Can the North Carolina Environmental Management Commission make farms, developments, and other 'non-point' polluters follow specific best management practices in watersheds where existing water quality is below the standard, like the Neuse River?

NC EMC Has Authority to Adopt Mandatory BMPs for Non-Point Source Pollution Under Classification and Stormwater Statutes (NC AG, December 4, 1995)

Plain-English summary

In 1995, the Neuse River and other NC water bodies were in trouble. Decades of agricultural runoff, urban stormwater, and other non-point pollution had degraded fisheries, caused algal blooms, and threatened drinking water sources. The traditional regulatory tools (permits under Section 402 of the Clean Water Act, point-source discharge limits) addressed pipes and outfalls but not the diffuse sources contributing most of the pollution load.

The Department of Environment, Health, and Natural Resources asked the NC AG whether the Environmental Management Commission had authority to adopt mandatory best management practices (BMPs) for non-point sources, either through:

1. A new "Use Restoration Waters" (URW) supplemental classification that would attach pollution-reduction strategies to impaired waters, or
2. Direct adoption of BMPs in currently classified watersheds where water quality was failing.

The AG answered yes on both questions.

Classification authority (§ 143-214.1). The statute directs and empowers the EMC to develop and adopt classifications and standards for the waters of the state. The Commission has wide latitude to identify waters that should be classified separately and to assign classifications that promote the policy and purposes of the article. A supplemental URW classification for impaired waters fits squarely within that authority. The Commission may attach pollution-management strategies (including mandatory BMPs) to such a classification, so long as the strategies bear a reasonable relationship to the conditions in the impaired waters.

Stormwater authority (§ 143-214.7). The 1989 stormwater statute is the clearest authority for mandatory BMPs. It directs the Commission to "develop and adopt a statewide plan with regard to establishing and enforcing stormwater rules for the purpose of protecting the surface waters of the State." The plan is to address point and non-point sources, and the Commission is directed to phase in rules on a priority basis (classified shellfish waters first, then water-supply watersheds, outstanding resource waters, high-quality waters, and finally "other waters where the Commission finds control of stormwater is needed"). The statute explicitly authorizes site-specific management strategies and mandatory practices for stormwater-borne pollution. The only procedural caveat: before regulating "other waters" under subsection (b)(5), the Commission must consult with the Environmental Review Commission.

The AG's reasoning rested on three points:

1. The EMC's water-classification power under § 143-214.1 is broad. The Commission can define classifications and attach standards. A URW supplemental classification with mandatory pollution-reduction strategies fits within that statutory authority.
2. Section 143-214.7's stormwater authority squarely covers non-point sources. Stormwater is defined as "the flow of water which results from precipitation and which occurs immediately following rainfall or a snow melt," and non-point pollution typically reaches waters through stormwater runoff. The statute directs the Commission to address both point and non-point sources.
3. The factual prerequisite is supported. The Commission and DEHNR must show a factual connection between the sources to be regulated and the water-quality concerns, and the prescribed practices must be necessary to reduce pollutant loading. So long as the data support those findings, the regulatory action is within authority.

The AG did not opine on the specific design of any particular regulatory program. The Commission retained discretion to design the URW classification, the BMP requirements, and the implementation phasing. The opinion stood for the proposition that the Commission had statutory authority for the general approach, not for any specific rule.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC's water-quality and stormwater statutes have been amended several times since 1995. The Neuse River nutrient strategy and similar watershed-specific programs were developed in part on the authority confirmed by this opinion, and the regulatory framework has evolved with subsequent legislation and rulemaking. Any current question should be analyzed under current Title 15A of the NC Administrative Code and current G.S. § 143-214.7 and related provisions.

Background and statutory framework

Non-point source pollution had become the dominant water-quality concern in NC by the mid-1990s. The federal Clean Water Act had largely succeeded in controlling point-source pollution (industrial discharges, sewage treatment plants) through the NPDES permit program under § 402 (33 U.S.C. § 1342). But § 208 of the Act had directed states to address non-point sources through planning rather than through enforceable federal permits, and § 319 grants supported state non-point source management programs but did not require regulatory action.

NC's regulatory definition of non-point source pollution (15A NCAC 2B .0202(36)) tracked the federal approach: pollution that enters waters mainly as runoff from disturbed land and includes any source not requiring a permit under G.S. § 143-215.1(c). That definition encompassed agricultural runoff (animal-feeding operations, crop fields, pasture runoff), urban stormwater, construction-site sedimentation, septic-system effluent, and atmospheric deposition.

The 1995 question reached the AG against the backdrop of two specific concerns:

1. The Neuse River. Sustained nutrient enrichment in the Neuse had caused recurring fish kills and a 1995 algal bloom (associated with the dinoflagellate Pfiesteria piscicida) that gained national attention. The state's existing regulatory tools were not stopping the decline. Hog farm growth in the Neuse basin, increasing development pressure in the upper basin, and historical agricultural practices were all contributing.

2. The URW concept. DEHNR's Division of Environmental Management was developing a "Use Restoration Waters" classification: a supplemental designation for impaired water bodies that would trigger specific pollution-reduction strategies. The question was whether the EMC had authority to create such a classification and to attach mandatory BMPs to it.

The AG's analysis worked through the two statutory authorities in sequence.

Section 143-214.1 (classifications and standards). This statute is the EMC's basic water-classification authority. It directs the Commission to develop classifications, survey waters, identify waters that ought to be separately classified, and assign classifications that promote the policy and purposes of the article. The statute requires the Commission to consider physical, chemical, and biological conditions in developing the most effective program of protection.

The AG read § 143-214.1 as broad enough to support a supplemental URW classification. The Commission could identify impaired water bodies, determine that supplemental protective strategies were necessary, and attach those strategies to the classification. The statute does not require classifications to be tied to point sources only; the Commission can address non-point sources through classification-attached management strategies.

Section 143-214.7 (stormwater rules and programs). This statute, adopted in 1989, is the most direct authority for mandatory BMPs. The opinion quoted the statute at length:

• The statute directs the Commission to develop a statewide plan establishing and enforcing stormwater rules.
• The plan is intended to address both point and non-point sources.
• The Commission may use stormwater rules to protect classified shellfish waters, water-supply watersheds, outstanding resource waters, and to control stormwater runoff in coastal counties and other non-point sources.
• The Commission must phase in the rules on a priority basis: shellfish waters first, then water-supply watersheds, outstanding resource waters, high-quality waters, and finally "other waters where the Commission finds control of stormwater is needed."
• Before regulating "other waters" under subsection (b)(5), the Commission must consult with the Environmental Review Commission.

The AG read § 143-214.7 as squarely authorizing mandatory site-specific BMPs for non-point pollution reaching waters through stormwater. The statute's reference to "best management practices" in subsection (b) is explicit; the statute's coverage of "nonpoint sources" is explicit; the statute's phased-implementation structure provides a roadmap for orderly rulemaking.

The factual-connection requirement. The AG flagged a constraint on the regulatory authority. The Commission's data must support the factual connection that the sources to be regulated are contributing to the water-quality concern, and the BMPs prescribed must be necessary to reduce pollutant loading. That requirement is straightforward in the regulatory context (arbitrary-and-capricious review applies to EMC rules), but it limits the Commission's authority to BMPs grounded in scientific evidence.

The Section 319 process. The AG noted that NC already had a significant non-point source management strategy developed through the federal § 319 Reports process under the Clean Water Act. That work involved multiple state agencies and various voluntary and incentive-based programs. The 1995 opinion did not displace that existing structure; it confirmed that the EMC had authority to add mandatory regulatory action on top of the voluntary § 319 work where conditions warranted.

The opinion's broader policy implication: NC could move from a primarily voluntary non-point source program to a mandatory regulatory approach in impaired watersheds. The Commission gained explicit AG-confirmed authority for the Neuse River nutrient strategy and similar watershed-specific mandatory BMP programs that would follow in the late 1990s and 2000s.

Common questions

What's the difference between point and non-point source pollution?

Point sources discharge through a specific identifiable pipe, ditch, or channel: a sewage treatment plant outfall, an industrial discharge, a stormwater pipe from a regulated facility. Non-point sources are diffuse: agricultural runoff, urban stormwater not channeled through a regulated MS4, sedimentation from construction sites, septic-system discharges. Point sources are typically regulated through individual permits (NPDES); non-point sources have historically been addressed through voluntary practices, planning grants, and (after this opinion) mandatory BMPs in specific watersheds.

What is a "Use Restoration Waters" classification?

A URW classification is a supplemental designation for impaired water bodies. It identifies waters that are failing to support their designated uses (fishing, swimming, water supply) and triggers a specific management strategy aimed at restoration. The 1995 opinion confirmed the EMC's authority to create such a classification under § 143-214.1. The Commission has wide latitude to design what restoration strategies attach to the classification, including mandatory BMPs.

Does this opinion apply to agricultural runoff specifically?

The opinion did not distinguish among non-point source categories. Stormwater carries pollution from agricultural fields, urban surfaces, construction sites, and other diffuse sources. The Commission's authority extends to all of them. As a practical matter, agricultural BMPs are politically contentious, and the Commission has historically proceeded carefully in that area (with extensive stakeholder engagement and phased implementation).

What did "consult with the Environmental Review Commission" mean?

The Environmental Review Commission is a legislative oversight body. Under § 143-214.7(b)(5), before the EMC regulates "other waters" (waters outside the priority categories listed in (b)(1)-(4)), it must consult with the ERC. This is a procedural check, not a substantive veto: the EMC must engage with the legislative oversight body before extending mandatory stormwater rules to non-priority waters, but the ERC does not have authority to block the EMC's rule.

Could the EMC adopt BMPs for hog operations under this authority?

Yes, to the extent hog-operation runoff reached waters through stormwater or contributed to non-point pollution in an impaired watershed. The opinion confirmed the EMC had authority; how to use that authority for specific source categories was a regulatory and political question the Commission would have to work through. Hog-farm regulation became a major focus of NC water policy in the years following this opinion.

How does this relate to the federal Clean Water Act?

The federal Act addresses non-point sources primarily through planning (§ 208) and grants (§ 319), not through enforceable federal permits. States can adopt their own mandatory BMP requirements going beyond federal law. The 1995 AG opinion confirmed NC had statutory authority to adopt such mandatory requirements. NC's regulatory action would supplement (not duplicate) the federal program.

Source

• Landing page: https://ncdoj.gov/opinions/mandatory-best-management-practices-for-non-point-sources-of-pollution/

Citations

• N.C. Gen. Stat. § 143-213(16a) (definition of stormwater)
• N.C. Gen. Stat. § 143-214.1 (water classifications and standards)
• N.C. Gen. Stat. § 143-214.7 (stormwater runoff rules and programs)
• N.C. Gen. Stat. § 143-215.1(c) (point-source permit; defines non-point sources by exclusion)
• 15A NCAC 2B .0202(36) (regulatory definition of non-point source pollution)
• 33 U.S.C. § 1251 et seq. (Clean Water Act)
• 33 U.S.C. § 1329 (Section 319 non-point source management programs)

Original opinion text

December 4, 1995

Linda Bray Rimer
Assistant Secretary for Environmental Protection
Department of Environment, Health & Natural Resources
P. O. Box 27687
Raleigh, North Carolina 27611-7687

Re: Advisory Opinion; Authority of the Environmental Management Commission to Develop Mandatory Best Management Practices for Non-Point Sources of Pollution; G.S. 143-214.1 and 214.7

Dear Assistant Secretary Rimer:

You have requested guidance from this office concerning the general authorities of the Environmental Management Commission (EMC) and the Department of Environment, Health and Natural Resources (DEHNR) to address water quality problems resulting from non-point sources. The questions raised have developed over the years as more data suggest the impairment of our waters may be as much, if not more, the result of collective contributions of pollutants from these sources as from the more traditionally regulated point sources. The immediate concern is triggered both by the regulatory approach proposed by the Division of Environmental Management (DEM) to establish a supplemental classification for Use Restoration Waters (URW), and by the generally poor condition of several rivers in the State, particularly the Neuse.

Non-point source pollution is defined by the EMC as follows: Nonpoint source pollution means pollution which enters waters mainly as a result of precipitation and subsequent runoff from land which has been disturbed as a result of man's activities and includes all sources of water pollution which are not required to have a permit in accordance with G.S. 143-215.1(c). 15A NCAC 2B .0202(36).

In North Carolina, non-point sources have been historically controlled by various regulatory regimes. As early as 1972, the Section 208 program mandated by the federal Clean Water Act (33 USC §1251 et seq.) called upon the State to develop water quality planning strategies which included both point and non-point sources. Later, non-point source management programs were generally addressed through Section 319 Reports (33 USC §1329) prepared for the State by DEM, but including a recitation of the responsibilities and programs of multiple State agencies. It is beyond the scope of this opinion to address the specific statutory authority for, or even the components of, the State's full non-point source management strategy. Rather, we will focus solely on the ability of the EMC to develop mandatory best management practices (BMPs) for the reduction of pollutant contributions from these sources. However, any overall approach of the EMC and DEHNR should continue to recognize and acknowledge the tremendous amount of effort already placed on non-point source management through the Section 319 process.

Boiled to the basics, your questions are whether the General Assembly has authorized the EMC to control the collective contributions of non-point sources through a rule-making effort which either 1) establishes the supplemental URW classification and an accompanying pollution management strategy, or 2) directly adopts best management practices for non-point sources contributing to existing water quality problems in currently classified waters. In our opinion, the answer to both questions is YES; and the particular strategy to be employed is to be determined by the EMC.

The ability to adopt classifications is straightforward, and found in G.S. 143-214.1:

(a) Development and Adoption of Classifications and Standards — The Commission is hereby directed and empowered…:

(1) To develop and adopt, after proper study, a series of classifications and standards applicable to each such classification…;

(2) To survey all the waters of the State and to separately identify all such waters as the Commission believes ought to be classified separately…; and

(3) To assign to each identified water of the State such classification…as the Commission deems proper in order to promote the policy and purposes of this Article most effectively.

The remainder of G.S. 143-214.1 requires the Commission to consider variable factors and conflicting considerations involving the physical, chemical and biological conditions of our waters, in order to develop the most effective program of protection. As the URW program has been described, there are impaired water bodies in North Carolina where designated best uses are not being attained and where supplemental classifications and protective management strategies are desirable. In our opinion, G.S. 143-214.1 provides ample authority for a supplemental URW classification should the EMC find it necessary.

More importantly perhaps, the issue is raised as to whether site-specific measures for non-point sources may be prescribed, by rule, within an individual watershed where water quality is below that required by existing classifications and standards. The site-specific measures may be more commonly referred to as mandatory best management practices. So long as the data of the EMC and the DEHNR support the factual connection that the sources to be regulated are contributing to water quality concerns and that the practices to be prescribed are necessary to reduce various pollutant loading, it is our further opinion there is adequate authority to impose the site-specific measures.

The clearest authority for mandatory best management practices is found in G.S. 143-214.7, adopted in 1989, which establishes a program of phased-in stormwater management for the State. Stormwater is defined at G.S. 143-213(16a) as follows: "…the flow of water which results from precipitation and which occurs immediately following rainfall or a snow melt." G.S. 143-214.7, in pertinent part, reads as follows:

§143-214.7. Stormwater runoff rules and programs.

(a) Policy, Purpose and Intent. — The Commission shall undertake a continuing planning process to develop and adopt a statewide plan with regard to establishing and enforcing stormwater rules for the purpose of protecting the surface waters of the State. It is the purpose and intent of this section that, in developing stormwater runoff rules and programs, the Commission may utilize stormwater rules established by the Commission to protect classified shellfish waters, water supply watersheds, and outstanding resource waters; and to control stormwater runoff disposal in coastal counties and other nonpoint sources. Further, it is the intent of this section that the Commission phase in the stormwater rules on a priority basis for all sources of pollution to the water. The plan shall be applied evenhandedly throughout the State to address the State's water quality in the State and shall revise stormwater runoff rules as necessary to protect water quality. As necessary, the stormwater rules shall be modified to comply with federal regulations.

(b) The Commission shall be authorized and directed to implement stormwater runoff rules and programs for point and nonpoint sources on a phased-in statewide basis. The Commission shall consider standards and best management practices for the protection of the State's water resources in the following order of priority:

(1) Classified shellfish waters;
(2) Water supply watersheds;
(3) Outstanding resource waters;
(4) High quality waters; and
(5) Other waters where the Commission finds control of stormwater is needed to meet the purposes of this Article. Provided however, that prior to implementation of rules under this subdivision (5), the Commission shall consult with the Environmental Review Commission. (emphasis supplied)

It is clear the General Assembly intended this section as the vehicle for the EMC to phase in both point and non-point source controls with regard to pollution carried to our surface waters through precipitation events. Should the EMC find that controls are necessary in currently classified waters to correct water quality concerns, G.S. 143-214.7 would provide the authority for a site-specific management strategy in those watersheds. The only caveat to the EMC moving into this area would be the General Assembly's priorities as established in paragraph (b). Under subparagraph (5) thereof, once the EMC has identified waters where stormwater runoff control is necessary, it is directed to consult with the Environmental Review Commission.

We trust this is responsive to your question. Please advise if you need anything further.

Daniel C. Oakley
Senior Deputy Attorney General