A BILL TO BE ENTITLED
AN ACT to provide for implementation of federal phase II stormwater management requirements, as recommended by the environmental review commission.
The General Assembly of North Carolina enacts:
SECTION 1.  Phase II Stormwater Permit Application and Standards. – An application for a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management submitted by an owner or operator of a small municipal separate storm sewer system (MS4) located in whole or in part within an urbanized area as designated by the 1990 or 2000 census by the Bureau of the Census shall be deemed timely received if the application was submitted to the Department in accordance with the application schedule set out in Section 6 of the temporary rule adopted by the Environmental Management Commission on 10 October 2002.  To obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management under this Section, an applicant shall develop, implement, and enforce a stormwater management plan approved by the Department that satisfies the six minimum control measures required by 40 Code of Federal Regulations § 122.34(b) (1 July 2003 Edition).  The evaluation of the postconstruction stormwater management measures required by 40 Code of Federal Regulations § 122.34(b)(5) (1 July 2003 Edition) shall be conducted as provided in Section 10 of the temporary rule adopted by the Environmental Management Commission on 10 October 2002.  A municipality with a population of less than 1,000, including a municipality designated by the 1990 or 2000 census, is not required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management unless the municipality is shown to be contributing to an impairment of State waters, as determined under the requirements of § 33 U.S.C. 1313(d).
SECTION 2.  New Development. – New development or redevelopment in any area designated as an urbanized area under the 1990 or 2000 census by the Bureau of the Census or designated under procedures established in Section 7 of this act, and located in a local planning jurisdiction that does not administer either a Phase I or Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management or a local stormwater management program approved pursuant to Section 5 of this act shall comply with the standards set out in Section 10 of the temporary rule adopted by the Environmental Management Commission on 10 October 2002.  The Department shall administer and enforce these standards in these areas.  A public entity may request that the Department delegate administration and enforcement of the stormwater management program to the public entity as provided in Section 5 of this act.
SECTION 3.  Coordination of Phase II and other Stormwater Management Programs. – In any circumstance where any stormwater control requirement under a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management conflicts or overlaps with any stormwater control requirement under any other water quality program, the more stringent requirement shall apply.  The Secretary of Environment and Natural Resources or the Secretary's designee shall resolve any dispute as to whether there is a conflict or overlap between or among stormwater management requirements and shall determine which requirement shall be deemed the most stringent.
SECTION 4.  General Permit. – After the Department has issued a Phase II National Pollutant Discharge Elimination System (NPDES) general permit for stormwater management, a public entity that has applied for a permit under Section 1 of this act may submit a notice of intent to be covered under the general permit to the Department.  The Department shall treat an application for a permit under Section 1 of this act as an application for an individual permit unless the applicant submits a notice of intent to be covered under a general permit under this Section.
SECTION 5.  Delegation. – A public entity that does not administer a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management throughout the entirety of its planning jurisdiction and whose planning jurisdiction includes an area designated as an urbanized area under the 1990 or 2000 census by the Bureau of the Census or a local government designated pursuant to Section 7 of this act may submit a stormwater management program for its jurisdiction or a portion of its jurisdiction to the Department for approval.  To this end public entities are authorized to adopt ordinances and regulations necessary to establish and enforce stormwater management programs. Public entities are authorized to create or designate agencies or subdivisions to administer and enforce the programs. An ordinance or regulation adopted by a public entity shall at least meet and may exceed the minimum requirements of this act and the six minimum control measures required by 40 Code of Federal Regulations § 122.34(b) (1 July 2003 Edition). Two or more public entities are authorized to establish a joint program and to enter into any agreements that are necessary for the proper administration and enforcement of the program. The resolutions establishing any joint program must be duly recorded in the minutes of the governing body of each public entity participating in the program, and a certified copy of each resolution must be filed with the Department.  The Department shall review each program submitted and within 90 days of receipt thereof shall notify the public entity submitting the program that it has been approved, approved with modifications, or disapproved. The Department shall only approve a program upon determining that its standards equal or exceed those of this act and the six minimum control measures required by 40 Code of Federal Regulations § 122.34(b) (1 July 2003 Edition).  If the Department determines that any public entity is failing to administer or enforce an approved stormwater management program, it shall notify the public entity in writing and shall specify the deficiencies of administration and enforcement. If the public entity has not taken corrective action within 30 days of receipt of notification from the Department, the Department shall assume administration and enforcement of the program until such time as the public entity indicates its willingness and ability to resume administration and enforcement of the program.
SECTION 6.  Phase II Stormwater Implementation Deadlines. – 
(1)	For a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management application submitted by an owner or operator of a small municipal separate storm sewer system (MS4) located in whole or in part within an urbanized area as designated by the 1990 census by the Bureau of the Census, the Department shall send a draft permit decision to public notice by 1 November 2004.
(2)	For a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management application submitted by an owner or operator of a small municipal separate storm sewer system (MS4) located in whole or in part within an urbanized area as designated by the 2000 census by the Bureau of the Census, the Department shall send a draft permit decision to public notice by 1 May 2005.
(3)	A public entity shall adopt postconstruction stormwater management measures that become effective within 24 months after the date on which a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management is issued.
SECTION 7.  Designation. – A public entity may be designated as a regulated entity through federal designation, through a State designation process, or under a total maximum daily load (TMDL) implementation plan as follows:
(1)	Federal Designation. – A public entity that owns or operates a small municipal separate storm sewer system (MS4) may be designated as a regulated entity pursuant to 40 Code of Federal Regulation § 122.32 (1 July Edition).
(2)	State Designation Process. – The Department shall designate a public entity as a regulated entity as provided in this subdivision.
a.	General Criteria. – The Department shall designate a public entity as a regulated entity based on the public entity's potential to adversely impact water quality. An adverse impact on water quality includes any activity that has a significant adverse habitat or biological impact or that violates water quality standards, including, but not limited to, impairment of designated uses. 
b.	Designation Schedule. – The Department shall implement the designation process in accordance with the schedule for review and revision of basinwide water quality management plans as provided in G.S. 143‑215.8B(c).
c.	Identification of Candidate Regulated Entities. – The Department shall identify public entities as candidates for designation as a regulated entity based on the following criteria:
1.	Municipalities. – A municipality shall be identified as a candidate for designation as a regulated entity if its total population is greater than 10,000 and its population density is at least 1,000 people per square mile.
2.	Counties. – A county shall be identified as a candidate for designation as a regulated entity if the county municipal and nonmunicipal total population is greater than 45,000 persons.
3.	Other public entities. – A public entity shall be identified as a candidate for designation as a regulated entity if it is a municipality located within a designated county or is an owner or operator of a municipal separate storm sewer system (MS4).
d.	Notice and Comment on Candidacy. – The Department shall notify each public entity identified as a candidate for designation as a regulated entity. After notification of the public entities, the Department shall publish a list of public entities within a river basin identified as candidates for designation as regulated entities. The Department shall accept public comment on the proposed designation of a public entity as a regulated entity for a period of not less than 30 days.
e.	Designation of Regulated Entities. – After review of the designation criteria and review of public comments received, the Department shall make a determination on designation for each of the candidates. The Department shall designate a candidate public entity as a regulated public entity if the Department determines that the public entity either:
1.	Discharges or has the potential to discharge stormwater to sensitive receiving waters in an area with: (i) an actual population growth rate that exceeds 1.3 times the State population growth rate for the previous 10 years; (ii) a projected population growth rate that exceeds 1.3 times the projected State population growth rate for the next 10 years; or (iii) an actual population increase that exceeds fifteen percent (15%) of its previous population for the previous two years.
2.	Provides a significant contribution of pollutants to sensitive receiving waters, taking into account the effectiveness of other applicable water quality protection programs. To determine the effectiveness of other applicable water quality protection programs, the Department shall consider the water quality of the receiving waters and whether the waters support the uses set out in subsections (c), (d), and (e) of 15A NCAC 2B .0101 (Procedures for Assignment of Water Quality Standards – General Procedures) and the specific classification of the waters set out in 15A NCAC 2B .0300, et seq. (Assignment of Stream Classifications).
f.	Notice of Designation. – The Department shall provide written notice to each public entity of its designation determination. For a public entity designated as a regulated entity, the notice shall state the basis for the designation and the date on which the Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management must be submitted to the Department.
(3)	Designation Under a Total Maximum Daily Load (TMDL) Implementation Plan. – The Department shall designate an owner or operator of a small municipal separate storm sewer system (MS4) as a regulated entity if the municipal separate storm sewer system (MS4) is specifically listed by name as a source of pollutants for urban stormwater in a total maximum daily load (TMDL) implementation plan developed in accordance with subsections (d) and (e) of 33 U.S.C. § 1313.
SECTION 8.  Petition Process. – A petition may be submitted to the Department to request that an owner or operator of a municipal separate storm sewer system (MS4) or a person who discharges stormwater be required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management as follows:
(1)	Connected Discharge Petition. – An owner or operator of a permitted municipal separate storm sewer system (MS4) may submit a petition to the Department to request that a person who discharges into the permitted municipal separate storm sewer system (MS4) be required to obtain a separate Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management. The Department shall grant the petition and require the person to obtain a separate Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management if the petitioner shows that the person's discharge flows or will flow into the permitted municipal separate storm sewer system (MS4).
(2)	Adverse Impact Petition. – Any person may submit a petition to the Department to request that an owner or operator of a municipal separate storm sewer system (MS4) or a person who discharges stormwater be required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management.
a.	Petition Review. – The Department shall grant the petition and require the owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management if the petitioner shows any of the following:
1.	The municipal separate storm sewer system (MS4) or the discharge discharges or has the potential to discharge stormwater to sensitive receiving waters in an area with: (i) an actual population growth rate that exceeds 1.3 times the State population growth rate for the previous 10 years; (ii) a projected population growth rate that exceeds 1.3 times the projected State population growth rate for the next 10 years; or (iii) an actual population increase that exceeds fifteen percent (15%) of its previous population for the previous two years.
2.	The municipal separate storm sewer system (MS4) or the discharge provides a significant contribution of pollutants to sensitive receiving waters.
3.	The municipal separate storm sewer system (MS4) or the discharge is specifically listed by name as a source of pollutants for urban stormwater in a total maximum daily load (TMDL) implementation plan developed in accordance with subsections (d) and (e) of 33 U.S.C. § 1313.
b.	Types of Evidence for Required Showing. – Petitioners may make the required showing by providing to the Department the following information:
1.	Monitoring data that includes, at a minimum, representative sampling of the municipal separate storm sewer system (MS4) or discharge and information describing how the sampling is representative. The petitioner must notify the owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater of its intent to conduct monitoring activities prior to conducting those activities.
2.	Scientific or technical literature that supports the sampling methods.
3.	Study and technical information on land uses in the drainage area and the characteristics of stormwater runoff from these land uses.
4.	A map that delineates the drainage area of the petitioned entity; the location of sampling stations; the location of the stormwater outfalls in the adjacent area of the sampling locations; general features, including but not limited to, surface waters, major roads, and political boundaries; and areas of concern regarding water quality.
5.	For stormwater discharges to impaired waters, documentation that the receiving waters are impaired or degraded and monitoring data that demonstrates that the municipal separate storm sewer system (MS4) or discharge contributes pollutants for which the waters are impaired or degraded.
6.	For stormwater discharges to nonimpaired waters, monitoring data that demonstrates that the owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater is a significant contributor of pollutants to the receiving waters. 
c.	Water Quality Protection Program Offset. – If the petitioner makes the required showing, the Department shall review the effectiveness of any existing water quality protection programs that may offset the need to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management. To determine the effectiveness of other applicable water quality protection programs, the Department shall consider the water quality of the receiving waters and whether the waters support the uses set out in subsections (c), (d), and (e) of 15A NCAC 2B .0101 (Procedures for Assignment of Water Quality Standards – General Procedures) and the specific classification of the waters set out in 15A NCAC 2B .0300, et seq. (Assignment of Stream Classifications).
(3)	Petition Administration. – The Department shall process petitions in the following manner:
a.	The Department shall only accept petitions submitted on Department forms.
b.	A separate petition must be filed for each municipal separate storm sewer system (MS4) or discharge.
c.	The Department shall evaluate only complete petitions. The Department shall make a determination on the completeness of a petition within 90 days of receipt of the petition or it shall be deemed complete. If the Department requests additional information, the petitioner may submit additional information and the Department will determine, within 90 days of receipt of the additional information, whether the information completes the petition.
d.	The petitioner shall provide a copy of the petition and a copy of any subsequent additional information submitted to the Department to the chief administrative officer of the municipal separate storm sewer system (MS4) or the person in control of the discharge within 48 hours of each submittal.
e.	The Department shall post all petitions on the Division Web site and maintain copies available for inspection at the Division's office. The Department shall accept and consider public comment for at least 30 days from the date of posting.
f.	The Department may hold a public hearing on a petition and shall hold a public hearing on a petition if it receives a written request for a public hearing within the public comment period and the Department determines that there is a significant public interest in holding a public hearing. The Department's determination to hold a public hearing shall be made no less than 15 days after the close of the public comment period. The Department shall schedule the hearing to be held within 45 days of the close of the initial public comment period and shall accept and consider additional public comment through the date of the hearing.
g.	An additional petition for the same municipal separate storm sewer system (MS4) or discharge received during the public comment period shall be considered as comment on the original petition. An additional petition for the same municipal separate storm sewer system (MS4) or discharge received after the public comment period ends and before the final determination is made shall be considered incomplete and held pending a final determination on the original petition.
1.	If the Department determines that the owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater is required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management, any petitions for that municipal separate storm sewer system (MS4) or discharge that were held shall be considered in the development of the Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management.
2.	If the Department determines that the owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater is not required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management, an additional petition for the municipal separate storm sewer system (MS4) or discharge must present new information or demonstrate that conditions have changed in order to be considered. If new information is not provided, the petition shall be returned as substantially incomplete.
h.	The Department shall evaluate a petition within 180 days of the date on which it is determined to be complete. If the Department determines that the owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater is required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management, the Department shall notify the owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater within 30 days of the requirement to obtain the permit. The owner or operator of the municipal separate storm sewer system (MS4) or the person who discharges stormwater must submit its application for a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management within 18 months of the date of notification.
SECTION 9.  Model Ordinance. – Pursuant to G.S. 143‑214.7(c), the Environmental Management Commission shall develop a model ordinance in cooperation with local governments and other interested parties that shall allow the use of both structural and nonstructural best management practices adequate to meet the standards.  The design manual and model ordinance shall be completed by 1 October 2005.
SECTION 10.  Design Manual. – Consistent with G.S. 150B‑2(8a)h., the Division, in consultation with the Division of Land Resources, Division of Soil and Water Conservation, and North Carolina State University, shall develop a design manual to provide assistance in determining which controls are best suited to the unique characteristics of the permittee.
SECTION 11.  Definitions. – The following definitions apply to this act:
(1)	The definitions set out in 40 Code of Federal Regulations § 122.2 (Definitions) and § 122.26(b) (Storm Water Discharges) (1 July 2003 Edition).
(2)	The definitions set out in G.S. 143‑212 and G.S. 143‑213.
(3)	The definitions set out in 15A NCAC 2H .0103 (Definitions of Terms).
(4)	"Built‑upon area" means that portion of a development project that is covered by impervious or partially impervious surface including, but not limited to, buildings; pavement and gravel areas such as roads, parking lots, and paths; and recreation facilities such as tennis courts. "Built‑upon area" does not include a wooden slatted deck or the water area of a swimming pool.
(5)	"Department" means the Department of Environment and Natural Resources.
(6)	"Division" means the Division of Water Quality in the Department.
(7)	"Population density" means the population of an area divided by the area's geographical measure in square miles, equal to persons per square mile. For the purposes of this definition, the population shall equal the sum of the permanent and seasonal populations as determined by the Department or calculated by the Department from a measure of housing unit density.
(8)	"Public entity" means the United States; the State; or a city, village, township, county, school district, public college or university, single purpose governmental agency; or any other governing body that is created by federal or State law.
(9)	"Redevelopment" means any rebuilding activity other than a rebuilding activity that results in no net increase in built‑upon area and provides equal or greater stormwater control than the previous development.
(10)	"Regulated entity" means any public entity that must obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management.
(11)	"Sensitive receiving waters" means any of the following:
a.	Waters that are classified as high quality, outstanding resource, shellfish, trout, or nutrient sensitive waters in accordance with subsections (d) and (e) of 15A NCAC 2B .0101 (Procedures for Assignment of Water Quality Standards – General Procedures).
b.	Waters that are occupied by or designated as critical habitat for aquatic animal species that are listed as threatened or endangered by the United States Fish and Wildlife Service or the National Marine Fisheries Service under the provisions of the Endangered Species Act of 1973 (Pub. L. No. 93‑205; 87 Stat. 884; 16 U.S.C. §§, 1531 et seq.), as amended.
c.	Waters for which the designated use, as described by the classification system set out in subsections (c), (d), and (e) of 15A NCAC 2B .0101 (Procedures for Assignment of Water Quality Standards – General Procedures), have been determined to be impaired in accordance with the requirements of subsection (d) of 33 U.S.C. § 1313.
(12)	"Significant contributor of pollutants" means a municipal separate storm sewer system (MS4) or a discharge that contributes to the pollutant loading of a water body or that destabilizes the physical structure of a water body such that the contribution to pollutant loading or the destabilization may reasonably be expected to adversely affect the quality and uses of the water body. Uses of a water body shall be determined pursuant to 15A NCAC 2B .0211 through 15A NCAC 2B .0222 (Classifications and Water Quality Standards Applicable to Surface Waters and Wetlands of North Carolina) and 15A NCAC 2B .0300, et seq. (Assignment of Stream Classifications).
(13)	"Total maximum daily load (TMDL) implementation plan" means a written, quantitative plan and analysis for attaining and maintaining water quality standards in all seasons for a specific water body and pollutant.
(14)	"Total population" means the combined permanent and seasonal population of an area as determined from the most recent data available from local, State, or federal sources.
SECTION 12.  Construction of Act. – 
(1)	Nothing in this act shall be construed to limit the authority of the Environmental Management Commission or any unit of local government to adopt stormwater management requirements that exceed the requirements of this act.
(2)	This act shall not be construed to affect pending litigation.
SECTION 13.  Section 2 of this act becomes effective 1 July 2006.  All other sections of this act become effective when the act becomes law.