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Monday, May 4, 2009

Jordan Lake compromise scheduled for Tuesday vote

Posted by on Mon, May 4, 2009 at 5:00 PM

After seeking to block a state-mandated effort to clean up Jordan Lake, a group of legislators have proposed a compromise bill that would severely limit pollution-reduction goals for the impaired drinking-water source. Introduced last week in the House Environment and Natural Resources committee, and set for a vote during Tuesday’s committee hearing at noon, the substitute bill would reduce pollution controls by more than three-quarters in the most impaired section of the lake, and delay critical protections until 2017.

“These provisions are totally inadequate for the restoration of water quality. It would mean the lake would never actually be cleaned up,” Chatham County Commissioner Tom Vanderbeck said at an April 30 hearing of the House Committee on Environment and Natural Resources.

Jordan Lake has been on EPA’s Impaired Waters list since 2002, due to excess nutrients such as nitrogen, which causes algal blooms and can render water unfit for drinking. Last year, the N.C. Environmental Management Commission (EMC) adopted a set of 13 rules focused on nutrient reduction measures that seek to restore Jordan Lake compliance with the federal Clean Water Act. Although the N.C. Rules Review Commission approved the measures, the General Assembly has the power to overrule commission decisions with legislation. House Bill 239, “Disapprove Jordan Lake Rules,” and an identical Senate version would reject the rules altogether; the proposed substitute bill would alter them significantly.

House Environment and Natural Resources Committee Chair Lucy Allen (D-Franklin), along with Reps. Pryor Gibson (D-Anson) and Alice Bordsen (D-Alamance) are HB 239's primary sponsors; Sen. Tony Foriest (D-Alamance) introduced the Senate version of the bill.

The EMC’s rules would give local governments within the Jordan Lake watershed three and a half years to implement a self-tailored nutrient reduction plan that limits the amount of pollutants that enter the reservoir. In addition to requiring stormwater management standards for new construction, the rules call for a percentage reduction to towns’ and counties’ existing “nutrient load,” which in many cases is largely due to runoff from existing development—the most controversial aspect to the rules. Within 10 years, local governments must reach half of their state-mandated goals, regardless of how they achieve the new standards. (For example, a government could improve its wastewater treatment plants in lieu of retrofitting existing development with better stormwater protections, as long as they achieve the required nutrient load reductions.)

By contrast, the substitute bill would not evaluate whether municipalities are subject to a pollution-control plan until 2017, and would place strict limits on the state’s ability to enforce controls on existing development.

“The wording is loose enough that there’s the potential that improvements from wastewater and agriculture could provide some improvement in the lake that would result in not addressing existing development indefinitely, but also not really ever improving the lake beyond those initial improvements,” said Rich Gannon, the N.C. Division of Water Quality’s non-point source program supervisor.

Under the substitute bill, if municipalities achieve “measurable reductions” in nitrogen and phosphorous pollution by 2017, they will not be subject to any pollution controls for existing development. “Measurable reduction” is not defined in the draft bill. Even in cases where municipalities do not achieve the required reductions, the bill contains explicit language that bars the EMC from requiring municipalities to retrofit buildings with stormwater controls, or acquire conservation land, to offset their pollution.

Elizabeth Ouzts, state director for Environment North Carolina, says this restriction could enable municipalities to avoid controlling stormwater runoff from existing development altogether, even if they continue to pollute at a higher level than the EPA standard.

That’s due to the bill’s ambiguous language about “measurable reductions” to nutrient loads, and a standard based only on improving a previous year’s level, without projecting actual pollution-reduction goals.

“The way the bill is written now, [nutrient reduction controls] would likely never happen,” Ouzts said. “At best, we’d have a fight about whether or not to have controls [in 2017], and more likely than not they would not be required.”

Ouzts acknowledged that the prospect of retrofitting existing development has “drawn the most fire” from local governments, but she said the compromise bill merely “waters it down in a way that’s not going to protect Jordan Lake.”

The City of Durham has lobbied the legislature to remove the requirement for nutrient reductions, citing high costs for retrofitting existing development. The Durham City Council passed a resolution supporting some elements of the EMC’s proposed rules, but opposing nutrient reduction goals for existing development, arguing that “these costs are unnecessary for protection of the lake, will not achieve expected results, will cause significant hardship to Durham’s citizens, and will further hamper economic development.”

John Cox, the city’s water quality manager, told the committee that Durham supports the substitute bill, because it would exempt the city from an estimated expense of $570 million to retrofit existing development.

“That’s a huge expense,” he said.

Ouzts said she’s sympathetic to the cost concerns, but maintains the substitute bill does not address exactly what local governments will be responsible for—only that they won’t be responsible for at least another eight years.

“Because the question is left open as to whether or not controls would be required, and because the timeline is so stretched out, the question as to what will be required, and what cities will be put on the hook for, is just delayed,” she said.

Under the substitute bill, the Upper New Hope Creek Arm of Jordan Lake—the most impaired portion, located southwest of Durham—would come up for review again in 2025, even if Durham is not required to implement a pollution-reduction plan in 2017. However, the 2025 review would explicitly take into consideration “the practicality of implementation and cost” of pollution control measures.

Gannon said it’s possible Upper New Hope Creek could escape any existing development controls in 2017, while the lake continues to deteriorate until 2025.

“You could go directly to having to weigh the cost-benefit much more heavily [in 2025] without having gotten any implementation [in 2017],” he said.

In other words, if it’s financially burdensome for the City of Durham to clean up an increasingly polluted Upper New Hope Creek in 2025, it may never have to, under the substitute bill.

“If passed, this existing development rule is a rule in name only,” Haw Riverkeeper Elaine Chiosso told the committee last week. “I don’t think you can have a variance in water quality standards when you have drinking water.”

The proposed committee substitute for House Bill 239 is scheduled for a vote Tuesday, May 5, at noon, in 643 LOB.

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