Agenda 11-02-23; 4-a - Resolution Endorsing Consensus Principles II for Revised Falls Lake Rules

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=23 the ability of the lake to meet chlorophyll-a water quality criteria regardless of the nutrient load reductions achieved. In the 2010 Fiscal Analysis for Proposed Nutrient Strategy for Falls of Neuse Reservoir(hereinafter DWR Fiscal Analysis), DWR estimated compliance with Falls Lake Rules to cost$1.54 billion, with $604 million for Stage I requirements and $946 million for Stage II requirements. According to the USEPA Municipal Preliminary Screener, Stage II reductions alone ranked as a "Large Impact"to affected communities with each household contributing approximately$1,400 per year(Cardno ENTRIX 2013). The DWR Fiscal Analysis described its cost estimates as "conservative high-end" because it assumed that technological advancements would lead to more effective nutrient removal measures and more cost-effective compliance options before the Rules took effect(DWR 2010). However, the analysis also presented evidence that costs could be much higher and nutrient reductions could be impossible to meet. Using a watershed assessment of Ellerbe Creek conducted by the City of Durham, DWR extrapolated data to estimate a total, high-end cost of the Rules. The resulting estimate was $1.5 billion to achieve one third of nitrogen reductions and one half of phosphorus reductions required by the Rules. DWR addressed this possibility: "This suggests a much greater ultimate cost than we have estimated as high-end, or simply unachievable reductions. We expect, however, that more cost-effective solutions to conventional BMP [best management practices] retrofits will continue to emerge, making costs of this nature unnecessary" (DWR 2010, p.85). The 2011 Rules established two portions of Falls Lake for assessing compliance: upstream and downstream of Highway 50. These portions are called assessment units (AUs) which are used under NC's 303(d) assessment process to determine compliance with water quality standards as required under Section 303(d) of the Federal Clean Water Act. NC has incrementally increased the number of AUs in Falls Lake over the past two decades to 12 AUs. The UNRBA has sought to stabilize the 303(d) process to be consistent with the Rules. The UNRBA offered the following comments to the EMC in a letter dated February 18, 2022: "The current dynamic assessment approach (changing AU's) represents a moving target and results in considerable confusion about attaining and maintaining compliance with the water quality standard. Consistent AUs should be established based on the lakes limnologic and morphologic characteristics consistent with EPA guidance. It is also important that the assessment approach be aligned with the management strategy laid out in the Falls Lake Rules. The Draft IR [now final] now includes 12 assessment units (7 upstream and 5 downstream of Highway 50). Falls Lake has a robust monitoring program performed by both the Division of Water Resources and the Center for Applied Aquatic Ecology. Combined, this effort represents approximately 28 monitoring stations in the lake. Applying the current Assessment Methodology continues to increase the number of Assessment Units and challenges the ability of ever attaining the water quality standard for chlorophyll-a in Falls Lake. This "station-by-station" approach does not reflect the physical morphology of the lake. Since the 2008 water quality assessment the number of AUs for Falls Lake has changed from 2 to 12. The increasing number of units has not been due to changes in standards or classification or even designated uses. Rather, it represents the expansion of data collection and the variability of the monitoring results." The established path for addressing waters that are not meeting water quality standards is laid out in the Federal Clean Water Act(first adopted in 1972). It is a model that has resulted in dramatic improvement of water quality across the country. Companion legislation in NC has been consistent with this framework. It is a "command and control"framework that is based on clear cause and effect of identified pollutant sources impacting downstream water quality. It has worked extremely well when the need for reduced pollution is primarily due to point sources or specific land use activities. 4