Mandatory Best Management Practices for Non-Point Sources of Pollution

December 4, 1995

Linda Bray Rimer Assistant Secretary for Environmental Protection Department of Environment, Health & Natural Resources

P. O. Box 27687 Raleigh, North Carolina 27611-7687

Re: Advisory Opinion; Authority of the Environmental Management Commission to Develop Mandatory Best Management Practices for Non-Point Sources of Pollution; G.S. 143-214.1 and

214.7

Dear Assistant Secretary Rimer:

You have requested guidance from this office concerning the general authorities of the Environmental Management Commission (EMC) and the Department of Environment, Health and Natural Resources (DEHNR) to address water quality problems resulting from non-point sources. The questions raised have developed over the years as more data suggest the impairment of our waters may be as much, if not more, the result of collective contributions of pollutants from these sources as from the more traditionally regulated point sources. The immediate concern is triggered both by the regulatory approach proposed by the Division of Environmental Management (DEM) to establish a supplemental classification for Use Restoration Waters (URW), and by the generally poor condition of several rivers in the State, particularly the Neuse.

Non-point source pollution is defined by the EMC as follows: Nonpoint source pollution means pollution which enters waters mainly as a result of precipitation and subsequent runoff from land which has been disturbed as a result of man’s activities and includes all sources of water pollution which are not required to have a permit in accordance with G.S. 143-215.1(c). 15A NCAC 2B .0202(36).

In North Carolina, non-point sources have been historically controlled by various regulatory regimes. As early as 1972, the Section 208 program mandated by the federal Clean Water Act (33 USC §1251 et seq.) called upon the State to develop water quality planning strategies which included both point and non-point sources. Later, non-point source management programs were generally addressed through Section 319 Reports (33 USC §1329) prepared for the State by DEM, but including a recitation of the responsibilities and programs of multiple State agencies. It is beyond the scope of this opinion to address the specific statutory authority for, or even the components of, the State’s full non-point source management strategy. Rather, we will focus solely on the ability of the EMC to develop mandatory best management practices (BMPs) for the reduction of pollutant contributions from these sources. However, any overall approach of the EMC and DEHNR should continue to recognize and acknowledge the tremendous amount of effort already placed on non-point source management through the Section 319 process.

Boiled to the basics, your questions are whether the General Assembly has authorized the EMC to control the collective contributions of non-point sources through a rule-making effort which either 1) establishes the supplemental URW classification and an accompanying pollution management strategy, or 2) directly adopts best management practices for non-point sources contributing to existing water quality problems in currently classified waters. In our opinion, the answer to both questions is YES; and the particular strategy to be employed is to be determined by the EMC.

The ability to adopt classifications is straightforward, and found in G.S. 143-214.1:

(a)

Development and Adoption of Classifications and Standards – The Commission is hereby directed and empowered…:

(1)

To develop and adopt, after proper study, a series of classifications and standards applicable to each such classification…;

(2)

To survey all the waters of the State and to separately identify all such waters as the Commission believes ought to be classified separately…; and

(3)

To assign to each identified water of the State such classification…as the Commission deems proper in order to promote the policy and purposes of this Article most effectively.

The remainder of G.S. 143-214.1 requires the Commission to consider variable factors and conflicting considerations involving the physical, chemical and biological conditions of our waters, in order to develop the most effective program of protection. As the URW program has been described, there are impaired water bodies in North Carolina where designated best uses are not being attained and where supplemental classifications and protective management strategies are desirable. In our opinion, G.S. 143-214.1 provides ample authority for a supplemental URW classification should the EMC find it necessary.

More importantly perhaps, the issue is raised as to whether site-specific measures for non-point sources may be prescribed, by rule, within an individual watershed where water quality is below that required by existing classifications and standards. The site-specific measures may be more commonly referred to as mandatory best management practices. So long as the data of the EMC and the DEHNR support the factual connection that the sources to be regulated are contributing to water quality concerns and that the practices to be prescribed are necessary to reduce various pollutant loading, it is our further opinion there is adequate authority to impose the site-specific measures.

The clearest authority for mandatory best management practices is found in G.S. 143-214.7, adopted in 1989, which establishes a program of phased-in stormwater management for the State. Stormwater is defined at G.S. 143-213(16a) as follows: "…the flow of water which results from precipitation and which occurs immediately following rainfall or a snow melt." G.S. 143-214.7, in pertinent part, reads as follows:

§143-214.7. Stormwater runoff rules and programs.

(a) Policy, Purpose and Intent. — The Commission shall undertake a continuing planning process to develop and adopt a statewide plan with regard to establishing and enforcing stormwater rules for the purpose of protecting the surface waters of the State. It is the purpose and intent of this section that, in developing stormwater runoff rules and programs, the Commission may utilize stormwater rules established by the Commission to protect classified shellfish waters, water supply watersheds, and outstanding resource waters; and to control stormwater runoff disposal in coastal counties and other nonpoint sources. Further, it is the intent of this section that the Commission phase in the stormwater rules on a priority basis for all sources of pollution to the water. The plan shall be applied evenhandedly throughout the State to address the State’s water quality in the State and shall revise stormwater runoff rules as necessary to protect water quality. As necessary, the stormwater rules shall be modified to comply with federal regulations.

(b)

The Commission shall be authorized and directed to implement stormwater runoff rules and programs for point and nonpoint sources on a phased-in statewide basis. The Commission shall consider standards and best management practices for the protection of the State’s water resources in the following order of priority:

(1)

Classified shellfish waters;

(2)

Water supply watersheds;

(3)

Outstanding resource waters;

(4)

High quality waters; and

(5)

Other waters where the Commission finds control of stormwater is needed to meet the purposes of this Article. Provided however, that prior to implementation of rules under this subdivision (5), the Commission shall consult with the Environmental Review Commission. (emphasis supplied)

It is clear the General Assembly intended this section as the vehicle for the EMC to phase in both point and non-point source controls with regard to pollution carried to our surface waters through precipitation events. Should the EMC find that controls are necessary in currently classified waters to correct water quality concerns, G.S. 143-214.7 would provide the authority for a sitespecific management strategy in those watersheds. The only caveat to the EMC moving into this area would be the General Assembly’s priorities as established in paragraph (b). Under subparagraph (5) thereof, once the EMC has identified waters where stormwater runoff control is necessary, it is directed to consult with the Environmental Review Commission.

We trust this is responsive to your question. Please advise if you need anything further.

Daniel C. Oakley Senior Deputy Attorney General