impacts attributable to the collective effects of a number of projects and include the
effects of additional projects similar to the requested permit in areas available for development in the vicinity." Id.
Thus, DWQ must evaluate the stormwater pollution impacts from all the construction activities across the state in
light of the cumulative water quality impacts of all the permitted projects in addressing the availability of, and the
terms of, a general permit. This obligation must also be viewed in light of DWQ's overriding obligation to act on
"all permits so as to prevent ... any significant increase in pollution of the waters of the state from any new or
enlarged sources." Id. at (b)(1).
X

October 1, 2009
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whether the discharge will contribute to a violation of water quality standards. We make specific
suggestions for how to accomplish this with regard to impaired waters below.
VI. NCGO1 CANNOT PERMIT DISCHARGES THAT WILL CAUSE OR CONTRIBUTE TO A
VIOLATION OF WATER QUALITY STANDARDS OR DISCHARGES TO 303(D) LISTED
WATERS WITHOUT A TMDL.
Under regulations governing the NPDES permit programs, no permit may be issued to a new
source or a new discharger if the discharge from its construction or operation will cause or contribute to
the violation of water quality standards .40 Because the general permit at issue here does not provide
adequate protection to 303(d) listed waters from increased sedimentation and turbidity that result from
construction activities, DWQ is, in effect, allowing new or increased discharges of the same pollutants
that have caused impaired waters to be placed on North Carolina's 303(d) list.
Under 40 C.F.R. § 122.4(i), DWQ is prohibited from issuing NPDES permit coverage:
(i) To a new source or a new discharger, if the discharge from its construction or
operation will cause or contribute to a violation of water quality standards. The
owner or operator of a new source or new discharger proposing to discharge into
a water segment which does not meet applicable water quality standards or is not
expected to meet those standards even after the application of the effluent
limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for
which the State or interstate agency has performed a pollutants load allocation for
the pollutant to be discharged, must demonstrate, before the close of the public
comment period, that:
(1) There are sufficient remaining pollutant load allocations to allow for the
discharge; and
(2) The existing dischargers into that segment are subject to compliance
schedules designed to bring the segment into compliance with applicable
water quality standards.
Thus, DWQ is barred from offering coverage under NCGO1 when the discharge will cause or contribute
to violations of water quality standards until DWQ has completed a TMDL for the receiving water
including an allocation for construction stormwater. 4 1 The terms of any coverage issued under the permit
(in NC, the ES&C plan) must then comply with the TMDL and load allocation.
Under the current draft of the general permit, 303(d) listed waters are not protected from added
pollution. Discharges to any waters listed as impaired for turbidity and sediment as well as any waters
where the primary impairment source is listed as construction/development should not be permitted under
NCGOL The general permit must provide either 1) a prohibition on new discharges to sediment -impaired
waters until TMDLs for sediment and other relevant pollutants have been promulgated that calculate and
allocate the permissible daily loading of the relevant pollutants including the proposed new discharges or
2) a kick -out provision requiring discharges to sediment -impaired waters be permitted under individual
40 40 C.F.R. § 122.4(i); see also 40 C.F.R. § 122.44(d)(1)(i), (vii).
41 See Friends of the Wild Swan, Inc. v. United States EPA, 130 F. Supp. 2d 1204, 1207 (D. Mont. 2000), aff d in
relevant part, Friends of Wild Swan v. United States EPA, 74 Fed. Appx. 718, 723 (9th Cir. 2003); Friends of Pinto
Creek v. United States EPA, 2007 U.S. App. LEXIS 23251, 65 ERC (BNA) 1289 (9th Cir. 2007).
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permits only so that DWQ can assess whether or not the discharge will cause or contribute to a water
quality violation.
In addition, DWQ must provide protections from new discharges to waters that are impaired by
construction -related pollutants such as nutrients (chlorophyll a), or where the impairment has been
attributed to the construction industry. In the current draft of NCGO1, DWQ has removed a provision
requiring inspections twice every week for those sites discharging to waters of the state listed on the latest
EPA approved 303(d) list for construction related indicators of impairment such as turbidity or
sedimentation.42 In lieu of this requirement, DWQ has added a requirement that "[s]ites discharging to
streams named on the state's 303(d) list as impaired for sediment -related causes may be required to
perform additional monitoring, inspections or application of more stringent management practices if it is
determined that the additional requirements are needed to assure compliance with the federal or state
impaired -waters conditions." 43 While we applaud DWQ for recognizing that these waters are in need of
greater protection, we question whether this provision will have any net benefit for water quality.
To our knowledge, there is no consistent notification system between DWQ and DLR that would
alert DWQ to the fact that coverage has been issued for construction activities under NCGOL If DWQ is
not aware that discharges are being permitted to a 303(d) listed stream until after coverage is issued, it
cannot effectively require additional BMPs. Given the transient nature of the construction activities,
DWQ and DLR must devise a way for DWQ to become more engaged in the review of E&SC plans if the
new requirement is to be effective. For example, the developer could be required to certify in its E&SC
plans that it is not discharging to 303(d) listed streams. If the E&SC plan comes in without such a
certification, it should be elevated for review by DWQ to assess the need for additional BMPs.
Furthermore, DWQ and DLR committed in the 2002 MOU to developing a data management system for
E&SC plans and general permits for construction stormwater.aa
VII. NCG01 SHOULD INCLUDE MORE DETAILED REQUIREMENTS FOR POLLUTION
CONTROL MEASURES AND INCORPORATE EFFLUENT LIMITS FOR TURBIDITY.
NCGO1 could be dramatically improved by incorporating effluent limitations for turbidity,
including more detailed requirements for BMPs, and prioritizing low impact development approaches.
A. DWQ Cannot Continue to Rely on BMPs in E&SC Plans to Protect Water Quality.
The extent of the narrative effluent limitations in NCGO 1 seems to be that "[t]he permittee must
select, install, implement, and maintain [BMPs] and control measures that minimize pollutants in the
discharge to meet the requirements of this permit" and that the activities need an approved E&SC plan
before commencing construction. Therefore, NCGO1 grants the permittees discretion to select,
implement, and maintain BMPs that are only reviewed by DLR or a locally delegated program.45
42 NC Division of Water Quality, Draft Fact Sheet, 4.
43 NC Division of Water Quality, Draft General Permit NCG010000, Section B.7 (2009).
44 2002 Memorandum of Understanding, supra note 23, at 1.
45 Although a full review of the issues related to DLR's locally delegated programs is beyond the scope of these
comments, it is worth noting that report released by the National Research Council in late 2008 cited local
stormwater programs that plagued by a lack of resources for reviewing stormwater pollution prevention plans
(SWPPPs) and for conducting regular compliance inspections as the most significant failing in the construction
stormwater permitting scheme. See National Research Council, Urban Stormwater Management in the United
States, http://www.nap.edu/catalog.php?record_id=12465 (2008).
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Despite frequent training, guidance documents, fact sheets, manuals, websites, and model E&SC
plans, the construction industry regularly fails to adequately implement approved BMPs. A study of
erosion and sediment controls in North Carolina found 40 percent of all silt fences are poorly installed
and two-thirds needed maintenance to perform adequately.46 A study of 30 construction sites in
Michigan found similar problems with the inappropriate application of BMPs, including staging, filter
fences, and berms; the authors attributed these gaps to a "failure to integrate scientific knowledge of
erosion control with policy."47 Additionally, even if the silt fences and other popularly implemented
BMPs were indeed installed according to design requirements and maintained appropriately, considerable
quantities of sediment pollution would still occur. Another North Carolina study found that standard
sediment traps capture less than half of influent sediment and that typical turbidities leaving these BMPs
are in the thousands of NTUs.48 Even permittees with considerable resources fail to meet basic BMP
requirements. An EPA enforcement action against 24 Wal-Mart stores for violations revealed that the
permittee failed to install and/or maintain adequate sediment and erosion control devices, failed to
develop and/or implement a pollution prevention plan, and failed to inspect sediment and erosion control
devices to ensure adequacy and proper operation.49 With no enforceable quantitative standards, there is
little motivation for compliance or innovation of better performing BMPs.
B. NCGO1 Should Incorporate Post -Construction Requirements and Prioritize Low Impact
Development Approaches to Reduce Conditions Likely to Cause Discharges.
DWQ should consider incorporating post -construction control requirements in NCGO1. The
division between active construction and post -construction discharges, and their respective control
practices, is indistinct. Reduction or elimination of post -construction runoff begins during the
development planning stage and involves measures that must be implemented during active construction.
Conversely, the need for and shape of practices to control runoff from active construction can be shaped
by the developers' approach to post -construction stormwater control.
Post -construction stormwater management and treatment tend to rely on engineered, end -of -pipe
practices. However, these conventional practices fail to mitigate the hydrologic modifications that result
in increased peak runoff flow rates, runoff volumes, and stream temperatures as well as decreased lag
times and infiltration rates. They also fail to treat the nutrient, metal, and pathogens that are carried by
stormwater. The export of nitrogen and phosphorus in developed watersheds is 66 to 88 percent greater
than undeveloped watersheds.50 While conventional stormwater management practices may prevent
streams in urban watersheds from degrading to poor conditions, they do not maintain them in good
condition either.51
46 Paterson, Robert G., Construction Practices: The Good, the Bad, and the Ugly, 1(3) Watershed Protection
Techniques 95-99 (reprinted as 44-48), p. 47 (1994) (Exhibit 11).
47 Kaufman, Martin M., Erosion Control at Construction Sites: The Science -Policy Gap, 26 Environmental
Management 89-97, 92 (2000) (Exhibit 12).
48 Markusic, Melanie, Effects of Design Changes on Sediment Retention Basin Efficiency, Masters Thesis, North
Carolina State University Department of Soil Science (2007) (Exhibit 13).
49 United States Environmental Protection Agency, US v. Wal-Mart Stores, Inc: Fact Sheet (Exhibit 14).
50 Line, D.E. and N.M. White, Effects of Development on Runoff and Pollutant Export, 79 Water Environment
Research 185-190 (2007) (Exhibit 15).
51 Blaha et al., The Effectiveness of Stormwater Management and Riparian Buffers in Mitigating the Effects of
Urbanization on Stream, Proceedings of the Water Environment Federation, Watershed 2002, pp. 1650-1663(14)
(Exhibit 16).
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Low impact development principles can reduce flows of runoff both during and after the active
construction phase of development. As a result, there is considerable value in creating incentives for
developers to adopt practices from these methodologies early in the development planning and permitting
process. Unfortunately, NCGO1 does not require post -construction control for construction sites. We
strongly encourage DWQ to adopt a clear standard or effluent limit that specifies no net increase in
stormwater discharges for new development and redevelopment, which includes maintaining pre -
development infiltration rates as well as maintaining pre -development runoff peak flow rates and
discharge volumes for the full range of rainfall frequencies, durations, and amounts.
C. NCGO1 Should Reserve Language That Incorporates the Anticipated Federal Rule Requiring
a Technology -Based Effluent Limit for Turbidity.
EPA has recently developed a proposed rule on Effluent Limitation Guidelines for the
construction activities.12 As part of this proposed rule, all construction sites will be required to
implement a range of erosion and sediment control BMPs to reduce pollutants in stormwater discharges.
Construction sites disturbing ten or more acres at a time would also be required to install sediment basins
to treat their stormwater discharges. In addition, a numeric effluent limit of 13 NTU would apply on sites
that 1) have a total area of 30 or more acres, and 2) disturbs soils that contain ten percent or greater by
mass of particles of less than 2 microns in diameter. Pursuant to court order, EPA must have the final rule
developed by December 1, 2009.53 Given that the projected reissuance effective date for NCGO1 is
January 1, 2010, DWQ should include a provision in the final version that states that all construction
activities must comply with the final federal rule.
D. In Addition to the Federal Limit, DWQ Can and Must Incorporate Water Quality -Based
Numeric Effluent Limits Into NCGO1.
DWQ must consider our state water quality standards for turbidity in drafting NCGO1. The state
standards vary depending upon the classification of the particular receiving water. For fresh waters, the
turbidity standard is 50 NTU for streams not designated as trout waters, 25 NTU for lakes and reservoirs
not designated as trout waters, and 10 NTU in streams, lakes, or reservoirs designated as trout waters.sa
In salt waters, the turbidity standard is 25 NTU.55 DWQ must develop and incorporate into NCGO1
numeric effluent limitations for turbidity that correspond to each class of receiving waters.sb
Furthermore, the CWA requires implementation of numeric effluent limitations if feasible.
Federal NPDES regulations allow state permitting agencies to rely upon narrative permit terms, expressed
52 Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category,
Proposed Rules, 73 Fed. Reg. 72561-72614 (November 28, 2008).
53 The United States District Court for the Central District of California, in NRDC v. EPA, 437 F.Supp.2d 1137,
1139 (C.D. Cal. 2006), held that CWA section 304(m) imposes on EPA a mandatory duty to promulgate effluent
limit guidelines and new source performance standards for new industrial point source categories named in a CWA
section 304(m) plan. The district court enjoined EPA to propose effluent limit guidelines and new source
performance standards for the construction and development industry by December 1, 2008 and to promulgate
effluent limit guidelines and new source performance standards as soon as practicable, but in no event later than
December 1, 2009.
1415A N.C. Admin. Code § 2B.0211(3)(k).
55 Id. at .0220(1).
56 Although we fully support EPA's proposed effluent limit guideline of 13 NTU for sites greater than 30 acres,
EPA's rule does not establish an effluent limit guideline for the vase majority of construction sites which are less
than 30 acres in size. Thus, we strongly recommend that NC establish an effluent limit guideline for all sites that
will meet the state water quality standards for turbidity in receiving waters.
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as BMP requirements, when numeric limits are infeasible. 40 C.F.R. 122.44(k)(3). Clean Water Act
section 402(p) requires that discharges of stormwater, including those from construction sites, comply
with the requirements of CWA section 301. 33 U.S.C. § 1342(p)(3)(A). Section 301, in turn, requires the
implementation of technology based effluent limitations, while section 302(a) requires that NPDES (and
therefore, SPDES) permits include water quality based effluent limitations where necessary. 33 U.S.C.
§ 1312(a). Based upon these statutory mandates, the language of 40 C.F.R. 12.44(k)(3) creates an
obligation to implement numeric effluent limitations, in addition to any BMPs otherwise required in
NPDES permits, in order to "contribute to the attainment or maintenance of such water quality." 33
U.S.C. §1312(a).
Substantial evidence indicates that a limit for turbidity is feasible. First, a recent study conducted
by North Carolina State University shows that numeric effluent limits that would comply with state
standards are not only achievable but may also cost less than standard BMPs. Research conducted on two
sites in the North Carolina mountains showed that turbidity levels of less than 10 NTU could be
maintained in construction site runoff by using fiber check dams and polyacrylamide in nearly one third
of the rainstorm events monitored.57 Second, other states have already adopted numeric effluent limits
using a variety of approaches. Georgia '58 Oregon'59 and Washington60 have all adopted either a numeric
effluent limit or benchmark for turbidity and have further paired it with discharge monitoring. We
strongly encourage DWQ to review these permits, and to follow the lead of these states towards the
adoption of meaningful and workable numeric limits.
Georgia
Georgia requires monitoring for turbidity at construction sites except those involving the
construction of isolated single-family homes.61 Samples must be collected from outfall, receiving waters,
or a combination thereof and within 45 minutes of the beginning of the discharge or the accumulation of
the requisite amount of rainfall.62 Exceedances of an NTU limit based on watershed size and type
constitute permit violations.63
Oregon
Issued in December 2005, Oregon's general permit for construction stormwater features numeric
benchmark limits and monitoring provisions for projects that discharge into waters that are listed as
impaired for sediment or turbidity or for which a TMDL for these pollutants has been developed.64
Construction site operators have the option of either implementing active treatment methods (flocculants,
filtration, etc.) or collecting and analyzing samples for compliance with a 160 NTU benchmark level.
57 McLaughlin, R.A., et. al, Improving construction site runoff quality with fiber check dams and polyacrylamide, 64
Journal of Soil and Water Conservation, 144-54 (2009) (Exhibit 17).
58 Georgia Environmental Protection Division, General Permit GAR 100001 for Stand Alone Construction Projects,
Parts II.B. Lh, IV.D.5, Appendix B (Exhibit 18); General Permit GAR 100002 for Infrastructure Construction
Projects, Parts II.B. Lh, IV.D.5, Appendix B (Exhibit 19); General Permit GAR 100003 for Common Developments,
Parts II.B.I.i., IV.D.5, Appendix B (Exhibit 20).
59 Oregon Permit, supra note 31, at Schedules A and B.
60 Washington Permit, supra note 32, at Parts S4.0 and S8.
61 See Georgia General Permit, GAR 100001, supra note 58, at IV.D.6.
62 See Georgia Permits, supra note 58 at IV.D.6.d.1
63 Id. at III.D.4.
64 See Oregon Permit, supra note 31, at Schedule A.2.
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When discharges exceed this level, operators must evaluate the adequacy of their BMPs and take
corrective action.65 Samples are to be collected at least once per week when discharges are occurring.66
Washington
In 2005, the Washington State Department of Ecology issued a revised general permit for
discharges of stormwater from construction that features a numeric turbidity limit coupled to universal
sampling and monitoring requirements. Washington presumes that BMP-based pollution prevention
plans will eliminate or control discharges to the extent necessary to comply with water quality standards,
"unless discharge monitoring data or other site specific information demonstrates that a discharge causes
or contributes to a violation of water quality standards."67
Washington's presumption is based upon its establishment of turbidity limits that it considers to
be protective of aquatic species and habitat — 25 NTU. If monitoring exceeds this level, the permittee is
required to review its plan and make revisions as appropriate to eliminate the discharge or bring it within
compliance of numeric limit.68
Washington's permit provides two possible sampling methods, based on project size. Small
projects (more than 1 acre but less than 5) may use either a digital turbidimeter or a transparency tube.69
Sites larger than 5 acres are required to use a digital turbidimeter, either on site or at an accredited lab.70
Sampling is to be conducted weekly when there is a discharge from the site. Permittees are also
required to record the results of their turbidity and pH monitoring, and to submit these results on monthly
Discharge Monitoring Reports.72
DWQ should collect information on how well these approaches have worked, and adopt an
appropriate limitation for North Carolina. A numeric effluent limit in conjunction with the discharge
sampling proposed below would focus enforcement activity on sties actually causing pollution problems,
as opposed to using limited personnel time on sites that may have BMP issues, but because of their
topography, soils, or location are not actually causing pollution problems.
E. Sampling and Monitoring Must Be Required of Dischargers.
In addition to establishing numeric effluent limitations that correspond to standards for receiving
waters, DWQ must revise NCGO1 to require that all dischargers sample and monitor both their discharges
and the waters receiving the discharges.73 Absent this monitoring, there is no clear way to determine
compliance with water quality standards. Under a system with a numeric effluent limit and sampling
65 Id.
66 Id. at Schedule B.2.
67 See Washington Permit, supra note 32, at S3.C.
68 Id. At S4.C.5.
69 For details about the transparency tubes, see http://watermonitoringequip.com/pages/stream.html (Exhibit 21).
70 Washington Permit, supra note 32, at S4.C.4.
71 Id. at S4.C.2.
72Id. at S53
73 We recognize that NCGO1 requires weekly inspections of erosion and sedimentation control measures and
inspections within 24 hours after a storm event of great than .5 inches of rain in a 24 hour period for the control
measures and outfalls. NCGO1, Section. B(3)-(4). However, these requirements are not enough to ensure
compliance with water quality because they contemplate monitoring of a discharge after it may have already
occurred and they do not require monitoring of receiving waters.
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October 1, 2009
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requirements, the numeric effluent limit establishes an enforceable maximum amount of turbidity in each
discharge as well as in the monthly average of discharges. Excursions above the limit are clear violations
of the permit. The sampling results will allow DWQ to quickly focus its resources on the problem sites
and prevent further violations.
Enforcing numeric effluent limits through sampling requirements also increases the likelihood that
dischargers will properly implement and maintain their BMPs. The ceilings on turbidity serve as
guidelines for the selection, design, implementation, and maintenance of the BMPs necessary to ensure
that excursions do not occur. Sampling results will inform the discharges quickly of BMP failures and
alert them when adjustments are needed in their E&SC plans. In this manner, the numeric effluent limit
combined with sampling will encourage and enable dischargers, DLR, and DWQ to actively protect our
waters from construction stormwater runoff.
Finally, measuring turbidity is quick, reliable, and inexpensive. Turbidity is one of the easiest
measures of sediment pollution to monitor in the field. No laboratory analysis must be conducted.
Determining compliance with a numeric effluent limit can readily be determined either by construction
site managers using relatively inexpensive digital field measurements, or, particularly on smaller sites,
using transparency tubes such as those contemplated by the Washington State general permit discussed
above. Turbidmeters and transparency tubes are also commercially available from several suppliers.
Turbidmeters cost around $800 each, while transparency tubes cost around $40.74 Thus, even the
smallest sites can afford the equipment necessary to monitor turbidity.
C. CONCLUSION
We appreciate this opportunity to comment on the draft of NCGO 1 and thank you for your time
and consideration. We respectfully request that DWQ address all of the issues raised above in revising
NCGO1. We welcome any opportunity to continue this exchange with you or others within DWQ and
DLR. If you would be interested in meeting with us to discuss these matters further, please do not
hesitate to contact Kay Bond at 919/967-1450 or kbondkselcnc.org.
Sincerely,
Kay Bond
Staff Attorney
SOUTHERN ENVIRONMENTAL LAW CENTER
[Signatures continued on next page]
Jeffrey Odefey
Staff Attorney
WATERKEEPER ALLIANCE
74 Washington State Department of Ecology, How to do Stormwater Monitoring: A Guide for Construction Sites,
Publication # 06-10-020 (2007) (Exhibit 22).
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Peter Raabe
NC Conservation Director
AMERICAN RIVERS
David Merryman
Catawba RIVERKEEPER
CATAWBA RIVERKEEPER FOUNDATION
Mike Giles
Cape Fear COASTKEEPEe
NC COASTAL FEDERATION
Doug Springer
Cape Fear RIVERKEEPER
CAPE FEAR RIVER WATCH, INC.
Hope Taylor
Executive Director
CLEAN WATER FOR NC
Carrie Clark
Executive Director
CONSERVATION COUNCIL OF NC
Robin Jacobs
Executive Director
ENO RIVER ASSOCIATION
Elizabeth Ourts
State Director
ENVIRONMENT NORTH CAROLINA
Hartwell Carson
French Broad RIVERKEEPERO
RIVERLINK
Kathleen Hundley
FRIENDS OF THE ROCKY RIVER
Elaine Chiosso
Haw RIVERKEEPERO
HAW RIVER ASSEMBLY
Elaine Lite, Chair
MOUNTAIN VOICES ALLIANCE
[Signatures continued on next page]
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Larry Baldwin
Lower Neuse RIVERKEEPERO
NEUSE RIVERKEEPER® FOUNDATION
Betty Sanders-Seavey
Executive Director
NEW RIVER FOUNDATION
Grady McCallie
Policy Analyst
NORTH CAROLINA CONSERVATION NETWORK
Dave Maeda
NORTH CAROLINA STATE COUNCIL OF TROUT UNLIMITED
TRIANGLE FLY FISHERS
Tim Gestwicki
Executive Director
NORTH CAROLINA WILDLIFE FEDERATION
Heather Jacobs Deck
Pamlico -Tar RIVERKEEPER®
PAMLICO-TAR RIVER FOUNDATION
Charlie Thomas
PEOPLE ADVOCATING REAL CONSERVANCY
Linda Campbell
PISGAH CHAPTER TROUT UNLIMITED
Jim Mabrey
President
ROCKY RIVER TROUT UNLIMITED
Donna Marie Lisenby
Upper Watauga RIVERKEEPER
a program of APPALACHIAN VOICES
Christine Ellis
Waccamaw RIVERKEEPERO
a Program of WINYAH RIVERS FOUNDATION
Tess Sanders
White Oak -New RIVERKEEPER®
WHITE OAK -NEW RIVERKEEPER ALLIANCE
Dean Naujoks
Yadkin RIVERKEEPER®