2020-Draft-IR-Public-Review-Comments

2021-04-02 303(d) Comment Letter, SELC, MT, et al. w attachment.pdf
April 2, 2021 Via Electronic Mail Andy Painter N.C. Department of Environmental Quality Division of Water Resources 1617 Mail Service Center Raleigh, NC 27699-1167 [e-mail]
Re: North Carolina’s Draft 2020 303(d) List Dear Mr. Painter, On behalf of MountainTrue, the Broad Riverkeeper, the French Broad Riverkeeper, and the Green Riverkeeper we are submitting
comments on North Carolina’s draft 2020 § 303(d) list of impaired waters. Properly identifying impaired waters is essential to improving the quality, and preserving the best use, of
the State’s waters. Accurately identifying waterbodies where water quality standards are not attained also enables the State to prioritize its limited resources for remediating impaired
waters. SELC has previously alerted the Division of Water Resources’ (“DWR”) to deficiencies in its 303(d) listing methodology.1 SELC remains concerned that the current methodology
is inadequate to protect North Carolina’s rivers and streams from impairment. SELC is also concerned that DWR’s effective elimination of the trout waters temperature standard from the
303(d) listing process is unlawful and ignores pollution not associated with thermal discharges. In addition, DWR’s inadequate sampling locations and methodologies, as well as its failure
to use data from community partners, allow for significant and consequential holes in DWR’s data to go uncorrected. I. DWR’s Listing and Delisting Methodology Remains Statistically
Unsound and Scientifically Indefensible. Under the Clean Water Act (“CWA”), North Carolina is required to use “all existing and readily available water quality-related data” to identify
and compile a list of waters that do not meet state water quality criteria. 40 C.F.R. § 130.10(c)(6); 33 U.S.C. § 1313(d)(1)(A). In addition, North Carolina must provide documentation
to support its “determination to list or not to list its waters,” including a “description of the methodology used to develop the list.” 40
1 Letter from Southern Environmental Law Center to Cam McNutt, N.C. Dep’t of Envtl. Quality, Div. of Water Res. (Jan. 18, 2019). These comments are incorporated by reference
and attached to this letter. 2 C.F.R. § 130.7(b)(6)(i). Though this “methodology is not an item for approval” by EPA, North Carolina “must demonstrate good cause for not including
a water or waters on the list.” Id. § 130.7(b)(6)(iv). Thus, “[w]henever the EPA cannot conclude that an assessment methodology is appropriate, an independent review of data is done
to determine whether all waterbody impairments are properly identified.”2 DWR’s current listing and delisting methodology is deeply flawed. It allows waters to be removed from the 303(d)
list with little to no statistical confidence, treats the listing and delisting of waters impaired by pathogens in dramatically different fashions, and employs a widely rejected procedure
for listing toxic pollutants. A. DWR’s delisting methodology allows waters to be removed from the 303(d) list with less statistical confidence than it required to list them. For non-toxic
pollutants, EPA guidance recommends listing waters as 303(d) impaired where more than 10% of samples exceed applicable water quality criteria.3 This simple method is “intended to account
for measurement error, naturally variable pollutant concentrations, and the potential that small data sets may not be fully representative of receiving water conditions.”4 States adopting
this method, however, are free to take statistical variability into account to increase the confidence of their listing decisions.5 In 2014, North Carolina did just that when it added
a “nonparametric hypothesis testing approach based on the binomial distribution” to its 10% raw exceedance score.6 In simpler terms, DWR started requiring at least 90% statistical confidence
for any 10% exceedance finding.7 In practice, this means that more exceedances are required for an impairment decision than would be required by the 10% raw exceedance approach. For
example, in a sample size of ten, two 2 U.S. Envtl. Protection Agency, Decision Document for the Approval of the North Carolina Department
of Environment Quality 2018 Section 303(d) List at 13 (Apr. 2, 2019) [hereinafter “2018 EPA Approval”], https:// files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/20190522-NC-208-303d-Appro
val-Package.pdf; U.S. Envtl. Protection Agency, Guidance for 2006 Assessment, Listing, and Reporting Requirements Pursuant to Sections 303(d), 305(b), and 314 of the Clean Water Act
at 30 (July 29, 2005) [hereinafter “2006 EPA Guidance”], https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf (“If EPA finds that the state’s methodology
is inconsistent with its water quality standards, and its application has resulted in an improper section 303(d) list, EPA may disapprove the list.”). 3 2006 EPA Guidance, supra note
2, at 39–4. 4 2018 EPA Approval, supra note 2, at 10. 5 Id. 6 Id. 7 Id. North Carolina was not required to select a 90% threshold. However, “any statistical conclusion that has a confidence
level of less than 90% is considered not acceptable by most statistics practitioners.” Pi-Erh Lin, Duane Meeter, & Xu-Feng Nui, A Nonparametric Procedure for Listing and Delisting Impaired
Waters Based on Criterion Exceedances at 16 (2000), https://www.waterboards.ca.gov/water_issues/programs/tmdl/records/state_board/2003/ ref1913.pdf. 3 exceedances would be needed
to satisfy the more-than-10% rule. However, the nonparametric binomial approach would require three.8 EPA and statistical scientists agree, however, that once a waterbody is listed,
“a different test is demanded by the statistics” to delist it.9 The reason for this is that the binomial method assumes at the start that a waterbody is not impaired.10 But once a waterbody
is determined to be impaired, this “null hypothesis should be reversed.”11 If it is, a proper delisting determination “requires stronger evidence and a larger sample size than for listing,
if the same level of confidence is required.”12 For example, a delisting determination with 90% statistical confidence would require “a minimum of 22 samples with no exceedances observed.”13
In spite of this scientific consensus, DWR chose not to apply a different statistical test for listings and delistings in 2014.14 EPA allowed it but requested that the State develop
a new procedure for 2016 to ensure that delistings were “handled appropriately in the future.”15 In 2016, DWR rejected this request and used the same 2014 methodology that “did not
differentiate between listing and delisting, resulting in low confidence that delisted waterbodies were truly unimpaired.”16 EPA remonstrated DWR for using “faulty statistical logic”
and conducted its own delisting assessment, ultimately determining that seventeen waterbodies should not have been delisted.17 In 2018, DWR employed a new delisting methodology. For
those previously listed waters with an exceedance rate greater than 10% with less than 90% statistical confidence, waters are delisted “if there are less than 2 excursions of the criterion
in newer data that have not been previously assessed.”18 For those previously listed waters with less than a 10% exceedance rate, waters are delisted “if there is greater than 40% statistical
confidence that there is less than a 10% exceedance of the criterion or if there are less than 3 excursions of the criterion in newer
8 U.S. Envtl. Protection Agency, Decision Document for the Partial Approval of the North Carolina Department of Environment Quality 2016 Section 303(d) List at 12 (Dec. 8, 2016) [hereinafter
“2016 EPA Approval”], https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/NC2016_303dDecisionPackage20161208 %20%28003%29.pdf. 9 Id. 10 Id. 11 Id. at 10. 12 Id. App’x
C at 2. 13 Id. 14 2018 EPA Approval, supra note 2, at 10. 15 Id. 16 Id. 17 2016 EPA Approval, supra note 8, at 10. 18 N.C. Dep’t of Envtl. Quality, Div. of Water Res., 2018 303(d)
Listing and Delisting Methodology at 4 (Mar. 8, 2018) [hereinafter “2018 Methodology”], https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/ 2018%20Listing%20Methodology_ApprovedMarch
2018.pdf. 4 data that have not been previously assessed.”19 Although SELC pointed out in comments20 that neither of these delisting pathways provides for delisting decisions made with
90% statistical confidence—the bare minimum for an acceptable statistical conclusion21—DWR used them anyway. No changes were made to the delisting methodology for non-toxic pollutants
in 2020.22 While DWR’s current delisting methodology is an improvement over no methodology at all, it remains statistically indefensible. Its flawed methodology proceeds in two steps.
At step one, DWR applies its listing procedure to determine whether waterbodies exceed criteria more than 10% of the time with more than 90% confidence. This is precisely what EPA has
repeatedly warned it cannot do—apply the same test for listing and delisting without reversing the null hypothesis.23 At step two, DWR further refines the results from step one by setting
arbitrary exceedance limits for “newer” data to arrive at a delisting determination. But the damage has already been done. At no point does DWR reverse the null hypothesis. Instead,
DWR once again passes off its listing methodology as its “delisting” procedure, which necessarily taints its results. This is the same “faulty statistical logic” as before. Even if
step one were not fundamentally flawed, step two is arbitrary because it does not consider sample size. The second half of DWR’s procedure asks if there are either “less than 2” or
“less than 3 excursions” of water quality standards in “newer” data from 2017–2018. However, DWR does not ask how many “newer” samples were taken. In other words, DWR’s methodology
does not assess whether this “newer” data included 10 “newer” samples or 100. One exceedance out of 10 samples would still be cause for concern; 1 out of 100 would not. To illustrate,
consider Buffalo Creek in Ashe County. DWR apparently proposes delisting Buffalo Creek for turbidity based on 1 exceedance out of 5 newer samples at step two.24 Using this data alone,
this means DWR’s statistical confidence for delisting hovers around 8.1%.25 Applying the correct nonparametric binomial test with the null hypothesis reversed shows that DWR would not
achieve a 90% confidence level for its delisting decision based on 1 exceedance until it sampled 38 times.26 DWR does not require this many samples in its methodology; it places no
limits or requirements on sample size at all. Because these excursion 19 Id. 20 See supra note 1. 21 Lin et al., supra note 7, at 16.
22 Compare N.C. Dep’t of Envtl. Quality, Div. of Water Res., 2020 303(d) Listing and Delisting Methodology at 4 (Nov. 14, 2019) [hereinafter “2020 Methodology”], with 2018 Methodology,
supra note 18, at 3–4. 23 2016 EPA Approval, supra note 8, at 10; 2018 EPA Approval, supra note 2, at 10. 24 N.C. Dep’t of Envtl. Quality, Div. of Water Res., BasinSummAMSCoalit1418and1718
[hereinafter “2020 Data”], https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020_DATA.zip. 25 The delisting “level of confidence” was calculated using the Excel BINOM.DIST
function: 1[BINOM.DIST(#exceedances, #samples, 10% exceedance rate, TRUE)]. EPA used the same function to calculate confidence intervals in its 2016 partial approval of DWR’s 303(d)
list. See 2016 EPA Approval, supra note 8, App’x C at 3. If the full five-year data set is considered, the confidence level is slightly higher. See infra note 41. 26 See supra note
25. 5 limits are arbitrary and untethered to the actual number of new samples performed, they are statistically unsound and DWR cannot rely on them. In addition, the inclusion of
a 40% statistical confidence level at step two is contrary to accepted statistical practice. The very researchers that DWR relied on to craft its listing procedure warned that “any
statistical conclusion that has a confidence level of less than 90% is considered not acceptable by most statistics practitioners.”27 Here, DWR is allowing certain impaired waters to
be delisted so long as it has 40% confidence that the true exceedance level would be lower than 10%. Grafting this unacceptably low confidence level onto DWR’s listing methodology is
no substitute for a true nonparametric binomial delisting procedure. These statistically unsound practices have real-world consequences. For an example, consider the Cane River, home
of the federally endangered Appalachian elktoe mussel. This rare mussel is only known to persist in seven scattered pockets in the Southern Blue Ridge.28 The Nolichucky River system—including
the Cane River—hosts perhaps the largest and most resilient population.29 For that reason, protection of elktoe in the Nolichucky watershed “is essential to the conservation of the
species.”30 However, the elktoe requires “cool, clean, welloxygenated, moderate- to fast-flowing water” to survive.31 For that reason, turbidity and sediment deposition are among the
“most immediate threats to the remaining populations” of Appalachian elktoe in the Nolichucky River system.32 In 2018, the Cane River was listed as Category 5 impaired for turbidity.33
For the current 2020 cycle, DWR’s ambient monitoring data shows that this waterbody was sampled 49 times in the relevant five-year data period.34 Eight of these 49 samples were exceedances.35
Applying DWR’s listing methodology—which, as highlighted above, is the faulty first step in DWR’s delisting methodology—this translates to a 16.3% exceedance level with 88.8% confidence,
just shy of the required 90%. If DWR had reversed the null hypothesis and applied the correct nonparametric binomial test, however, these same numbers would translate to a delisting
27 Lin et al., supra note 7, at 16. 28 U.S. Fish & Wildlife Serv., Appalachian Elktoe (alasmidonta raveneliana) 5-Year Review at 5 (2017)
[hereinafter “2017 5-Year Review”]. 29 Id. 30 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Appalachian Elktoe, 67 Fed. Reg. 61,016, 61,029
(Sept. 27, 2002) (emphasis added). 31 Id. at 61,018. 32 Id. at 61,019; see also 2017 5-Year Review, supra note 28, at 16 (noting that “private forestry, agriculture, and development
activities continue to result in the narrowing and loss of riparian buffers and streambank vegetation and an increase in the runoff of nonpoint-source pollutants” within the Nolichucky
watershed). 33 N.C. Dep’t of Envtl. Quality, Div. of Water Res., 2018 NC Category 5 Assessments “303(d) List” Final [hereinafter “2018 List”], https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMD
L/303d/2018/2018-NC-303-d-List-Final.pdf. 34 See 2020 Data, supra note 24. For the 2020 303(d) assessment, DWR uses data from 2014–2018. 2020 Methodology, supra note 22, at 2. 35 See
2020 Data, supra note 24. 6 decision confidence level of 5.2%.36 Put differently, if we assume the Cane River is impaired for turbidity—which it currently is—then DWR is about 5% confident
that the actual turbidity exceedance level on the river is less than 10%, which would require the river to be delisted. This is a statistically indefensible conclusion. Yet because
DWR is still not applying the correct statistical test to delistings, it erroneously moved on to the next prong of its delisting procedure. Because the Cane River had a greater than
10% exceedance rate with just under 90% confidence, DWR asks “if there are less than 2 excursions of the criterion in newer data that have not been previously assessed.” DWR’s ambient
monitoring dataset shows 16 “newer” samples taken in 2017–2018.37 Only 1 of these was an exceedance. Because this is “less than 2 excursions,” DWR proposes delisting the Cane River.
But as pointed out above, this conclusion has no statistical backing because it does not consider sample size. DWR would need to show 1 exceedance out of at least 38 samples to reach
a 90% confidence level for its delisting decision based on this “newer” data only. DWR ignores these statistical necessities and instead proposes delisting the Cane River from Category
5 to Category 3a.38 This category is reserved for “cases where data are insufficient to determine if a parameter is meeting or exceeding criteria.”39 In other words, DWR acknowledges
that it lacks the information to determine if it should delist the Cane River under its flawed procedure, then it delists it anyway. EPA has warned that “waters identified as impaired
and listed on the 303(d) list in the previous reporting cycle [should] not be removed from the list and placed into Category 3 in the subsequent listing cycle unless the State can demonstrate
good cause for doing so.”40 Lacking the data to list the Cane River is not a “good cause” for delisting it, for the reasons explained above. In sum, DWR’s delisting methodology is a
compounding cascade of statistical errors. The results are highly flawed delistings like that proposed for the Cane River. These erroneous delistings threaten biota like the Appalachian
elktoe that depend on unimpaired aquatic resources 36 These levels were calculated in Microsoft Excel using the BINOM package. See supra
note 25. 37 See 2020 Data, supra note 24. 38 N.C. Dep’t of Envtl. Quality, Div. of Water Res., North Carolina 2020 Draft 303(d) List, https://filesnc.gov/ ncdeq/Water%20Quality/Planning/TMDL/303d/20
20/NC_2020_DRAFT_303D_LIST_PR.pdf. [hereinafter “2020 List”]. DWR’s current practice is to categorize waters with an exceedance rate greater than or equal to 10% with less than 90% confidence
as Category 3a. N.C. Dep’t of Envtl. Quality, Div. of Water Res., Draft 2020 Integrated Report Category Assignment Procedure at 5 (Jan. 29, 2021) [hereinafter “2020 Assignment Procedure”],
https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020-Integrated-REport-CategoryAssignment-Procedures.pdf. 39 2020 Assignment Procedure, supra note 38, at 5. 40 U.S.
Envtl. Protection Agency, Information Concerning 2010 Clean Water Act Sections 303(d), 305(b), and 314 Integrated Reporting and Listing Decisions at 6 (May 5, 2009), https://www.epa.gov/sites/produc
tion/files/201510/documents/2009_05_06_tmdl_guidance_final52009.pdf. 7 to survive. DWR must correct its methodological approach and relist the Cane River and others like it as impaired.41
B. DWR also removes waters impaired with pathogens from the 303(d) list with less statistical confidence than it required to list them. DWR employs a special listing and delisting procedure
for pathogens. Waters must be listed for fecal coliform when the geometric mean of at least five consecutive samples examined during any 30-day period exceeds 200 colonies per 100 mL
of water, or greater than 20% of the samples exceed 400 colonies per 100 mL of water.42 Similarly, waters must be listed for enterococci bacteria when the geometric mean of at least
five samples taken within any 30-day period exceeds 35 enterococci per 100 mL of water.43 Both of these tests are near word-for-word copies of North Carolina’s governing water quality
criteria.44 “[B]ecause at least five samples collected within a 30-day period are required”45 for both fecal coliform and enterococci, DWR usually cannot use its ambient monitoring
data for pathogen-listing purposes. Ambient data are typically collected on a monthly basis, making them inappropriate for the “5 in 30” test that pathogen listings require. However,
DWR does use its ambient data as a coarse filter to identify locations with annual geometric means above the water quality criteria that might be suited for “5 in 30” follow-up testing.46
Unfortunately, “[r]esource limitations may hinder immediate follow-up monitoring in locations not identified as Primary Recreation Use.”47 In short, waters generally cannot be listed
for pathogens based on ambient data alone due to the relatively strict listing requirements, and resource limitations may prevent DWR from following up even when those ambient data
indicate a potential problem. Pathogen delisting decisions, however, are much easier to make under DWR’s procedures. For example, waters are delisted for fecal coliform if the geometric
mean is less than 200 colonies per 100 mL in monthly samples and less than 20% of the samples exceed 400 colonies per 100 mL in monthly samples. Likewise, waters are delisted for enterococci
if the geometric mean is less than 35 enterococci per 100 mL in monthly samples. DWR’s methodology does not describe how many monthly samples are used to calculate this “geometric mean.”48
At any rate, because a delisting decision only requires monthly samples, this means that 41 A quick survey of DWR’s data revealed several
other erroneous delistings. For example, DWR only has 71.5% confidence in delisting the First Broad River (4 exceedances out of 59 samples), and 22.5% confidence in delisting Buffalo
Creek (1 exceedance out of 9 samples). 42 2020 Methodology, supra note 22, at 8. 43 Id. 44 See 15A N.C. Admin. Code 02B .0211(7), 15A N.C. Admin. Code 02B .0220(6) 45 2018 EPA Approval,
supra note 2, at 15. 46 Id. 47 Id. 48 2020 Methodology, supra note 22, at 8. If DWR is calculating an annual geometric mean using these monthly samples, that is further proof that DWR’s
delisting methodology is completely divorced from the relevant water quality standard. The legislature created a standard based on a geometric mean within a 30-day time period—not an
annual mean. 8 DWR’s ambient monitoring data—which is too coarse to be used for listings—can be used for delistings. No resource-intensive follow-ups are required. This methodology
is legally and scientifically indefensible.49 Legally, North Carolina’s water quality standards establish a geometric limit based on a minimum of five samples collected within a 30-day
time period. Thus, by definition, geometric means calculated from monthly samples cannot be used to assess whether this water quality standard is being met. Scientifically, if data
collected monthly is too sparse to support a listing, it is also too spotty to support a delisting. And as a matter of statistical practice, if it requires a certain level of confidence
to list a waterbody, it should require an equal level of confidence to delist it. Averaged monthly samples provide no statistical backing for concluding that a waterbody is no longer
impaired for pathogens. The methodology also has a real-world impact on streams threatened by fecal coliform and/or enterococci. In 2016, the French Broad River, form Mud Creek to Highway
146, was listed as impaired for fecal coliform after violating the “5 in 30” standard. DWR delisted the segment in 2018 without repeating the “5 in 30” monitoring the warranted listing
in the first place. DWR did not conduct “5 in 30” monitoring in the segment this listing cycle though monthly sampling documented multiple exceedances of the 400 colonies per 100 mL
standard. Data submitted to DWR by the French Broad Riverkeeper, which DWR did not use to assess compliance, also continues to indicate that fecal coliform is a problem in the French
Broad River. But because DWR used a faulty methodology to delist the segment, and has not reperformed the “5 in 30” monitoring that justified the original listing, the segment remains
unlisted. This is problematic because it allows a potential fecal coliform problem to linger in a river that receives significant public use. DWR “must demonstrate good cause for not
including a water or waters on the list.” 40 C.F.R. § 130.7(b)(6)(iv). Because DWR’s delisting methodology for pathogens is fundamentally flawed, it cannot be the basis of a delisting
decision. C. DWR cannot apply its “one-size-fits-all” statistical approach to the listing of toxic pollutants. Toxic pollutants “react and behave differently in the environment than
. . . naturally variable pollutants” like sediment, temperature, and pH.50 Unlike conventional pollutants, toxics such as metals “do not generally have wide variability in concentration
under natural conditions that would still be protective of the designated use.”51 In other words, even modest spikes in toxicity levels can have dramatic effects on the aquatic ecosystem.52
For that reason, EPA does not recommend using the 10% exceedance approach for toxic pollutants.53 This test, by its very 49 Id. 50 2018
EPA Approval, supra note 2, at 11. 51 Id. 52 Id. at 12. 53 2006 EPA Guidance, supra note 2, at 39. 9 nature, assumes “that the water quality for a waterbody would be considered protective
of aquatic life if the criterion truly were exceeded up to [10%] of the time.”54 But this “one-sizefits-all statistical approach ignores the principle that exceedance frequencies associated
with toxic pollutants should be based on biological endpoints and exposure-response relationships.”55 Instead, EPA recommends “use of once in three year maximum allowable excursion
recurrence frequency” for toxics—the so-called “1-in-3 method.”56 Many states have incorporated this test into their toxic assessment methodology.57 North Carolina, however, still uses
the 10% exceedance test for toxic pollutants. Though “DWR is not required to use the EPA-recommended one-in-three method,” it has never “provided a scientifically defensible rationale
to support [its] Listing Methodology for toxics.”58 For that reason, during each of the past three 303(d) cycles EPA has rejected DWR’s toxics findings and independently reviewed North
Carolina’s water quality data to determine whether all waterbody impairments were identified.59 EPA will be forced to do so again in 2020.60 DWR must either adopt EPA’s 1-in-3 method
for toxics or supply some data or supporting science showing that the 10% “exceedance rate is reflective of [North Carolina’s water quality criteria], is protective or is scientifically
defensible for toxics.”61 II. North Carolina’s 303(d) List Ignores Trout Waters Temperature Exceedances. It is hard to overstate the importance of trout to North Carolina. Every year,
trout fishing generates $383.3 million in economic value and supports nearly 3,600 jobs.62 However, the fish this industry depends on require cold, clean, oxygen-rich water to survive
and thrive. This makes trout—and the trout sport-fishing industry—especially vulnerable to climate change.63 In fact, by 2060, Western North Carolina will likely see 10–20 more days
a year when temperatures rise 54 2018 EPA Approval, supra note 2, at 12. 55 Id. 56 2006 EPA Guidance, supra note 2, at 42. 57 2018 EPA
Approval, supra note 2, at 12. 58 2016 EPA Approval, supra note 8, at 22. In 2016, DWR did submit a white paper attacking EPA’s 1-in-3 method. But as EPA noted in response, “[w]hile
this document provides a ‘Retrospection of the “>1-in-3” Assessment Method,’ it does not provide a rationale to support a ten percent exceedance rate with a confidence level.” Id. 59
2018 EPA Approval, supra note 2, at 12–13. 60 Id. at 13 (“Whenever the EPA cannot conclude that an assessment methodology is appropriate, an independent review of data is done to determine
whether all waterbody impairments are properly identified.”). 61 Id. at 12. 62 N.C. Wildlife Res. Comm’n, Mountain Trout Fishing: Economic Impacts on and Contributions to North Carolina’s
Economy at iv (2015), https://wwwncwildlife.org/Portals/0/Fishing/documents/Mountain%20Trout% 20Fishing%20Economic%20Impacts%20on%20and%20Contributions%20to%20North%20Carolinas%20Economy.
pdf. 63 Emma Johnson, Climate Change Challenges Trout Industry in North Carolina, Carolina Public Press (Feb. 17, 2021), https://carolinapublicpress.org/42527/climate-change-challenges-trout-industr
y-in-north-carolina/. 10 above 35º C (95º F), increasing the chances that water temperatures will rise above 21.1º C (70º F)—levels that can be lethal to trout.64 This existential
threat to trout and the trout-fishing industry makes it even more important to control thermal pollution using available regulatory tools. For example, under North Carolina’s waterbody

classification scheme, designated trout waters receive additional protections including enhanced temperature limits. However, DWR has largely declined to enforce these limits due to
a flawed interpretation of state and federal law that overlooks contributions to water quality violations by nonpoint sources. DWR must take steps to address thermal pollution to trout
waters to ensure a valuable ecological and economic resource is not lost forever. A. North Carolina has special temperature protections for trout waters. All North Carolina surface
waters are protected by temperature criteria. Specifically, water temperatures are “not to exceed 2.8 degrees C (5.04 degrees F) above the natural water temperature, and in no case
to exceed 29 degrees C (84.2 degrees F) for mountain and upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal plain Waters.” 15A N.C. Admin. Code 2B
.0211(18). For those waterbodies that are also designated as “trout waters,” the temperature “shall not be increased by more than 0.5 degrees C (0.9 degrees F) due to the discharge
of heated liquids, but in no case to exceed 20 degrees C (68 degrees F).” Id. (emphasis added). Although these standards are written in absolute terms, DWR does not require absolute
compliance to avoid 303(d) listing. Instead, DWR generally assesses whether state water quality criteria—including temperature—are exceeded in more than 10% of samples with greater
than or equal to 90% statistical confidence.65 Waterbodies that meet this numeric criterion must be listed;66 those that do not may still need to be listed if certain other conditions
are met.67 Although DWR recognizes a 20º C limit for some trout waters in its draft 2020 303(d) list,68 it omits this criterion for at least forty other designated trout-water segments.69
Based on a 64 Id. 65 Sample size must be greater than nine. 2020 Methodology, supra note 22, at 3–4. 66 North Carolina carves out small
exceptions for dissolved oxygen and pH in swamp waters if exceedances are due to natural conditions. Id. at 5. 67 For example, pollutants with exceedance levels above 10% with less
than 90% statistical confidence must still be listed if at least three newer samples exceeded criteria with at least 90% statistical confidence. Id. at 3–4. 68 See, e.g., 2020 List,
supra note 38, at 7 (finding that Davis Creek—designated trout waters— is “[m]eeting” the “20ºC” water temperature criteria based on legacy random ambient monitoring data). 69 Id. Trout
waters that assessed compliance for the 29 or 32º C standard but did not include a reference to the 20º C limit include: Broad River (Lake Lure below elevation 991) (B Tr) (AU ID: 12497);
Cedar Creek (C Tr) (12537); First Broad River (WS-V Tr) (12758); Wilson Creek (B Tr ORW) (1034); French Broad River (B Tr) (10925); Davidson River (WS-V B Tr) (11278); Avery Creek (B
Tr) (11290); Mills River (WS-II Tr HQW) (11421); Pigeon River (WS-III Tr CA) (10565); Allen Creek (WS-I Tr HQW) (10607); Johnathans Creek (C Tr) (10684); Cataloochee Creek (C Tr ORW)
(10798); North Toe River (WS-IV Tr) (11971); North Toe River (C Tr) (11974); South Toe River (B Tr ORW) (12079); Cane River (C Tr) (12270); Valley River (C Tr) (3278); Cullasaja River
(Lake Sequoyah) (WS-III Tr CA) (6497); Nantahala River (B Tr ORW) (7235); Nantahala River (Nantahala Lake) 11 review of the underlying data during the relevant time period—data from
DWR’s own Ambient Monitoring System stations—at least eleven of these forty segments exceeded 20º C in more than 10% of samples with at least 90% confidence.70 Under a straightforward
application of DWR’s listing methodology, these trout waters should be listed as impaired for temperature. Yet they are not. The reason for this, according to DWR, is simply the way
the agency has historically interpreted the trout-waters standard. Specifically, since at least 2008 DWR has interpreted the standard’s temperature component “to only be assessed with
thermal discharges.”71 And even when thermal discharges are present, because DWR has never “determined background conditions”—though EPA has recommended doing just that since 200872—any
findings are necessarily “inconclusive.”73 As a result, DWR’s current practice is to list trout waters with at least a 10% exceedance rate as Category “3a” waterbodies that do not require
a TMDL.74 Thus, unless something changes, exceedances of the trout-waters temperature standard can never lead to 303(d) listing—nor have they, for at least the past twenty-three years.75
(B Tr) (7236); Tuckaseegee River (Bear Creek Lake (WS-III B Tr) (8610); Tuckaseegee River (Cedar Cliff Lake) (WS-III B Tr) (8611);
Board Cove Branch (C Tr) (8906); Wolf Creek (Wolf Creek Lake) (WS-III B Tr HQW) (9098); Little Tennessee River (Cheoah Lake) (C Tr) (5606); Little Tennessee River (Calderwood Lake)
(C Tr) (5607); Cheoah River (C Tr) (6229); Cheoah River (Santeetlah Lake below elevation 1940 MSL) (B Tr) (6230); Flattop Branch (WS-II Tr HQW CA) (122); Norris Branch (WS-II Tr HQW
CA) (204); Buffalo Creek (C Tr +) (233); Brush Creek (C Tr) (290); Crab Creek (C Tr) (299); Dan River (C Tr) (6481) (32-degree limit); Horsepasture River (C Tr) (10512); Watauga River
(B Tr HQW) (13574); Watauga River (B Tr HQW) (13605); Buckeye Creek (WS-II Tr HQW CA) (12430); Yadkin River (WS-IV B Tr) (13904); Yadkin River (WS-IV B Tr) (13905). 70 N.C. Dep’t of
Envtl. Quality, BasinSummAMSCoalit1418and1718, https://filesnc.gov/ncdeq/Water%20Quality/ Planning/TMDL/303d/2020/2020_DATA.zip. These segments include: First Broad River at SR 1530
NR Casar (WS-V Tr) (station A4800000) (37.037% exceedance with 100% confidence); French Broad River at U.S. 178 at Rosman (B Tr) (E0150000) (18.182% exceedance with 93.175% confidence);
Pigeon River at NC 215 NR Canton (WS-III Tr CA) (E5495000) (21.154% exceedance with 98.734% confidence); North Toe River at U.S. 19E NR Ingalls (WS-IV Tr) (E7000000) (17.021% exceedance
with 90.682% confidence); North Toe River at SR 1162 at Penland (C Tr) (E8100000) (33.333% exceedance with 99.998% confidence); South Toe River at SR 1168 NR Celo (B Tr ORW) (E8200000)
(20.455% exceedance with 97.184% confidence); Cane River at SR 1343 NR Sioux (C Tr) (E9850000) (24.444% exceedance with 99.592% confidence); Valley River at U.S. 74 and 19 and 129 at
Tomotla (C Tr) (F4000000) (21.212% exceedance with 95.81% confidence); Cheoah River at SR 1138 at Robbinsville (C Tr) (G9550000) (20.588% exceedance with 95.164% confidence); Horsepasture
River at N.C. 281 NR Union (C Tr+) (H6000000) (17.949% exceedance with 91.02% confidence); Watauga River at SR 1121 NR Sugar Grove (B Tr HQW) (L4700000) (20.37% exceedance with 98.332%
confidence). Id. 71 N.C. Dep’t of Env’t and Nat. Res., Responsiveness Summary on the Draft 2008 303(d) (Category 5) List Submitted April 1, 2008 at 13, https://filesnc.gov/ncdeq/Water%20Quality/Plan
ning/TMDL/303d/Draft% 26Revised2008ResponseSummaries.pdf. 72 U.S. Envtl. Protection Agency, Approval of State of North Carolina’s 2008 Section 303(d) List Submittal at 13 (Mar. 9, 2010)
[hereinafter “2008 EPA Approval”], https://filesnc.gov/ncdeq/Water%20Quality/Planning/TMDL/ 303d/EPA%202008%20303d%20Approval.pdf. 73 Id.; N.C. Div. of Water Quality, 2008 Use Assessment
Methodology at 8, https://filesnc.gov/ncdeq/Water %20Quality/Planning/TMDL/303d/2008%20methods%2020100505.pdf. 74 See, e.g., id. at 8. Category 3a waterbodies are assigned “where data
are insufficient to determine if a parameter is meeting or exceeding criteria.” 2020 Assignment Procedure, supra note 38, at 5. 75 See N.C. Dep’t of Envtl. Quality, Integrated Report
Files, https://deqnc.gov/about/divisions/waterresources/planning/modeling-assessment/water-quality-data-assessment/integrated-report-files. 12 This effective elimination of the trout-waters
temperature standard from the 303(d) and TMDL process is arbitrary, capricious, and contrary to controlling law. B. The plain language of the trout-waters temperature standard requires
DWR to assess compliance with the 20º C limit whether thermal discharges are present or not. To understand whether DWR’s interpretation of the trout-waters temperature standard is appropriate,
it is helpful to review the general surface-water temperature standard76 in full: Temperature: not to exceed 2.8 degrees C (5.04 degrees F) above the natural water temperature, and
in no case to exceed 29 degrees C (84.2 degrees F) for mountain and upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal plain Waters; the temperature
for trout waters shall not be increased by more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but in no case to exceed 20 degrees C (68 degrees F). 15A
N.C. Admin. Code 2B .0211(18) (emphasis added). On its face, the standard mandates that “in no case” may trout waters exceed 20 ºC. “[I]n no case” means “never.” The independent clause
containing this phrase is without exception. It does not, for example, state that trout waters are “in no case to exceed 20 degrees C due to the discharge of heated liquids.” The preceding
clause, by contrast, begins by stating that “the temperature for trout waters shall not be increased by more than 0.5 degrees C . . . due to the discharge of heated liquids.” Id. (emphasis
added). The word “but” then indicates that the 20-degree limit applies “notwithstanding” the preceding phrase.77 Thus, a straightforward reading of the 20 ºC limit is that it applies
to all designated waters, notwithstanding the 0.5 ºC limit on temperature changes caused by discharges. The two limits are complementary; one applies to all trout waters, the other
applies to thermal discharges into trout waters. A comparison with the wording of the Class SC tidal-water temperature criteria drives this conclusion home. These criteria prohibit
temperature increases “above the natural water temperature by more than 0.8 degrees C” in the summer and 2.2 ºC in other months, while also mandating that waters “shall in no case exceed
32 degrees C (89.6 degrees F) due to the discharge of heated liquids.” 15A N.C. Admin Code 2B .0220(17) (emphasis added). Because the phrase “due to the discharge of heated liquids”
follows the limit, there is no question that it refers to thermal discharges. If North Carolina had wished to restrict the trout standard in the same way, it could have appended similar
language to the 20 ºC limit. But it did not. Context from the first half of the general surface-water temperature standard lends even more support for this conclusion. The full standard
starts by setting a delta limit applicable to 76 Most of North Carolina’s other surface-water classifications adopt these standards
by reference. See, e.g., 15A N.C. Admin. Code 2B .0212 (“Water quality standards applicable to Class C waters as described in Rule .0211 of this Section shall also apply to Class WS-I
waters.”). 77 But, Merriam Webster (11th ed. 2003), https://wwwmerriam-webster.com/dictionary/but. 13 thermal discharges: temperature may not be increased by more than 2.8 ºC above
baseline.78 It then immediately states a limit applicable to all waters: temperatures are “in no case to exceed” 29 or 32 ºC, depending on location. The trout-waters standard is functionally
identical: it sets a delta limit applicable to thermal discharges—temperature may not be increased by more than 0.5 ºC—then immediately pivots to a limit applicable to all trout waters:
temperatures are “in no case to exceed 20 degrees C.” DWR does not suggest that 29 and 32 ºC limits only apply to thermal discharges. Given this context, DWR cannot interpret the almost
identical language from the general and trout temperature standards differently. In short, the plain language of the trout-waters standard requires DWR to assess compliance with the
20 ºC limit whether or not a thermal discharge is present. Context provided by other temperature limits confirms this plain-language reading. C. The Clean Water Act requires DWR to
list waters impaired by point or nonpoint sources. Section 303(d) of the CWA requires states to list those waters for which “effluent limitations”—a.k.a. point-source pollution limits—are,
by themselves, insufficient to protect water quality standards. 33 U.S.C. § 1313(d)(1)(A); see also 40 C.F.R. § 130.2(j). The statute does not ask whether waterbodies are violating
such standards due to point-source or nonpointsource pollution. Pronsolino v. Nastri, 291 F.3d 1123, 1137 (9th Cir. 2002) (“Nothing in § 303(d)(1)(A) distinguishes the treatment of
point sources and nonpoint sources as such . . . . Water quality standards reflect a state’s designated uses for a water body and do not depend in any way upon the source of pollution.”).
It only asks if effluent limitations alone are “not stringent enough” to protect water quality. 33 U.S.C. § 1313(d)(1)(A). And logically, if a waterbody lacking point-source polluters
already exceeds water quality criteria, then by definition no “effluent limitations” will be “stringent enough to implement” those criteria—there is no point source to limit. Pronsolino,
291 F.3d at 1137 (finding that “as a matter of law” effluent limitations are “not stringent enough” to achieve water-quality standards for impaired waters “impacted only by nonpoint
sources”). As a result, states must list waterbodies whether they are impaired from “point sources only, nonpoint sources only, or a combination of the two.”79 Id. at 1132–33. “[T]he
language [of the CWA] admits of no other reading.” Id. at 1139; see also 40 C.F.R. § 130.7(c)(1)(ii) (“TMDLs shall be established for all pollutants preventing or expected to prevent
attainment of water quality standards.” (emphasis added)). Any other construction “would, for no apparent reason, require the states . . . to monitor waters to determine whether a point
source had been added or removed, and to adjust the § 303(d)(1) list . . . accordingly.” Pronsolino, 291 F.3d at 78 Although this clause
does not itself mention discharges of heated liquids, DEQ interprets this standard to prohibit thermal dischargers from increasing water temperatures by more than 2.8 ºC. See, e.g.,
Dep’t of Envtl. Quality, NPDES Permit NC0000396 at 5 (Apr. 9, 2020), https://files.nc.gov/ncdeq/Coal%20Ash/2020-actions/NC0000396Final-Permit.pdf. 79 And indeed, EPA’s “long-standing
interpretation of section 303(d)” is that the “listing requirement applies to waters impaired by point and/or nonpoint sources.” 2018 EPA Approval, supra note 2, at 4. 14 1139. “There
is no statutory basis for concluding that Congress intended such an irrational regime.” Id. DWR does not argue otherwise. Nor can it: state law provides that “water quality standards
relate to the condition of waters as affected by the discharge of sewage, industrial wastes, or other wastes including those from nonpoint sources and other sources of water pollution.”
15A N.C. Admin. Code 02B .0205 (emphasis added). In general, when it comes to listing waterbodies on the 303(d) list, DWR makes no attempt to distinguish between impairment due to point
and/or nonpoint sources. This is true of other trout-waters standards, including enhanced limits on chlorophyll a, dissolved oxygen, cadmium, toluene, and turbidity. Thus, to the extent
that DWR’s interpretation of the trout-waters temperature standard is premised on the notion that nonpoint-source pollution cannot contribute to 303(d) listing, it is both incorrect
as a matter of law and inconsistent with its own practices. North Carolina is obliged to identify impairments to water criteria no matter the source of pollution.80 Thermal pollution
is no different.81 D. DWR cannot indefinitely avoid analyzing thermal “background conditions.” For more than a decade, DWR has declined to “list trout waters for temperature excursions
where thermal discharges are present because [it has] not determined background conditions.”82 For just as long, EPA has recommended that the “State focus [its] monitoring program to
determine background conditions and to assess such waters.”83 It is not clear why DWR has not complied with this recommendation. But until it does, the trout-waters standard will continue
to go unenforced. 80 The North Carolina Administrative Code does provide that “[w]ater quality standards shall not be considered violated
if values outside the normal range are caused by natural conditions.” 15A N.C. Admin. Code 2B .0205. But this mandate is irrelevant to the question at hand: whether DWR may decline
to list trout waters impacted by nonpoint-source or other pollution. Thermal nonpoint-source pollution—such as dispersed runoff over hot “impervious surfaces such as streets and rooftops”—is
not a “natural condition.” U.S. Envtl. Protection Agency, Polluted Runoff: Nonpoint Source (NPS) Pollution, https://www.epa.gov/nps/nonpoint-source-urban-areas (last updated Oct. 7,
2020). 81 EPA has previously advised that: waterbodies that do not meet an applicable State water quality criterion for temperature or a designated use due to temperature should be
listed. Listing is appropriate because the applicable water quality standard is not met. Heat, the cause of the impairment, is defined as a “pollutant” under section 502(6) of the Clean
Water Act and can be allocated. It is immaterial to the listing decision whether the source of the temperature-related impairment is a thermal discharge or solar radiation. Both are
sources of heat, and the heat can be allocated through the TMDL process. U.S. Envtl. Protection Agency, National Clarifying Guidance for the 1998 State and Territory Section 303(d)
Listing Decisions at 5, https://www.epa.gov/sites/production/files/2015-10/documents/lisgid.pdf. 82 2008 EPA Approval, supra note 72, at 13. 83 U.S. Envtl. Protection Agency, Decision
Document for the Partial Approval of the North Carolina Department of Environment and Natural Resources’ 2014 Section 303(d) List Submitted on March 31, 2014 at 12, https://filesnc.
gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2014/NC_2014%20303%28d%29_finalDecisionDocument_07 %2031%202014.pdf; see also 2008 EPA Approval, supra note 72, at 13. 15 It is also not
clear why DWR does not already have the data it needs to assess compliance. Permittees under the National Pollutant Discharge Elimination System (“NPDES”) are generally required to
provide effluent data to DWR including temperature measurements. Many of these dischargers also assess upstream conditions to ensure that their effluent does not exceed state-mandated
temperature delta limits between upstream and downstream. DWR uses these and other data collected by dischargers to issue permits and notices of violation. If these data are inappropriate
for 303(d) listing purposes, DWR must explain why. * * * * * DWR’s crabbed interpretation of the trout-waters temperature standard ignores loadings due to nonpoint sources, in contravention
of state law and the CWA. Furthermore, DWR cannot avoid analyzing “background conditions” any longer. Western North Carolina’s trout and the sport-fishing industry need and deserve
more. III. DWR Must Collect Data at Times and Locations that Reveal the Full Extent of Pollution. The methodology and the monitoring locations underlying the draft 2020 303(d) list
indicate that DWR is, in some cases, avoiding the most problematic sampling times and areas. This results in a list of impaired waters that underreports the State’s pollution problem,
effectively misinforming the public about the cleanliness of the waterways they use and enjoy. As the undersigned groups noted in our comments to the 2018 303(d) list, DWR’s turbidity
data was hampered by the failure to collect data immediately following weather events that increase sediment discharges. No information about weather conditions was included in the
data set informing the 2020 list, so it is likely that this problem persists. We further note that the monitoring locations for at least three waterbodies appear to be too distant from
the areas of most concern to effectively determine whether these waters are impaired. A. DWR avoids collecting turbidity data during weather events that increase turbidity. Under the
state’s Quality Assurance Project Plan (“QAPP”), ambient data for turbidity is collected by grab sample on a monthly basis.84 However, “bad weather” is listed among reasons to delay
sampling.85 Given that turbidity typically intensifies following rainfall events, a monitoring program that declines to sample during or after “bad weather” is likely to underrecord
exceedances for pollutants like turbidity—especially in a region relatively prone to rainfall. DWR’s previous data collection on the North Toe River illustrates the problem. Through
2014, DWR reported data about precipitation in the twenty-four hours prior to sampling in the North Toe River. During that period, every reported exceedance of the turbidity standard
84 N.C. Dep’t of Envtl. Quality, Div. of Water Res., Ambient Monitoring System (AMS) Program Quality Assurance Project Plan § 2.1.3
(Feb. 2017) [hereinafter “QAPP”], https://deq.nc.gov/about/divisions/water-resources/waterresources-data/water-sciences-home-page/ecosystems-branch/ams-quality-assurance-project-plan.
85 Id. 16 followed a rain event.86 The 2020 data sets include no information on the proximity of data collection to weather events, but it is likely that this problem persists. Data
from 2014 also shows that DWR’s “monthly” sampling itself was highly variable—occurring anywhere from 12 days to 2.5 months apart.87 An ambient monitoring program that samples at subjective
intervals and avoids “bad weather” is likely to underreport turbidity exceedances. B. Monitoring locations avoid some of the most polluted areas. DWR’s ambient monitoring locations
also appear to avoid some of the most problematic areas, resulting in underreporting and unsupported delistings. For example, the section of the First Broad River between Shelby and
the Broad River is proposed to be delisted for turbidity this year;88 this delisting is also problematic for methodological reasons described above. Namely, if DWR had reversed the
null hypothesis and applied the correct nonparametric binomial test to the First Broad River, then DWR would have 71.5% statistical confidence in delisting the First Broad, based on
four exceedances in fifty-nine samples—which would be insufficient to delist this segment.89 Community testing and observation also indicates that water quality in Shelby is poor,
with very high turbidity and bacteria levels.90 Notably, the more populated Shelby area is the part of this segment with the most recreational use. Yet this delisting is apparently
based on sampling for turbidity at the Ambient Monitoring Station A6400000, which is about twelve miles downstream from Shelby.91 Between Shelby and this monitoring station is a hydroelectric
dam, which undoubtedly traps and settles a lot of the sediment. Without monitoring in Shelby, DWR’s analysis is incomplete and the delisting would leave the public unprotected. Buffalo
Creek and Sandy Run are two other waterways suffering from a similar lack of targeted testing. There is no monitoring on Buffalo Creek above Moss Lake, where community data and observation
indicates very bad conditions for both bacteria and turbidity. 92 Moss Lake will remain listed for temperature, but the public will be uninformed and unprotected when it comes to other
pollutants. Similarly, in Sandy Run, the DWR monitoring site is just upstream of an ATV park that causes high turbidity levels in the stream.93 Additionally, in preparation for the
2022 draft 303(d) list, we want to bring DWR’s attention to White Oak Creek (AU 9-29-46). This segment continues to suffer from high turbidity events. DWR should make sure it is
86 See N.C. Dep’t of Envtl. Quality, Div. of Water Res., 2018 Integrated Report Data, https://files.nc.gov/ncdeq/ Water%20Quality/Planning/TMDL/303d/201
8/2018_IR_Data.zip. 87 For example, DWR sampled on Mar. 1, 2012, and again on Mar. 13, 2012; in contrast DWR sampled on Dec. 11, 2013, and not again until Feb. 25, 2014. Id. 88 N.C.
Dep’t of Envtl. Quality, Div. of Water Res., NC 2020 Draft Delistings from Category 5 at 1, https://files.nc. gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/NC_2020_DRAFT_DELISTINGS02012021.pdf.
89 See supra note 25. 90 Swim Guide, First Broad @ Grover Street, https://www.theswimguide.org/beach/9127. 91 See 2020 Data, supra note 24. 92 Id. 93 Id. 17 appropriately monitoring
this segment so it has data that reflects true conditions rather than avoid the most problematic areas. By using monitoring stations that avoid the most problematic areas, DWR significantly
underreports pollution. This results in a lack of remedial measures, which would be triggered by the 303(d) listing, and it also results in an underinformed public that is more likely
to use polluted waters. In light of these holes in the data from DWR monitoring stations, it is even more important for DWR to use “all existing and readily available”94 data, including
data from community partners. It is also important for DWR to use statistically sound delisting procedures, since data gaps already result in underreporting of pollution exceedances.
IV. DWR Must Use All Available Data to Inform the 303(d) List. Federal regulations require the State to “assemble and evaluate all existing and readily available water quality-related
data and information to develop the [303(d)] list.” 40 C.F.R. 130.7(b)(5). States not only must use all available data, but must “actively solicit” research from organizations and groups
reporting water quality problems. Id. Thus, data from the community, particularly data that follows the State’s own quality-assurance guidelines, must be used in North Carolina’s 303(d)
listing process. Accordingly, DWR’s website contains a “standing solicitation for data,” and suggests that data sets including an approved Quality Assurance Project Plan (“QAPP”) will
be used for water quality assessment.95 While DWR’s website suggests that community data will be used in accordance with federal regulations, the undersigned groups have learned that
data submitted is not necessarily used to create the 303(d) list. Instead, it is subject to a “tiering” system that disqualifies certain data from use in determining impairment. DWR
has offered no public explanation of this tiering system, particularly to explain why data produced under a State-approved QAPP does not always qualify for use in its 303(d) process.
Instead, the agency only warns that they “only use the highest quality data for regulatory decision-making and water quality assessment.”96 Members of the community, including the
undersigned groups, have specifically sought to operate under a QAPP so that their data will be used to inform the State’s programs protecting the waters they use and enjoy, including
formation of the list of impaired waters. Moreover, EPA guidance notes that “[h]aving CWA 303(d) Program priorities informed by data and information from other relevant programs will
help achieve and demonstrate environmental results over 94 40 C.F.R. 130.7(b)(5). 95 N.C. Dep’t of Envtl. Quality, Div. of Water Res.,
Water Quality Data Assessment, https://deq.nc.gov/about/ divisions/water-resources/planning/modeling-assessment/water-quality-data-assessment (last accessed 4/1/21) (“Local governments
and environmental groups as well as industry, municipal and university coalitions also provide data. Submitted data sets must include an approved Quality Assurance Project Plan (QAPP)
to assure that the data were collected in a manner consistent with agency data.”); see QAPP, supra note 84. 96 QAPP, supra note 84. 18 time.” 97 NPDES permittees also provide data
to DWR that could be used to expand and improve upon the 303(d) listing process. Other deficiencies identified throughout these comments indicate a lack of thorough and appropriately
targeted monitoring, which could be remediated through the use of data from the community and from permittees. As noted above, data provided by NPDES permittees on temperature could

be used to inform the determination of thermal background conditions that EPA has mandated for years but that North Carolina has failed to perform. Sampling provided by NPDES permittees,
as well as the undersigned groups and other community partners, could also be used to fill the temporal and geographic gaps in knowledge outlined above. Proper utilization of data
from community groups could make a material difference in DWR’s listing decisions and the health of rivers and streams. For example, in 2018 DWR delisted the North Toe River (AUs 7-2-21.5
and -27.7) for turbidity using the flawed methodology discussed above and in the face of water quality data submitted by the French Broad Riverkeeper indicating continued impairment.
Several hard-rock mines discharge turbid stormwater into this section of river which is home to trout and upstream of Appalachian elktoe habitat. DWR’s delisting decision allows problems
in the watershed to linger instead of correcting them as required under the CWA. At minimum, the public should have access to DWR’s process for accepting and rejecting data for use
in the 303(d) process and elsewhere so it can understand these decisions. This is particularly true for community members who have spent significant resources to conform their water
quality monitoring to the State’s standards and have obtained DWR approval to operate under a QAPP. Failing to use all available data in accordance with the law leaves North Carolina’s
303(d) list incomplete, and our waters without the full protections afforded by the CWA. V. DWR Must Address the Pigeon River Impairment During Both the 303(d) Listing and the NPDES
Permitting Procedures. The proposed listed impaired area on the Pigeon River downstream from the Canton Paper Mill has expanded by several miles since 2018. Specifically, a new stretch
of the Pigeon, from State Route 1642 (Main Street) to Crabtree Creek, is now proposed to be listed as impaired for benthos. This impairment is undoubtedly related to discharges from
the Canton Paper Mill, which has been operating under an outdated and insufficiently restrictive 2010 NPDES permit. EPA guidance encourages states to use CWA 303d prioritization as
an opportunity “to integrate CWA 303(d) Program priorities with other water quality programs to achieve overall water quality goals,” including the NPDES permitting program.98 “Having
CWA 303(d) Program priorities informed by data and information from other relevant programs will help 97 Benita Best-Wong, EPA, Memorandum:
Information Concerning 2016 Clean Water Act Sections 303(d), 305(b), and 314 Integrated Reporting and Listing Decisions (Aug. 2015), https://www.epa.gov/sites/production/files/201510/documents/2016-
ir-memo-and-cover-memo-8_13_2015.pdf. 98 Id. 19 achieve and demonstrate environmental results over time.”99 Thus, we urge DWR to use the 303(d) process to prioritize setting TMDLs for
this waterway, and to treat the 303(d) and NPDES permitting program as complementary, consistent with EPA guidance. Fortunately, DWR is in the midst of a permit renewal process that
could begin to redress years of oversight. Yet rather than capitalize on this opportunity to improve conditions in the Pigeon River, DWR’s draft permit seems poised to allow significant
regression. Among other fundamental flaws, DWR’s draft permit relies on the Canton Mill’s Balanced, Indigenous Population (“BIP”) study,100 which itself is outdated and contains self-serving
conclusions contradicting its own data. And by relaxing, rather than tightening, current discharge limits, DWR indicates that it is not seeking to address the water quality problems
identified during either the NPDES permitting or the 303(d) listing procedures. For example, the BIP study that DWR relies on for its draft permit shows that benthos are negatively
impacted by effluent from the mill. Specifically, the BIP’s findings indicate pollutiontolerant macroinvertebrates are common below the discharge, while pollution-intolerant species
are found above it. Yet the BIP claims, and DWR accepts, that the downstream sites are reasonably “similar to what would have been there without the thermal discharge” and other sources
of pollution.101 MountainTrue and the French Broad Riverkeeper will comment on the draft permit’s shortcomings in more detail during the NPDES permit process. We note this here to highlight
the importance of protecting the Pigeon River in light of the newly impaired portion, and to emphasize EPA’s exhortation to use the 303(d) and NPDES processes and any data gathered
therefrom to improve the accuracy and efficiency of all water quality programs in the State. VI. Conclusion We appreciate the opportunity to comment on the 303(d) list and urge DWR
to reconsider the methodologies and delisting proposals above. Please do not hesitate to contact us with questions regarding these comments. Thank you for your consideration. Sincerely,
Spencer Scheidt Associate Attorney 99 Id. 100 J. Larry Wilson, Charles C. Coutant, & John Tyner, Canton Mill Balanced and Indigenous
Species Study for the Pigeon River (Clean Water Act Section 316(a) Demonstration) at 32 (2014). 101 Id. at 94. 20 Susannah Knox (licensed in South Carolina) Senior Attorney Southern
Environmental Law Center 48 Patton Ave., Suite 304 Asheville, NC 28801 828-258-2023 [e-mail] [e-mail] cc – via email: Lauren Petter, EPA, [e-mail]
Attachment – SELC’s Comments on North Carolina’s Draft 2018 §303(d) List January 18, 2019 Via First Class U.S. Mail and electronic mail Cam McNutt N.C. Department of Environmental
Quality Division of Water Resources 1617 Mail Service Center Raleigh, NC 27699-1167 [e-mail] Re: Updated comments - North Carolina’s Draft 2018 §303(d) List Dear
Mr. McNutt: On behalf of MountainTrue, the French Broad Riverkeeper, the Green Riverkeeper, the Broad River Alliance, and the Catawba Riverkeeper, we are submitting comments on North
Carolina’s draft 2018 §303(d) list of impaired waters. The proper identification of impaired waters is essential to improving the quality, and preserving the best use, of the State’s
waters. Accurately identifying waterbodies where water quality standards are not attained also enables the State to prioritize its limited resources for remediating impaired waters.
Once waters are identified as impaired pursuant to Section 303(d), the Clean Water Act requires the state to establish a total maximum daily load (TMDL) to limit the presence of the
pollutant or pollutants that cause the impairment.1 SELC has previously commented on the methodology used by DWR in recent years in evaluating whether impaired waters should remain
on the state’s list of impaired waters.2 We continue to have concerns with DWR’s approach to removing rivers and streams where water quality violations continue or the underlying impairment
has not been addressed. These comments focus on particular waterbody segments. In contrast to situations where water quality has improved in response to remedial action or imposition
of a TMDL, here, the delistings stem from errors in delisting approach and gaps in 1 33 U.S.C. § 1313(d)(1)(C). 2 See Comments from
SELC to DEQ North Carolina’s Draft 2016 §303(d) List (Mar. 29, 2016), available at https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/Comments%20Received.pdf; see also
Comments from SELC to DEQ re “North Carolina’s Draft 2014 §303(d) List” (Mar. 14, 2014), available at https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2014/Combined%20Comments%203.17.14
.pdf. 2 ambient data monitoring that DWR uses to make listing decisions. Because DWR has not demonstrated that the original environmental circumstances that led to the listing of
these waterbodies have changed, these impaired segments must remain on the State’s 303(d) list. In addition, we suggest new additions to the draft 2018 §303(d) list based on observations
and sampling, including DEQ’s own enforcement activities, that confirm degradation of other stream segments in our region. A. The Following Segments Should Not Be Removed From the
Impaired List Segments of the following waterbodies are on the State’s 2016 list of impaired waters, as approved by EPA,3 and are now proposed for delisting in the State’s 2018 list
of impaired waters: the North Toe River; the French Broad River; the Nolichucky River; and Irwin Creek. In each instance, the delisting proposal is unsupported by data warranting removal
of the relevant river segments from the State’s list of impaired waters.4 (1) North Toe River 7-2-(21.5) and (27.7) – Turbidity Both segments of the North Toe River listed for turbidity
are downstream of industrial activities that discharge waste from quartz mining and processing in the region.5 The lower segment, from Grassy Creek to South Toe River (27.7), has been
listed since at least 2006, and the upper segment, from a point 0.2 miles upstream of Pyatt Creek to a point 0.5 miles upstream of U.S. Hwy. 19E, has been listed since at least 2008.6
There is no TMDL in place on the North Toe to address persistent turbidity problems. In the 2018 draft, DWR proposes to remove both segments from impairment (category 5) and re-categorize
them under 3a, an indication that data to determine attainment status is unavailable. In both instances, DWR’s ambient data is available and indicates both segments have exceeded turbidity
standards in the five-year window DWR considers relevant. Although exceedances persist, DWR’s application of its delisting procedure leads the agency to conclude, in error, these segments
can be removed from the 303(d) list. EPA has already rejected the agency’s approach. As recently as 2016, DWR attempted to remove the upper portion of the North Toe River from the
303(d) list, under the assumption that the turbidity exceedances in ambient data did not meet its listing criteria of 10 percent exceedance with a 90 percent level of confidence. EPA
noted, in applying this statistical method 3 See EPA’s Partial Approval of the State of North Carolina’s 2016 303(d) List Submittal
(Dec. 8, 2016), at https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/NC2016 303dDecisionPackage20161208 %20%28003%29.pdf. 4 See 40 C.F.R. § 130.7(b)(6)(iv) (The State
must “demonstrate good cause for not including a water or waters on the list.”) 5 See, e.g., NPDES Permit No. NC0000353, NPDES Permit No. 0000400, NPDES Permit No. 0000175, NPDES Permit
No.0000361, NPDES Permit No.0084620. Each of the industrial discharge permits recognize total suspended solids as sources of pollution. 6 See https://files.nc.gov/ncdeq/Water%20Quality/Planning/
TMDL/303d/2014/2014 303dlist.pdf. 3 to delistings (as opposed to listings), that for the North Toe River, a maximum of three exceedances would be allowed out of 55 sampling events,
if the state appropriately adhered to its 90 percent confidence method.7 Because the number of exceedances for turbidity in the North Toe River exceeded the maximum allowable exceedances
level of three out of 55 events, EPA added the North Toe River segment back to the final, approved list, based on “failure to demonstrate good cause to delist.” Appx. C – EPA’s North
Carolina 2016 303(d) List Decision Document (Att. A); see also 40 C.F.R. § 130.7(b)(6)(iv) (requiring a demonstration of “good cause for not including a water or waters on the list”).
Here again, the sample size for both segments of the North Toe River is 55 events. In both instances, the agency’s own data indicates the number of exceedances is greater than 3
events – the maximum allowable to adhere to a 90 percent confidence level for delisting (which EPA found acceptable). See Appx. C – EPA’s North Carolina 2016 303(d) List Decision Document,
“The EPA’s Analysis of the State’s Use of Nonparametric Procedure for Delisting” (Att. A). Between 2012 and 2016, DWR’s ambient monitoring recorded five violations of turbidity for
the upper segment and four violations for the lower segment. In both instances, the number of recorded exceedances is again greater than the allowable limit that would satisfy good
cause for delisting. Both segments must remain on the impaired list. To the extent DWR relies on an Environmental Management Commission (“EMC”) policy8 for delistings with only 40
percent confidence, we note this is at odds with EPA’s prior finding on application of statistical confidence levels for listings and delistings. Even if that were not the case, the
report the EMC relies upon for its recent delisting policy would require 90 percent confidence: authors observe “any statistical conclusion that has a confidence level of less than
90% is considered not acceptable by most statistics practitioners.”9 In addition, additional water quality data collected by the French Broad Riverkeeper confirms the North Toe River,
in reality, remains impaired for turbidity.10 Submitted with these comments is a table of sampling for turbidity in multiple locations between upstream of Grassy Creek (the upstream
location of impairment) and Penland Bridge (the ambient monitoring station) in the North Toe River from 2015–2018. Att. B. On three dates within the window DWR views as relevant to
the draft 2018 list, over ten instream exceedances were measured in 7 The calculation stems from correct application of a delisting
procedure, which reverses the null hypothesis and results in a delisting procedure that ensures 90 percent confidence for delisting, consistent with that supported by EPA, as described
in the attached Appx. C – EPA’s N.C. 2016 303(d) List Decision Document (Att. A). 8 E.g., 2018 303(d) Listing and Delisting Methodology (Mar. 8, 2018), at https://files.nc.gov/ncdeq/Water%20Quality
/Planning/TMDL/303d/2018/2018%20Listing%20Methodology Appro vedMarch2018.pdf. 9 Pi-Erh Lin et al., A Nonparametric Procedure for Listing and Delisting Impaired Waters Based on Criterion
Exceedances 16 (2000). 10 In evaluating “all existing and readily available water-quality related data,” federal regulations require states to consider, at a minimum: “Waters for which
water quality problems have been reported by … members of the public …. These organizations and groups should be actively solicited for research they may be conducting or reporting.”
40 C.F.R. § 130.7. 4 the North Toe River in proximity to the lower stream segment, ranging from 23.4 NTU to 955 NTU – including two samples that were too high to register on a turbidometer.
Many exceedances recorded by the French Broad Riverkeeper far exceeded the State’s own ambient monitoring data. This points to another problem: the State’s failure to collect ambient
data when impairment is occurring for a parameter like turbidity. The State’s own ambient data for the North Toe River illustrates the problem. Ambient data for turbidity is collected
by grab sample on a monthly basis, under the state’s QAPP.11 “Bad weather” is listed among reasons to delay sampling. Id. Through 2014, DWR reported data about precipitation in the
previous 24 hours in the North Toe River. During that period, every reported exceedance of the turbidity standard occurred following a rain event.12 But the State only gathered data
following such a rain event about 20 percent of the time. The “monthly” sampling itself is also highly variable – occurring anywhere from 12 days to 2.5 months apart.13 An ambient
monitoring program at subjective intervals and under conditions that avoid “bad weather,” in a region relatively prone to rainfall, is likely to under-record exceedances for pollutants
like turbidity, which typically intensifies following rainfall that causes increased sediment discharges. The French Broad Riverkeeper’s monitoring confirms, on the other hand, that
exceedances in the North Toe River are not only ongoing, but extreme. The doubt is not in whether the river is impaired, but in any monitoring protocol that leads to the contrary conclusion.
DWR must keep the North Toe River on the impaired list of waters until it can demonstrate with defensible data that the river is not impaired. If the North Toe River is not impaired
for turbidity, it is unclear what waterbody would be. 11 DEQ, DWR, Ambient Monitoring System (AMS) Program Quality Assurance Project
Plan § 2.1.3 (Feb. 2017) https://files.nc.gov/ncdeq/Water%20Quality/Environmental%20Sciences/ECO/AMS%20QAPP/2017%20AMS%20 QAPP%20Master%20Updated%20Final%20With%20Appendices.pdf. 12
See data available at https://filesnc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/2018 IR Data.zip. 13 For example, DEQ sampled on Mar. 1, 2012, and again on Mar. 13, 2012; in
contrast DEQ sampled on Dec. 11, 2013, and not again until Feb. 25, 2014. 5 September 29, 2015 – North Toe River, just below mouth of Little Bear Creek And the excursions of State
water quality criteria are not just numeric. Attached with the data are photos of the North Toe River during sampling and a statement describing conditions in September 2015. See
Photographs and Statement of S. Evans (Att. C and D). The river is not just turbid, but an unnatural chalky white color – almost certainly attributable to mining waste in the river.
Deposits have piled up in places at the river’s edge, and the river had a caustic, chemical odor to paddlers. See id. These conditions, at a minimum, also violate 2B.0211 (12) (odor
and deleterious substances). (2) North Toe River 7-2-(21.5) – Copper Segment 7-2-(21.5) of the North Toe River is listed under category 5e14 as impaired for copper on the State’s 2016
impaired list of waters, and has remained on the list since 2008. DWR proposes to move this segment to category 3a, based on a finding that data is insufficient to determine attainment
status. Again, DWR’s data does not support delisting this segment of the North Toe for copper. DWR’s ambient monitoring data includes only nine monitoring events for dissolved copper,
in 2015 and 2016. EPA has rejected once already DWR’s prior attempt to remove this segment of the North Toe River from the list of impaired waters for copper, based upon insufficient
data.15 In 2012, 14 5e means the segment has been added to the State’s list of impaired waters by EPA. See 2018 Integrated Report
Category Assignment Procedure, North Carolina, https://files.nc.gov/ncdeq/Water%20Quality/Planning/IRAssessment-Process-2018.pdf. 15 In the 2012 cycle, DWR proposed to remove the North
Toe River from the impaired list of waters for copper based on a 9.5 percent exceedance frequency. The EPA’s independent assessment determined that the state had failed to adequately
demonstrate good cause for delisting. See EPA’s Partial Approval of the State’s 2014 303(d) List Submittal (July 31, 2014), and Appx. C, “Responsiveness Summary to Comments Regarding
the EPA’s August 16, 2012 Action to Add a Water to North Carolina’s 2012 Section 303(d) List,” at 6 EPA warned against relying on small samples sizes, which “can leave a truly impaired
water off the list.” Responsiveness Summary to Comments Regarding the EPA’s August 16, 2012 Action to Add a Water to North Carolina’s 2012 Section 303(d) List (Att. E). For toxics,
like copper, EPA warned an excursion should not exceed a one-in-three-year frequency criteria. See id. In conducting an “independent assessment” of attainment of water quality in the
North Toe, EPA stated the relevant data included “all existing and readily available water quality-related data.” See id. at 2; see also 40 C.F.R. § 130.7(b)(5) (requiring states to
assemble and evaluate all existing and readily available water quality-related data). With no data in the 2012 attainment window (because DWR had suspended monitoring for metals in
2007), EPA then relied on earlier data in determining the North Toe must remain on the impaired list for copper. In 2014, EPA again added the North Toe River back to the impaired list
of waters when the state again tried to remove it, because in reviewing all of the available data, EPA determined one exceedance in three years precluded its removal. See EPA’s Partial
Approval of the State’s 2014 303(d) List Submittal (July 31, 2014). Here, DWR apparently relies on only the most recent sampling for dissolved copper, which is nine sampling events
that occurred in the space of less than a year (from September 2015 to July 2016),16 to propose to remove the North Toe from the impaired list. This small sample set cannot provide
good cause to support delisting from category 5. In 2016, EPA made abundantly clear that a minimum of 22 samples with no exceedances would be required to remove impaired waters from
the 303(d) list, based on the state’s 10 percent exceedance rate and 90 percent confidence rate for listings (appropriately applying the same methodology in reverse to delistings).
Att. A. EPA added seven impaired waters back to the State’s list based on inadequate sample size for delisting – including this same segment of the North Toe River, but for turbidity.
See Att E. EPA also made clear that category 3, for waterbodies with insufficient data, is not where the State places impaired waters that it lacks sufficient data to delist.
In other words, insufficient data alone is not “good cause” for delisting. As EPA explained previously, “While Integrated Reporting Category 3 is meant for those waters where there
are insufficient available data and information to make a use attainment determination, the ‘EPA also expects that waters identified as impaired in the previous reporting cycle will
not be placed in Category 3 in the subsequent listing cycle unless the State can demonstrate good cause for doing so.’” Att. E. Here, the State recognizes its data is “insufficient”
for its determination; based on that alone, the North Toe River should not be removed from the impaired list for copper. Finally, sampling for copper from 2015 to 2016 – reported
alongside dissolved copper – shows an exceedance of the prior water quality standard (7 ug/L)17 occurred on Feb. 3, 2016,
https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2014/NC 2014%20303%28d%29
finalDecision Document 07%2031%202014.pdf . 16 See data on sampling for metals available here: https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/2018 IR Data.zip. 17
DEQ’s assessment fact sheet for the North Toe references the 7 ug/L standard for category 5 impairment that was in place before North Carolina adopted the dissolved metals standard.
7 sampling that detected 11 ug/L. This confirms, as a practical matter, that elevated copper has been detected in the North Toe, even in recent data. (3) Nolichucky – Copper In
2014, the EPA added the Nolichucky to North Carolina’s 303(d) list, based upon an independent assessment that the Nolichucky exceeded the one-in-three criteria for toxics with copper
of the then-applicable standard of 7 μg/L. Now, DWR proposes to remove the Nolichucky from category 5e, indicating it was added by EPA, to 3z1. As an initial matter, category 3z1
under State policy is used “when data are not assessed using an NC water quality standard.”18 At the same time, DWR proposes to place the Nolichucky in category 1 (attaining standards)
for the revised dissolved copper standard. DWR again relies upon an inadequate sampling size, under EPA’s prior analysis, to remove the Nolichucky from the list of impaired waters
for copper. Ambient data posted by DWR lists only nine sampling events occurring between August 2015 and July 2016. For the reasons stated above, this limited sampling is too small
of a sample size to support removing the Nolichucky from the impaired list, and to the extent DWR believes the data19 is insufficient to determine attainment, that too warrants leaving
the Nolichucky on the impaired list for copper. (4) French Broad River 6-(54.75)b– Fecal Coliform The French Broad River, from Mud Creek to Highway 146, is listed as impaired for
fecal coliform. As a Class B water, this segment of the French Broad River is classified for primary recreation, including “swimming” and “outdoor bathing.” 15A N.C.A.C. 2B .0219
(3)(b) (Class B). Among other things, the segment of the French Broad must meet limits on fecal coliform, which includes requirements: “not to exceed geometric mean of 200/100 ml (MF
count) based on at least five consecutive samples examined during any 30-day period and not to exceed 400/100 ml in more than 20 percent of the samples examined during such period.”
Id. In the 2016 listing cycle, this segment of the French Broad exceeded the “5 in 30” criteria, resulting in listing on the impaired list under category 5. For 2018, DWR proposes
to remove the segment from the 303(d) list and re-assign it to category 1, meeting criteria. However, it appears DWR did not repeat the “5 in 30” monitoring that warranted listing
in the first place, to support delisting.20 18 See 2018 Integrated Report Category Assignment Procedure, North Carolina, available
at https://files.nc.gov/ncdeq/Water%20Quality/Planning/IR-Assessment-Process-2018.pdf. 19 The available data appears to include both conventional sampling and sampling for dissolved
metals. 20 EMC’s recently adopted delisting policy for fecal coliform appears to embrace this approach, creating an off-ramp for waters impaired under the “5-in-30” fecal coliform
criteria in the absence of data that would show attainment with that standard. The effect is a paper exercise to allow delisting of waters that may be continuing to violate the fecal
coliform standard. See https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/2018%20Listing%20Methodology Appro vedMarch2018.pdf. 8 Apparently this is because DWR only
collects samples once or twice each month under its ambient monitoring protocol.21 As DWR itself has suggested, the current ambient monitoring system sampling regime is “not appropriate
for determining exceedance of the [“5 in 30”] standard.”22 As EPA observed in 2016, “[t]his means that the data typically collected is not directly used to assess against the water
quality standard.”23 Here, however, this segment is already listed for violating the “5 in 30” standard; even if the limited periodic ambient data actually collected has met the fecal
coliform standard, that does not, alone, support removing it from the impaired list for the requirement actually violated. Furthermore, the proposed delisting of the French Broad
segment, without testing to demonstrate attainment with the exceeded standard, underscores that DWR should revisit the way it evaluates bacteria data when assessing recreational use
support. Given the foregoing limitations in the agency’s ambient monitoring approach in freshwaters, the 303(d) list may fail to include waters, especially inland, where bacteria levels
threaten recreational use. Finally, data from the French Broad Riverkeeper indicates this portion of the river is not complying with fecal coliform standards. Since 2012 volunteers
in summer months have sampled the French Broad for the presence of E. coli at Westfeldt Park, just downstream of the confluence of Mud Creek with the French Broad. In every year, data
indicates exceedances of EPA’s recommended safe level for E. coli of 235 E. coli colonies per 100 milliliters of water at least 12% of the time. And the problem appears to be getting
worse.24 In 2018, samples failed to meet EPA’s recommended safe level 40% of the time. DWR should be looking for ways to solve this problem, not sweep it under the run through delisting.
21 DEQ, DWR, Ambient Monitoring System (AMS) Program Quality Assurance Project Plan § 2.1.2 (Feb. 2017). 22 DEQ, DWR, Ambient Monitoring
System (AMS) Program Quality Assurance Project Plan § 1.6.6.2 (Feb. 2017). 23 EPA’s Partial Approval of the State of North Carolina’s 2016 303(d) List Submittal (Dec. 8, 2016), at 29,

available at https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/NC2016 303dDecisionPackage20161208 %20%28003%29.pdf. 24 A summary of the E. coli data for this segment
is available at https://www.theswimguide.org/beach/4340. We can provide monitoring results upon request. 9 (5) Irwin Creek 11-137-1– Lead, Zinc, Copper Irwin Creek has a long and
unfortunate history of contamination. The creek has been on North Carolina’s 303(d) list in some capacity for over 20 years25 and it is subject to at least one TMDL, for fecal coliform.26
In some ways its contamination is not surprising. It has the most industrial watershed in Mecklenburg County, with over 18% of land zoned for industrial uses.27 At least one organization
has characterized it as “one of the most polluted creeks in the state, partly because of factories.” Id. When commenting on contamination in the creek in 2015, DWR staff identified
another source of contamination, citing the fact that the creek is “probably underneath a hundred roads.”28 Troublingly, staff then expressed that “it doesn’t seem like you can do much”
for the creek and DWR has now proposed to delist it. Id. In 2016, DWR also sought to delist Irwin Creek for lead and zinc but EPA added it back to the list “[b]ased on failure to
provide a reasonable method to assess toxic pollutants.” See App. B to N.C. 2016 303(d) List Decision Document.29 Like the North Toe, DWR’s data still does not support delisting
this segment for those pollutants. DWR proposes to relist this segment as category 3a indicating DWR has not collected the required number of samples. Without sufficient data there
is no justification to remove this stream from category 5. DWR also plans to delist this segment for copper and relist it under category “3z2.” However, there does not appear to
be a “3z2” category. 30 Regardless, DWR has not taken the requisite number of samples to justify delisting at a 90% confidence interval, and the samples taken include exceedances of
the copper standard. Delisting this segment for copper, lead, and zinc is not justified. B. DWR Should Evaluate the Following Waterbodies for Listing The proper identification of
impaired waters is essential to improving the quality, and preserving the best use, of the State’s waters. Based on impacts, and data that may be available
25 See 1998 303(d) List at https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/1998%20303d%20list.pdf. 26 See https://files.nc.gov/ncdeq/Water%20Quality/Planning/
TMDL/FINAL%20TMDLS/Catawba/MCDEPfecalTMDLfin al.pdf. 27 See https://keepingwatch.org/wp-content/uploads/creeks-brochures/Brochure-Individual-Irwin.pdf. 28 See https://keepingwatch.org/programming/c
reeks/irwin-creek. 29 See https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/NC2016 303dDecisionPackage20161208 %20%28003%29.pdf 30 See supra note 18. 10 in the
files of other divisions, DWR should evaluate listing White Oak Creek and Little Bear Creek for turbidity under Section 303(d). (1) White Oak Creek 9-29-46 White Oak Creek is a Class
C water located in the Broad River Basin, index number 929-46. DWR’s 2018 integrated report lists White Oak Creek as category 1, meeting criteria, for fish communities and benthos.
As early as 2008, however, agency biologists identified sediment as a concern for the White Oak Creek watershed.31 Since 2014, DWR records show, the creek and associated unnamed
tributaries have been heavily impacted due to construction activities for the Tryon International Equestrian Center (“TIEC”). The earliest Notice of Violation (“NOV”) for the site
posted to the Division of Water Quality’s Laserfiche online repository is NOV-2014-PC-0168, from an inspection report conducted on July 29, 2014, which documented upwards of 24 inches
of sediment deposits in multiple stream reaches, violating water quality standards prohibiting “[o]ils, deleterious substances, colored or other wastes: only such amounts as shall not
render the waters injurious to public health, secondary recreation or to aquatic life and wildlife or adversely affect the palatability of fish, aesthetic quality or impair the waters
for any designated uses” (now codified at 15A N.C.A.C. 2B.0211 (12)). TIEC continued to be chronically in violation after 2014. N.C. DWR staff issued two NOVs in 2015, NOV-2015-PC-0229
and NOV-2015-PC-230, the first of which issued violations for deposited sediment up to 8 inches in stream reaches and the second with sediment deposits in associated stream reaches
in excess of 24 inches. In 2016 one NOV was issued, NOV-216-PC-0306, violating water quality standards with sediment deposits up to 11 inches. TIEC continues to create conditions
leading to violations of water quality standards in White Oak Creek and the associated unnamed tributaries, with additional violations in 2018 resulting in assessed civil penalties
of $64,437. In addition to considering its inclusion on the current draft 303(d) list, DWR should ensure monitoring occurs for relevant parameters like turbidity to evaluate the
stream’s status for future 303(d) listing cycles. Recent data collected by the Green Riverkeeper confirms multiple exceedances for turbidity in White Oak Creek, including exceedances
as high as 999 NTU in September 2018. See Summary of White Oak Creek monitoring, Att. F. (2) Little Bear Creek 7-2-45b Little Bear Creek (Class C, Tr) is a tributary to the North
Toe River that runs alongside mining facilities near Spruce Pine, in the French Broad River Basin. Its confluence with the North Toe is upstream of the ambient monitoring station for
7-2-(27.7). DWR’s assessment report for Little Bear Creek lists only one criteria for assessment, benthos, for which the data is “inconclusive” because the stream has not been rated.
Ambient monitoring data does not appear to be collected by the state for Little Bear Creek. Recent data collected by the French Broad
31 See https://files.nc.gov/ncdeq/Water%20Quality/Planning/BPU/BPU/Broad/Broad%20Basin%20Plans/2008%20Plan/Gr een%20River.pdf. 11 Riverkeeper, however, confirms multiple exceedances
for turbidity in Little Bear Creek, including 721 NTU in 2015, and 755 NTU in 2016. See Att B. Photographs also confirm mine tailing deposits are visible on the bank where Little
Bear Creek joins the North Toe River. Therefore, in addition to considering its inclusion on the current draft 303(d) list, DWR should ensure monitoring occurs for relevant parameters
like turbidity to evaluate the stream’s status for future 303(d) listing cycles. Dec. 21, 2018 – Mouth of Little Bear Creek C. Conclusion We appreciate the opportunity to comment
on the 303(d) list and urge DWR to reconsider the listing proposals above. Please do not hesitate to contact us with questions regarding concerns raised or data provided with these
comments. Thank you for your consideration. Sincerely, Amelia Burnette Senior Attorney Southern Environmental Law Center cc (via email): Marion Hopkins, EPA Region 4 ([e-mail])

City of Durham comments 2020 303d list 2021-03-31 Final.pdf
March 31, 2021 NC Division of Water Resources 512 North Salisbury Street 1617 Mail Service Center Raleigh, N.C. 27699-1617 To whom it may concern: The City of Durham Public Works
Department is pleased to provide comments on the draft 2020 303(d) List. This list was provided for public comment on February 1, 2021. As a National Pollutant Discharge Elimination
System (NPDES) Phase I municipality, the City of Durham is required to develop plans for each surface water with a USEPA approved Total Maximum Daily Load (TMDL). Therefore, the Public
Works Department reviews the 303(d) List decisions carefully to ensure that precious resources are expended appropriately. The Public Works Department appreciates the effort by the
state to provide not only the 303(d) List, but also the entire Integrated Report for public review. This enables the public, including regulated communities, to track movement of waterbody
segments. This transparency is particularly important when TMDLs have been developed and waterbody segments are moved to Category 4. It is common for members of the public and the development
community to believe a waterbody is “fixed” when the waterbody no longer appears on the 303(d) list. By publishing both the Integrated Report and the 303(d) List concurrently, the status
of a waterbody is easier to determine. The City of Durham Public Works Department continues to be engaged in water quality issues raised at the state level. We appreciate the opportunity
to provide comments to the NC Division of Water Resources (DWR) and the ability to review the Integrated Report in conjunction with the 303(d) List. If you have any questions about
these comments, please contact me at [phone], ext. 30311. Sincerely, John V. Loperfido Assistant Water Quality Manager C: Michelle Woolfolk, Water Quality Manager
Paul Wiebke, Assistant Director of Public Works Comments on Listing Methodology: Assessing Numeric Criteria and Delisting Waters (page 4) The statistical test for delisting
waters should be removed from the Methodology. This was noted in comments from the Public Works Department in response to the 2018 303(d) List. The application of this test is in conflict
with the approach used by the state since the first 303(d) List and through 2016; it should not be summarily approved by the Environmental Management Commission. The Methodology now
requires both a statistical test to add unlisted Assessment Units (AUs) to the 303(d) list and an additional statistical test to remove listed AUs from the 303(d) list. Prior to 2018,
a statistical test was only used on to determine if an AU should be added to the 303(d) list. Since 2018, a second statistical test was added to delist an AU from the 303(d) list. This
two-test approach that is currently used is problematic for several reasons. First, from a practical standpoint, the two-test system leads to situations where the assessment and delisting
statistical tests provide conflicting results. One test may indicate a healthy water body and the second test may indicate a that a water quality issue is present. The Methodology document
provides no means to resolve this situation like a plan for additional sampling, communication with stakeholders and residents in the AU, or other action. Furthermore, these listings
that have conflicting statistical test results are not identified in the Integrated Report or 303(d) list. This may cause undue concern and investment of resources for a situation where
a water quality issue may not even be present but an AU is included on the 303(d) list. A second issue with this shift in methodology since 2018 is that it is counter to the precedent
of the approach used on 303(d) lists from 1998-2016. Built in to this shift from previous methods is a change in assumptions for the 303(d) listing approach. The approach previously
used was based on an assumption that all AUs were meeting their designated uses. In applying the statistical test, this is referred to as the null hypothesis. The current approach now
uses two tests with competing assumptions or null hypotheses. Taken together the Methodology now means that it is easier for an AU to be added to the 303(d) list and more difficult
to be delisted. This includes situations where listings based on older data and parameters that do not have criteria any more (e.g., total copper, total zinc, etc.) remain on the 303(d)
list until more data are collected. Again, in these situations, an actual on-the-ground water quality issue may not even exist for an AU that is listed on the 303(d) list, making the
303(d) list inaccurate. A third issue with the delisting methodology, that is new in the 2020 Methodology, is a statistical test for reviewing new data collected on non-toxic parameters,
but that is not applied to toxic parameters. This divergence in the delisting methodology between toxic and non-toxic parameters discounts stakeholders’ efforts to reduce discharges
of toxics substances. The new delisting methods means that even if action steps were taken to successfully reduce the discharge of toxic substances to an AU, the AU may still remain
on the 303(d) list. This could occur even if new data showed that concentrations of toxic substances did indeed decrease below the criterion. In such a case, the AU may still exist
on the 303(d) list until an arbitrary ‘enough time has passed’ for new data to be collected and that they outweigh the old data within the entire dataset. This new delisting methodology
excludes analyzing only new data for toxic parameters, which, is inconsistent with how non-toxic parameters are analyzed. This means that delisting an AU for a toxic substance is more
dependent on the amount of samples that may or may not have been collected in the past and does not take stakeholders’ management actions into account. Arbitrary and Unclear Nature
of Assessing Numeric Criteria and Delisting Waters (pages 3,4, and 10) The statistical testing for ‘assessing numeric criteria’ and ‘delisting waters’ has practical and logic issues
as noted above; the methodology for assessing and delisting waters are also unclear and appear to be arbitrary in nature. Supporting information is not provided for decision points
in the complicated assessment and delisting system. For example, statistical confidence intervals used in the methodology are inconsistent and unsupported. Typically, 5% and 95% confidence
intervals are used for determining statistical significance in environmental data. Statistical confidence levels of 10% and 90%, which are used in the assessment/delisting criteria,
are less common but are used in environmental data analysis. The 40% confidence level used in this methodology is unprecedented and arbitrary. Next, decision criteria for the ‘number
of excursions in new data’ in the Appendix A Flowchart are inconsistent and unsupported in the Methodology documentation. Within the Appendix A Flowchart, >1, >2, and >3 excursions
in new data are all used as criteria at different points in the workflow with no justification. This approach is both inconsistent and seemingly arbitrary. Third, the Appendix A Flowchart
shows “>10% Above Evaluation Level” as the starting point for the assessment of an AU. This starting point for the assessment is in conflict with text in the Delisting Waters section
that states, “NC will review the final 2018 303(d) List as the starting point for the development of the 2020 303(d) List.” If the 2018 303(d) List were truly the starting point for
development of the 2020 303(d) List, it should be the first box in the Appendix A Flowcharts. Inconsistencies between the Methodology text and flowchart make the application of the
assessment and delisting methodology seem haphazard in nature. In addition to the arbitrary nature of some aspects in the Methodology, the criteria for assessing and delisting AUs
are unclear and the Appendix A Flowchart and is inconsistent with the text. For example, the Appendix A Flowchart presents two workflows that start from two different percentage values,
10% and 10.01%. This is despite the fact that these boxes seemingly representing the same starting positon for an assessment. The flowchart does not specifically state ‘delisted’ as
an outcome of an assessment despite this being a possible outcome as described in the Delisting Waters section of the methodology. Next, confusing language between the Delisting Criteria
section and the Appendix A Flowchart make cross-referencing between the two very challenging. For example, text in Delisting Waters states, “…will be delisted if there are less than
2 excursions of the criterion in newer data…,” whereas, the box in lower track of the Appendix A Flowcharts for this decision states, “>1 excursions in new data years.” Comparing ‘less
than 2’ with ‘greater than 1’ makes an already complex workflow even more challenging to understand. Taken together, the arbitrary and unclear nature of the Methodology for generating
the 2020 303(d) List makes it appear that the list could be generated in an inconsistent manner. Listings on the 2020 303(d) List could may be based on tenuous statistical tests or
unsupported criteria in the analysis of new data. This approach could result in situations where stakeholders invest resources to verify impairments that may not exist in the field,
or that resources are invested to try to fix a water quality problem that does not exist. It could also create the impression to the state’s residents that an issue exists when it does
not, causing undue concern. Comments related to Durham streams: Third Fork Creek - Dissolved Oxygen Third Fork Creek [16-41-1-12-(1), From source to a point 2.0 miles upstream of N.C.
Hwy. 54] should not by listed for dissolved oxygen on the 2020 303(d) List. Dissolved oxygen at Third Fork Creek [16-41-1-12-(1)] appears on both the Draft 2020 303(d) Delistings document
(from category 5 to 3a) and the Draft 2020 303(d) List (listed as category 5). Comments on the 2020 Draft 303(d) List note that the listing is based on ‘Legacy RAMS Assessments’ while
the 2020 Delistings document notes that ‘More Recent/New Data’ are available. Monthly dissolved oxygen measurements, collected by the Public Works Department at Woodcroft Parkway, supports
delisting this AU. Since the 2018 303(d) List was published on 6/3/2019, 31 monthly measurements of dissolved oxygen, with an average concentration of 7.9 mg/L, have been collected
at the Woodcroft Parkway site. The single measurement that was collected below 4 mg/L was collected on 10/8/2019 with a concentration of 1.3 mg/L. This measurement was collected on
a warm-weather sampling day that followed a very dry September with only one small rainfall event (0.64 inches) recorded in the 38 days prior to sampling. The single low dissolved
oxygen was likely the result of low-flow conditions in combination with high water temperatures during the late summer. An overwhelming majority (97%) of the data discussed above supports
delisting this Third Fork Creek AU. Dissolved oxygen data are available upon request. New Hope Creek - Turbidity A listing for turbidity on New Hope Creek [16-41-1-(11.5)b, from Durham
Co SR 2220 (Old Chapel Hill Rd) to I-40] was new to the 303(d) List. The Public Works Department monitors turbidity at Old Chapel Hill Road (SR2220), collecting monthly samples in both
2017 and 2019. The average and median turbidity values from the measurements taken during these two years was 32 NTUs and 13 NTUs, respectively. A 6/20/2017 sample that measured 129
NTU was collected on a day with 1.32” of rainfall. A sample that measured 54 NTUs was collected one day after 0.8” of rainfall occurred on 2/18/2019. A 7/23/2019 sample that measured
312 NTU was collected on a day with 0.54” of rainfall. Consequently, 21 of the 24 measurements (88%) collected by the Public Works Department are not consistent with the listing of
this stream on the 2020 303(d) List. Turbidity data are available upon request. Northeast Creek - Total Copper Northeast Creek has listings for copper that are based on legacy total
metals assessments. This includes AUs 1641-1-17-(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 2019 dataset, this facility reported air emissions
of copper compounds of 10,104 pounds in 2019. This is down from 12,861 pounds in 2016 and 13,851 pounds in 2014. The same facility reported 46 pounds of copper leaving the site in surface
water in 2019, 65 pounds in 2016 and 136 pounds in 2014. The Public Works Department measures dissolved copper and hardness at three locations in the Northeast Creek watershed (Sedwick
Road, NC Highway 54, and Meridian Parkway). Based on 2020 sampling data, the sample-specific Continuous Criterion Chronic (CCC) for copper was exceeded at all three locations. Listing
Methodology for the 2020 303(d) List states that impairments for total metals will be removed only when dissolved metals data are available. Northeast Creek - Total Zinc Northeast
Creek AUs that are listed for total zinc on the 2020 303(d) List include 16-41-1-17-(0.7)b1 (from the Durham Triangle WWTP to Kit Creek in Wake County) and 16-41-1-17-(0.7)b2 (From
Kit Creek to a point 0.5 mile downstream of Panther Creek). Durham monitors both dissolved zinc and hardness at three locations upstream of these assessment units, at Meridian Parkway,
NC Highway 54, and Sedwick Road. A site-specific and samplespecific CCC is determined for each monitoring date. For the period from January 2014 to December 2020, the CCC was not violated
in 94 samples. Therefore, Durham data is inconsistent with the evaluation of the AUs from the Durham WWTP to Kit Creek and from Kit Creek to 0.5 miles downstream of Panther Creek.
Third Fork Creek - Total Copper. One AU of Third Fork Creek [16-41-1-12-(2), From a point 2.0 miles upstream of N.C. Hwy. 54 to New Hope Creek] is listed for total copper on the 303(d)
list. Durham monitors both dissolved copper and hardness at one location on this AU (at Woodcroft Parkway) and two locations (Dover Road and Rugby Road) on tributaries draining directly
to this AU. A site-specific and sample-specific CCC is determined for each monitoring date. For the period from January 2018 to January 2021, the CCC was not violated in 27 of 30 samples
(90%). The median dissolved copper concentration was 3.1 µg/L while the median CCC was more than double at 6.3 µg/L. Therefore, Durham data is generally inconsistent with the listing
of this AU for total copper. Northeast Creek - Turbidity Turbidity should be listed in category 4, not category 5, for Northeast Creek upstream of Sedwick Road. One AU of Northeast
Creek appears on the 2020 303(d) List for turbidity, 16-41-17-(0.7)a, from US Highway 55 to Durham Triangle WWTP. Detailed comments on this listing were provided by the Public Works
Department during the public comment period for the 2018 303(d) List. Little Lick Creek - Turbidity Both assessment units of Little Lick Creek [27-9-(0.5) and 27-9-(2)] are included
on the 2020 303(d) List for turbidity. The Public Works Department commented on these AUs in response to the 2018 303(d) List. Briefly, these comments noted the NC Department of Transportation
East End Connector project that began in 20142015. This project is still ongoing and has involved land disturbance, removal of trees and buildings, and roadway construction near the
headwaters of Little Lick Creek. Turbidity data collected by the Public Works Department since the publishing of the 2018 303(d) List has indicated average and median turbidity values
41 NTUs and 29 NTUs, respectively. Ellerbe Creek, Lick Creek, Little Creek, and New Hope Creek - Benthos Criteria Several AUs shown in the table below are located in Durham and are
listed for ‘Fair, Poor or Severe Bioclassification’ in the 2020 303(d) List. These AUs, however, are located in the Triassic Basic and thus, should not receive a bioclassification since
Triassic Basin Criteria for benthic macroinvertebrates do not exist. Furthermore, two sites, Ellerbe Creek [27-5-(2)] and Lick Creek [27-11-(1.5)] are directly upstream of Falls Lake.
Benthic macroinvertebrate communities in these two AUs are likely influenced by elevated hydrology from the lake. The influence of elevated hydrology on fishes was detailed by comments
from the Public Works Department on the 2018 303(d) listing for Ellerbe Creek-fish. Those comments noted the capturing of lenticadapted White Bass and Black Crappie at Glenn Road on
the Ellerbe Creek [27-5-(2)] AU. Since Triassic Criteria do not exist, the six AUs listed below should be removed from the 2020 303(d) List. The Public Works Department supports the
development of Triassic Basin Criteria and criteria for Triassic Basins influenced by lake hydrology. Triassic basin AUs in Durham listed on the 2020 303(d) List for benthos with
a ‘Fair, Poor or Severe Bioclassification’. AU Name AU Number Description New Hope Creek 16-41-1-(11.5)a New Hope Creek From a point 0.3 mile upstream of Durham Co SR 2220 New Hope
Creek 16-41-1-(11.5)b From SR 2220 to I 40 Little Creek 16-41-1-15-(0.5) From source to a point 0.7 mile downstream of Durham Co SR 1110 Lick Creek 27-11-(0.5) From source to Wake
County SR 1809 Lick Creek 27-11-(1.5)* From Wake County SR 1809 to Falls Lake, Neuse River Ellerbe Creek 27-5-(2)* From a point 0.2 mile upstream of Durham County SR 1636 to Falls
Lake, Neuse River * This AUs is likely influenced by lake effects from the downstream Falls Lake.
Comments of NCFB on draft 2020 303(d) and Integrated Report - 4-1-21.pdf

LNBA_NRCA2020 303d & IR Comments 3312021.pdfMicrosoft Word - Draft Comments LNBA NRCA 2020 DWR 303D AND INTEGRATED REPORT V3
Lower Neuse Basin Association® Neuse River Compliance Association® Post Office Box 1410 Clayton, North Carolina 27528 - 1410 March 29, 2021 Dr. A. Stanley Meiburg, Chairman NC Environmental
Management Commission, Members 1611 Mail Service Center Raleigh, N.C. 27699- 1617 Dear Chairman Meiburg and Commissioners: I am writing this letter as chairman of the Lower Neuse Basin
Association ("LNBA") and the Neuse River Compliance Association ("NRCA"). On behalf of the Associations, I respectfully submit the attached comments on the Draft 2020 North Carolina
303(d) List and Integrated Report. The Associations appreciate the monumental challenges placed upon the Division of Water Resources to provide an accurate and informative assessment
of water quality limited areas in the state of North Carolina. With millions of water quality observations collected each assessment period we recognize that it is difficult to get
each and every assessment absolutely correct. We offer our comments to assist with that goal. Thank you for the opportunity to submit these comments. If you require additional information
or have questions about our proposal please contact me or Haywood Phthisic, LNBA/NRCA Executive Director. Sincerely, Daniel F. McLawhorn, Chairman cc: LNBA/NRCA Boards Haywood Phthisic
LNBA/ NRCA Comments on the 2020 Draft 303(d) list and 305(b) Integrated Report 1 | P a g e 1. For water quality impairment decisions, DWR has continued to alter Assessment Units (AU)
based on the observed concentration data for individual parameters on each assessment period. Altering Assessment Units based on the changing concentrations of observed data is particularly
important in Reservoirs and Estuaries. Concentration data is highly variable even in pristine waterbodies. When DWR observes differences in the concentration standards attainment
at particular stations within an AU, the AU is subdivided where one parameter may be meeting standards and one not meeting standards. Once an AU has been subdivided based on a particular
assessment period, the subdivision is not re-combined. This can help to maximize 303(d) listings. Simply put, if DWR continues to promote 303(d) decisions based on single monitoring
stations the number of 303(d) impairments will increase. We make particular note that the 2020 assessment reports for the lower Neuse estuary did not include extensive data collected
by NCSU and the UNC IMS Modeling and Monitoring program (ModMon). This is very disturbing. The result is a dramatic increase in the number of AU’s with only one sampling location.
Impairment decisions made based on limited sampling sites and limited data greatly increase the uncertainty of the assessment decision. 2. Throughout our review of the detailed
Integrated Report Fact Sheets impairments for Total Nitrogen were frequently observed and listed in Category 4t - . With the exception of water supply waters that have Nitrogen standards
of 10mg/L, NC has no numerical water quality criteria (standards) for nitrogen. We made similar comments on the 2018 versions of the assessment documents. Any reference to exceeding
criteria for nitrogen should be removed. The Neuse estuary TMDL was constructed and approved by EPA to address standards non-attainment of chlorophyll-a. The water quality target

for this TMDL is chlorophyll-a as explicitly identified in the TMDL. While the Neuse strategies seek to manage chlorophyll-a non-attainment of the standard with nitrogen controls,
nitrogen is NOT a water quality standard and thus the Integrated Report is inappropriately suggesting that a standard for nitrogen has been exceeded. This error is biased and suggestive
of the need for a nitrogen numerical water quality standard it is not appropriate for listing waters as impaired. Even within the 2020 Draft IR, total nitrogen “attainment” is evaluated
inconsistently as described below. Total Nitrogen should be removed from the IR. Total Nitrogen Assessment Two Assessment Units are listed in Category 1t Meeting Criteria Approved
TMDL 27-(96)b1b and 27-(96)b1c One Assessment Unit is listed in Category 4t and yet Meeting Criteria 27-(96)b2 Eight Assessment Units for total nitrogen are listed in Category 4t Exceeding
Criteria 27-(104)a1, 27-(104)a2, 27-(104)b, 27-(118)a1 27-(118)a1a, 27-(118)a2a, 27-(118)a2b, 27-(118)f LNBA/ NRCA Comments on the 2020 Draft 303(d) list and 305(b) Integrated
Report 2 | P a g e 3. Legacy “total metals” issues are complex and have demonstrated that the new water quality standards adopted based on “dissolved metals” most often result in
delisting legacy “total metals” impairment decisions. Thus, it is understandable that, there is little confidence afforded to the suggestion that “total metals” assessments indicate
impairments of aquatic life uses. That said, 303(d) methods approved by the EMC indicate that Category 5 impairment decisions are not in harmony with an ‘inconclusive” assessment.
We note that New Listings on the 303(d) list include 27-(118)a1 in the Neuse Estuary. Copper is listed in Category 5 but also with Data Inconclusive Legacy Category 5 Total Metals
Assessment. We suggest that the use of merging Category 5 with a conclusion of “inconclusive” is not consistent. We will note similar observations within the Integrated Report as
well. We suggest DWR prioritize their limited monitoring resources to resolve these legacy listings and to alter their decision to place these legacy metals into category 5. Examples
of these IR assessments in the lower Neuse can be found in the following AU’s: 27-(96)b1b, 27-(96)b1c, 27-(104)a1, 27-(104)a2, 27-(118)a1. 4. Several AU’s seem to identify Chlorophyll-a
as a parameter that fits into Category 4i Exceeding Criteria without referencing station numbers or summary data. It is unclear where this information comes from or what the actual
results indicate. Are these “legacy” assessments based on data outside of the 2020 Integrated Report time period of 2014-2018? Was this assessment based on citizen complaints or some
other data? Please explain. This is important to our Associations. Examples can be found in the Draft IR for AU’s 27-(104)b, 27-(118)a2b. 5. We have identified a suspected error
in the IR for AU 27-(118)a2a 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). This AU Includes Station J9810000. Chlorophyll-a is listed in Category 4i as Exceeding Criteria with confidence. A review of the fact sheet chlorophyll-a data
summary shows: Station # Location Count #obs>40 %obs>40 %Conf J9810000 Neuse R at CM 7 nr Oriental 41 6 15% 78% Note that for 2017 and 2018 only two of fourteen chlorophyll-a
samples exceeded criteria (14%). Potential Error - listing for chlorophyll-a should indicate category 3 data inconclusive. 6. AU 27-(118)g was assessed in the 2018 IR for chlorophyll-a
in Category 1 Meeting Criteria. Yet in the 2020 draft IR this AU makes no mention of Chlorophyll-a. The 2020 Fact Sheets for the IR make no mentions of chlorophyll-a data or monitoring
stations for this AU. Our comment #4 may be a closely related incidence. If legacy data was used for impairment, shouldn’t legacy data be used for attainment as well? This is a confusing
situation can you help us to understand these decisions? 7. AU 27-(104)a2 fact sheets indicate that there were two monitoring locations included. J8910000 NEUSE RIV AT CM 11 NR RIVERDALE
and J8920000 location unknown J8920000 is unknown to us and it only had one observation. We made similar comments on the 2018 IR. Obviously this is an insignificant issue but we would
appreciate an explanation. ***************************************************************************** Attached for our member benefits is a summary of interesting observations based
on our review LNBA/ NRCA Comments on the 2020 Draft 303(d) list and 305(b) Integrated Report 3 | P a g e Review DWR Draft 2020 Report New 303(d) listings Neuse River Basin as of February
1, 2020 27-33-18 Pigeon House Branch From source to Crabtree Creek Dissolved Oxygen (4 mg/l, AL, FW) Category 5 Exceeding Criteria with Statistical Confidence 27-62 Stoney Creek From
source to Neuse River Benthos Category 5 Exceeding Criteria Fair, Poor or Severe Bioclassification 27-(118)a1 NEUSE RIVER Estuary 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) Copper Category 5 Data Inconclusive Legacy Category 5 Total Metals Assessment
Shellfish Growing Area Status (Fecal, SH, SA) 5 Exceeding Criteria Prohibited Shellfish Growing Area 27-(118)a1a NEUSE RIVER Estuary Neuse River Estuary at Camp Don Lee Swim beach
Enterrococcus Category 5 Exceeding Criteria Pathogen Indicator Standards Shellfish Growing Area Status Category 5 Exceeding Criteria Prohibited Shellfish Growing Area 27-125-(6)a Dawson
Creek From mouth of Tarkiln Creek to 0.03 miles upstream of Neuse River Enterrococcus Category 5 Exceeding Criteria Pathogen Indicator Standards Exceedance 27-125-(6)b Dawson Creek
From 0.03 miles upstream of Neuse River to Neuse River Enterrococcus Category 5 Exceeding Criteria Pathogen Indicator Standards Exceedance A number of other creeks and estuarine areas
appear on the 303(d) New Listings but are not included in this brief summary. These creeks and other tidal areas are listed for Shellfish Growing Area Status (Fecal, SH, SA) Category
5 Exceeding Criteria Prohibited Shellfish Growing Area. LNBA/ NRCA Comments on the 2020 Draft 303(d) list and 305(b) Integrated Report 4 | P a g e Review NC 2020 Draft Integrated
Report with a Focus on Main Stem Neuse River Estuary Chlorophyll-a as of February 1, 2020 27-(85) Neuse River From mouth of Contentnea Creek to Streets Ferry Includes Stations: DWR
J7850000, LNBA J7850000, and DWR J7930000 2018 Category 1 Draft 2020 Chlorophyll-a Category 1 Meeting Criteria with Confidence 27-(96)a Neuse River Estuary From Streets Ferry to Bachelor
Creek (river model segment) Includes Station: J8250000 2018 Category 1 Draft 2020 Chlorophyll-a Category 1i Meeting Criteria with Confidence 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: J 8290000 2018 Category 1 Draft 2020 Chlorophyll-a Category 1i Meeting Criteria with
Confidence 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 Fact Sheets contain no information on stations or supporting data 2018 Category 3i Draft 2020 Chlorophyll a Category 1i Meeting Criteria with Confidence 2018
TN no mention Draft 2020 Total Nitrogen Category 1t Meeting Criteria Approved TMDL 2018 Category 5 Draft 2020 Copper 5 Data Inconclusive Legacy Category 5 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. Includes Station: J8570000, 2018 Category 5 Draft 2020 Copper Category
5 Data Inconclusive Legacy Category 2018 Category 1 Draft 2020 Chlorophyll-a Category 1i Meeting Criteria with Confidence 2018 Category 1 Draft 2020 Dissolved Oxygen Category 3a Data
Inconclusive 2018 TN no mention Draft 2020 Total Nitrogen Category 1t Meeting Criteria Approved TMDL 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 2018 Category 4i Draft 2020 Chlorophyll a Category 3i Data Inconclusive 2018 TN no mention
Draft 2020 Total Nitrogen Category 4t Meeting Criteria Approved TMDL 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 2018 Category 5 Draft 2020 Copper Category 5 Data Inconclusive Legacy Category
5 2018 Category 1 Draft 2020 pH (8.5) 3a Data Inconclusive 2018 Category 4i Draft 2020 Chlorophyll-a Category 4i Exceeding Criteria with Statistical Co LNBA/ NRCA Comments on the 2020
Draft 303(d) list and 305(b) Integrated Report 5 | P a g e 2018 TN no mention Draft 2020 Total Nitrogen 4t Exceeding Criteria Approved TMDL 1996 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 (however
J8920000 is unknown) 2018 Category 5 Draft 2020 Copper Category 5 Data Inconclusive Legacy Category 5 2018 Category 4t Draft 2020 Total Nitrogen 4t Exceeding Criteria Approved TMDL
1996 2018 Category 4i Draft 2020 pH (8.5) 4i Exceeding Criteria with Confidence 2018 Category 4i Draft 2020 Chlorophyll a Category 4i Exceeding Criteria with Confidence Chlorophyll-a
data summary Station # Location Count #obs>40 %obs>40 %Confid J8910000 NEUSE RIV AT CM 11 NR RIVERDALE 44 14 32% 100% J8920000 This Station is unknown 1 0 0% 0% 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) Includes Stations C105B, C107, C95 from Div of Marine Fisheries (Enterrococcus Data) It is unclear from the Fact Sheets where the Chlorophyll-a and Nitrogen data
have come from. 2018 Category 4t Draft 2020 Total Nitrogen Category 4t Exceeding Criteria Approved TMDL 2018 Category 4i Draft 2020 Chlorophyll-a Category 4i Exceeding Criteria with
Confidence 27-(118)a1 NEUSE RIVER Estuary 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) Includes Stations C110A and C94 from Div of Marine Fisheries (Enterrococcus Data) It is unclear from the Fact Sheets where the Chlorophyll-a and Nitrogen data have
come from. 2018 Category 5 Draft 2020 Copper Category 5 Data Inconclusive Legacy Category 5 2018 Category 1 Draft 2020 Shellfish Growing Area Status Category 5 Exceeding Criteria
2018 Category ? Draft 2020 Shellfish Growing Area Status Category 1 Meeting Criteria 2018 Category 4i Draft 2020 Chlorophyll-a Category 4i Exceeding Criteria with Confidence 2018 TN
no mention Draft 2020 Total Nitrogen Category 4t Exceeding Criteria Approved TMDL 27-(118)a1a NEUSE RIVER Estuary Swim beach at Camp Don Lee Includes Station C93 from Div of Marine
Fisheries (Enterrococcus Data) It is unclear from the Fact Sheets where the Chlorophyll-a and Nitrogen data have come from. 2018 Category 1 Draft 2020 Enterrococcus Category 5 Exceeding
Criteria 2018 no mention Draft 2020 Chlorophyll-a Category 4i Exceeding Criteria with Confidence 2018 Category 1 Draft 2020 Shellfish Growing Area Status Category 5 Exceeding Criteria
Prohibited 2018 TN no mention Draft 2020 Total Nitrogen Category 4t Exceeding Criteria Approved TMDL 1996 27-(118)a2 NEUSE RIVER Estuary Divided into two Assessment Units as part
of final 2018 IR (27-(118)a2a and 27-(118)a2b) From a line across Neuse River from Adams Creek to Wiggins Point to Pamlico Sound (mouth of Neuse River described as a line running from
Mawpoint to Point of Marsh) LNBA/ NRCA Comments on the 2020 Draft 303(d) list and 305(b) Integrated Report 6 | P a g e 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
2018 Category 4t Draft 2020 Total Nitrogen Category 4t Exceeding Criteria Approved TMDL 2018 Category 4i Draft 2020 Chlorophyll-a Category 4i Exceeding Criteria with Confidence Chlorophyll-a
data summary Station # Location Count #obs>40 %obs>40 %Confid J9810000 Neuse R at CM 7 nr Oriental 41 6 15% 78% Note that for 2017 and 2018 only two of fourteen chlorophyll-a samples
exceeded criteria (14%) Potential Error - listing for chlorophyll-a should indicate category 3 data inconclusive. 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) Includes Station C90A from Div of Marine Fisheries (Enterrococcus Data) It is unclear from the Fact Sheets where the Chlorophyll-a and Nitrogen data have come from. 2018 Category
4t Draft 2020 Total Nitrogen Category 4t Exceeding Criteria Approved TMDL 2018 Category 1i Draft 2020 Chlorophyll a Category 3i Data Inconclusive. 27-(118)b NEUSE RIVER Estuary DEH
prohibited area at mouth of Clubfoot Creek No Stations are listed on Fact Sheets 2018 Category 5 Draft 2020 Shellfish Growing Area Status (Fecal, SH, SA) 5 Exceeding Criteria 27-(118)c
NEUSE RIVER Estuary DEH prohibited area at mouth of Green Creek No Stations are listed on Fact Sheets 2018 Category 5 Draft 2020 Shellfish Growing Area Status (Fecal, SH, SA) 5 Exceeding
Criteria 27-(118)d NEUSE RIVER Estuary DEH prohibited area at mouth of Peirce Creek No Stations are listed on Fact Sheets 2018 Category 1 Draft 2020 Shellfish Growing Area Status
(Fecal, SH, SA) 1 Meeting Criteria 27-(118)e NEUSE RIVER Estuary DEH Shellfish Area at mouth of the South River Includes Station C85 from Div of Marine Fisheries (Enterrococcus Data)
2018 Category 5 Draft 2020 DEH Shellfish Conditionally approved-open area LNBA/ NRCA Comments on the 2020 Draft 303(d) list and 305(b) Integrated Report 7 | P a g e 27-(118)f
NEUSE RIVER Estuary Prohibited area at Cherry Branch Minnesott Ferry Landing south side of river Includes station J9530000 2018 Category 4t Draft 2020 Total Nitrogen Category 4t Exceeding
Criteria Approved TMDL 2018 Category 3a Draft 2020 Ph(8.5) Category 4i Exceeding Criteria with Confidence 2018 Category 4i Draft 2020 Chlorophyll-a Category 4i Exceeding Criteria with
Confidence 2018 Category 5 Draft 2020 Shellfish Growing Area Status Category 5 Exceeding Criteria Prohibited 27-(118)g NEUSE RIVER Estuary Prohibited area at mouth of Orchard Creek
No Stations are listed on Fact Sheets 2018 Category 5 Draft 2020 Shellfish Growing Area Status Category 5 Exceeding Criteria Prohibited 2018 Category 1i Draft 2020 Chlorophyll-a not
mentioned 27-(118)h NEUSE RIVER Estuary Public Beach area at mouth of Dawson Creek No Stations are listed on Fact Sheets 2018 Category 1 Draft 2020 Shellfish Growing Area Status Category
5 Exceeding Criteria Prohibited
NCDEQ 2020 303(d) and Integrated Report comment letter_Charlotte.pdf
600 E. Fourth Street Charlotte, NC 28202 Fax [phone] To report pollution, call: 704.336.5500 To report drainage problems, call: 704.336.RAIN http://stormwater.charmeck.org
March 31, 2021 NCDEQ; Division of Water Resources 1617 Mail Service Center Raleigh, NC 27699-1617 [e-mail] Re: 2020 Draft 303(d) List and Integrated Report Comments
To Whom It May Concern: The Storm Water Services Division of the City of Charlotte (Charlotte-Mecklenburg Storm Water Services or CMSWS) appreciates the opportunity to provide input
on the N.C. Division of Water Resources (NCDWR) 2020 Draft 303(d) List and Integrated Report. After reviewing these documents and the data that accompanied the listing decisions, we
identified a few inconsistencies and potential errors that we would like to be addressed before the listing decisions are finalized. In 2005, the State approved a turbidity TMDL which
covered Long Creek, McAlpine Creek, Sugar Creek, Little Sugar Creek, Irwin Creek and a couple of water bodies outside of Charlotte’s jurisdiction. Of these named water bodies, the
Integrated Report does not identify Irwin Creek (11-137-1) or Sugar Creek (11-137c) as having approved turbidity TMDLs but does identify Little Sugar Creek (11-137-8b, 11-137c) and
McAlpine Creek (11-137-9b) as having approved turbidity TMDLs. Long Creek (11-120-(2.5)) is identified as having an approved TMDL for TSS but not for turbidity. The application of
the “Approved TMDL” and “Category 4t” classification to water bodies named in the 2005 turbidity TMDL appears to be inconsistent. For water bodies with either a fecal coliform or turbidity
TMDL (or both), it is our understanding that benthic and fish classifications should be listed as Category 4s on the Integrated Report rather than being listed on 303(d) and as Category
5 on the Integrated Report. Little Sugar Creek (11-137-8a, 11-137-8b, 11-137-8c) is listed as Category 4s for benthos and fish for this reason, but reaches along McAlpine Creek (and
McMullen which flows to McAlpine), Sugar Creek, and Irwin Creek are still listed on 303(d) and as Category 5 for fish and benthos despite having approved TMDLs. Mallard Creek (13-17-5b)
is listed on the 303(d) list as impaired for total copper based on an assessment done in 2008. The more recent dissolved copper data that we submitted for consideration in the 2020
303(d) listing decisions shows Mallard Creek as meeting criteria with statistical confidence. The Integrated Report also states that both Mallard Creek reaches (13-17-5a, 13-17-5b)
are “Meeting Criteria” for the fish community, whereas the data we submitted shows a “Fair, Poor or Severe Bioclassification” for both reaches. Thank you for taking these comments
into consideration before finalizing the 2020 303(d) list and Integrated Report. If you have any questions, please contact me at 704-432-5572 or at [e-mail] to discuss.
Sincerely, Jason Hunt City of Charlotte, Storm Water Services Division CC: Marc Recktenwald CC: Kruti Desai CC: Mike Davis
UNRBA Comments 2020 IR and 303d,2021-3-26.pdf
March 26, 2021 To: North Carolina Environmental Management Commission North Carolina Division of Water Resources Address: [e-mail] Subject: UNRBA Comments on:
NC’s Draft 2020 303(d) List and 2020 Draft Integrated Report I am pleased to offer, on behalf of the UNRBA, the attached comments on North Carolina’s Draft 2020 Integrated Report and
303(d) list. I would like to express appreciation to the Division of Water Resources and the NC Environmental Management Commission for the opportunity to comment on the Draft 303(d)
assessments and the Draft Integrated Report. This joint notice of both of these documents is greatly appreciated. This decision represents good public policy, and it provides an important
opportunity to simultaneously review these two components of NC’s water quality management program. The UNRBA is focused on the management of Falls of the Neuse Reservoir (Falls Lake).
Central to our concerns is the protection of the lake’s designated uses. The 2020 draft Integrated Report places much of Falls Lake in Assessment Category 4 because the Assessment
Methodology determined the chlorophyll-a standard is not fully attained. The current Falls Lake Nutrient Management Strategy (the Falls Lake Rules) provides an opportunity for the
UNRBA to adaptively review the management strategy and attainment of the chlorophyll-a standard. The UNRBA believes it is essential that the Falls Lake 303(d) list and Integrated Report
provide consistency with the Falls Lake Management Strategy Rules. Currently this harmony is not achieved - the 303(d) and Integrated Report segmentation of the lake are at odds with
the provisions of the Falls Lake Rules. The UNRBA is investing millions of dollars to re-examine the Falls Lake Rules, and this re-examination will include a proposal to align the
Falls Lake Assessment Methodology with attainable management strategies that will ensure that the designated uses of Falls Lake remain unimpaired. Attached you will find our detailed
comments on the Draft Integrated Report. At this time, we will not provide detailed comments on the 2020 EMC-approved Assessment Methodology. However, we note that the methodology
actually discourages the initiative of developing extensive Falls Lake monitoring and makes it easier for waters to be considered impaired. Furthermore, for extensively monitored assessment
units, once considered impaired, the current Assessment Methodology makes it very difficult to assess attainment compliance with a standard. For example, three observations > standard
within the last two years prevent attainment (see Comment #3 in the attachment). Assessment consistency is a critical issue. The Assessment Methodology has been changed nearly every
other year (for each assessment). Water quality Assessment Forrest Westall Executive Director [e-mail] PO Box 270 Butner, NC 27509 Phone: [phone] On the
Web: http://unrba.org Town of Butner City of Creedmoor City of Durham Durham County Franklin County Granville County Town of Hillsborough Orange County Person County
City of Raleigh Wake County Town of Wake Forest South Granville Water and Sewer Authority Soil and Water Conservation Districts UPPER NEUSE RIVER BASIN ASSOCIATION Page 12 Units
are frequently altered (split) based on the highly variable observations of individual parameters rather than establishing long-term designation of management units and then using of
all data (at all stations) within those units. Assessment Units should be independent of the variability of individual parameter concentrations and based on morphometric and limnologic
features consistent with EPA guidance. Falls Lake has an expansive water quality database on which to make these determinations. The UNRBA recommends and urges that the Falls Lake Assessment
Units be established and consistently applied so that the public has an accurate water quality picture of the Lake and the regulated community can effectively plan for and implement
a strategy within a consistent framework. Our local government members are focused on maintaining uses and improving water quality in Falls Lake by applying scientifically supportable,
technically feasible, and economically achievable actions that balance the level of investment with water quality improvement. Local governments typically operate under long-term financial
plans when it comes to infrastructure investments for water, wastewater and stormwater management. Jurisdictions with wastewater treatment facilities will spend tens to hundreds of
millions of dollars on plant upgrades to meet effluent limits. Local governments are planning to invest millions of dollars in an effort to mitigate the impacts of runoff from existing
development. Under the Falls Lake Rules these jurisdictions, since 2012, have been implementing new development requirements aimed at not allowing nutrient loading to increase in the
watershed. The Falls Lake Nutrient Management Strategy includes the only North Carolina regulatory framework implemented by local governments to help address eutrophication management
from existing development. Without consistent assessment methods it is difficult to plan and implement this strategy and impossible to measure progress in maintaining uses and water
quality improvements. We implore the EMC and the State to consider these significant issues in finalizing the 2020 water quality assessment results. This is particularly important for
Falls Lake considering the extensive database available and the level of water quality management implementation that is being undertaken in this watershed. We hope that our attached
comments and the cooperative collaboration we have with the staff of the Division of Water Resources will result in a revised final 2020 Integrated Report. We would like to stress that
the spatial extent of an Assessment Unit can be the prime factor in attainment or non-attainment of water quality standards. Consistent Assessment Units represented by multiple stations
result in larger data sets and more reliable and representative assessment results for developing and implementing management strategies. Thus, the UNRBA will continue to encourage
actions to evaluate an appropriate assessment process for Falls Lake as part of our Falls Lake re-examination efforts. Thank you agai o the opportunity to provide comments. If you have
any questions, please contact Mr. rr t_Westall, UNRBA Executive Director. We would welcome the opportunity to discuss o nts with you. Since I 2' S' utchinson, Chairman Board of Director
UNRBA Comments on North Carolina's 2020 303(d) and Integrated Report Products Page | 3 UNRBA Comments on North Carolina’s 2020 303(d) and Integrated Report Products UNRBA Detailed
Comments February 1, 2021 Public Notice of Availability of the DRAFT 2020 303(d) List and Integrated Report 1. The 2020 Integrated Report for Falls Lake spans a data assessment
time period that includes 2014, 2015, 2016, 2017, and 2018. Extensive water quality monitoring has been conducted by the Division of Water Resources and North Carolina State University
(NCSU) researchers during this time period. The 2020 Integrated Report water quality assessment, however, excludes all data from the NCSU Center for Applied Aquatic Ecology. We note
that the Division of Water Resources utilized data from the Center for Applied Aquatic Ecology (2012, 2013, 2014, 2015, 2016) for the 2018 version of the Integrated Report. Thus, three
years of previously submitted data from the Center for Applied Aquatic Ecology were not considered for the 2020 assessment period (2014, 2015, 2016). This monthly data collection effort
(at approximately 14 stations) was conducted by NCSU researchers with an approved QAPP as funded by the City of Raleigh. The UNRBA recognizes that the current 2020 EMC approved Assessment
Methodology prioritizes data from the last two years of the assessment period. This valuable and informative data should not be ignored nor should the last two years of a five-year
assessment period be prioritized over the previous three years of information. 2. In the 2020 Draft Integrated Report, Falls Lake above NC Highway 50 maintained similar Assessment
Units to the 2018 version of the final Integrated Report. However, the UNRBA notes that the Division of Water Resources made a decision to split Assessment Unit 27-(5.5)b4d which is
located in the lower portion of Falls Lake below Highway 50. Assessment Unit 27-(5.5)b4d is described as New Light Creek to Falls Dam. In the 2018 Integrated Report this Assessment
Unit was evaluated based on data collected from six different locations. Three collected by the Division of Water Resources and three collected by the Center for Applied Aquatic Ecology.
The data from the three locations monitored by the Center for Applied Aquatic Ecology was excluded from consideration in the 2020 version of the Draft IR and Assessment Unit 27-(5.5)b4d
is divided into two separate segments. 27-(5.5)b4d1 - New Light Creek to Lower Barton Creek Arm with two stations. 27-(5.5)b4d2 - Lower Barton Cr Arm to Falls Dam with only one station.
As with previous Integrated Reports, the Division of Water Resources continues to change Assessment Units within Falls Lake based on a number of variable factors including the variability
of observed water quality measurements. This approach challenges watershed management efforts and result in considerable confusion about attaining and maintaining compliance with the
water quality standard. In short – it is a moving target. All available data should be included and consistent Assessment Units should be established based on the lakes limnologic

/ morphologic characteristics consistent with EPA guidance. It is also important that the assessment approach be aligned with the management strategy laid out in the Falls Lake Rules.
The Draft IR now includes 12 assessment units (7 upstream and 5 downstream of Highway 50). Falls Lake has a robust monitoring program performed by both the Division of Water Resources
and the Center for Applied Aquatic Ecology. Combined, this effort represents approximately 28 monitoring stations in the lake. This monitoring coverage is one of the most expansive
in NC and the southeast. Applying the current Assessment Methodology will increase the number of Assessment Units over time and challenge the ability of ever attaining the water Page
| 4 UNRBA Comments on North Carolina’s 2020 303(d) and Integrated Report Products quality standard for chlorophyll-a in Falls Lake. This “station by station” approach doesn’t properly
reflect consideration of the physical morphology of the lake. Since the 2008 water quality assessment process, the number of Assessment Units for Falls Lake has changed from two to
twelve. The increasing number of units has not been due to limnologic or morphological changes in the lake, it represents the increase in Assessment Unit divisions. Stable Assessment
Units represent solid aquatic science principles and provide a more valid evaluation of the actual long-term characteristics of the waterbody. Falls Lake Integrated Reports by year
and Assessment Units (excluding Beaverdam Reservoir) 2008 2 Assessment Units 2016 10 Assessment Units 2010 3 Assessment Units 2018 11 Assessment Units 2012 3 Assessment Units
2020 12 Assessment Units 2014 6 Assessment Units 3. Assessment Unit 27-(5.5)b2 The UNRBA notes that the Ledge Creek Arm is considered in Category 3b indicating “data inconclusive”
based on one monitoring location. With 54 observations for chlorophyll-a, the 40 µg/L standard was only exceeded 4 times in five years (7%). Yet, the Assessment Unit is not attaining
the water quality standard because there were more than 2 observations exceeding 40 µg/L in the last two years of the assessment period. In 2017 and 2018, there were three observations
for chlorophyll-a above 40 µg/L. In previous assessments, non-compliance was determined when 10% of samples collected during the assessment period exceeded the water quality criterion.
This was later changed to 10% exceedance with 90% confidence. Under the 2020 Assessment Methodology, rather than being listed as meeting water quality standards, this assessment unit
is listed as “data inconclusive”. Not only are the “rules of the game” changing, but the changes are confusing, frustrate management efforts, and make it more difficult to “attain”
water quality standards. 4. Assessment Unit 27-(5.5)b3 This Assessment Unit, From Ledge Creek Arm to Lick Creek Arm, is listed twice for chlorophyll-a with two different assessment
results: Chlorophyll-a data Inconclusive (3b) Chlorophyll-a data Exceeding Criteria with Statistical Confidence (4b) The second result appears correct thus the first result should
be deleted. 5. Assessment Unit 27-(5.5)b4c This Assessment Unit for New Light Creek includes only one monitoring station, the Center for Applied Aquatic Ecology’s location FL8C. It
appears that since no data was used in this assessment period from the Center for Applied Aquatic Ecology that the water quality assessment from the 2018 Integrated Report was reiterated
in the Draft 2020 Integrated Report. However, the fact sheets indicate Chlorophyll-a data are “inconclusive” (1b). This is apparently Page | 5 UNRBA Comments on North Carolina’s
2020 303(d) and Integrated Report Products in error as “inconclusive” and Category 1b are inconsistent. The final 2018 Integrated Report suggest the appropriate Category is Chlorophyll-a
Meeting Criteria (1b). 6. The UNRBA recognizes that 2020 has been a particularly difficult and challenging year for all of us. It is understood that the Division of Water Resources
has encountered significant delay in reporting the 2020 cycle of the 303(d) and Integrated Reports. We understand that EPA has expressed expectations that the 2022 cycle of the 303(d)
list and Integrated Report’s should meet an established deadline of April 1, 2022. Thus, we anticipate a new 2022 draft water quality assessment in the not too distant future. In
addition to our request to revise the 2020 cycle to address the points we’ve raised, we are hopeful that an updated assessment approach for Falls Lake will include additional data for
the time period covering 2016 through 2020.