STATE OF NORTH
CAROLINA IN
THE OFFICE OF
COUNTY OF WAKE 05 EHR 2055
06 EHR 0164
|
North
Carolina Wildlife Federation Central
Piedmont Group of the NC Sierra Club Petitioner vs. N.
C. Division of Water Quality Respondent |
) ) ) )) ))) |
DECISION |
This contested case was
heard by Fred G. Morrison Jr., Senior Administrative Law Judge, on July 19 and
20, 2006, in Raleigh, North Carolina.
The parties filed proposed Decisions and Memoranda of Law on September
15, 2006.
APPEARANCES
For Petitioners: John Suttles
Amy Pickle
Kay Bond
Southern
Environmental Law Center
200 West
Franklin Street, Suite 330
Chapel Hill,
North Carolina 27516.
For Respondent: Donald W. Laton
Assistant
Attorney General
NC
Department of Justice
9001 Mail
Service Center
Raleigh,
North Carolina 27699-9001
ISSUES
This matter is an appeal
by Petitioners of the National Pollutant Discharge Elimination System (“NPDES”)
Phase II stormwater permits issued to three local governments located in the
Goose Creek watershed in Mecklenburg and Union Counties. The final NPDES Phase II stormwater permit
for Mecklenburg County, including the Town of Mint Hill, was issued on June 15,
2005, with effective dates from July 1, 2005, through June 30, 2010. The final NPDES Phase II stormwater permit
for the Town of Indian Trail was issued on September 1, 2005, with effective
dates from October 1, 2005, through September 30, 2010. The final NPDES Phase II stormwater permit
for the Town of Stallings was issued on September 7, 2005, with effective dates
from October 1, 2005, through September 30, 2010.
The parties submitted a
Pretrial Order that included their contentions regarding the issues to be
decided. The undersigned determines that the issues to be decided are:
1. Whether Respondent exceeded its
authority or jurisdiction, acted erroneously, failed to use proper procedure,
acted arbitrarily and capriciously, or failed to act as required by law or rule
(hereinafter “err”) in issuing NPDES Permit Nos. NCS000453, NCS000454, and
NCS000395 without ensuring the permits will comply with all applicable state
water quality standards as required by 40 C.F.R. § 122.44(d) (2006) and N.C.
Gen. Stat. § 143.215.1(a)(6)(2006)?
2. Whether Respondent erred in issuing
NPDES Permit Nos. NCS000453, NCS000454, and NCS000395 without requiring
measures that will reduce discharges of pollutants to the maximum extent
practicable as required by 40 C.F.R. § 122.34(a) (2005)?
3. Whether Respondent erred in issuing
NPDES Permit Nos. NCS000453, NCS000454, and NCS000395 without including
effluent limitations and conditions necessary to meet the requirements of the
waste load allocation in the Goose Creek Total Maximum Daily Load as required
by 40 C.F.R. § 122.44(d)(1)(vii)(B) (2006)?
WITNESSES
For Petitioners: Thomas Stewart Blue and John Fridell
For
Respondent: Michael F. Randall,
Kenneth Bruce Pickle, Tilman Bradley Bennett, and Thomas Reeder
EXHIBITS RECEIVED INTO
EVIDENCE
Petitioner: Note: Petitioners’ exhibits were
admitted into evidence without objection as four notebooks containing the
documents listed below.
P-1 O5 EHR 2055 Petitioners’ Prehearing
Statement (Jan. 6, 2006)
P-2 06 EHR 0164 Petitioners’ Prehearing
Statement (Mar. 6, 2006)
P-3 05 EHR 2055 Respondent’s Prehearing Statement
(Jan. 6, 2006)
P-4 06 EHR 0164 Respondent’s Prehearing
Statement (Mar. 6, 2006)
P-5 40 C.F.R. § 122.4 (2006)
P-6 40 C.F.R. § 122.21 (2006)
P-7 40 C.F.R. § 122.26 (2006)
P-8 40 C.F.R. § 122.34 (2006)
P-9 40 C.F.R. § 122.44 (2006)
P-10 40 C.F.R. § 122.32 (2006)
P-11 40 C.F.R. § 130.2 (2006)
P-12 40 C.F.R. § 130.12 (2006)
P-13 40 C.F.R. § 131.12 (2006)
P-14 38 Fed. Reg. 13,528 (May 22, 1973)
P-15 50 Fed. Reg. 1774 (Jan. 11, 1985)
P-16 52 Fed. Reg. 36,034 (Sept. 25, 1987)
P-17 58 Fed. Reg. 34,926 (June 30, 1993)
P-18 64 Fed. Reg. 235 (Dec. 8, 1999)
P-19 67 Fed. Reg. 127 (July 2, 2002)
P-20 58 Fed. Reg. 124 (June 30, 1993)
P-21 33 U.S.C. § 1251 (2006)
P-22 33 U.S.C. § 1311 (2006)
P-23 33 U.S.C. § 1313 (2006)
P-24 33 U.S.C. § 1342 (2006)
P-25 33 U.S.C. § 1362 (2006)
P-26 N.C. Gen. Stat. § 143-213 (2006)
P-27 N.C. Gen. Stat. § 143.215.1 (2006)
P-28 15A N.C. Admin. Code 2B.0110 (2006)
P-29 15A N.C. Admin. Code 2B.0201 (2006)
P-30 15A N.C. Admin. Code 2B.0202 (2006)
P-31 15A N.C. Admin. Code 2B.0211 (2006)
P-32 15A N.C. Admin. Code 2H.0112 (2006)
P-33 Haeuser v. Dept. of Law, Gov.’t of Guam, 97
F.3d 1152 (9th Cir. 1996)
P-34 Rybachek v. US EPA, 904 F.2d 1276 (9th Cir.
1989)
P-35 Association of Pacific Fisheries v. US EPA,
615 F.2d 794 (9th Cir. 1980)
P-36 Environmental Defense Center, Inc. v. US
EPA, 319 F.3d 398 (9th Cir. 2001)
P-37 Arkansas v. Oklahoma, 112 S. Ct. 1046 (1991)
P-38 Champion International Corporation v. US EPA,
648 F.Supp. 1390 (D.N.C. 1986)
P-39 NPDES Phase II Stormwater Permit No.
NCS000453 for Indian Trail (Sept. 1, 2005)
P-40 NPDES Phase II Stormwater Permit No.
NCS000454 for Stallings (Sept. 7, 2005)
P-41 NPDES Phase II Stormwater Permit No.
NCS000395 for Mecklenburg County, Towns of Cornelius, Davidson, Huntersville,
Matthews, Mint Hill, and Pineville (July 1, 2005)
P-42 NPDES Phase II Stormwater Permit Application
for Indian Trail (Mar. 28, 2003)
P-43 NPDES Phase II Stormwater Permit Application
for Stallings (Mar. 28, 2003)
P-44 NPDES Phase II Stormwater Permit Application
for Mecklenburg County (March 4, 2003), including the attached Stormwater
Management Program Report (Feb. 25, 2003)
P-45 Draft Technical Support Document for
Consideration of Federally-listed Threatened or Endangered Aquatic Species in
Water Quality Management Planning for the Goose Creek Watershed (July 2005)
P-46 N.C. Wildlife Resources Commission, Guidance
Memorandum to Address and Mitigate Secondary and Cumulative Impacts to Aquatic
and Terrestrial Wildlife Resources and Water Quality (Aug. 2002)
P-47 Total Maximum Daily Loads for Fecal Coliform
for Goose Creek, North Carolina, Final Report, April 2005 (Approved July 08,
2005)
P-48 North Carolina Water Quality Assessment and
Impaired Waters List (2002 Integrated 305(b) and 303(d) Report) (Feb. 2003)
P-49 N.C. Division of Water Quality, Review of
Effectiveness of Coastal Stormwater Rules, PowerPoint Presentation (Nov. 2005)
P-50 N.C. Division of Water Quality, Universal
Stormwater Management Program (USMP) Draft Rules, PowerPoint Presentation (Oct.
12, 2005)
P-51 Letter from P. Benjamin and B. Cole, U.S.
Fish and Wildlife Service, to B. Bennett, NC Division of Water Quality (Dec.
29, 2004)
P-52 R.A. Fischer, C.O. Martin, and J.C.
Fischenich, Improving riparian buffer strips and corridors for water quality
and wildlife, in PROCEEDINGS OF THE AMERICAN WATER RESOURCES ASSOCIATION
INTERNATIONAL CONFERENCE ON RIPARIAN ECOLOGY AND MANAGEMENT IN MULTI-LAND USE
WATERSHEDS, 457-462, American Water Resources Association, Portland, Oregon
(2000).
P-53 D.L. Correll., Buffer zones and water
quality protection: general principles, in PROCEEDINGS OF THE INTERNATIONAL
CONFERENCE ON BUFFER ZONES, Quest Environmental, Harpenden, Hertfordshire, UK
(1997).
P-54 R.A. Fischer, C. O. Martin, D. Q. Barry, K.
Hoffman, K. L. Dickson, E. G. Zimmerman, and D.A. Elrod, Corridors and
Vegetated Buffer Zones: A Preliminary Assessment and Study Design, Technical
Report EL-99-3. U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS
(1999).
P-55 A.H. Todd, Making decisions about riparian
buffer width, in PROCEEDINGS OF THE AMERICAN WATER RESOURCES ASSOCIATION
INTERNATIONAL CONFERENCE ON RIPARIAN ECOLOGY AND MANAGEMENT IN MULTI-LAND USE
WATERSHEDS, 445-450 American Water Resources
Association, Portland, Oregon (2000).
P-56 C.W. May, & R.R. Horner, The cumulative
impacts of watershed urbanization on stream-riparian ecosystems, in PROCEEDINGS
OF THE AMERICAN WATER RESOURCES ASSOCIATION INTERNATIONAL CONFERENCE ON
RIPARIAN ECOLOGY AND MANAGEMENT IN MULTI-LAND USE WATERSHEDS, American Water
Resources Association, Portland, Oregon (2000).
P-57 R.J. Naiman, H. Decamps, & M. Pollock.,
The role of riparian corridors in maintaining regional biodiversity, 3
ECOLOGICAL APPLICATIONS 209, 209-212 (1993).
P-58 G.J. Kauffman, & T. Brant, The role of
impervious cover as a watershed-based zoning tool to protect water quality in
the Christina River Basin of Delaware, Pennsylvania, and Maryland, Paper
presented at Watershed 2000 Management Conference, Water Environment
Federation, Alexandria, Virginia (2000).
P-59 C.L. Arnold, Jr., & J.C. Gibbons,
Impervious surface coverage: the emergence of a key environmental indicator, 62
JOURNAL OF THE AMERICAN PLANNING ASSOCIATION 243, 243-258 (1996).
P-60 B.A. Doll, et. al., Hydraulic geometry
relationships for urban streams throughout the piedmont of North Carolina, 38
JOURNAL OF THE AMERICAN WATER RESOURCES ASSOCIATION 641, 641-651 (2002).
P-61 A.J. Castelle, A.W. Johnson, & C.
Conolly, Wetland and stream buffer size requirements: a review, 23 JOURNAL OF
ENVIRONMENTAL QUALITY 878, 878-882 (1994).
P-62 A E.H. Livingston, J.R. Maxted, R.R. Horner,
& C.W. May, BMPs, impervious cover, and biological integrity of small
streams (on file with the author) (1999).
P-63 Tom Schueler, The importance of
imperviousness, 1 WATERSHED PROTECTION TECHNIQUES 100, 100-111 (1994).
P-64 Belinda Hatt, et. al., The Influence of
Urban Density and Drainage Structure on the Concentrations and Loads of
Pollutants in Small Streams, 34 ENVIRONMENTAL MANAGEMENT 1, 112-124 (2004).
P-65 Sarah Gergel, et. al., Landscape indicators
of human impact to riverine systems, AQUATIC SCIENCES 64, 118-28 (2002).
P-66 Chandler Morse, et. al., Impervious Surface
Area as a Predictor of the Effects of Urbanization on Stream Insect Communities
in Maine, U.S.A., ENVIRONMENTAL MONITORING AND ASSESSMENT 89, 95-127 (2003).
P-67 Lizhu Wang, et. al., Impacts of Urbanization
on Stream Habitat and Fish Across Multiple Spatial Scales, 28 ENVIRONMENTAL
MANAGEMENT 2, 255-66 (2001).
P-68 Joong Lee & James Heaney, Estimation of
Urban Imperviousness and its Impacts on Stormwater Systems, 129 JOURNAL OF
WATER RESOURCES PLANNING AND MANAGEMENT 5, 419 (2003).
P-69 Seth Rose & Norman Peters, Effects of
Urbanization on streamflow in the Atlanta Area (Georgia, U.S.A.), HYDROLOGICAL
PROCESSES 15, 1441-57 (2001).
P-70 Derek B. Booth, et. al., Reviving Urban
Streams: Land Use, Hydrology, Biology, and Human Behavior, JOURNAL OF THE
AMERICAN WATER RESOURCES ASSOCIATION (2004).
P-71 U.S. Environmental Protection Agency,
Annotated Bibliography of Urban Wet Weather Flow Literature from 1996-2000.
P-72 Deposition of Thomas Reeder (July 7, 2006)
P-73 Deposition of Michael Randall (July 6, 2006)
P-74 Deposition of Kenneth Pickle (June 30, 2006)
P-75 Deposition of Bradley Bennett (June 30,
2006)
Respondent:
R-1 NPDES Permit No. NCS000395 for Mecklenburg
County, Town of Cornelius, Davidson, Huntersville, Matthews, Mint Hill and
Pineville (July 1, 2005)
R-2 NPDES Permit No. NCS000453 for Town of
Indian Trail (Sept. 1, 2005)
R-3 NPDES Permit No. NCS000454 for Town of
Stallings (Sept. 1, 2005)
R-4 July 2005 Review Draft Goose Creek
Technical Support Document
R-5 Wildlife Resources Commission, Guidance
Memorandum to Address and Mitigate Secondary and Cumulative Impacts to Aquatic
and Terrestrial Wildlife Resources and Water Quality (Aug. 2002).
R-6 Total Maximum Daily Loads for Fecal
Coliform for Goose Creek Final Report (Apr. 2004)
R-7 Response to Comments Summary, North
Carolina MS4, Phase II Individual Permits
R-8 N.C. Admin. Code 02B Rules
STATUTES AND RULES IN
ISSUE
33 U.S.C. § 1251 (2006)
33 U.S.C. § 1311 (2006)
33 U.S.C. § 1342 (2006)
33 U.S.C. § 1362 (2006)
40 C.F.R. § 122.21
(2006)
40 C.F.R. § 122.32 (2006)
40 C.F.R. § 122.34
(2006)
40 C.F.R. § 122.44
(2006)
40 C.F.R. § 130.2 (2006)
40 C.F.R. § 131.12
(2006)
N.C. Gen. Stat. 143-213
(2006)
N.C. Gen. Stat.
143-215.1 (2006)
N.C. Admin. Code
02B.0110 (2005)
N.C. Admin. Code
02B.0200 (2005)
N.C. Admin. Code 02B.0201
(2005)
N.C. Admin. Code
02B.0211 (2005)
N.C. Admin. Code
02H.0112 (2005)
MOTIONS
On March 10, 2006,
Petitioners and Respondent filed a Joint Motion to Consolidate Cases, Continue
Hearing, and Amend Scheduling Order and Deadlines in 05 EHR 2055 and 06 EHR
0164. The two cases collectively involved Petitioners’ appeals of three NPDES
Phase II stormwater permits in the Goose Creek watershed. On March 23, 2006,
Chief Administrative Law Judge Julian Mann granted the motion to consolidate
and reassigned the cases to Senior Administrative Law Judge Fred G. Morrison
Jr.
On June 1, 2006,
Respondent filed a Motion to Join Additional Parties. Respondent requested that
the County of Mecklenburg, North Carolina, and the Towns of Cornelius,
Davidson, Huntersville, Matthews, Mint Hill, Pineville, North Carolina; Indian
Trial, North Carolina; and Stallings, North Carolina, be joined as necessary
parties or, in the alternative, as permissive parties. In response, Petitioners
opposed the motion and contended that the additional parties were not necessary
parties. Petitioners also contended that the parties should not be joined as
permissive parties because it would cause undue delay and prejudice to
Petitioners. Of the proposed parties to be joined, only Mecklenburg County and
the Town of Mint Hill filed a response. Both parties opposed the motion to be
joined as additional parties to the litigation. Oral argument was held via
teleconference on June 9, 2006. The undersigned denied the motion after
considering written memos supporting and opposing the motion and at the
conclusion of oral argument on July 5, 2006.
On June 30, Petitioners
filed a Motion for Summary Judgment on Aggrieved Party Status. Following oral
argument and prior to a ruling from the Court, Respondent agreed to stipulate
to Petitioners’ aggrieved party status in the Pretrial Order. Therefore, the
undersigned did not rule on this motion.
Pursuant to N.C. Gen.
Stat. § 150B-34 and -36, the ruling on the Motion to Join Additional Parties is
a part of this Decision. All such rulings are hereby incorporated herein.
STIPULATIONS
In the Pretrial Order,
the parties agreed to and the undersigned approved the following stipulations:
Procedural Stipulations
from Pretrial Order:
1. North Carolina Wildlife Federation and
Central Piedmont Group of the NC Sierra Club (“Petitioners”) are entitled to
bring these consolidated contested cases as “person[s] aggrieved” within the
meaning of N.C. Gen. Stat. §§ 150B-2(6) and 23 (2006).
2. Petitioners timely filed Petitions for
Contested Case Hearings to challenge three Phase II Stormwater Permits
identified as NPDES Permit No. NCS000453 issued to the Town of Stallings, NPDES
Permit No. NCS000454 issued to the Town of Indian Trail, and NPDES Permit No.
NCS000395 issued to Mecklenburg County.
3. Petitioners have the burden of proof to
establish facts that Respondent has erred in one or more of the ways set forth
in N.C. Gen. Stat. §150B-23(a).
4. Presentation of Evidence:
(a) Petitioners shall present evidence first
to show that the three stormwater permits do not “reasonably ensure compliance
with applicable water quality standards and regulations of all affected
states.” N.C. Admin. Code tit. 15A, r. 02H.0112(c) (2006).
(b) If necessary, Respondent may then present
evidence to show that the three stormwater permits at issue “reasonably ensure
compliance with applicable water quality standards and regulations of all
affected states.”
5. Each of the Exhibits identified above
is an authentic copy of the original, is a public record or a business or
agency record kept in the ordinary course of business, and may be introduced
into evidence without further identification of proof, all subject to
objections for relevance.
Factual Stipulations
from Pretrial Order:
1. The federal Clean Water Act requires
certain governmental entities to control stormwater pollution into public
waters. 33 U.S.C. § 1342(p)(2) (2005).
2. These governmental entities are
required to obtain National Pollutant Discharge Elimination System (“NPDES”)
permits to eliminate or reduce to the maximum extent practicable discharges of
pollution from stormwater.
3. The permitting program for stormwater
discharges has been implemented in two phases.
In Phase II, certain municipalities designated as “urbanizing” that
serve less than 100,000 are required to obtain NPDES Phase II stormwater
permits.
4. To meet federal Clean Water Act and
state law requirements, the Towns of Indian Trail and Stallings, and
Mecklenburg County, including the town of Mint Hill, were required to obtain
Phase II stormwater discharge permits.
5. The federal regulations governing Phase
II require owners and operators of municipal storm sewer systems (“MS4s”) to
apply for NPDES permits which require the implementation of six minimum
measures within their stormwater systems to control pollution. 40 C.F.R. §
122.21(a) (2005). The six minimum measures consist of: (1) public education and
outreach on stormwater impacts; (2) public involvement and participation in
program design; (3) illicit discharge detection and elimination; (4)
construction site stormwater pollution control; (5) post-construction
stormwater management; and (6) pollution prevention and good housekeeping
measures. 40 C.F.R. § 122.34(b) (2005).
6. Respondent issued a final NPDES Phase
II stormwater permit to Mecklenburg County, including the Town of Mint Hill, on
June 15, 2005, with effective dates from July 1, 2005, through June 30, 2010.
7. Respondent issued a final NPDES Phase
II stormwater permit to the Town of Indian Trail on September 1, 2005, with
effective dates from October 1, 2005, through September 30, 2010.
8. Respondent issued a final NPDES Phase
II stormwater permit to the Town of Stallings on September 7, 2005, with
effective dates from October 1, 2005, through September 30, 2010.
9. Goose Creek is a perennial stream fed
by a number of perennial, intermittent and ephemeral tributaries. Goose Creek
is a tributary to the Rocky River, which is in turn a tributary to the Pee Dee
River (the lower portion of the Yadkin River). The Goose Creek watershed is
located in southeastern Mecklenburg County and northwestern Union County, North
Carolina. Portions of the Towns of Indian Trail, Stallings, and Mint Hill drain
into the Goose Creek watershed.
10. The Carolina heelsplitter is a species of
freshwater mussel. The U.S. Fish & Wildlife Service (“USFWS”) listed the
Carolina heelsplitter as endangered pursuant to the provisions of the
Endangered Species Act on June 30, 1993. 58 Fed. Reg. 34,926 (June 30, 1993).
11. The Goose Creek watershed contains one of
only seven remaining populations of the Carolina heelsplitter. In July 2002, the USFWS designated critical
habitat for the Carolina heelsplitter, including portions of the main stems of
Goose Creek and Duck Creek in Union County. 67 Fed. Reg. 44,502-44,521 (July 2,
2002) Since the USFWS listed the
Carolina heelsplitter as endangered, it has discovered two additional
populations, raising the total to nine.
12. Goose Creek has its headwaters in southeastern
Mecklenburg County within the jurisdiction of the Town of Mint Hill. Stormwater runoff from Mint Hill flows into
Goose Creek at its headwaters and travels downstream into the critical habitat
for the Carolina heelsplitter. Stormwater runoff from Indian Trail and
Stallings flows into Goose Creek and travels downstream into the critical
habitat for the Carolina heelsplitter.
13. The North Carolina Wildlife Resources
Commission (“WRC”) and the USFWS have jointly submitted to Respondent a draft technical
support document containing their recommendations for a site-specific
management plan to protect and preserve habitat for threatened or endangered
species in Goose Creek.
14. The WRC, in coordination with the USFWS,
also has issued guidance regarding water quality conditions required to sustain
and recover federally listed endangered species, including the Carolina
heelsplitter.
15.The NPDES Phase II
stormwater permits Respondent issued to the Towns of Indian Trail and Stallings
and Mecklenburg County, set the imperviousness threshold at twenty-four percent
and require thirty-foot buffers on perennial and intermittent streams in the
Goose Creek watershed.
16. Under the NPDES Phase II stormwater
permits Respondent issued to the Towns of Indian Trail and Stallings and
Mecklenburg County, developments with a built upon area less than twenty-four
percent are not required to implement engineered stormwater management controls
to treat stormwater pollution.
17. Goose Creek does not meet water quality
standards for fecal coliform. In 1998, Respondent placed Goose Creek on the
303(d) list of impaired waters due to fecal coliform violations. According to Respondent’s listing document,
the causes of water quality impairment in Goose Creek include construction
activities and urban runoff/storm sewers. Goose Creek remains on the 303(d)
list of impaired waters through the present.
18. On April 20, 2005, Respondent finalized
and submitted to the U.S. EPA Total Maximum Daily Loads (“TMDL”) for Fecal
Coliform for Goose Creek. The TMDL
allocates allowable pollutant loads from known sources so that required actions
may be taken to restore the water to its intended uses.
19. The U.S. EPA approved and finalized the
Goose Creek TMDL without substantial change on July 8, 2005.
20. The waste load allocation in the Goose
Creek TMDL requires a ninety-two point five percent reduction of fecal coliform
discharges from existing MS4s. EPA approved and finalized the Goose Creek TMDL
without substantial change on July 8, 2005.
21. The Goose Creek TMDL specifically
requires a ninety-two point five percent reduction of fecal coliform discharges
from the MS4s in Indian Trail, Stallings, and Mint Hill, in order to meet water
quality standards.
22. Petitioners voluntarily agree to dismiss
as a non-suit and without prejudice claims brought under Section 9 of the
Endangered Species Act in these consolidated cases.
23. Each of the Exhibits identified above is
an authentic copy of the original, is a public record or a business or agency
record kept in the ordinary course of business, and may be introduced into
evidence without further identification of proof, all subject to objections for
relevance.
FINDINGS OF FACT
1. Petitioner Central Piedmont Group of
the North Carolina Sierra Club is a non-profit organization. Central Piedmont
Group is the local Sierra Club member group in Mecklenburg County. Central
Piedmont Group members use, enjoy, and benefit aesthetically and recreationally
from the Goose Creek watershed. Central Piedmont Group also has members who
live within the Goose Creek watershed.
2. Petitioner North Carolina Wildlife
Federation is a not-for-profit corporation founded in 1945. NCWF, which is an
affiliate of the National Wildlife Federation (“NWF”), has 17,000 members in
North Carolina. NWF has approximately 5 million members, including 25,000
members in North Carolina. NCWF has members who use, enjoy, and benefit
aesthetically and recreationally from the Goose Creek watershed. NCWF also has
members who live within the Goose Creek watershed.
3. Respondent North Carolina Department of
Environment and Natural Resources (“NCDENR”) Division of Water Quality (“DWQ”)
is the state agency charged with protecting water quality and has been
delegated the authority to issue NPDES permits under the Clean Water Act.
4. Petitioners’ witness, Thomas Stewart
Blue, is an expert in the field of stormwater engineering and hydrology with a
particular expertise in engineered stormwater controls, impervious surface
limits, land development, and water quality modeling related to developing
Total Maximum Daily Loads (“TMDL”).
5. Petitioners’ witness, John Fridell, a
wildlife biologist with the United States Fish and Wildlife Service (“USFWS”),
is an expert in wildlife biology with a particular expertise in the protection
and recovery of the federally endangered Carolina heelsplitter.
6. Respondent’s witness, Michael F.
Randall, is an environmental engineer with the Division of Water Quality’s
Stormwater Permitting Unit. Mr. Randall was involved in discussions regarding
the development of the three challenged NPDES permits, but was not in charge of
drafting any of them.
7. Respondent’s witness, Kenneth Bruce
Pickle, is an environmental engineer with the Division of Water Quality’s
Stormwater Permitting Unit. Mr. Pickle
was involved in drafting and noticing the NPDES Phase II stormwater permits for
the Town of Indian Trail and the Town of Stallings.
8. Respondent’s witness, Tilman Bradley
Bennett, is the supervisor of the Division of Water Quality’s Stormwater
Permitting Unit. Mr. Bennett’s
responsibilities include oversight for all of the state’s stormwater permitting
programs, including the NPDES Phase II program.
9. Respondent’s witness, Thomas Reeder, is
the manager of the Division of Water Quality’s Wetlands and Stormwater
Branch. Mr. Reeder’s responsibilities
include oversight of any programs that are associated with wetlands and
stormwater management in the state.
10. None of Respondent’s witnesses were
offered as experts or qualified as experts in the field of stormwater
management or wildlife biology.
11. Water quality degradation occurs when
alterations are made to the natural character of the watershed. The natural character of a watershed
includes its physical integrity, such as the way in which water travels
downstream and the amount of groundwater recharging the stream’s base flow; its
biological integrity, such as the biological diversity of organisms living in
the streams; and its chemical integrity, such as the distribution of chemicals
in the water. A system is considered degraded when one of these characteristics
is altered by non-natural activities. For example, a stream may no longer be
able to support the natural biological diversity in the stream.
12. Land development is one type of
non-natural activity that causes water quality degradation. In particular,
increased stormwater runoff arising from construction and post-construction
land development activities causes significant water quality degradation and
aquatic habitat loss, resulting in lowered biological integrity for aquatic
systems.
13. Stormwater runoff occurs when impervious
surfaces increase within a watershed and rainfall can no longer infiltrate into
soils. Surfaces that water cannot
effectively pass through, such as asphalt, concrete, roof shingles, metal,
gravel, and compacted soils.
14. Impervious surfaces collect pollutants,
such as nutrients, sediment, petroleum products, and fecal coliform, deposited
from other sources. During storm events, these collected pollutants are washed
into aquatic systems as stormwater runoff.
15. Numerous scientific studies have shown
that increased impervious surface in a watershed is correlated with water
quality degradation. These studies have documented significant water quality
degradation in streams draining watersheds with impervious surface area from
zero to thirteen percent. One such study found that there is no safe threshold
for impervious surface area because any increase in impervious surface results
in detrimental impacts to sensitive aquatic species.
16. Increased stormwater runoff from
impervious surfaces also causes increased runoff volume which detrimentally
affects channel stability in aquatic systems. Stream channels will either widen
their stream banks, down cut the stream bed, or do both to accommodate larger
and more severe runoff events. The sediment from the eroded stream banks and
bed will increase sediment loading in the stream.
17. Because increased impervious surfaces
reduce the amount of natural infiltration in a watershed, groundwater recharge
is also reduced. Groundwater contributes to a stream’s base flow, which is the
portion of water that comes from sources other than surface runoff. Thus, when
groundwater recharge is reduced, base flow in streams is also reduced.
18. The NPDES Phase II stormwater permits at
issue in these proceedings are intended to regulate new discharges of
stormwater pollution from urban land development and to ameliorate the effects
of stormwater pollution. Each permit contains six minimum measures consisting
of: (1) public education; (2) public involvement in designing program; (3)
illicit discharge detection and elimination; (4) construction site stormwater
pollution control; (5) post-construction stormwater management; and (6)
pollution prevention.
19. The NPDES Phase II stormwater permits at
issue in these proceedings establish model practices for post-construction
stormwater controls that constitute the minimum measures that must be implemented
under the NPDES Phase II program. These model practices include a low-density
option and a high-density option for stormwater controls in new
development.
20. The low-density option applies to any new
development that involves up to, but no more than, twenty-four percent
impervious surface area or “built-upon area.” Under this option, the only
post-construction stormwater management measures are vegetated conveyances for
transporting stormwater to the nearest stream and a thirty-foot setback from
the stream for all impervious surfaces.
21. The high-density option applies to any
new development that involves more than twenty-four percent impervious surface
area. Under this option, the stormwater measures require a thirty-foot setback
from the stream for all impervious surfaces and require the installation of
engineered structural controls. The structural controls must treat the
difference between the pre- and post-development runoff for a certain design
storm and remove eighty-five percent of all total suspended solids (“TSS”). The
design storm included in the model practices is the one year, twenty-four hour
storm.
22. All three of the challenged NPDES Phase
II stormwater permits incorporate these model practices as the
post-construction measures included in the permits themselves. These three
NPDES Phase II stormwater permits authorize discharges of stormwater pollution
into the Goose Creek watershed from the following sources: (1) Mecklenburg
County, specifically as it includes discharges from the Town of Mint Hill; (2)
the Town of Indian Trail; and (3) the Town of Stallings.
23. Goose Creek is a perennial stream with
its watershed located in southeastern Mecklenburg County and northwestern Union
County, North Carolina. Goose Creek has its headwaters in southeastern
Mecklenburg County within the jurisdiction of the Town of Mint Hill. Stormwater
runoff from portions of the Towns of Indian Trail, Stallings, and Mint Hill
drains into Goose Creek. Duck Creek is
the other main tributary in the Goose Creek watershed and is a perennial
stream.
24. Goose Creek depends on base flow,
particularly during dry or drought periods.
Without adequate base flow, streams in the Goose Creek watershed will
not be able to maintain adequate flows during dry or drought periods and will
become an intermittent stream.
25. Stormwater runoff from Mint Hill flows
into Goose Creek at its headwaters and travels downstream into the critical
habitat for the Carolina heelsplitter. Stormwater runoff from Indian Trail and
Stallings flows into Goose Creek and travels downstream into the critical
habitat for the Carolina heelsplitter.
26. The Carolina
heelsplitter is a species of mussel and was federally listed by the USFWS as
endangered pursuant to the provisions of the Endangered Species Act on June 30,
1993. The Goose Creek watershed contains one of only nine remaining populations
of the Carolina heelsplitter mussel.
27. Urban land development is the most
significant land use change in the Goose Creek watershed.
28. As urban development and impervious cover
increases in the Goose Creek watershed, the upper reaches of Goose and Duck
Creeks have experienced significant stream bank and stream bed erosion due to
increased stormwater runoff.
29. Increased urban development has also
caused base flow in Goose and Duck Creeks to decline. The USFWS has seen
portions of Duck Creek completely dry up during dry periods due to low
groundwater recharge levels.
30. Increased urban development has also
caused the levels of several pollutants associated with stormwater to increase
in the Goose Creek watershed. These pollutants include fecal coliform, ammonia,
phosphorus, nitrate-nitrite, copper, and sediment. Although a TMDL has been developed to deal with fecal coliform
issues, water quality standards are not in place for ammonia, phosphorus,
nitrate-nitrite, copper, or sediment in the Goose Creek watershed.
31. As stated above, all three permits
include the minimum model practices as the post-construction measures specified
within the permits. Respondent issued the three NPDES Phase II stormwater
permits with an imperviousness threshold for structural stormwater controls at
twenty-four percent and a thirty-foot setback on perennial and intermittent
streams in the Goose Creek watershed.
For developments at or below twenty-four percent imperviousness, the
only requirement beyond the thirty-foot setback is the use of vegetated
conveyances. For developments above twenty-four percent imperviousness, the
required measures include structural stormwater controls to treat the
difference in pre- and post-development runoff for the one year, twenty-four
hour storm and the controls must be designed to remove at least eighty-five
percent TSS.
32. It is undisputed that water quality is
degraded at impervious surface levels ranging between six to thirteen
percent. It is also undisputed that
there are many pollutant constituents in stormwater runoff beyond TSS. Those
pollutants include nutrients, fecal coliform, pesticides, and petroleum
products.
33. Because the permits do not adequately
regulate impervious surfaces and pollutant constituents in stormwater runoff,
the permits as drafted will not protect the biological integrity of the Goose
Creek watershed and will result in water quality degradation.
34. Furthermore, it is undisputed that
protection of biological integrity also requires the protection of the most
sensitive species in a stream. It is also undisputed that protecting the
biological integrity in the Goose Creek watershed includes protecting the
Carolina heelsplitter.
35. The historic range of the federally
endangered Carolina heelsplitter included wide portions of the Catawba, Pee
Dee, Savannah, and Saluda river basins.
36. The current range of the Carolina
heelsplitter is limited to nine surviving populations in the Catawba, Pee Dee,
and Savannah river basins. One of the
populations is found in the Goose Creek watershed.
37. Because the federally endangered Carolina
heelsplitter is found in so few places today, the USFWS has determined that
“any factors that adversely modify habitat or water quality in the stream
reaches it now inhabits could further endanger the species.”
38. The USFWS also has determined that
“channel and streambank scouring associated with increased storm-water run-off;
and the run-off of silt, fertilizers, pesticides, and other pollutants from
various land disturbance activities with inadequate or poorly maintained
erosion and stormwater control” are among the factors that adversely modify
Carolina heelsplitter habitat.
39. The USFWS has documented a correlation
between increased urban development and Carolina heelsplitter habitat
degradation in the Goose Creek watershed.
As urban development has increased in the upper portion of the watershed,
Carolina heelsplitter habitat is being eliminated. Surveys conducted by the USFWS of Carolina heelsplitter habitat
from the time of listing through 2005 show that habitat has steadily decreased
as urban development has increased in the watershed.
40. The federally endangered Carolina
heelsplitter lives in the gravelly, rocky substrate found along the stream bed
in Goose and Duck Creeks in the Goose Creek watershed. The majority of the substrate in the upper
reaches of both creeks has been eroded away by increased stormwater runoff,
thereby significantly reducing the available habitat for the endangered
mussel.
41. Pollutants, such as sediment, ammonia,
phosphorus, nitrate-nitrite, and copper, found in stormwater runoff have been
determined to be harmful to the Carolina heelsplitter.
42. Sediment from stormwater runoff affects
the Carolina heelsplitter in four ways. First, because the mussels are filter
feeders, the increased sediment loading in stormwater runoff can clog their
gills affecting their respiration and feeding.
Increased sediment in the streams can ultimately suffocate the mussels
by accumulating on top of the mussels’ habitat and burying the mussels. Second, sediment affects the stability of
the stream bottom and can result in mussels being washed out of their habitat
because the substrate becomes unstable.
Third, other pollutants bind to sediment particles and get carried down
into the substrate as the sediment settles out of the water column, thereby
increasing the mussels’ exposure to the pollutant. Finally, sediment
detrimentally affects the health of fish in streams. The mussels rely upon a fish host in order to reproduce by having
mussel larvae attach to the fish’s gill to mature.
43. Ammonia is a pollutant that has been
associated with stormwater runoff and is of particular concern with regard to
mussels. Ammonia is extremely toxic to
freshwater mussels. Ammonia levels in
the Goose Creek watershed have been identified as already exceeding the levels
of concern for mussels and monitoring indicates that the levels are on an
increasing trend in the watershed.
44. Phosphorus and nitrate-nitrite are also
associated with stormwater runoff. Both pollutants are nutrients and at
excessive levels in a watershed can lead to algal blooms, which deplete the
oxygen levels in the streams. Low
oxygen levels detrimentally affect the Carolina heelsplitter. Algal blooms from excessive nutrient levels
have been documented in the Goose Creek watershed. Monitoring in the watershed also indicates that phosphorus and
nitrate-nitrite levels in the watershed are on an increasing trend.
45. Copper is also a constituent in
stormwater runoff and has been found harmful to mussels at high
concentrations. Copper levels exceeding
the concern level for mussels have been documented in the Goose Creek
watershed.
46. The USFWS, in conjunction with the N.C.
Wildlife Resources Commission and the N.C. Natural Heritage Program, has
identified measures for controlling stormwater runoff and mitigating its
detrimental impacts to the Carolina heelsplitter and its habitat in the Goose
Creek watershed.
47. The USFWS provided Respondent with its
determinations prior to the issuance of the three NPDES Phase II permits
challenged in this proceeding, in the form of a letter and a draft site
specific management plan.
48. Based on a review of
scientific literature regarding appropriate buffer widths and on the field
observations of the USFWS’s own experts, the USFWS determined that two-hundred
foot undisturbed riparian buffers on perennial streams and one-hundred foot
undisturbed riparian buffers on intermittent streams are required to protect
the Carolina heelsplitter in Goose Creek.
49. Based on a review of scientific
literature regarding impervious surface or disturbance in the floodplain, and
on the field observations of the USFWS’s own experts, the USFWS determined that
impervious surface, active management, and other land disturbances, such as
sewer lines and water lines, should be prohibited in the Goose Creek
floodplain.
50. Based on a review of scientific
literature regarding impervious surface thresholds and on the field
observations of the USFWS’s own experts, the USFWS determined that any further
increases in impervious surface in the Goose Creek watershed should be required
to implement engineered stormwater controls to offset impacts to the stream.
51. Based on a review of scientific
literature regarding impervious surface thresholds and on the field
observations of the USFWS’s own experts, the USFWS determined that water
quality standards for phosphorus, nitrate-nitrite, copper, and ammonia should
be in place in the Goose Creek watershed to protect the Carolina heelsplitter
from toxic levels of these pollutants.
For ammonia, the USFWS has determined that an acute water quality
standard of 1.75 milligrams per liter and a chronic water quality standard of
0.50 milligrams per liter are necessary to protect the Carolina heelsplitter in
the Goose Creek watershed. The USFWS
has determined that a phosphorus water quality standard of 0.1 milligrams per
liter and a nitrate-nitrite water quality standard of 0.4 milligrams per liter
are necessary to protect the Carolina heelsplitter in the Goose Creek
watershed. For copper, the USFWS has determined
that an acute water quality standard of 3.6 micrograms per liter and a chronic
water quality standard of 2.2 micrograms per liter are necessary to protect the
Carolina heelsplitter in the Goose Creek watershed. Acute water quality standards constitute the level of a
particular pollutant that can be tolerated for a short period of time. Chronic water quality standards constitute
the level of a particular pollutant that can be tolerated repeatedly over time.
52. In issuing the three challenged NPDES
Phase II permits, Respondent did not include the determinations made by the
USFWS and did not include adequate protections for the federally endangered
Carolina heelsplitter.
53. If development is allowed in the Goose
Creek watershed pursuant to post-construction conditions and limitations in
these three permits, the Carolina heelsplitter population in Goose Creek will
be extirpated in two to five years.
54. As noted above and not disputed by any of
Respondent’s witnesses, stormwater pollution causes water quality degradation
by increasing the volume of water entering an aquatic system, decreasing
groundwater recharge and base flow, increasing pollutant loadings to streams,
and detrimentally impacting biological communities within the aquatic system.
55. As stated above, under the low-density
development option, the permits allow development up to and including
twenty-four percent impervious surface without any stormwater management
measures other than a vegetated conveyance and a thirty-foot setback. Scientific studies documenting the correlation
between increases in impervious surface area and decreases in water quality
have shown that impervious surface areas between six and thirteen percent
result in significant water quality degradation. Thus, the low-density option in the three challenged NPDES
permits will also result in further water quality degradation in the Goose
Creek watershed.
56. The permits state that vegetated
conveyances must be used to the maximum extent practicable, but do not include
any design requirements and are not required to be constructed as to remove any
of the major pollutant constituents of stormwater (e.g., sediment, nutrients,
fecal coliform, heavy metals, and pesticides).
57. Vegetated conveyances have been shown to
cause a net increase in pollutant loading in streams from stormwater
runoff. The grassed areas become an
attractant for water fowl and other wildlife, which then defecate in the
conveyances causing a net increase in fecal coliform, ammonia, and nitrogen
loading.
58. Under the high-density development option
(for development above twenty-four percent impervious surface), the permits
require that new developments include stormwater structural controls designed
to treat the difference in the pre- and post-development runoff for the one
year, twenty-four hour storm event and remove eighty-five percent of total
suspended solids.
59. TSS are particles of soil or sediment
suspended in the water column. TSS have
a variety of effects on water quality. TSS can transport into streams other
pollutants that attach to the solids.
When it settles out of the water column, TSS can settle out to the
bottom of the stream affecting the stability of the stream bed. TSS also
affects the health of fish and can impair the biological integrity of an
aquatic system.
60. Although the structural controls are
required to be designed to remove eighty-five percent TSS, the permits do not
have any requirements to ensure that the structural controls actually continue
to perform at an eighty-five percent removal rate during the terms.
61. The permits require that the structural
controls be designed to treat the difference in pre-and post-development runoff
for the one year, twenty-four hour storm event. In Goose Creek, the one year, twenty-four hour storm event is a
rainfall event with about 2.9 inches of rain.
62. The structural controls will not be able
to remove eighty-five percent TSS in storm events larger than the one year,
twenty-four hour storm event.
63. The one year, twenty-four hour storm
event as a design standard is not sufficient to protect water quality in Goose
Creek from degradation because it does not take into account antecedent
conditions on a site, such as saturated soils from previous storm events.
64. The permits do not contain any volumetric
requirements to protect channel stability, maintain base flow, or groundwater
recharge for low-density or high-density development. Under the permits, the volume of stormwater during storm events
will increase in the Goose Creek watershed and base flow to the watershed will
be significantly reduced.
65. The three challenged NDPES stormwater
permits do not have specific requirements directing how a structural control is
to reduce the discharge of stormwater pollutants to the maximum extent
practicable.
66. The three challenged NPDES Phase II
stormwater permits do not require specific stormwater control measures to be in
place for a particular development.
67. Rather than include specific
requirements, the permits require the permittees to develop a stormwater
management plan at some point in the future to reduce the discharge of
pollutants to the maximum extent practicable.
68. The stormwater management plan is to
contain more specific terms and provisions for controlling pollutants and can
include additional measures to treat stormwater runoff. The terms include
“effluent limitations” in the form of best management practices.
69. Although Respondent contends that the
stormwater management plans are enforceable parts of the NPDES Phase II
permits, the stormwater management plans are not attached or annexed to the
NPDES Phase II stormwater permits.
70. Respondent did not include the stormwater
management plans in the public notices for the draft permits.
71. When members of the public requested
copies of the draft permits to comment upon, Respondent provided only the draft
permit and not the stormwater management plan.
72. Goose Creek does not meet water quality standards for fecal coliform. In 1998, Respondent placed Goose Creek on the 303(d) list of impaired waters due to fecal coliform violations. According to Respondent’s listing document, the causes of water quality impairment in Goose Creek include construction activities and urban runoff/storm sewers. Goose Creek remains on the 303(d) list of impaired waters through