FISCAL NOTE Rule Citation Number: 15A NCAC 2B.0304 French Broad River Basin

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1 1 FISCAL NOTE Rule Citation Number: 15A NCAC 2B.0304 French Broad River Basin Rule Topic: Reclassification of French Broad River segment to Class Water Supply-IV (WS-IV) Critical Area (CA) DENR Division: Division of Water Quality Staff Contact: Jamie McNees, Environmental Specialist Division of Water Quality (919) Impact Summary: State government: Yes Local government: Yes Substantial impact: No Federal government: No Small Business: No Authority: G.S Necessity: This proposed reclassification is necessary to prepare for future drought emergencies and ensure the supply of drinking water for the city of Hendersonville. Under North Carolina 15A NCAC 18C.0202, any surface water which is to receive treatment in order to be used for a public water system shall be obtained from a source which meets the water supply stream classification standards established by the EMC.... This rule does not: require a federal certification statement under NCGS 150B-21(f1) meet the criterion of Federal Exemption found in NCGS 150B-21.4(b1) meet the criteria listed in NCGS 150B-21 relating to Temporary Rules meet the criteria for a Technical Correction laid out in NCGS 150B-21.5 meet any of the criteria cited in the Help file list of a series of situations which may render a rule obsolete I. Summary The City of Hendersonville ( City ) has requested that a segment of the French Broad River in Henderson County (French Broad River Basin) be reclassified from Class B to WS-IV&B Critical Area 1 (CA). See Appendix 1 for the proposed rule change text. The reclassification would permit the City to place a new water intake in the river. This intake would serve an emergency potable water supply source. If reclassified, regulations affecting new development and wastewater discharges would apply. Currently, there are no wastewater dischargers or developments impacted by this proposal. Henderson County is the only local government that will incur costs due to the rule change and it fully supports the reclassification of these waters (see Appendix 2 for resolution of support from Henderson County Board 1 Critical Area: The lands and waters.5 miles linearly upstream and draining to a water intake

2 2 of Commissioners). The analysis of the proposed rule does not indicate that estimated annual economic impacts will exceed $3 million. The state anticipates the effective date of this reclassification to be to December 1, I. Purpose of Rules and Background The purpose of this rule change is to provide the City with an emergency source of drinking water and a potential permanent source for drinking water if the demand for water exceeds supply at some point in the future. The Division of Water Quality assigns all surface waters a primary classification to designate their best uses. Class C is the most basic classification for freshwater and this classification is intended to protect the following uses: secondary recreation, fishing, wildlife, fish and aquatic life propagation and survival, and agriculture. Secondary recreation includes wading, boating, and other uses involving human body contact with water where such activities take place in an infrequent, unorganized, or incidental manner. Other primary classifications are assigned to protect waters for such uses as shellfishing (Class SA), drinking water supply (WS-I through WS-V), and primary recreation (B). Supplemental classifications afford additional protections, and include Nutrient Sensitive Waters (NSW) and High Quality Waters (HQW). The five drinking water supply classifications, WS-I through WS-V, reflect the variability in the types of water supply watersheds across the state. The Water Supply Watershed Protection Act (North Carolina General Statute ) requires the Environmental Management Commission to adopt rules to protect the state's surface drinking water supply watersheds. The City has requested that a French Broad River segment in Henderson County (French Broad River Basin) be reclassified to from Class B to WS-IV&B CA. For this proposal, the CA would extend along a portion of the French Broad River, from its confluence with the Mills River to a point 0.2 miles downstream of the confluence of the Mills River to the proposed raw water intake. The Protected Area 2 (PA) is already in place due to the presence of two upstream water supply watersheds. See the Guide to Freshwater Classifications Chart (PDF) for the regulations on developments and discharges at the following website: NC Division of Water Resources (DWR) supports the proposed reclassification, 2010 DWQ studies show that the subject waters meet water supply water quality standards, and an Environmental Assessment (EA) for this project received a Finding of No Significant Impact (FONSI). II. Costs Regulated Parties (a) Wastewater Discharge There are no existing wastewater discharges in the proposed water supply watershed. In addition, there are no known planned wastewater discharges into the proposed waters. 2 Protected Area: The lands and waters located approximately 10 miles run-of-the-river upstream and draining to an intake. The Protected Area excludes the Critical Area.

3 3 (b) New Development There are no known plans for new development in the area. (c) Local Governments Henderson County understands that it would be required to modify its water supply watershed ordinances within 270 days after the effective date of the proposed rule to reflect the changes in surface waters classifications and resulting changes in land management requirements. Henderson County supports this reclassification and is willing to make these changes. There are one-time costs associated with the modification of water supply watershed ordinances. These expenditures include costs for revising water supply watershed protection language in the ordinances, changing the water supply boundaries on maps, public notification, and hearing costs. A single local government, a combined regional effort between several local governments, or a paid consulting firm could perform these tasks. The estimated cost of staff time and physical materials required for these activities is $2,700 per Autumn Radcliff, Henderson County Senior Planner. (d) Department of Transportation (DOT) There are no DOT roads in the proposed reclassification area. This reclassification would not affect any known DOT activities in the area. Implementing Agencies (a) Division of Water Quality (DWQ) The NC Division of Water Quality (DWQ) Central office and regional staff will oversee the processing of the proposed rule as well as the implementation and enforcement of the requirements of the proposed rule. DWQ staff will handle administrative procedures and provide educational and technical assistance and rule/policy evaluations. In addition, there are DWQ staff who will specifically oversee and assist local governments with watershed planning and ordinances. The Division has staff who issue permits as well as conduct inspections and take enforcement actions. DWQ monitors and keep records of compliance associated with their inspections and enforcement activities which are based on discharge limits, permits, and other regulations. The time devoted to individual reclassifications varies greatly. The Division of Water Quality anticipates that once this rule is implemented, meaning incorporated into local and state ordinances, there will be a one-time cost of $600, which includes staff time and overhead costs. III. Benefits (a) Humans The population of the City will benefit from the reclassification of this river segment because they will be able to use it as a source of emergency potable water. Reclassifying the waters will help protect the water supply for human consumption by decreasing the risk of contamination via invocation of wastewater discharge and stormwater management requirements for new future developments and discharges. During past droughts, the City has implemented conservation efforts based on the severity of drought. The benefits from this use are dependent on the probability of another drought or other emergency that would negatively affect the current water supply.

4 4 (b) Environment/Ecosystem Land use restrictions that protect water quality through stormwater management strategies and other narrative and numeric water quality standards benefit human health as well as ecosystem health, and environmental assets. The protective management criteria will help to mitigate impacts from new discharges and development, and will also benefit fish and wildlife. More specifically, portions of the area proposed to be reclassified may experience lower levels of development density as well as decreased pollution, which may increase and improve habitat and in turn propagation and survival of aquatic life including wildlife and fish. DWQ currently does not have adequate data and models to quantify the potential benefits associated with the increase in wildlife habitat or reduction of pollution that this rule may create. The analysis of the proposed rule does not indicate that estimated annual economic impacts will exceed $3 million.

5 5 Appendix 1 15A NCAC 02B.0304 FRENCH BROAD RIVER BASIN (EFFECTIVE JULY 1, 2011) (a) The French Broad River Basin Schedule of Classifications and Water Quality Standards may be inspected at the following places: (1) the Internet at and (2) the North Carolina Department of Environment and Natural Resources: (A) Asheville Regional Office 2090 US Highway 70 (B) Swannanoa, North Carolina Division of Water Quality Central Office 512 North Salisbury Street Raleigh, North Carolina. (b) Unnamed Streams. Such streams entering Tennessee are classified "B." (c) The French Broad River Basin Schedule of Classifications and Water Quality Standards was amended effective: (1) September 22, 1976; (2) March 1, 1977; (3) August 12, 1979; (4) April 1, 1983; (5) August 1, 1984; (6) August 1, 1985; (7) February 1, 1986; (8) May 1, 1987; (9) March 1, 1989; (10) October 1, 1989; (11) January 1, 1990; (12) August 1, 1990; (13) August 3, 1992; (14) October 1, 1993; (15) July 1, 1995; (16) November 1, 1995; (17) January 1, 1996; (18) April 1, 1996; (19) August 1, 1998; (20) August ; (21) August 1, 2002; (22) September 1, 2004; (23) November 1, 2007; (24) September 1, 2009; (25) July 1, ; (26) December 1, (d) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective March 1, 1989 as follows: (1) Cataloochee Creek (Index No. 5-41) and all tributary waters were reclassified from Class C-trout and Class C to Class C-trout ORW and Class C ORW. (2) South Fork Mills River (Index No ) down to Queen Creek and all tributaries were reclassified from Class WS-I and Class WS-III-trout to Class WS-I ORW and Class WS-III-trout ORW. (e) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective October 1, 1989 as follows: Cane River (Index No. 7-3) from source to Bowlens Creek and all tributaries were reclassified from Class C trout and Class C to Class WS-III trout and Class WS-III. (f) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective January 1, 1990 as follows: North Toe River (Index No. 7-2) from source to Cathis Creek (Christ Branch) and all tributaries were reclassified from Class C trout and Class C to Class WS-III trout and Class WS-III.

6 6 (g) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective August 3, 1992 with the reclassification of all water supply waters (waters with a primary classification of WS-I, WS-II or WS-III). These waters were reclassified to WS-I, WS-II, WS-III, WS-IV or WS-V as defined in the revised water supply protection rules, (15A NCAC 2B.0100,.0200 and.0300) which became effective on August 3, In some cases, streams with primary classifications other than WS were reclassified to a WS classification due to their proximity and linkage to water supply waters. In other cases, waters were reclassified from a WS classification to an alternate appropriate primary classification after being identified as downstream of a water supply intake or identified as not being used for water supply purposes. (h) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective October 1, 1993 as follows: Reasonover Creek [Index No (1)] from source to Reasonover Lake Dam and all tributaries were reclassified from Class B Trout to Class WS-V and B Trout, and Reasonover Creek [Index No (4)] from Reasonover Lake Dam to Lake Julia Dam and all tributaries were reclassified from Class C Trout to Class WS-V Trout. (i) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective July 1, 1995 with the reclassification of Cane Creek [Index Nos (1) and 6-57-(9)] from its source to the French Broad River from Classes WS-IV and WS-IV Tr to Classes WS-V, WS-V Tr and WS-IV. (j) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective November 1, 1995 as follows: North Toe River [Index Numbers 7-2-(0.5) and 7-2-(37.5)] from source to a point 0.2 miles downstream of Banjo Branch, including tributaries, has been reclassified from Class WS-III, WS-III Trout and WS-III Trout CA (critical area) to Class WS-IV Trout, WS-IV, WS-IV Trout CA, and C Trout. (k) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective January 1, 1996 as follows: Stokely Hollow [Index Numbers (1) and (2)] from source to mouth of French Broad River has been reclassified from Class WS-II and Class WS-II CA to Class C. (l) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended April 1, 1996 with the reclassification of the French Broad River [Index No. 6-(1)] from a point 0.5 miles downstream of Little River to Mill Pond Creek to Class WS-IV; French Broad River [Index No. 6-(51.5)] from a point 0.6 miles upstream of Mills River to Mills River to Class WS-IV CA (Critical Area), from Mills River to a point 0.1 miles upstream of Boring Mill Branch to Class C; and the Mills River [Index No (5)] was reclassified from City of Hendersonville water supply intake to a point 0.7 miles upstream of mouth of Mills River to Class WS-III, and from a point 0.7 miles upstream of mouth of Mills River to French Broad River to Class WS- III CA (Critical Area). (m) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended August 1, 1998 with the revision to the primary classification for portions of the French Broad River [Index No. 6- (38.5)] and the North Toe River 7-2-(10.5) from Class IV to Class C. (n) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended August 1, 1998 with the reclassification of Clear Creek [Index No (1)] from its source to Lewis Creek from Class C Tr to Class B Tr. (o) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended August 1, 2000 with the reclassification of Rough Creek [Index No (1)], including all tributaries, from its source to the Canton Reservoir from Class WS-I to Class WS-I Tr ORW. (p) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended August 1, 2002 with the revision to the primary classification for the French Broad River [Index No. 6-(1), 6-(27), 6- (47.5), 6-(52.5), and 6-(54.5)] including its four headwater forks' mainstems, watershed of tributary Davidson River, and watershed of tributary Bent Creek below Powhatan Dam, and the Nolichucky River [Index No. 7] including a lower portion of the North Toe River from Class C and Class WS-IV to Class B. (q) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended August 1, 2002 with the reclassification of the North Toe River [Index No. 7-2-(0.5)], including all tributaries, from source to a point 0.2 mile upstream of Pyatt Creek, from Class C Tr to Class WS-V Tr. (r) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended September 1, 2004 with the reclassification of a portion of Richland Creek [Index No. 5-16(1)], from source to a point approximately 11.2 miles from source (Boyd Avenue), from Class B to Class B Tr, and all tributaries to the portion of the creek referenced in this Paragraph from C, C HQW, and WS-I HQW, and WS-I HQW to C Tr, C HQW Tr, and WS-I HQW Tr, respectively, except Hyatt Creek [Index No ], Farmer Branch [Index No ], and tributaries already classified as Tr. (s) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective November 1, 2007 with the reclassification of McClure's Bog near Gash Creek [Index No. 6-47] to Class

7 7 WL UWL as defined in 15A NCAC 02B The North Carolina Division of Water Quality maintains a Geographic Information Systems data layer of the UWL. (t) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective September 1, 2009 with the reclassification of the entire watershed of Big Laurel Creek (Index No ) from source to the French Broad River from Class C Tr to Class C ORW Tr. (u) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended effective September 1, 2009 with the reclassification of the entire watershed of Spring Creek [Index No (1) and (27)] from source to the French Broad River from Class C Tr and Class C to Class C ORW Tr and Class C ORW. (v) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended July 1, 2011 with the reclassification of Boylston Creek [Index No (0.5)], from source to a point 0.3 mile upstream of Murray Branch and all tributaries to this portion of the Creek, from Class C to Class C Tr. (w) The Schedule of Classifications and Water Quality Standards for the French Broad River Basin was amended December 1, 2011 with the reclassification of a portion of the French Broad River [Index No. 6-(54.5)] from the confluence of the Mills River to a point 0.2 miles downstream of the confluence of the Mills River from Class B to Class WS-IV&B CA. History Note: Authority G.S ; ; (a)(1); Eff. February 1, 1976; Amended Eff. December 1, 2011; July 1, 2011 (See S.L ); September 1, 2009; November 1, 2007; September 1, 2004; August 1, 2002; August 1, 2000; August 1, 1998; April 1, 1996; January 1, 1996; November 1, 1995; July 1, 1995.

8 8 Appendix 2