NCG010000_NC Conservation Network Comments_20240325

Clark, Paul
From: Grady O'Brien <[e-mail]>
Sent: Monday, March 25, 2024 11:21 AM
To: Clark, Paul
Subject: [External] NC Conservation Network NCG01 comments
Attachments: NCCN_NCG01 Comments_FINAL.pdf
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Paul,
Attached you will find our comments on the NCGO1. Please let me know if you have any questions or if I can
provide any additional information.
Best,
Grady O'Brien
Grady O'Brien
NC Conservation Network
Policy Associate
1

Paul Clark
Stormwater Program, Division of Energy, Mineral, and Land Resources (DEMLR)
Department of Environmental Quality(DEQ)
March 25, 2024
Mr. Clark,
Thank you for the opportunity to provide input on the NPDES NCGO1 general permit(NCGO1)
for construction stormwater activities. We offer the following comments on how this permit, in
combination with other regulatory measures, can be a mechanism for protecting water quality.
Erosion and sedimentation are significant water pollution issues in North Carolina. According to
the Division of Water Resources (DWR) 2022 integrated report, 92 water bodies in the state are
impaired (either Category 4 or 5)under the criteria for turbidity or total suspended solids.' These
impaired segments span the state, located in 12 different river basins. Further, 25 of these
segments are listed as nutrient sensitive waters; sedimentation problems only serve to exacerbate
nutrient issues in these basins. Of course, Category 4 or 5 waters only represent the most extreme
cases of impairment. Numerous other water bodies across the state are, at times, degraded with
sediment pollution without being listed as impaired.
Construction activities can be a significant contributor to sediment pollution if not adequately
outfitted with controls. As North Carolina's primary tool to ensure that construction projects
comply with the Clean Water Act, the NCGO1 must have strong conditions, as well as proper
monitoring and oversight. Additionally, it must work in concert with the state-level and local
erosion and sedimentation control programs, which implement the state Sedimentation Pollution
Control Act of 1973 (SPCA).
In current practice, this is mostly the case. An erosion and sedimentation control (E&SC)plan,
whether approved by DEMLR or a delegated local program, acts as the required Stormwater
Pollution Prevention Plan of the NCGO1. From there, the NCGO1 requires certain additional
measures to fulfill federal requirements, such as a maintained rain gauge, weekly monitoring and
inspections, and self-inspection after a storm event of greater than one inch in 24 hours. While
there are measures that could further strengthen the NCGO1's protection against sediment
pollution, it functions in tandem with E&SC plans to provide a base level of control for
stormwater pollution.
Importantly, multiple entities have found that the two permits are complementary in their
functions and not duplicative or redundant. In its Report on the Study of Erosion and
' NC 2022 Integrated Report

Sedimentation Control Requirements Relative to Federal Requirements Applicable to Stormwater
Discharges from Construction Activities, DEQ found that"the requirements of the SPCA and
approved E&SC plans are not more stringent nor are they redundant to federal requirements
included in the NCGO U` When tasked with assessing the two permits, the North Carolina
General Assembly's erstwhile Program Evaluation Division found that"[t]he Erosion and
Sedimentation Control program is a state program that fulfills requirements of the federal
National Pollution [sic] Discharge Elimination System program and thus no duplication exists."'
However, through legislation, the North Carolina General Assembly and the regulated
community have targeted the NCGO1 and E&SC plans, claiming redundancy in the regulatory
process to acquire both approvals. Section 11 of S.L. 2023-108 directs DEQ to "develop a plan
for submittal to USEPA that eliminates any program redundancies between the State's
Sedimentation Pollution Control Act of 1973 (Act), and its implementation of requirements for
stormwater discharges from construction activities set forth under the 2022 Clean Water Act
National Pollution [sic] Discharge Elimination System(NPDES) general permit for stormwater
discharges from construction activities (Construction Permit)"' [emphasis added].
These criticisms stem from a desire to return to a pre-2019 permitting process that allowed
"deemed permitted" status under the NCGO1 as soon as an applicant had an approved E&SC
plan.' However, this process left DEQ unable to provide EPA with the necessary and required
data and documentation on Certificates of Coverage. As explained in the DEQ report
North Carolina had not been meeting EPA's Electronic Reporting Rule Requirements in
40 CFR § 127 for the NCGO1 since 2016. In that year, the Electronic Reporting Rule
established that basic permit data for NPDES-regulated entities were to be reported
electronically to EPA. The state could not report those data prior to 2019 because
Certificates of Coverage were never issued to construction site operators and tracked in
agency databases, State or Local.'
Thus, the application process was split even as the two permits continued to act in a
complementary fashion. Because the NCGO1 arises from the federal Clean Water Act, it is
imperative that EPA—the oversight agency for Clean Water Act programs—has the ability to
z Report on the Study of Erosion and Sedimentations Control Requirements Relative to Federal Requirements
Applicable to Stormwater Discharges from Construction Activities,p. 11 of 12
3 Opportunities Exist to Improve the Erosion and Sedimentation Control Program and Recover$1.7 Million in
Annual Costs,p. 17 of 59
4 S.L.2023-108,s.11
s A provision in section 1.(a)of H.B. 579,Ed. 3 would have this"deemed permitted"link work the other way,with
application and receipt of the NCGO1 satisfying the requirement under the SPCA for an E&SC plan. The bill has yet
to be enacted.
6 Report on the Study of Erosion and Sedimentations Control Requirements Relative to Federal Requirements
Applicable to Stormwater Discharges from Construction Activities,p. 5-6 of 12

monitor and assess program progress. Additionally, ire at administrative processes is not a sound
reason to alter the workings of a permit dedicated to water quality.
DEQ has found that the dual processes do not lead to unreasonable delays. In its report, the
Department found that
[t]he SPCA requires a determination on the review within 30 days for a new plan and 15
days for a revised plan. The NCGO1 is typically issued within 3-5 days after receiving a
complete NOI. That comes to a total of 35 days for review and approval of an approvable
plan and NOI.'
Moreover, DEQ has worked hard to streamline its permit processes and increase the ease with
which regulated entities can apply for coverage. DEMLR, acting on the legislative instruction
mentioned previously, has proposed to the EPA a way for regulated entities in areas without a
delegated local erosion and sedimentation program to apply for both the NCG01 and E&SC
through one application. DEMLR would then separate the data needed for each program on the
back end. We support this option—Proposal B in DEMLR's parlance—due to its reasonable
commitment to addressing the concerns of the regulated community without weakening permit
protections, monitoring, or oversight.
We recommend against Proposal A, however, which would attempt delegation of Clean Water
Act oversight and responsibility to local governments. Local governments are often already
overburdened with the administration of their erosion and sedimentation control programs;
adding the responsibility for another permit will only stretch these local governments further. We
believe that Proposal A would return North Carolina to a process that lacks proper data
collection, documentation, and reporting and would only serve to potentially weaken protections
for clean water.
The permit administration process is not the only facet of the NCGO1 under scrutiny. Regulated
entities would also like ground cover requirements to be weakened or passed along to the buyer
of a lot as quickly as possible. Again, the NCGO1 is meant to protect water bodies from sediment
pollution, not regulated entities from the responsibility of stabilizing disturbed acreage.
Permanent ground cover is vital to preventing ongoing sedimentation and is a necessary
condition of permit coverage termination. The entity disturbing the land for a construction
project will have better knowledge and resources to deal with permanent stabilization than any
individual consumer and thus, responsibility should not be passed until coverage under the
NCGO1 is terminated.
'Ibid.p.11 of 12

Overall,we believe the current process for acquiring coverage under an E&SC plan and the
NCGO1 is adequate for proper monitoring, data collection, and oversight. Attempts to weaken
this process and reduce accountability should be rejected. If the Division is going to consider
changes to the NCGO 1—whether they be administrative or with the conditions of the permit
itself—we strongly encourage that they be based on the main purpose of permit: preventing
sediment pollution and protecting water quality.
Again, we thank you for the chance to offer these comments. If you have any questions or would
like to discuss any of these points further, feel free to contact me at
obrienkncconservationnetwork.org.
Best,
Grady O'Brien
Policy Associate
North Carolina Conservation Network