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DENR four years behind on Clean Water Act rules

By Annalise Frank
afrank@newsobserver.com

RALEIGH Once an innovative leader in water quality science, North Carolina has fallen behind in meeting federal pollution standards.

North Carolina is the only state in its EPA region – which includes Tennessee, South Carolina, Georgia, Kentucky, Alabama, Mississippi and Florida – that has not adopted EPA-approved rules on measuring toxic metals like arsenic, cadmium, copper, silver and zinc in its water, according to a letter the EPA sent on July 31 to Tom Reeder, the director of the Division of Water Resources, within the state Department of Environment and Natural Resources.

DENR sets standards limiting surface water pollution, which must meet requirements set by the federal Clean Water Act, a law that tells states how to protect the country’s streams, oceans, rivers and other bodies of water, and mandates restoration of polluted waterways.

Every three years, DENR is required to hold a public hearing on water quality as part of a review process to update rules that aren’t up to par.

But DENR hasn’t updated those rules in six years and is four years behind in asking for public input – the last year it held a hearing was 2006. The 2008-2010 review is ongoing, though it should have been completed in 2009.

“We continue to allow what we now know to be too much pollution to go into our water ways and into our fish, and that is inexcusable,” said Sam Perkins, the Catawba Riverkeeper, who measures damage to the river and reports problems with pollution. “It’s a disservice to the public, to the people of North Carolina, to not even listen to them every three years” in a public hearing.

For many years, the EPA has seen North Carolina as a state that regulates in its own, unique way, like the “good kid” who doesn’t need a lot of hand-holding, said Grady McCallie, policy director for the N.C. Conservation Network. The EPA called the state’s field monitoring and assessing a “model for the nation for more than a decade.” But in recent years, the state has been slipping, McCallie said.

Proposed changes aren’t a fix

The EPA has urged DENR for several years to update regulations governing toxic metals, and phosphorous and nitrogen pollution, said Derb Carter, director of the Southern Environmental Law Center’s North Carolina office.

The agency’s current policies measure the effects of those toxins – they don’t limit the amount deposited into lakes and streams in the first place, he said.

DENR has proposed changes that will bring North Carolina in line with national standards.

Environmentalists say the updates would mark a big step toward cleaner water. They’d make polluting industries more responsible for how much toxic metal they deposit in water, and lower by 10 times the amount of cadmium, a highly toxic metal, allowed in most waters. But at the same time, the EPA is concerned with the “scientific defensibility” of the way DENR wants to measure toxic levels in some cases and said they were not consistent with the Clean Water Act.

Currently, to measure toxic metals in the rivers and lakes across the state, DENR scientists monitor one-millimeter-long water fleas and the flesh of fish that live in those waters. Similarly, they use algae that blooms in phosphorous and nitrogen, two of the state’s most prominent pollutants, to monitor those chemicals’ levels. They want to continue that approach in many instances, but the EPA has termed the method “unacceptable.”

“We have felt for some time that our approach ... is a defensible approach,” said Susan Massengale, spokeswoman for the Division of Water Resources. “And we’ve had a difference in viewpoint with the EPA” recently.

As new facts and technology emerge, DENR works to adjust its methods appropriately – a constantly evolving process, Massengale said. “It’s just a matter of degrees … The goal has not changed, which is to make sure that the waters are still safe for humans, for animals.”

But until the seven-year-old revision process comes to fruition, the methods environmentalists find damaging will continue.

Excessive toxic metals in water can build up in fish’s flesh, reducing their ability to reproduce or killing them, Carter said. Humans can ingest low levels of the metals without repercussions, but over time certain metals like arsenic and cadmium can cause respiratory and other health problems.

The EPA has also addressed phosphorous and nitrogen pollution, which helps algae grow. That extra algae sucks needed oxygen out of lakes and rivers, killing fish and making water more expensive to treat. Lakes in the western mountains, some used for drinking water, are most sensitive to the pollution, McCallie said. But the algae is also found in Jordan Lake, the main source of drinking water for Cary, Apex, Morrisville and part of Wake County; the Neuse River, a major recreational waterway; and the Pamlico River, which is big for fishing.

Holding up the line

Before the state can update its water quality standards, federal law requires it hold public hearings. Businesses, local governments and individuals can raise their voices if they think standards pose unfair barriers or costs to them. Those public comments are considered in drafting the proposed changes.

Dianne Reid, head of the Division of Water Resources planning section, said the state hasn’t held a hearing on its proposed updates because it first needs to determine the financial impact of the new regulations – and that hasn’t been accomplished yet.

A regulatory bill passed in 2011 made writing the fiscal plan more complicated.

“This is much larger and more complex than anything we’ve ever done,” Reid said.

Her staff needs to determine how much the updated toxic metals limits would cost polluting industries, like waste water treatment plants. Each industry requires a separate estimate.

Reid also needs to estimate the financial benefits of the changes – if a river would be designated clean enough for getting some lakes and rivers clean enough for recreational use. They’ve also had to work with industries that are worried the changes will incur steep costs for them.

Coleen Sullins, who led the Division of Water Quality until the end of 2011, said her staff was close to handing the budget over to the Office of State Budget and Management for approval when she left.

She said she was surprised the hearing hadn’t been held by now.

North Carolina hasn’t just lagged behind federal law – it’s still working on regulations other states have already implemented.

Massengale said other states don’t have stringent fiscal planning processes.

Because the process has taken so long – more than double its usual length – DENR has decided to go forward with a public hearing without finishing the fiscal assessment. The hearing could take place as early as October. But since the rule changes aren’t complete, the public would only be able to comment on the current state water quality laws.

Massengale said DENR has no indication of when water quality staff will finish the 2008-2010 process. And DENR won’t know if its proposed changes are consistent with the Clean Water Act until after the EPA’s final evaluation.

If the EPA regional center that covers North Carolina decides the state’s been lagging too long, it can step in.

“Should federal action become necessary, the EPA Administrator has the authority” to rewrite the state’s water standards, but has not made any decisions “regarding follow-up actions” for North Carolina, according to a statement from the regional EPA office.

Workload to increase

This year’s approved state budget cuts $2 million in water quality program funding, and DENR leadership has announced a reorganization of the divisions of Water Quality and Water Resources that is expected to result in layoffs. These changes draw DENR’s focus away from the years-old problem of keeping up with the Clean Water Act, environmentalists say.

A provision in a regulatory overhaul bill, House Bill 74, would give already strained DENR staff members the job of going through environmental regulations already in practice to make sure they’re necessary. Gov. Pat McCrory has expressed doubts about the bill, but it’s unknown if he will veto it.

“It’s not clear how the different pieces in motion now … can possibly help us recover the deficits we already have,” McCallie with the N.C. Conservation Network said. “And it seems likely that they will cause important parts of our program to fall further behind, or disappear altogether.”

Frank: 919-829-4870
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