The document below is a collection of letters about the sad state of our waterways – letters directing the NC Department of Environmental Quality to add more streams to North Carolina’s 2024 IMPAIRED WATERWAYS LIST (also known as the “303d List”), which enforces protections, monitoring, restoration and pollution limits for the streams and rivers lucky enough to be listed.
It includes 31 letters by national and state lawyers, conservation advocates, utility directors and concerned citizens, and SEVENTEEN of those are written by JAMESTOWN residents.
Yes. You read that right.
Jamestowners’ concerns about the contaminated waterways in Southern Guilford County make up MORE THAN HALF of this semi-annual Public Comments piece, which includes letters from the Southern Environmental Law Center, Trout Unlimited, NC Wildlife Federation, NC Conservation Network, and river keepers, utility directors and residents from across the state. We extracted the Jamestown letters from the back of the document and put them up front, HERE (use arrows to scroll, or swipe left if reading on a mobile device):
The digital document, titled “All 2024 Comments,” was uploaded yesterday afternoon to the NC Public Records digital archives. A PDF version is below. Thus far, it has not been uploaded or linked to the NC DEQ’s 303(d) web page, nor has anything changed with respect to the first draft of the 2024 303d list that was proposed back in February. In other words, the comments have been received, organized and filed, but nothing has been done with them:
The Southern Environmental Law Center’s Letter
While our (Jamestowners’) comments and data focused on our Deep River/Upper Cape Fear River network (Deep River, Richland Creek, Long Branch, Bull Run, Reddicks Creek, Copper Branch, Randleman Watershed), the SELC lawyers’ 24-page letter was written on behalf of Sound Rivers, the Center for Biological Diversity, Sierra Club, and the Pamlico-Tar, French Broad, Green, Broad and Watauga river keepers.
The issues raised by the SELC attorneys are, unsurprisingly, very similar to the issues we raised in our letters about the absence of water monitoring: failure to properly involve the public; use of outdated (10 years and older) data; misidentification of streams; flawed listing methodology for toxic pollutants that “leaves wildlife and the public at risk,” and the NCDEQ’s nonsensical statement that it will only be “restoring” streams that are already undergoing restoration.
The SELC’s letter starts with a brief overview of the 303(d) Impaired Waterways List and then goes into detail about North Carolina’s “flawed,” “convoluted,” “inadequate” and “statistically unsound” water sampling and toxics methodologies, and – of particular concern in our area which was once home to thriving gold and copper mining operations – failure to prioritize and address impairments caused by pollutants like METALS.
On page 20, second paragraph from the bottom, the SELC attorneys write, “In other words, DEQ is generally prioritizing addressing NON-toxic pollution over toxic pollution.”
BINGO. Exactly what we’ve been saying.
Here are more outtakes from the SELC letter that will sound incredibly familiar to Jamestowners who have been trying for over two years (and literally written hundreds of pages of letters and emails) to get the town, county and state to test, monitor, and update the classifications for Deep River, Bull Run and the streams in our watershed network, and hold the polluters accountable.
Read the SELC’s letter, or these excerpts below, and you’ll see that this deaf-ear, blind-eye approach by our local officials seems to be the norm and not the exception:
“For years, multiple groups—and EPA—have warned DEQ that its listing methodology for toxic pollutants is inappropriate. Those concerns remain, and we incorporate our previous comments by reference.”
“EPA has now been telling DEQ that its listing methodology for toxics is scientifically indefensible for five §303(d) cycles—at least 10 years. Because DEQ has once again declined to adjust its methodology, EPA will again be forced to independently review North Carolina’s water-quality data to determine whether all waterbody impairments were identified. DEQ must act to rectify this longstanding error in its listing methodology.“
“In the past, DEQ has responded to our concerns regarding its listing methodology for toxics by pointing to its previous responses to comments. Those responses do not address the concerns raised above. In 2022, DEQ failed to address our concerns at all.”
“In 2021, DEQ referred to its 2019 response and noted it ‘continues to work towards development of an assessment approach for toxics that addresses both EMC and EPA concerns.’ In 2019, DEQ said that it was ‘work[ing] towards resolution of the disagreement between the state and EPA with regards to the appropriate assessment methodology for toxics.’ These are inadequate responses. DEQ has been promising for years to resolve this issue—it is past time that it acted on that promise.”
“DEQ is failing to conduct adequate sampling. To assess compliance with water-quality standards and identify segments that necessitate a TMDL or other remedy, states must implement monitoring programs sufficient to evaluate trends in water quality. Adequate monitoring programs are also necessary for states to receive funding under Section 106 of the CWA. As noted above, we appreciate that DEQ has recently
struggled to retain and hire sufficient staff but we are troubled by the lack of data that informs 2024 §303(d) list decisions. DEQ must address this problem, potentially by requesting more adequate funding from the North Carolina General Assembly, and otherwise work with EPA to correct this deficiency. Failure to do so puts at risk Section 106 funds and future §303(d) lists.”
“A significant amount of the data used to prepare the §303(d) list is compiled from DEQ’s Ambient Monitoring System and Random Ambient Monitoring System. The Quality Assurance Plans for those programs require DEQ to complete at least 90% of planned sampling events. In 2021, DEQ completed only 72% of sampling events for these programs; that number dropped to 58% in 2022. Both years, the lack of sampling was largely attributable to ‘staffing issues’ — including 94% of the missed sampling events in 2022.”
“This year, to accommodate this lack of data DEQ is augmenting data sets under 10 with the previous five years of data (2013–2017) where available.” While we agree that augmenting data may be appropriate in some situations, the data DEQ is seeking to add here could be more than a decade old. These older data could obscure more recent pollution events—including events that should have been captured by DEQ’s 2021–2022 sampling. While we are sympathetic to DEQ’s staffing difficulties, they should not result in the misidentification of impaired streams. Like other water quality issues in North Carolina, we remain available to work with DEQ to address these shortcomings as appropriate.”
“DEQ failed to involve the public adequately in the development of the 2024 TMDL prioritization. Though DEQ requested public comment on TMDL prioritization, it failed to provide the public with a draft prioritization list or with DEQ’s current prioritization schema. As we understand the process, DEQ waits until it receives public comments on TMDL prioritization to begin compiling its list for EPA. But the public cannot offer informed comments on DEQ’s prioritization list without actually getting to review it or the schema that DEQ used to craft it.”
“The public is also unable to comment on another list—which DEQ calls its “vision list”— that the agency develops in parallel with its TMDL prioritization list. According to DEQ, the vision list comprises the waterbody segments that it plans to prioritize for restoration primarily using watershed management plans either instead of or in conjunction with TMDLs. However, DEQ has never publicly announced the existence of this list, or specifically sought public comment on it. Commenters only became aware of this second list after talking to DEQ staff. If DEQ is developing its vision list in tandem with its TMDL prioritization list, it must publish a draft list for public review and explain how it complements the TMDL prioritization list required by federal law.”
“DEQ’s 2022 prioritization schema prioritizes waters for development of TMDLs primarily by asking when waters were listed and whether the waterbody and pollutant “are good candidates for TMDL development.” It is unclear what DEQ means by “good candidates for TMDL development.” Based on the 2024 public notice and DEQ’s 2022 prioritization list, what makes a waterbody a “good candidate” seems to be: (1) “willing stakeholders are already implementing restoration activities”; (2) the impairment is caused by non-toxic pollutants; and (3) the waterbody has been present on the § 303(d) list for an extended period of time. While we agree the last factor is an appropriate consideration, the first two factors get things backwards. To start, DEQ should be prioritizing impairments that are not already being addressed by third parties. If willing stakeholders are already mitigating and remediating sources of a pollution in a watershed, then there is less practical need to develop a TMDL.”
“Given the large number of impaired waterbodies and DEQ’s limited resources, DEQ should not spend what limited capital it has on developing TMDLs for streams that are already being restored. Instead, it should save its resources for severe impairments that are not likely to improve without state intervention. To be clear, we recognize that stakeholder availability may inform prioritization of restoration plans that are alternatives to TMDLs but DEQ should use its resources to prepare TMDLs for stream segments that would otherwise not be restored.“
“In addition, DEQ should prioritize addressing impairments from toxic metals or carcinogenic pollutants. In 2022, TMDL priorities rated as “high” included chlorophyll and turbidity impairments, while priorities rated as “low” include impairments from arsenic, copper, dioxin, hexavalent chromium, mercury, nickel, zinc, and polychlorinated biphenyls. In other words, DEQ is generally prioritizing addressing non-toxic pollution over toxic pollution“
Spencer Scheidt, Staff Attorney
Patrick Hunter, Senior Attorney
Southern Environmental Law Center
cc (by email): Marion Hopkins, Environmental Protection Agency
Michele Wetherington, Environmental Protection Agency
Chris Ventaloro, DEQ
Pam Behm, DEQ
Paul Wojoski, DEQ
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