January 10, 2008

Response from Jan Diblieu and NCCF

I offered to post a reply to How Rumors Start part 2. Jan Deblieu asked me to post the following:

Please post this response:

Stormwater is now the #1 pollutant of North Carolina’s coastal waters. In 2004 and early 2005 I served on the Outer Banks Hydrology Committee, along with representatives from the Coastal Studies Institute, the Outer Banks Homebuilders Association, and every government entity on the Outer Banks. Our charge, set by Sen. Marc Basnight, was to come up with ideas for solving flooding problems and stormwater pollution on the islands. We met dozens of times and hashed over every conceivable solution. That report is available from the Coastal Studies Institute. The meetings were conducted in a true spirit of cooperation, and while not all of the committee members agreed all the time, they came up with a number of innovative ideas for controlling and eliminating stormwater runoff. Few, if any, have been adopted.

Below is the complete text of the Coastal Federation’s letter to the Division of Coastal Management, objecting to the rebuilding of ocean outfalls in Dare County:

Jim Gregson, Director

Division of Coastal Management

400 Commerce Street

Morehead City, NC 28557

RE: CAMA Permit Request to Construct Stormwater Outfall #6 in KDH

Dear Jim,

The North Carolina Marine Fisheries, Environmental Management, and Coastal Resources Commissions (CRC) unanimously adopted the North Carolina Coastal Habitat Protection Plan (CHPP) in December 2004. One key provision in the plan was the following recommendation:

Prohibit new or expanded stormwater outfalls to coastal beaches and to coastal shellfishing waters (EMC surface water classifications SA and SB) except during times of emergency (as defined by the Division of Water Quality’s Stormwater Flooding Relief Discharge Policy) when public safety and health are threatened, and continue to phase-out existing outfalls by implementing alternative stormwater management strategies.

Now the NC Department of Transportation (NCDOT) is asking for a Coastal Area Management Act (CAMA) permit to undertake a project to reconstruct ocean stormwater outfall #6 in Kill Devil Hills. This proposal is exactly the kind of project the CHPP and the Commissions that adopted it sought to prevent. Therefore, on behalf of the North Carolina Coastal Federation, I urge you to deny the CAMA permit application that would allow this outfall to dump untreated stormwater into the Atlantic Ocean. Granting this permit would result in the pollution of a popular public beach. The permit cannot be granted without violating specific development standards adopted by the CRC.

The permit if granted would allow the reconstruction of between 35 and 40 feet of pipe washed away by ocean surf and the removal of sand from the remaining pipe, currently buried three feet below the beach. Because of the sand, no water is currently draining through the outfall. This is not a new situation. The outfall has not been functioning for years. In 2001 DCM denied a similar permit that would have allowed its reconstruction. That was the correct decision in 2001, and the precedent established by this earlier permit denial should be upheld.

CAMA permit applications must be denied upon finding that rules of the CRC will be violated by a proposed development activity. This proposed development activity will violate the following CAMA regulations (bold indicates rules violated):

15A NCAC 07H .0207 PUBLIC TRUST AREAS

(a) Description. Public trust areas are all waters of the Atlantic Ocean….

(b) Significance. The public has rights in these areas, including navigation and recreation….

(c) Management Objective. To protect public rights for ….recreation and to conserve and manage the public trust areas so as to safeguard and perpetuate their biological, economic and aesthetic value.

(d) Use Standards. Acceptable uses shall be those consistent with the management objectives in Paragraph (c) of this Rule.

15A NCAC 07H .0208 USE STANDARDS

(a) General Use Standards

(2) Before being granted a permit by the CRC or local permitting authority, there shall be a finding that the applicant has complied with the following standards:

(C) Development shall not violate water and air quality standards.

Water quality standards adopted by the EMC will be violated if this proposed activity is permitted. Based on the EMC’s water quality classifications and standards, the NC Division of Water Quality (DWQ) is on record as prohibiting new direct discharges of stormwater into the Atlantic Ocean. DWQ has acted to stop these new outfalls because it has concluded that such direct discharges will violate the intent of the federal Clean Water Act, which is to protect the cleanliness of the nation’s waters for fishing and swimming. To achieve this goal, the EMC has adopted water quality regulations that prohibit discharges of wastes such as stormwater that will preclude existing uses of our public trust waters.

A few years ago, DWQ told the Town of Emerald Isle that it could not construct stormwater outfalls to SA or SB waters in order to reduce flooding on its streets. This action by DWQ forced the Town to find alternative “non-discharge” options, including the acquisition of 40 acres of property that now serve as a Town Park and stormwater disposal area.

DWQ has enforced this prohibition on outfalls because of overwhelming scientific evidence that direct stormwater discharges contain high levels of bacteria, nutrients, and pathogens. These may cause public health problems, especially in waters used by the public for recreation and swimming. For this reason, swimming advisories are now posted at stormwater outfalls that flow into swimming waters. Issuance of a swimming advisory for this outfall would be a violation of the state’s Antidegration Policy, which prohibits the loss of “existing uses” of our public trust waters.

Specifically, issuance of this permit will violate the following water quality standards (shown below in bold type):

15A NCAC 02B .0201 ANTIDEGRADATION POLICY

(a) It is the policy of the Environmental Management Commission to maintain, protect, and enhance water quality within the State of North Carolina. Pursuant to this policy, the requirements of 40 CFR 131.12 are hereby incorporated by reference including any subsequent amendments and editions….

(b) Existing uses, as defined by Rule .0202 of this Section, and the water quality to protect such uses shall be protected by properly classifying surface waters and having standards sufficient to protect these uses….

(c) The Commission shall consider the present and anticipated usage of waters with quality higher than the standards, including any uses not specified by the assigned classification (such as outstanding national resource waters or waters of exceptional water quality) and shall not allow degradation of the quality of waters with quality higher than the standards below the water quality necessary to maintain existing and anticipated uses of those waters.

15A NCAC 02B .0222 TIDAL SALT WATER QUALITY STANDARDS FOR CLASS SB WATERS

The following water quality standards apply to surface waters that are used for primary recreation, including frequent or organized swimming, and are classified SB. Water quality standards applicable to Class SC waters are described in Rule .0220

of this Section also apply to SB waters.

(1) Best Usage of waters: primary recreation and any other usage specified by the “SC” classification;

(2) Conditions Related to Best Usage: the waters shall meet accepted sanitary standards of water quality for outdoor bathing places as specified in Item (3) of this Rule and will be of sufficient size and depth for primary recreation purposes. Any source of water pollution which precludes any of these uses, including their functioning as PNAs, on either a short-term or a long-term basis shall be considered to be violating a water quality standard;

(3) Quality Standards applicable to Class SB waters:

(a) Floating solids, settleable solids, or sludge deposits: none attributable to sewage, industrial wastes or other wastes;

(b) Sewage, industrial wastes, or other wastes: none shall be allowed that are not effectively treated to the satisfaction of the Commission; in determining the degree of treatment required for such waters discharged into waters which are to be used for bathing, the Commission shall take into consideration quantity and quality of the sewage and other wastes involved and the proximity of such discharges to the waters in this class; discharges in the immediate vicinity of bathing areas may not be allowed if the Director determines that the waste can not be treated to ensure the protection of primary recreation;

(c) Enterococcus, including Enterococcus faecalis, Enterococcus faecium, Enterococcus avium andEnterococcus gallinarium: not to exceed a geometric mean of 35 enterococci per 100 ml based upon a minimum of five samples within any consecutive 30 days. In accordance with 33 U.S.C. 1313 (Federal Water Pollution Control Act) for purposes of beach monitoring and notification, NORTH CAROLINA ADMINISTRATIVE CODE Eff. May 1, 2007 Page 42“Coastal Recreation Waters Monitoring, Evaluation and Notification” regulations (15A NCAC 18A .3400) are hereby incorporated by reference including any subsequent amendments.

NCDOT is operating its stormwater drainage system under a Phase I NPDES Permit No. NCS000250. As stated in Part 1, Page 2:

This permit does not include water quality-based effluent limits; therefore, in the event the permittee's discharges are found by the Division to cause or contribute to a violation of in stream water quality standards, the Division (NCDENR Division of Water Quality) may take enforcement action or NCDOT and DWQ shall conduct an assessment and implement the permit requirements necessary to adequately address the permittee’s contribution to the water quality standards violation.

This means that NCDOT is not permitted under the terms of its Phase I NPDES permit to construct an ocean outfall that it knows will result in violations of water quality standards. If the pipe is constructed, NCDOT will be subject to enforcement actions by NC DWQ, as well as citizen enforcement actions as allowed by the citizen suit provisions of the federal Clean Water Act.

It is outrageous that the reopening of this outfall is being considered at a time when the NC Legislature has provided $15 million to the Department of Transportation (DOT) to study ways of removing existing ocean outfalls or reducing and treating the stormwater discharged by them. Using these funds, the Raleigh engineering firm Moffat and Nichol has launched a pilot project to treat stormwater being discharged by three ocean outfalls in Nags Head, just south of Kill Devil Hills. It is hoped that construction of a holding vault for stormwater from the Conch Street outfall will begin this winter. Why is DOT applying for a permit to rebuild the Kill Devil Hills outfall in the middle of the study, and during drought conditions? The lack of rain has slowed data collection for the study—just as it has greatly lessened flooding problems in the watershed drained by Outfall #6.

Please notify me immediately of any decision made to issue or deny this permit, or any amended application requests. Thank you for the opportunity to submit these comments.

Sincerely,

Jan DeBlieu

Cape Hatteras Coastkeeper

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