Proposed Revisions to Surface Water Quality Regulations

1. Environmental Management Commission July 11, 2019 Chairman Stanley Meiburg, EMC Connie Brower, DWR Hearing Officer’s Report of Proceedings On Changes to the Surface Water Quality Classifications and Standards Regulations 15A NCAC 02B .0100 -.0300

2. 15A NCAC Subchapter 02B: Surface Water & Wetland Standards State’s Rules up for Readoption per Session Law 2013-413 • Section .0100 Procedures For Assignment Of Water Quality Standards • Section .0200 Classifications And Water Quality Standards Applicable To Surface Waters And Wetlands Of North Carolina • Section .0300 Assignment Of Stream Classifications • Note: .0304 was amended and codified January 1, 2019 to reclassify Enka Lake • Note: .0311 & .0315 were postponed by SL 2016-94 (by association with waterbodies of Falls & Jordan Lakes) Federal Requirements for Water Quality Standards • Public notice/hearing/accepting comments for .0100-.0300 is a Clean Water Act Triennial Review action • 40 CFR 131– Federal code applicable to state WQS programs • Federal notice/timing require 45 day notice prior to date of public hearing. US EPA Disapproval of Certain Provisions • Modifications align the state and federal criteria requirements • Two prior classifications will require additional consideration

3. Timeline of Activities • 2013 - Review Rule (SL 2013-413) completed Dec 2014 • 2014 - Rule drafting • 2015 - Stakeholder sessions, rule drafts completed Dec • 2016 - Department review of rule drafts • April 2016 - EPA disapproves parts of previous Tri Rev pkg • Jan 2017- Requested WQC to approve drafts, WQC did not approve, requested NCDOJ to review EPA’s actions • Mar 2017- Info Item Update presented to WQC WQC asked for additional stakeholder session • April 2017 - Public Update/Info sessions on rule drafts • July 2017- NCDOJ memo to EMC regarding EPA’s actions • Sept 2017- Update to WQC on key revisions to rules in 02B • Jan 2018 - WQC approved drafts to proceed to EMC • Mar 2018 - EMC approved Rule Readoption and Tri Rev amendments to proceed to public notice

4. Rulemaking Schedule May 2018 Public Notice of Hearings: NC Register -Volume 32, Issue 22 July 2018 Public Hearings (July 2 & 11) May 15- Aug 4 Public Comment period January 1 2019 Reclassification of Enka Lake effective July 2019 Hearing Officer Report of Proceedings Recommendations to the EMC Request for EMC approval

5. Overview of Rule Revisions to Water Quality Classifications and Standards Water Quality Standards consist of: • designated uses of the water body • criteria (numeric &/or narrative) to protect uses • antidegradation requirements • general policies on mixing zones and variances Changes include: • updates, clarifications & reorganizations developed from internal & stakeholder input • EPA’s recommendations from prior Triennial Review • modifications as requested by RRC • fiscal note revision to account for cost and benefits of action level policy removal

6. Key Points of Revisions: General Procedure • Rules .0101(b) (2) and (3) outline procedures for establishing/revising classifications • The proposed rule text specifically cited 40 CFR 131.10 (b),(c),(d),(g) and (j) • Recommend replacing the specific citations with the general citation: 40 CFR 131.10

7. Key Points of Revisions: Antidegradation • The .0201 rules outline procedures to assure protections for all waters of the state. • Proposed text contained a typographical error to a federal citation for 33 USC 1344. • A correction is proposed to read: 33 USC 1341

8. Key Points of Revisions: Standards • Acute Toxicity Definition: .0202 Additional review of comments are needed. Recommend maintain current text/ withdraw proposed text • Chlorophyll a: .0211 & .0220 proposed text modified existing standard. Recommend to maintain current text/withdraw proposed text, await NC SAC recommendations • Metals .0211 & .0220: Recommend amendments to align with EPA endorsed modifications • Removes bioconfirmation approach • Removes Action Levels, exception – Chloride • Removes 25 mg/L lower bound when calculating hardness-dependent metal standards

9. Key Points of Revisions: Classifications • Class C Waters .0211: Text inadvertently deleted. Recommend reinstating the word propagation to applicable use description • Water Supply I classified waters .0212 (5): text made consistent with similar language in other WS waters rules • Nutrient Sensitive Waters .0223: Proposed text omitted clarifying phrases. Recommend added text for continuity. • Amend Boat Slip Length .0225: Recommend increasing allowable slip length from 21 to 24 ft. • Enka Lake .0304: Added text to align with current code

10. Key Points of Triennial Review: Variances .0226 As water quality variances are a change to water quality standards per the Clean Water Act. The variances are reviewed and publicly noticed. Existing chloride variances and the color variance received public support. These comments will be part of the record for NPDES renewals.

11. Rules Review Commission Editorial Changes • Numerous minor editorial changes were requested by the NC Rules Review Commission to rules in Sections 02B .0100 and .0200. • These RRC editorial changes are shown on the Hearing Officer’s updated rule drafts included in the EMC package.

12. On behalf of the Hearing Officer, the rules will show revisions the EMC made since these rules were public noticed: • 02B .0101 (b) (2) and (3): Change 40 CFR citation to 40 CFR 131.10 for clarity • 02B .0201 (f): Typographical correction is proposed to read “33 USC 1341.” • 02B .0202 (1) (c): Withdraw acute toxicity definition modifications for further consideration • 02B .0211 (1): Reinstate “propagation” after the phrase “aquatic life” • 02B .0211 (4) and .0220 (3): Withdraw changes to chlorophyll a standards • 02B .0212 (5): Align text for WS classified waters for uniformity across regulations • 02B .0223 (e): Add “to limit nutrients” for clarity • 02B .0225 (e) (7) and (8): Change boat length restriction from 21 feet to 24 feet • 02B .0304: Added text to align with current code • • Accept numerous editorial changes RRC requested to 15A NCAC 02B .0100 and .0200 • All changes are shown on the attached updated rule drafts

13. Hearing Officer’s Recommendation It is the recommendation of the EMC appointed Hearing Officer, Dr. A Stanley Meiburg, that the public-noticed revisions made to rules 15A NCAC 02B .0100, .0200 and .0300, as proposed, be approved by the EMC with modifications noted in the Report. Request Approval of the Hearing Officer’s Recommendations contained in the “Report of Proceedings on the Proposed Changes to the Surface Water Quality Classifications and Standards Regulations in 15A NCAC 02B .0100, .0200 and .0300”.

14. Questions? Jeff Manning - Chief Classifications and Standards, Rules Review Branch Adriene Weaver – Classifications Bridget Flaherty – Standards Chris Ventaloro – Standards Connie Brower – Standards Elizabeth Kountis – Classifications Julie Ventaloro – Fiscal Analyst Peter Johnston – Rules Review Oversight

15. Future Triennial Review Topics including: • 94 Human Health Protective Criteria updates • Ammonia Criteria: freshwater aquatic life protections • Bacteria Criteria: freshwater recreational protections • Shellfish leasing areas/mariculture: new designated use • Selenium Criteria • Cyanotoxins Criteria • Cadmium, Methyl Mercury modifications • Addition of Other Metals • Bromide: protection of public water supplies • Emerging Contaminants • Lower Cape Fear Swamp Classification

17. Federal citation for hearings • The relevant citation for the 45 day language is paragraph (b) at 40 CFR 25.5 (and 40 CFR 131.20(b) refers to 25 in general). • Also included an excerpt from the WQS preamble to the Final 2015 WQS Rule.   • § 25.5 Public hearings. • (b)Notice. A notice of each hearing shall be well publicized, and shall also be mailed to the appropriate portions of the list of interested and affected parties required by § 25.4(b)(5). Except as otherwise specifically provided elsewhere in this chapter, these actions must occur at least 45 days prior to the date of the hearing. However, where EPA determines that there are no substantial documents which must be reviewed for effective hearing participation and that there are no complex or controversial matters to be addressed by the hearing, the notice requirement may be reduced to no less than 30 days. EPA may further reduce or waive the hearing notice requirement in emergency situations where EPA determines that there is an imminent danger to public health. To the extent not duplicative, the agency holding the hearing shall also provide informal notice to all interested persons or organizations that request it. The notice shall identify the matters to be discussed at the hearing and shall include or be accompanied by a discussion of the agency's tentative determination on major issues (if any), information on the availability of a bibliography of relevant materials (if deemed appropriate), and procedures for obtaining further information. Reports, documents and data relevant to the discussion at the public hearing shall be available to the public at least 30 days before the hearing. Earlier availability of materials relevant to the hearing will further assist public participation and is encouraged where possible. • § 131.20 State review and revision of water quality standards. • (a) State review. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing applicable water quality standards adopted pursuant to §§ 131.10 through 131.15 and Federally promulgated water quality standards and, as appropriate, modifying and • adopting standards. The State shall also re-examine any waterbody segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process. In addition, if a State does not adopt new or revised criteria for parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations, then the State shall provide an explanation when it submits the results of its triennial review to the Regional Administrator consistent with CWA section 303(c)(1) and the requirements of paragraph (c) of this section. • (b) Public participation. The State shall hold one or more public hearings for the purpose of reviewing water quality standards as well as when revising water quality standards, in accordance with provisions of State law and EPA’s public participation regulation (40 CFR part 25). The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing. • Excerpt from the Final 2015 WQS Rule preamble: • A ‘‘public hearing’’ may mean different things to different people. At a minimum, per § 131.20(b), states and authorized tribes are required to follow the provisions of state or tribal law and EPA’s public participation regulations at 40 CFR part 25. EPA’s public participation regulation, at 40 CFR 25.5, • sets minimum requirements for states and authorized tribes to publicize a hearing at least 45 days prior to the date of the hearing; provide to the public reports, documents, and data relevant to the discussion at the public hearing at least 30 days before the hearing; hold the hearing at times and places that facilitate attendance by the public; schedule witnesses in advance to allow maximum participation and adequate time; and prepare a transcript, recording, or other complete record of the hearing proceedings. See 40 CFR 25.5 for the actual list of federal public hearing requirements. State and tribal law may include additional requirements for states and authorized tribes to meet when planning for and conducting a hearing. In addition to meeting the requirements of state and tribal law and 40 CFR part 25, states and authorized tribes may also choose to gather public input using other formats, such as public meetings and webinars.