AGENDA #4a5

Jordan Nutrient Management Strategy Rules

Summary of Rules Adopted by the EMC on May 8, 2008

(Blue text indicates change from April 2007 version)

General:

· All local jurisdictions as well as State and Federal property owners, including NCDOT, must comply with Rules.

· DWQ is required to work with local governments to develop model stormwater program and accounting tool.  DWQ is also required to revisit accounting methods and the loading reductions derived from them at least every 5 years; reevaluate nitrogen source rates like aerial deposition, also review nutrient removal efficiencies of BMPs.

· Rules explicitly refer to BMP design requirements, drainage times, and nutrient removal efficiencies as described in DWQ’s BMP Manual instead of setting them out in Rules.  More easily revised (become more accurate) in BMP Manual than if they were in the Rules.

· Jordan Rules extend the requirements of the Watershed Protection District to the Town’s entire jurisdiction.

Nutrient Management:

· Nutrient (fertilizer) application is now regulated by property type and size rather than the applicator.

· Reduced size threshold to five acres (from 10 acres) for lands treated by hired applicator.

New Development:

· Minimum development area to trigger stormwater BMP rules is 1 ac SFR, duplex, recreational, ½ ac for other development.

· New development must have BMPs to treat stormwater down to 2.2 lb/ac/yr nitrogen and 0.82 lb/ac/yr phosphorus; re-development may either treat down to 2.2 lb/ac/yr nitrogen and 0.82 lb/ac/yr phosphorus or use percent load reductions as for existing development.

· Public roads/linear utilities constructed by the Town only have to meet the buffer protection rules, not nitrogen export/reduction requirements; this excludes developer-built roads/utilities that will be dedicated to the Town, which must meet nutrient reductions.

· Nitrogen offsets may be bought for new development.  The developer must treat down to 4 lb/ac/yr nitrogen for single family/duplex or down to 8 lb/ac/yr nitrogen for other development first.  Offset payments or options may be through EEP, local government option, or proposed by developer as approved by DWQ.

· The Town must assume ultimate responsibility for operations and maintenance for BMPs for high density development.  The Town also must ensure proper operation, maintenance, enforcement, and compliance.

Existing Development:

· Existing development must reduce nitrogen export by 35% and phosphorus export by 5% mass exported is to be calculated using the Tar-Pamlico calculation tool and land use loading rates or similar. Reduction is to be done through installation of new BMPs, retrofitting existing BMPs, or other non-structural nutrient management methods.

· Development after the baseline period but before rule implementation will be considered existing development.  The Town must estimate nutrient loading from development from this period, and present load-reducing practices implemented in this period in order to get any “credit”.

· Town must do a technical analysis to serve as the basis for the existing development load reduction program - to include assessment of feasibility of achieving goals, consider magnitude of reduction need relative to area, potential for using different BMPs, costs and efficiencies -  “as practicable.”

· Load reduction plan must aim for reaching half of load reduction goal in 10 years of rule date; alternate compliance timeframe may be proposed if it demonstrates need.  After 10 years Town may submit revised load reduction program.

· Town may monitor stream flows and runoff to find high loading areas, and may target treatment there to get proportionally greater load reduction credit.  Must have DWQ approval for monitoring design and estimation of load reduction.  Doing so allows Town to delay submission of load reduction program to DWQ by one year, delay adoption and implementation of approved program also by one year, if monitoring proposal is submitted to DWQ within 6 months of rule date.

· Town must submit stormwater program plans for new development and existing development for approval, includes annual reports from Town, IDDE, public education, MS4 mapping, can be linked with NPDES permit. Schedules for submitting different nutrient management plan components have changed.

Riparian Buffers:

· Local programs and buffer rules may be more stringent than is required by the Jordan Rules.

· All perennial and intermittent streams get a 50-foot minimum buffer, no exemptions for land use type (e.g. SFR) or date of platting (i.e. grandfathering).

· Riparian Zone 1 (first 30 feet) – completely undisturbed vegetation

· Riparian Zone 2 (next 20 feet) – can be disturbed but must be regraded and revegetated, diffuse flow to buffer maintained. 

· Concentrated flow from outside the buffer must be dispersed prior to its entry into the buffer.  Periodic corrective action to restore diffuse flow must be taken, structures/measures to be designed to prevent erosion.  No new stormwater conveyances (including roof drains) are allowed in the buffers, with certain exceptions.

· Mitigation required for many kinds of buffer impacts, thorough procedures for mitigation and fee-in-lieu (through EEP)

· Existing and ongoing uses in buffer are allowed, but only in the CURRENT FOOTPRINT.

· Buffer rules apply to existing uses when use changes or change in footprint, not dependent on or necessarily related to formal development or issuance of ZCP. Change in ownership is not considered a change in use.

· Rules have table of uses for buffers similar to the Town’s but more strict, has categories of “Exempt” (permissible without authorization with restrictions on activity), “Allowable” (may proceed where there are no practicable alternatives, requires authorization), and “Allowable with Mitigation” (may proceed where there are no practicable alternatives, requires authorization and a mitigation strategy).

· Rule has clear procedures for determination of “no practical alternatives” (which Town currently lacks for buffer impacts).

Follow-up to Jordan Rule Concerns and Questions:

· Aerial deposition of nitrogen was addressed to some degree in the Hearing Officer’s Report and Staff Replies to Comments.  Recently enacted state and federal air quality regulations are expected to reduce nitrogen deposition rates over the next 30 years.  It is not clear how those potential results will be reflected in the Jordan Lake model.  The Hearing Officers’ Report states that the Jordan Lake strategy implicitly accounts for atmospheric deposition.

· Guidance on responsibilities for nutrient treatment of stormwater before it enters another jurisdiction or in cases of shared infrastructure has yet to be written.  DWQ Staff states this is something that will be explored in the development of the various model stormwater programs to be created by DWQ. Complications of BMPs in series are also planned to be explored in this process.

· Compliance is expected to be tracked similarly to how it is in the Neuse and Tar-Pamlico basins, which have similar riparian buffer protection and new development nutrient management rules to the Jordan Rules.

· Many methods and BMPs for managing nutrients as described in the Rules do not yet have nutrient removal efficiencies determined.  As demand for these particular BMPs continues, it is expected that DWQ will attempt to determine removal efficiencies, and may accept values determined by other sources (such as other states). 

· While the Town doesn’t get “credit” for good environmental stewardship before 2001, we can still get “credit” for converting BMPs that existed at that time to have better nutrient removal.

· The State has no clear requirement that EEP funds will be used for mitigation in the same basin as the impact offset by fee-in-lieu.  The land use density in the Upper New Hope basin means there won’t be many opportunities for EEP to do projects in our area.

Town-specific issues and concerns:

· The Jordan buffer rules are simpler in many ways than current the RCD ordinance and have the potential to be easier to implement.  However, these rules will probably require considerable changes to the RCD portion of the LUMO.  Our buffer protection program and ordinance will need to be approved by the EMC, but the Town has a rather lengthy and complicated process for making LUMO changes, especially for a change of this magnitude.  Unless we base a new buffer rule entirely on the State’s planned model ordinance, we should plan for sufficient time for staff to present to the EMC a draft riparian buffer ordinance for approval, concurrently presenting the draft to the Town’s boards and commissions for review and public hearing process.  Any changes made as a result of the boards and commissions review/public hearing will have to be submitted to the EMC again. 

· The Town’s method for classifying streams is more stringent than State’s, State is OK with that, but will the Town want to require Jordan-type buffer rule management for all streams classified as perennial or intermittent by Town staff or those just on USGS quad maps/Soil Service maps (as required by the rule)?

· What triggers the requirement for a ZCP?  Are there ways for Town staff to determine changes in land use, especially the use footprint (using the Jordan Rules definition) where no ZCP is required?  Linking enforcement of buffer rules to the ZCP allows non-ZCP-requiring activities that affect the stream buffer to continue, thus impairing our ability to effectively implement the buffer rules.  Can the Town implement these rules in a way that is separate, or somewhat separate, from the LUMO or any future development-dependent ordinance? 

· Enforcement of current the RCD is not strong right now (any penalties?).  The Town will need to devise and describe enforcement mechanisms (among other things) when submitting its buffer ordinance for approval to the EMC.  Enforcing Jordan Rules will likely require more staff (at the very least in Inspections), education (for public and staff), better cooperation between departments and Town Boards, better procedures (decouple from ZCP?), and political and institutional willpower.

· The stormwater requirements contained in the LUMO do not address the nutrient reduction requirements specified in the Jordan rules for new development and existing development.